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.
CONNECTICUT WORKERS’ COMP UPDATE
The law firm of Strunk Dodge Aiken Zovas (SDAZ) provides you with our Winter 2024 WORKERS’ COMPENSATION LAW UPDATE.
CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS
BURIAL EXPENSES
As of January 1, 2024, the burial fee for deaths covered under the Workers’ Compensation Act is $13,885.25 based on the overall 2023 CPI-W increase for the northeast of 3.2%. Connecticut General Statutes Section 31-306 was amended in 2021 to reflect that the compensation for burial benefits will be adjusted by the percentage increase in the consumer price index for urban wage earners and clerical workers in the Northeast as defined in the United States Department of Labor’s Bureau of Labor
Statistics.
https://portal.ct.gov/WCC/Home-News/Workers-Compensation-News/2024/2024-Burial-Expense-Adjustments
MILEAGE REIMBURSEMENT
As of January 1, 2024, the mileage reimbursement rate is 67 cents per mile.
As of January 1, 2023, the mileage rate had been 65.5 cents per mile. Prior to that the rate had been at 62.5 cents per mile since July 1, 2022
https://portal.ct.gov/WCC/Home-News/Workers-Compensation-News/2024/2024-Mileage-Reimbursement-Rate-Rises
MEMORANDUM 2024-01
The Commission has immediately suspended the mediation program and is beginning a review of the guidelines for the program. The suspension is due to “parties failure to comply with the program guidelines and misuse of the program.”
We are sure that we will hear more about this in the future. We hope that the Commission will be able to begin the program again. In the meantime, there are a number of private mediation services that are available to assist in resolving claims. Please contact us if you have any questions about private mediation.
https://portal.ct.gov/WCC/Workers-Compensation-News/Commission-Memorandums/2024/Memorandum-No-2024-01
MEMORANDUM 2023-09
This memo addresses legal fees between claimants and their counsel. As of January 1. 2024 counsel fees for new attorney fee agreements will increase from 20 to 25%. Requests for fees greater than 25% will not be allowed. For prior fee agreements which had the legal fee rate at 20% those will not be affected by this memorandum.
NEW WORKERS’ COMPENSATION PORTAL
A new Worker’s Compensation portal has been established at this site:
https://wccct.govqa.us/WEBAPP/_rs/(S(ee5fdcqgfjppdvhg3ssjxq1e))/supporthome.aspx
The old Worker’s Compensation website remains in place, however, this new portal will allow a search of managed care plans for a particular date of injury. Also, workers’ compensation coverage searches and requests for workers’ compensation files and freedom of information requests can be performed through this new portal. The prior worker’s compensation history of an individual and information concerning a particular file (forms filed, hearing requests, hearings held, voluntary agreements approved) can be searched through this portal as well. Information regarding self-employers in the system can also be reviewed.
The Commission does have a website where you can look up such information as to whether a hearing is assigned, list of all claims for an employee, status of a Form 36, and interested parties. This is quite a useful site and is a different website than the Commission’s main site. It can be found at:
http://stg-pars.wcc.ct.gov/Default.aspx
Memorandum 2023-08
The Form 42 has been revised. The new Form 42 includes “a check box indicating "Check, if total impairment rating, inclusive of any prior ratings, for body part." The box should be checked when the rating is for the total impairment inclusive of any previous ratings for the body part. The box should not be checked when the rating is in addition to a previous rating. The revised form can be obtained from our Online Forms page.”
MEMORANDUM 2023-05:
Memorandum 2023-05 has been issued by Chief Administrative Law Judge Morelli regarding maximum compensation rates. The Chairman has ordered that the maximum total disability rate for injuries occurring after October 1, 2023 is $1,575 (based on the estimated average weekly wage of all employees in Connecticut). The maximum temporary partial/permanent partial disability rate for accidents after October 1, 2023 is $1,154 (based on the average weekly earnings of production and related workers in manufacturing in Connecticut).
https://portal.ct.gov/WCC/Workers-Compensation-News/Commission-Memorandums/2023/Memorandum-No-2023-05
MEMORANDUM 2023-04
The Official Connecticut Practitioner Fee Schedule was issued by the Connecticut Workers’ Compensation Commission effective July 15, 2023.
