State News

Seriously, WTF? (What's This Fee?)
 

As previously mentioned, House Bill 2702 would have revised portions of the Labor Code by tagging insurance carriers with an additional expense: a fee for a missed medical examination.  The bill failed to pass the Senate in May 2023, but its most dubious component has found new life in the DWC’s proposed Rule 134.240(b).  

Under the newly drafted rule, an injured worker who fails to attend an examination by a designated doctor would endure the eternal ignominy of subjecting his or her workers’ compensation carrier to an additional $100.00 fee. That’ll show ‘em!

You read that correctly—the insurance carrier would be subjected to what amounts to a fine for an AWOL claimant’s missed DD exam.  (And in case you were wondering, no, the rule does not permit an insurance carrier to take a credit for that fee from later benefits.)

This change to DD exam billing is intended, one assumes, to offset the lost time from patients and the general inconvenience experienced by doctors whose examinees are M.I.A.  However, imposing an additional fee on the insurance carrier for the injured worker’s truancy may invite challenges over the perceived fairness of the measure, especially in instances where the missed exam was requested by the Claimant or Claimant’s attorney; the proposed rule does not take into consideration the party that sought the exam.

Copyright 2023, Stone Loughlin & Swanson, LLP

Tennessee Enacts Workers’ Compensation Statutory Changes Addressing Penalties, Attorney’s Fees, Death Benefits, and PTSD for Firefighters

June 2023

On April 13, 2023, Tennessee Governor Bill Lee Signed Public Chapter 145, which brought about changes impacting several different areas of the Tennessee Workers’ Compensation Law.

I.                     Penalties for Failure to Pay Medical Expenses Pursuant to Court Order

Under current law, Tenn. Code. Ann. § 50-6-118(d)(1) provides that if an employer or workers’ compensation insurance carrier “wrongfully” fails to reimburse an employee for medical expenses paid by the employee within 60 days of a settlement or court order, or if an employer or workers’ compensation insurance carrier fails to provide medical treatment pursuant to a settlement or court order, then a penalty can be assessed in an amount up to 25% of the medical expenses. Before this penalty is applicable, the employer or carrier must have acted “in bad faith.” Public Chapter 145 will lower the standard necessary for the imposition of this penalty. First, it changes the standard from “wrongfully” to “unreasonably.” Second, it removes the requirement of “in bad faith.” These changes should lower the standard for employers and carriers to be penalized for these infractions. However, Public Chapter 145 did add additional language relieving employers and carriers from liability for this penalty if the medical expense/treatment is paid/authorized within 60 days after receiving information and documentation reasonably necessary to determine compensability and to issue payment.

II.                   Court Approval of Attorney’s Fees

Under current law, the reasonableness of employee’s attorney’s fees is subject to approval of the workers’ compensation judge. However, the current statute also removes the judge’s discretion to reject an attorneys’ fee if the fee does not exceed 20% of the award to the employee. This was confirmed by the Workers’ Compensation Appeals Board and Special Workers’ Compensation Appeals Panel in Henderson v. Pee Dee Country Enterprises. Public Chapter 145 is clearly a response to the Henderson ruling, since it removes the requirement that the workers’ compensation judge must approve an employee’s attorney fee as long as it does not exceed 20% of the award. This effectively restores the judge’s discretion to approve or reject an attorney’s fee, even if the fee is less than 20% of the employee’s award.

III.                 Attorney’s Fees for Failure to Provide Workers’ Compensation Benefits

Under current law, a workers’ compensation judge has the authority to award reasonable attorney’s fees and reasonable costs when the employer “wrongfully” denies a claim, or “wrongfully” fails to timely provide medical benefits, temporary or partial disability benefits, or death benefits, if the judge makes a finding that the benefits were owed at an expedited hearing or compensation hearing. Public Chapter 145 retains this provision but changes the applicable standard from “wrongfully” to “unreasonably.” Also, the applicability of this authority is extended to dates of injury through June 30, 2025.

IV.                Admissibility of C-32 Medical Reports 

Current Law requires that C-32 medical reports must bear the doctor’s original signature to be admissible. A reproduced report is not admissible unless accompanied by an originally signed affidavit from the doctor verifying its contents. Public Chapter 145 will relax that standard by allowing the report to bear either an original signature or electronic signature of the doctor. It will also allow a reproduced copy to the same extent as the original report unless a genuine question is raised as to its authenticity.

V.                  Written Mediated Settlement Agreement 

Under current law, if the parties reach a full and final settlement through mediation, then the mediator must reduce the settlement to writing. Public Chapter 145 will allow either the mediator, or one party’s legal representative to draft a written settlement agreement.

VI.                Death Benefits Payable from the Uninsured Employers Fund 

Current law provides that the Uninsured Employers Fund may be used to pay temporary disability benefits and medical benefits to any eligible employee who suffered a compensable injury while working for an employer who failed to properly secure workers’ compensation insurance coverage. Public Chapter 145 will expand the scope of that fund to also allow the payment of death benefits, when applicable, and the maximum cap is raised from $40,000.00 to $60,000.00.

VII.               Certified Physician Program 

Public Chapter 145 authorized the creation of a voluntary physician education program that provides an additional reimbursement under the medical fee schedule for Bureau-certified physicians. The two main goals of the program are increasing access for injured workers to trained physicians and reducing the number of days that injured workers are out of work.

VIII.             Effective Dates 

The changes discussed above in section III, pertaining to Attorney’s Fees for Failure to Provide Workers’ Compensation Benefits, went into effect when Governor Lee signed the Public Chapter 145 on April 13, 2023.  All other changes will go into effect on July 1, 2023.

On April 17, 2023, Tennessee Governor Bill Lee Signed Public Chapter 158, which brought about changes impacting death benefits.

I.                     Remarriage of Surviving Spouse 

Under current law, upon the remarriage of a surviving spouse, if there is no child of the deceased employee, then periodic death benefits terminate. However, Public Chapter 158 provides that in this scenario, the periodic benefits will still terminate but the surviving spouse is entitled to a lump sum payment equal to 100 weeks based on 25% of the deceased employee’s average weekly wages.

 II.                Increased Percentage of Death Benefits 

Under current law, there are certain scenarios where the qualifying dependent is entitled to death benefits based on 50% of the deceased employee’s average weekly wages – such as where there is a surviving spouse with no dependent children, or a single dependent orphan.  Public Chapter 158 increases benefits in each of those scenarios to 66 2/3% of the deceased employee’s average weekly wage.

III.                 Educational Requirements for Continued Periodic Death Benefits to Orphans 

Generally, periodic death benefits to dependent orphans will terminate when the orphan reaches the age of 18. However, under current law, benefits can continue until age 22 if the child is attending a recognized educational institution. Public Chapter 158 clarifies that this includes completing secondary education or a program leading to an equivalent credential, or enrolled in a recognized institution that provides postsecondary career or technical education.

IV.                Certification of Continued Eligibility 

Public Chapter 158 creates a new right for employers/carriers who are paying periodic death benefits, in that they can now periodically require a dependent to provide information about whether the dependent continues to qualify for benefits. Benefits may be suspended if the dependent fails to provide the requested information within 15 days after receipt of the request.

V.                  Effective Date 

Public Chapter 158 takes effect July 1, 2023.

On May 17, 2023, Tennessee Governor Bill Lee Signed Public Chapter 465, which creates a statutory causation presumption for firefighters with PTSD.

I.                     Name of the Act 

This law is known as the James “Dustin” Samples Act.

II.                   Definition of “Firefighter”

For purposes of this act, “firefighter” means a regular or full-time, paid employee of the fire department of a municipality, county, municipal form of government, or other political subdivision of the state. It includes employees whose previous duties required the employee to respond to and be actively engaged in fire suppression, rescue services, or other emergency response tasks.

III.                 Presumption 

If a firefighter is diagnosed with post-traumatic stress disorder (PTSD) by a mental health professional because of one or more specified types of incidents, then the injury is presumed to have been incurred in the line of duty and is compensable under the workers’ compensation law, unless it is shown by a preponderance of the evidence that the PTSD was caused by non-service-connected factors. The types of incidents that may give rise to this presumption are: (a) directly witnessing the death of a minor, or treating the injury of a minor who subsequently died; (b) directly witnessing an individual whose death involved a serious bodily injury of a nature that shocks the conscience; (c) responding to an event where there was a victim with a serious bodily injury that shocks the conscience; or (d) responding to an event where a responder, co-worker of a responder, or family member of a responder sustained a serious bodily injury or died.