MEMORANDUM 2023-03
The Connecticut Workers’ Compensation Commission effective June 10, 2023 has amended subsection F of Section VII of the Professional Guide for Attorneys, Physicians and Other Health Care Practitioners Guidelines for Cooperation. The subsection now reads:
Exception for Psychiatrists, Psychologists, Neuropsychologist, and Neuropsychiatrists
Due to the particular nature of these fields, there are some exceptions to Commission rules, regulations and guidelines granted to providers in these disciplines. Please note the following:
1. Most Commission rules and regulations, including deposition fees and formal hearing testimony fees, do apply
2. Fees as listed in the Official Connecticut Practitioner Fee Schedule, which encompasses most office visit/treatment fees, do apply unless there is a contract indicating otherwise
3. Fees for Commission Medical Exams and Employer/Respondent Exams DO NOT apply. The provider may charge a maximum of $2500 for these types of exams without prior approval. Any fee above $2500 for a CME must be approved by the ALJ prior to the exam taking place. In the case of an RME, the provider may request the higher fee from the respondent. If the provider and respondent cannot agree on a fee, the respondent may choose another provider or request a hearing with an ALJ to determine a reasonable fee.
NEW COMPENSATION REVIEW BOARD PANEL
The new CRB panel beginning January 1, 2024 will be Administrative law Judges Delaney and Schoolcraft along with Chief Administrative Law Judge Morelli.
MEDICARE NEWS FROM CMS
The following alert has been issued by CMS:
2023 Recovery Thresholds for Certain Liability Insurance, No-Fault Insurance, and Workers’ Compensation Settlements, Judgments, Awards or Other Payments
As required by section 1862(b) of the Social Security Act, the Centers for Medicare and Medicaid Services (CMS) has reviewed the costs related to collecting Medicare’s conditional payments and compared this to recovery amounts. Beginning January 1, 2023, the threshold for physical trauma-based liability insurance settlements will remain at $750. CMS will maintain the $750 threshold for no-fault insurance and workers’ compensation settlements, where the no-fault insurer or workers’ compensation entity does not otherwise have ongoing responsibly for medicals. This means that entities are not required to report, and CMS will not seek recovery on settlements, as outlined above. Please note that the liability insurance (including self-insurance) threshold does not apply to settlements for alleged ingestion, implantation, or exposure cases.
LIFE EXPECTANCY TABLES
Beginning February 24, 2024, CMS will utilize the CDC's "Table 1: Life Table for the total population: United States, 2021" for the Workers' Compensation Medicare Set Aside life expectancy calculations.
WORKERS’ COMPENSATION TIP
Our law firm will regularly receive calls from families that have had, unexpectedly, a workers’ compensation claim filed against them due to the injury of a worker who worked in their home in some capacity. The workers that are pursuing the claim are generally in the role of a Nanny or health care assistant. The families most of the time were unaware that there was potential exposure for workers’ compensation due to injuries to these workers in their homes. Every state is different regarding the need for workers’ compensation coverage for "in home workers”; some states do not require workers’ compensation coverage for workers in the home. In Connecticut, to be covered a worker must work in the home regularly for more than 26 hours per week. Also, the so-called “control test” will determine if the worker is an independent contractor or not; that is, whether the alleged employer can and does exercise “control” over the worker. Examples of control are the homeowner determining the hours and time that the worker will work and requiring the homeowner’s approval for the worker to take time off. Individuals with an “in home” worker should consider whether they need to take out workers’ compensation coverage and protect themselves from these potentially expensive claims.
CURRAN V. STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION, 6492 CRB-1-22-12 (November 17, 2023)
The claimant alleged an injury to his right hip at work on April 12, 2011. He reported the incident to his supervisor, completed a form and was sent for an evaluation by an on-duty RN at the company on-site clinic. The RN examined the claimant and “felt his hip, took his temperature and blood pressure, provided him with an ice pack and gave him some Advil.” The RN also completed a medical incident report. The claimant did not follow up with any further treatment. Years later on July 15, 2021 the claimant filed a Form 30c and sought workers’ compensation benefits for the 2011 claim. The respondents asserted that the claimant was not timely filed. The claimant alleged that the medical care exception to written notice applied pursuant to Section 31-294c(c). The ALJ agreed and found that the claim was timely filed. The CRB affirmed the finding and rejected the respondents’ argument that the medical provider had to be a medical doctor or APRN for the exception to apply.