IV.                Date of Diagnosis 

This presumption applies to a firefighter who is diagnosed with PTSD within one year of the firefighter’s final date of employment with the fire department.

V.                  Exception for Disciplinary Action 

A mental condition resulting solely from disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or similar action taken in good faith by the employer is not considered an injury sustained in the line of duty.

VI.                Grant Program 

Public Chapter 465 requires the Department of Labor and Workforce Development to establish and administer a grant program to mitigate the costs to an employer of providing workers’ compensation for firefighters diagnosed with PTSD. The Department may award an employer a grant if the employer provides mental health awareness training for its personnel.

VII.               Effective Date 

This act takes effect January 1, 2024.


For any questions, please contact:
Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax: 931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com

by Jenna Christensen | Jun 21, 2023 | Workers' Compensation

In law school, one of the first concepts taught is the proverbial “eggshell” Plaintiff. The doctrine means that you take the victim (or in workers’ compensation cases, the employee) as you find him or her. In real world terms, some employees may be hired with absolutely no pre-existing problems while others may have a number of comorbidities that make them more susceptible to injury. However, the employee’s susceptibility to injury is not a defense to an otherwise compensable workers’ compensation claim.

The vast majority of workers’ compensation cases in Nebraska involve an employee with some extent of a pre-existing medical condition. However, the law is very clear: An injury, disability, or death that is solely the result of the normal progression of a preexisting condition or that is due to natural, idiopathic causes, although occurring while the employee is at work, is not compensable. Neb. Rev. Stat. § 48-151(4). Alternatively, if the work-related accident combines with, accelerates, or aggravates a pre-existing injury, the entire resulting disability is compensable. Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990).

Unlike some other states, Nebraska does not look for primary or secondary causes of an injury. Stated another way, if the employment was a “contributing factor” to the employee’s injury, the entire disability is compensable. Miner v. Robertson Home Furnishing, 239 Neb. 525, 531, 476 N.W.2d 854, 859 (1991). This is even true if the employee would not have been injured but for the pre-existing condition.

Because nearly every disputed case in Nebraska involves a pre-existing condition, it is not difficult to find cases from each of the six judges discussing the concept of aggravations. However, several recent decisions reveal an important factor that the judges routinely consider when deciding an aggravation case – honesty.

Often times, for whatever reason, an employee will misrepresent or significantly downplay the extent of his or her past medical conditions. For example, an employee with a work injury to his back may claim he’s never seen a doctor for his back prior to the work accident, only for that statement to be discredited by a neurosurgeon’s records from just weeks before the alleged accident. Alternatively, an employee may admit to prior ankle problems “years ago,” but her records show her ankle surgery occurred in the month before the work accident.  It is abundantly clear that the workers’ compensation judges value when an employee is honest and forthcoming about his or her prior problems.  In 2020, Judge Block specifically highlighted an employee’s honesty with his medical providers when deciding to award benefits for an aggravation to the employee’s back. Similarly, in 2022, Judge Stine awarded benefits to an injured employee who had been seeking medical treatment for his disputed knee claim just a few weeks before the alleged accident. In making that decision, Judge Stine highlighted that claimant was always forthright about his prior problems and how the accident made it worse.

Contrast these opinions with cases where employees aren’t forthright about their prior problems. In 2020, Judge Hoffert entered an Order of Dismissal in part because the employee was dishonest about her lack of prior back problems. He highlighted the voluminous records presented by the employer showing that the employee had been on a leave of absence for prior back problems right up until the day before her alleged accident. This evidence, he noted, was in stark contrast to the employee’s testimony on the stand.

While it may be somewhat obvious that judges value honesty from employees, these cases show the vital importance of securing employee’s prior medical records. When evaluating new cases, it’s important to pay attention to the parts of the medical records discussing an employee’s past problems or past medications. These portions of the treatment notes can be easily glanced over, but may contain information that sheds an important light on the employee’s prior medical history that he or she is unwilling to share voluntarily. Additionally, in cases where a recorded statement is taken, it’s necessary to ask the employee about his or her past medical problems. If an employee acknowledges a relevant past history, securing those records could be a major development in the case. While it’s true that employers take employees as they find them, to evaluate whether the eggshell plaintiff rule applies, one needs to know what “cracks in the shell” even existed before the accident.

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

The Iowa Division of Workers’ Compensation has released updated rate information that will be in effect from July 1, 2023 through June 30, 2024. Peddicord Wharton has updated its rate and interest calculators which can be found on our website under the Resources page. We hope you will take advantage of these resources we have there for you, including our legal blog.

The Iowa Division of Workers’ Compensation releases annual rate information for mileage reimbursement and the following types of weekly workers’ compensation benefits: temporary total disability (TTD), healing period (HP), permanent partial disability (PPD), permanent total disability (PTD), and death.

    In a 6-3 decision, the Oklahoma Supreme Court on 4/18/23, said the Legislature intended for injured workers to have at least one year from the date of an injury in which to file a workers' compensation claim before the Workers' Compensation Commission. The case is Schumberger Technology Corp. v. Paredes, 2023 OK 42.  The case involves an un-represented claimant that later hires an attorney. 

    The Supreme Court was asked to interpret 85A O.S. Sec. 69, in pertinent part:

      "A claim...shall be barred unless it is filed...within one (1) year from the date of injury or, if the employee has received benefits under this title for injury, six (6) months from the date of the last issuance of benefits."

    Justice Gurich, writing for the majority, said the Legislature had created a method to extend payment of benefits beyond an arbitrary SOL since at least 1941. She noted that each time amendments were made to the workers' compensation law, the Legislature continued to provide for a way to extend benefits for injured workers. 

    Justice Gurich wrote, "that the SOL is "not an absolute time bar." The burden is on the employer to take affirmative action, or "arguably, even the one-year SOL will be extended." There must not only be an objection based upon the running of the SOL, but ALSO A HEARING. The opinion says otherwise the statute would be meaningless if the Commission did not have the discretion to adjust the statute of limitations based on the circumstances presented.

    The holding is that an injured worker in Oklahoma has at least one year from the date of an injury in which to file his or her claim. The six-month provision of Sec. 69 only extends the SOL in cases in which the employer admits the injury and pays benefits. If a badly injured worker is off four years when treatment is terminated, he or she has six months from that date to file a claim before the Commission.  

    In the opinion, Justice Gurich also quoted comments by Commissioner Biggs during oral argument in this case. He told defense counsel, "My argument is simple, the system works when people know when deadlines are, when the SOL starts...if they didn't have notice of when your company paid, how do they know when the clock starts?"

 The Court has created a new requirement that was not present previously.  The opinion can interpreted to require a specific date which the SOL runs and the 6-month Statute of Repose will not begin to run until the date the claimant is informed of the specific date.  An employer can no longer wait-out the SOL to assert the affirmative defense.  The Court is requiring specific notice to an un-represented claimant before a SOL defense can be asserted. 

32 Switcheroo 
 

As we reported last month, the DWC-32 form for requesting a designated doctor exam has been revised, most noticeably in its capacity to alert the examining doctor of the conditions for which he or she should be examining the injured worker. Parties must begin using the new version of the form very soon, on June 5, 2023.  

Copyright 2023, Stone Loughlin & Swanson, LLP

The Dallas Court of Appeals Declines a Three-Way (Split)

In Hartford Accident & Indem. Co. v. Francois, decided May 23, 2023, the Dallas Court of Appeals spells out how to allocate a third-party settlement between the workers’ compensation carrier, injured employee, and injured employee’s attorney.  These calculations are a source of continuing confusion for some despite the plain language of the statute and the case law applying it.

The Dallas Court of Appeals’ decision also dispels the notion that the law requires the parties to split a settlement three ways:  one-third to the carrier, one-third to the claimant, and one-third to the claimant’s attorney.  This idea refuses to die despite the fact that there is no support for it in the law. As a result, some carriers still give up much more than they should.           