WILLIE HAYES, JR. V. LILY TRANSPORATION CORPORATION, 6500 CRB-1-23-4 (November 24, 2023)
The claimant was a driver. On November 17, 2014 he had to grip his steering wheel very tightly to try and avoid a motor vehicle that had gone into a spin in front of him. As a result of this, the claimant developed an injury to his right small finger. Dr. Gross performed two surgeries on the finger which were accepted by the employer as compensable. Subsequently, the claimant developed bilateral wrist problems and came under the care of Dr. Mastella, a hand specialist. The respondents questioned whether the wrists were due to the 2014 accident since there had been no wrist complaints at first. Based on the history of injury to the wrists in 2014 that was provided by the claimant, Dr. Mastella in his reports opined that the wrist injuries were due to the 2014 incident. Dr. Bernstein performed a RME and he concluded that the wrist injuries were not due to the 2014 event. The medical notes of Dr. Gross from his initial treatment did not mention any wrist injuries. At his deposition Dr. Mastella was asked to review Dr. Gross’ notes and he changed his opinion regarding causation; he stated he agreed with Dr. Bernstein that the wrist injury was not related to the 2014 incident. Dr. Mastella did concede, however, that if the claimant had experienced wrist pain initially after the incident then that would tend to support causation. At the trial level the ALJ found the claimant credible that his wrists hurt from the beginning and relied on Dr. Mastella’s opinion in his reports that the condition was due to the 2014 accident. The CRB affirmed the decision on appeal notwithstanding the respondents protestations that Dr. Mastella had changed his opinion on causation at his deposition.
JANE DOE V. XYZ COMPANY (December 7, 2023; ALJ DECISION)
The claimant alleged that she fell at work on the company premises on February 14, 2022 causing a fracture to her left leg. While the respondents acknowledged that the claimant fell at work they denied liability in the case. The respondents contended that the claimant’s injury did not “arise out of” her employment; rather, respondents asserted that the claimant’s fall was because of a pre-existing, non-occupational foot drop. The claimant had a number of prior left hip surgeries which caused a foot drop. As a result of this, the claimant became more susceptible to falling. The claimant did wear a brace on her left ankle to stop falls although she admitted that it was uncomfortable. The claimant fell at a restaurant outside of work in January 2022, one month before the work accident. A fellow worker testified that he saw the claimant prior to the work accident and she was having difficulty walking. The claimant came in to work early in the morning and was walking to her workstation at the time of the fall. Following the fall, the claimant reported to numerous medical providers that she had fallen on rock salt. At the formal hearing, however, the claimant acknowledged that she did not see any rock salt at the time of her fall but did say that there had been rock salt outside of work as she entered the premises. The claimant also testified at the formal hearing that there may have been a small puddle of water on the floor where she fell. The claimant did not know why she fell, however. The respondents presented the testimony of Dr. Raymond Sullivan, a foot specialist, who opined that the claimant’s pre-existing left foot drop was a substantial factor in causing her fall at work. The Administrative Law Judge concluded that Dr. Sullivan’s testimony was persuasive that the claimant’s foot drop was a substantial factor in causing the fall. The Judge found there was no credible or persuasive evidence that there was rock salt on her shoe when she fell or that there was water on the floor. The Judge dismissed the claim concluding that the fall was caused solely by her left foot drop condition. This case is now on appeal to the CRB. This claim was successfully defended by Attorney Jason Dodge of SDAZ. The name of this case has been changed for confidentiality purposes.