Janery Francois sustained a work injury for which Hartford paid her $356,669.73 in workers’ compensation benefits. Francois sued the third-party property owner of the building where she was injured and recovered $150,000. Hartford argued that under the Texas Workers’ Compensation Act’s subrogation statute, it was entitled to $95,206.03 of Francois’s $150,000 recovery.  

However, Judge Martin Hoffman, a former personal injury attorney, agreed with the interpretation of the statute offered by Francois’s attorney and found that Hartford was only entitled to $57,088.04 and that Francois and her attorney were entitled to $92,911.96.  Of this amount, $4,793.97 was for expenses and the remaining $88,117.99 was for attorney’s fees for Francois’s attorney. Judge Hoffman also awarded Francois’s attorney an additional $10,000 in fees under the Uniform Declaratory Judgment Act (UDJA) which allows the trial court to award fees that are equitable and just.

The Dallas Court of Appeals reversed Judge Hoffman’s decision and rendered judgment that Hartford was entitled to $95,206.03 of the third-party settlement. The court of appeals also found that Judge Hoffman abused his discretion by awarding Francois’s attorney an additional $10,000 in attorney’s fees under the UDJA because the award violates the Workers’ Compensation Act and is not equitable or just.

Francois’s attorney argued at trial that the award is equitable and just because Hartford refused to agree to a three-way split of the settlement which would have provided $50,000 to Hartford, $50,000 to Francois, and $50,000 to Francois’s attorney.  This approach would have resulted in Hartford recovering $45,206.03 less than it was entitled.  The Dallas Court of Appeals rejected this argument:
 

According to Francois’s counsel, the carrier, employee, and employee’s counsel “always” agree to split a settlement three ways, and he has entered into those agreements “dozens of times.”  But Francois cites no authority to support an argument that Hartford was under any obligation to reduce its lien and accept a three-way split.    

The Dallas Court of Appeals held that Hartford has a statutory right to recover its entire lien amount and it should not be penalized for asserting its rights. The court found that Judge Hoffman abused his discretion by awarding additional attorney’s fees to Francois’s attorney when “Hartford was well within its right to seek the full amount of reimbursement permitted under Chapter 417.”

Hartford Accident & Indemnity Co. v. Francois, No. 05-21-00981-CV (Tex. App—Dallas, May 23, 2023).
 

Copyright 2023, Stone Loughlin & Swanson, LLP

Burn Notice

House Bill 2468 also amends Section 408.161(a)(7) which pertains to serious burn injuries.  Previously, an injured worker would be entitled to LIBs if he/she sustained third degree burns to the majority of either both hands, or one hand and the face.  Now, third degree burns to both hands, to one hand and one foot, or to the face and either one hand or one foot can establish LIBs entitlement. 

House Bill 2468 further expands LIBs entitlement to certain first responders in the newly promulgated Section 408.1615.  Peace officers, EMTs, and firefighters (or those acting as EMTs or firefighters on a volunteer basis) who are rendered “permanently unemployable” following a “serious bodily injury” beyond those specifically enumerated in Section 408.161 may be entitled to LIBs.  

Qualifying claimants would be compelled to recertify their total unemployment to Carriers annually.    Carriers may audit the worker’s employment status periodically, but not more than once in any five-year window, unless the Carrier can show that the injured first responder’s assertion of non-employment is false.  Under such circumstances, the Carrier would be compelled to request a designated doctor to evaluate the claimant’s employability.  LIBs may be suspended if the annual certification is not accomplished, or if the first responder is employed in any capacity.  Suspension of LIBs is also codified under the new Section 408.0041(k-1).  

Copyright 2023, Stone Loughlin & Swanson, LLP 

Subtracting Insult from Injury

The Texas Workers’ Compensation Act sets forth specifically prescribed categories for grievously injured employees who qualify for Lifetime Income Benefits (LIBs), most of which are straightforward: those who suffer permanent loss of use in both eyes, both feet, or both hands, or a combination of one hand and one foot; spinal injuries resulting in paralysis of both arms, both legs, or one leg and one arm; and significant third-degree burn victims. 

However, one classification has fostered equal parts ambiguity and scorn among system participants for decades: head trauma injuries resulting in “incurable insanity or imbecility.”  The phrasing of this portion of the statute, found in Texas Labor Code Section 408.161(a)(6), is not only inherently vague (as neither “insanity” nor “imbecility” is defined anywhere in the Act), but also antiquated, relying on medical terminology established during the reign of Queen Victoria.  