JINKS V. STOP & SHOP SUPERMARKET, 6465 CRB-6-22-1 (January 5, 2024)
The claimant sustained compensable chest injury on April 12, 2017 and a voluntary agreement was issued. He alleged two subsequent claims as well on September 14, 2018 and January 21, 2019. The claimant contended that he had PTSD due to his injuries and claimed that his diabetic condition was substantially related to his work injuries. The claimant also sought authorization of an OSKA device as recommended by Dr. Kost. THE ALJ dismissed all claims for PTSD, diabetes and the OSKA device. The Judge relied on the opinion of Dr. Pier, a CME and neuropsychologist, who disagreed with diagnosis of PTSD and causation. Regarding the diabetic condition the Judge found that the RME with Dr. Cooper was more credible than the treating physician and concluded that the diabetic condition was not related. Pertaining to the OSKA device the Judge accepted the RME opinion of Dr. Grahling that the device was not reasonable or necessary medical treatment. On appeal the CRB concluded that there was sufficient evidence in the record to support the Judge’s factual conclusions. The claimant asserted that the Judge should have ordered a CME re the diabetic condition but the Board determined that an ALJ is not required to order a CME in all cases, citing the Appellate Court case of Jodlowski v. Stanley Works, 169 Conn. App. 103 (2016). Interestingly, it appears that the ALJ had attempted at the trial level to find a doctor to perform a CME re the diabetic condition but could not find an expert to complete that examination.
GARDNER V. DEPARTMENT OF MENTAL HEALTH AND ADDICTIONS SERVICES, 223 CONN. APP. 221 (2024)
The claimant took this appeal to the Appellate Court alleging that notwithstanding the fact that she was at maximum medical improvement she should continue to receive temporary partial benefits pursuant to Connecticut General Statutes Section 31-308(a). The Appellate Court held that the Judge did not have discretion to award ongoing TP once maximum improvement had been reached; it determined that permanency was owed versus TP benefits. In this case the claimant had sustained a compensable wrist injury and reached mmi with an eight per cent rating. The trial Judge and the CRB had found that ongoing TP was not owed although the claimant had ongoing work restrictions. The Appellate Court rejected the claimant’s contention that the case of Osterlund v. State, 129 Conn. 591 (1943), compelled a conclusion that the ALJ had discretion to award ongoing TP benefits versus permanency pursuant to Section 31-308(b). It is expected that the claimant will pursue an appeal of this decision to the Connecticut Supreme Court.
HERRICK V. I.P.C. LYDON, L.L.C., 6496 CRB-2-23-2 (February 2,2024)
The claimant was employed as a welder for many years. In 1987 he sustained a left shoulder injury at Electric Boat; he had numerous surgeries due to this and was paid 25% of the arm. In May 2018 he worked as a welder for I.P.C. Lydon L.L.C. for five days. Later in the summer of 2018 he was seen by Dr. Anbari for bilateral shoulder problems. Dr. Anbari related the shoulder injuries to his heavy work as a welder. A RME with Dr. Jambor concluded that the claimant’s left shoulder condition was due to the 1987 injury and the right arm injury was due to overuse secondary to the left arm. He opined that the five days at Lydon were not significant to the development of the injuries. A CME with Dr. Rios determined that the injuries were due to repetitive trauma. He seemed to discount the contribution of the Lydon work in causing the injuries. The trial judge found that the claimant’s injuries were due to repetitive work and held Lydon liable as the last employer pursuant to Section 31-299b. Lydon appealed that decision contending that there was no evidence to support that its five days of employment were a substantial contributing factor for the injuries. The CRB affirmed the finding against Lydon concluding that under Section 31-299b “an assessment of the extent to which the respondents' period of employment materially contributed to the claimant's repetitive trauma injury is not only premature at this stage of the litigation but is also at odds with the legislative intent of the apportionment statute.” The Board did note that the respondent did not argue that the claimant's job duties during the last five-day period of employment "deviated significantly from the responsibilities associated with his prior periods of employment throughout his career as a welder." Essentially the Board concluded that since the Lydon employment was the same type of work that caused the injuries over many years, that Lydon as the last employer was liable for the initial payments notwithstanding the fact that no ruling was made that their employment was a substantial contributor to the injuries. The Board did note that the last employer was entitled to pursue apportionment against earlier employers and carriers.
We believe this ruling represents a change in how the Commission handles apportionment claims. In the past it was felt that evidence was needed to show that the last employer’s actual employment was a substantial factor in causing the injury, however, this case suggests that if the last employer’s employment is similar to the repetitive trauma that is claimed then that is enough to require the last employer to pay and then seek apportionment. This may speed up the process in a repetitive trauma claim where the injury is clearly related to work but it raises questions if it is fair to require the last employer to pay for a claim where their employment is of short duration and may not even be a significant factor in causing the condition.
MATTERA, DECEASED, v. STATE OF CONNECTICUT, 6505 CRB-8-23-6 (March 1, 2024)
The claimant sustained compensable injuries on January 5, 2018 to the neck, low back, left shoulder; a claim for PTSD was also accepted. The claimant received total disability benefits from the date of injury until April 8, 2022 when he died due to cancer unrelated to the work injury. The treating psychiatrist had seen the claimant last on March 9, 2022 and did not address maximum medical improvement in his report. Post the death of the claimant in response to request from counsel the treating doctor placed the patient at mmi as of March 9, 2022 and provided a rating of 15% of the brain. The claimant’s surviving children sought permanency based on their contention that the claimant had reached mmi prior to death. The trial Judge and the CRB both dismissed the claim finding that the claimant had not proven he had reached mmi prior to his death. The Judge found the treating physician opinion regarding mmi to not be credible or persuasive. The Board affirmed, noting that it was in the discretion of the Judge to determine if mmi had been reached based on the evidence presented. In reaching their decision the CRB cited the Workers’ Compensation treatise co-authored by Attorneys Strunk and Dodge of SDAZ.
JONELIS V. CUMBERLAND FARMS, 6499 CRB-5-23-4 (March 1, 2024)
The claimant sustained a compensable ankle injury. She was working at a time that workers’ compensation benefits were being paid which resulted in a large overpayment. The trial Judge found that there was an overpayment and ordered a repayment schedule. The Finding was issued on March 8, 2023 but an appeal was not taken until April 14, 2023., beyond the twenty day appeal period. Since the appeal was taken more than twenty days after the Finding the CRB granted the respondents’ Motion to Dismiss the appeal.
The Department of Labor, Division of Industrial Affairs issued a Final Order concerning the revised Fee Schedule Introduction, which became effective February 11, 2024. Please click here for a copy of the Order.
Heckler & Frabizzio's partner, Anthony Frabizzio serves on the Workers' Compensation Oversight Panel and participated in making the necessary revisions which were approved.
One of the most important changes includes outpatient facilities being able to be reimbursed for facility charges for multiple-level procedures (see Sections 1.4; old 4.6.2/new 4.7.2; old 4.18.2.3-5/new 4.19.2.3-5).
Other possible impactful changes include:
For more information, please contact Anthony Frabizzio. |
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Oklahoma Trends April 2024
Covid Appeal
The Workers' Compensation Commission will hear an employer's appeal of an order by an administrative law judge finding that a claimant's contraction of COVID-19 is compensable as an on-the-job injury. The claimant also is appealing the order because the judge limited TTD in the case to eight weeks.
The claimant worked for a hospital in Tulsa. As an RN, she was treating a COVID patient who tore the nurse's A-95 mask off, screamed at her, and spit in her face and mouth. The claimant reported the incident. Ten days later, she had a high fever and tested positive for COVID, was sent home from work, and grew progressively worse.
The claimant now has LONG COVID and has
developed diabetes, high blood pressure, lung issues, and heart problems.
An Independent Medical Examiner appointed in the case found that all these
conditions were a result of the COVID infection. The judge followed the
report and found a single event injury of contracting the COVID with a
consequential injury to the heart, lungs, and diabetes.
The judge found that the claimant was required
to have blood tests and other diagnostics every 90 days as an ICU nurse and
that she did not have diabetes, high blood pressure, or heart problems before
COVID. The judge ordered the employer to pay for medical treatment for the
consequential injuries.
The judge also found that COVID is NOT an
"ordinary disease of life" to which the general public is exposed.
85A O.S. Sec. 65(D)(3) provides that ordinary diseases of life are not
compensable under workers' compensation law. The judge wrote, "The facts
of this case certainly are not ordinary and the exposure was not the same as
that of the general public. Claimant's job placed her at increased risk of
contracting COVID-19."
After finding the injury compensable, the judge
awarded only eight weeks of TTD, citing Section 62 of the AWCA that limits TTD
to eight weeks in "soft tissue" injuries.