At long last, the Legislature is poised to rid us of the much-maligned clause.  House Bill 2468 replaces the unfortunate “incurable insanity or imbecility” with “permanent major neurocognitive disorder.” But while the revision may be exponentially more tactful, is it any clearer?  

“Permanent major neurocognitive disorder” is not yet defined in the statute, other than to say it necessitates “occasional supervision in the routine daily tasks of self-care” and renders an employee “permanently unemployable.” What constitutes “occasional supervision” or permanent unemployability remains to be seen.  If left unaddressed in the corresponding rules the DWC has been charged with drafting, it is foreseeable that these phrases could generate as much uncertainty as those they replace.

If signed by Governor Abbott, House Bill 2468 goes into effect September 1, 2023.

Copyright 2023, Stone Loughlin & Swanson, LLP  

Abrased and Contused: Great Texas Work Injuries in Cinema

It never hurts to remember triumph over misfortune as a reminder that a work injury - even a serious one - is rarely reason to despair. Maybe you never thought about work injuries like that before, but if not, do you remember this movie? Hard as it may be to believe, it has been thirty years since the release of Dazed and Confused. That’s almost twice the span of time between its premiere in 1993 and the film’s setting: Texas, May 28, 1976.  Since it’s late May in the Lone Star state, it seems like the perfect time to revisit Richard Linklater’s coming-of-age classic, shot in and around the director’s adopted home of Austin. (Disclaimer: Events depicted therein are for viewing enjoyment only, not for emulating.)

The ensemble comedy has gained a fanatical following far exceeding its paltry box office grosses upon initial release, and some of today’s most recognizable faces got their big breaks from the movie, including Academy Award winners Ben Affleck, Renee Zellweger, and University of Texas alum Matthew McConaughey.  It turned the Texas capital into a viable alternative to Hollywood for independent-minded filmmakers: Linklater co-founded the Austin Film Society.  It also spawned arguably the biggest movie catchphrase in recent memory, albeit decades after the fact.

Melissa Maerz’s excellent book Alright, Alright, Alright: An Oral History of Richard Linklater’s Dazed and Confused (HarperCollins, 2020), is packed with insight and anecdotes about the making of the film.  Among those: the revelation that the movie’s two de facto protagonists, freshman Mitch Kramer and senior Randall “Pink” Floyd, were avatars for the writer/director at those ages, with his older, wiser self mentoring his baby-faced doppelganger throughout the film.  “Pink is me,” Linklater admits to Maerz. “And so is Mitch.”  (Eagle-eyed viewers will notice that the characters are even dressed identically in gray t-shirts, blue pants, and long brown hair when they first cross paths.)

When seeking the performers who would not only carry the film but embody its creator, Linklater did not have to look far for his Mitch; Austin native Wiley Wiggins happened to be outside a local coffee shop when the casting director, looking for non-professional actors, offered him a chance to audition.   

Finding the right person to play Pink, though, depended on an initially horrific twist of fate in the form of a Texas work injury.  

Jason London, who eventually won the role, never intended to become an actor either. In Alright, Alright, Alright, he recalls being fifteen and working construction for his father in DeSoto, Texas, until his left foot got caught in the lift mechanism on a forklift, amputating two toes.  As he tells Maerz: “My whole life at that point was all about sports, and the only way I was gonna get to go to college was through scholarships in sports or the military.  All of [a] sudden, that path was gone. I thought it was the worst thing that could’ve ever happened to me. But then I decided to take drama. I guess it was destiny. I had to think about life beyond sports, just like Pink.”  

London’s unfortunate Texas work injury inadvertently set him on an alternate career trajectory, fortuitously intersecting with Richard Linklater in Austin five years later and providing one of the most beloved Texas-based movies its co-lead.  The anecdote is one of triumph over misfortune and a reminder that a work injury—even a serious one—is rarely reason to despair.  As we reminded you at the beginning, if you never thought of triumph over misfortune before…  
 

Copyright 2023, Stone Loughlin & Swanson, LLP