On February 14, 2024, the Commissioner signed a consent order concerning disciplinary action against Rhema Medical, a provider of durable medical equipment and hospital supplies. The Commissioner found that Rhema failed to timely comply with a refund request from an insurance carrier by either refunding the requested amount or submitting an appeal to the carrier within 45 days of receiving the refund request. Rhema further failed to timely comply with the Division’s order for production of documents. The Commissioner found that Rhema violated Tex. Lab. Code §§408.-271(b) and (c)415.003(5) and (6); and 28 Tex. Admin Code §133.260(c) by failing to comply with a refund request and Tex. Lab. Code §§415.0035(e); 415.003(5) and (6); 415.021(a); and 28 Tex. Admin Code §102.9 by failing to comply with a DWC order to produce documents. Rhema was assessed an administrative penalty of $5,500.00 to be paid within 30 days from the date of the order. Rhema Medical certainly appears to have lived up to its Better Business Bureau rating of F and customer reviews averaging 1.38 out of 5 stars.
On February 24, 2024,
the Commissioner signed a consent order concerning disciplinary action against
DJO LLC, a provider of medical devices and services. The Commissioner found
that DJO improperly billed an injured employee for health care services in violation
of Tex. Lab. Code §§413.042 and 415.003(6) and assessed an administrative
penalty of $500.00 to be paid within 30 days from the date of the order.
Copyright 2024, Stone Loughlin & Swanson, LLP
We have recently learned that Benefit Review Officers Laila Johnson, assigned
to the Fort Worth Field Office, and Olivia Turner, in Tyler, are retiring. We
are sorry to see these knowledgeable and effective BROs leave the Division.
It is our understanding that Ms. Johnson will spend time living the country
life out west and we suspect Ms. Turner might be spending more time enjoying
the breeze on her Harley-Davidson.
We extend them our best wishes in whatever new adventures they choose to
pursue.
Copyright 2024, Stone Loughlin & Swanson, LLP
Although not a
workers’ compensation case, 36-year-old Irish lass, Kamila Grabska, has had her
$820,000.00 injury claim dismissed after having a really good day with cameras
present.
It seems Ms. Grabska sued RSA Insurance for damages after the vehicle in which
she was a passenger was rear-ended while she was on her way to work. She
recently told a High Court sitting in Limerick** that the accident left her often
bedridden with constant debilitating cervical, thoracic, and lumbar pain. She
also claimed she was unable to perform household chores or even to play with
her young children.
She further swore in an affidavit that she was unable to work in any capacity
and had past and future lost wages totaling more than $500,000.
In an unfortunate twist of fate for Ms. Grabska, photos recently surfaced
showing her participating in and winning a local Christmas tree throwing
competition, apparently a very popular event in County Clare, Ireland.
Furthermore, the competition took place just two days after she had reported to
a doctor that she was unable even to lift a bag of groceries.
When asked in court why she did not inform her doctors of the Christmas tree
throwing competition, she said she “forgot.”
Some of the other riveting testimony:
Counsel for RSA:
“Did it hurt you to throw the
Christmas tree?”
Grabska: “I had a pain, yeah.”
Counsel: “You had a large smile on your face as
you threw the tree.”
Grabska: “I was smiling but that doesn’t mean I
didn’t have a pain.”
Counsel: “You were also smiling when you received
your prize.”
Grabska: “I can say I was trying to live a normal
life.”
Following review of a photo showing Ms. Grabska’s award winning Christmas tree
toss, described as a “very graphic picture,” as well as video footage of Ms.
Grabska play-wrestling with a “large and strong” Dalmatian for an hour and a
half, Judge Carmel Stewart stated:
“I am afraid I cannot but conclude the claims were entirely exaggerated. On
that basis, I propose to dismiss the claim.”
A spokesperson from RSA Insurance indicated they were “very pleased with the
outcome of the case and it sends out a clear message that we will robustly
challenge any attempt to pursue claims that are not genuine.”
**
Another Limerick:
There was a
young woman from Clare
Whose claim
of bad pain proved unfair
Her suit was
undone
By some
Christmas-time fun
When she
tossed a large tree through the air
Copyright 2024, Stone Loughlin & Swanson, LLP
The Division is also accepting public comments on a proposed rule amending 28
TAC § 180.2 to ensure that no health care provider or agent can use the DWC’s
complaint process to bypass the medical fee dispute resolution filing deadline
in 28 TAC § 133.307(c).
The proposed rule was published in the March 22, 2024 issue of the Texas Register and is
available at http://www.sos.state.tx.us/texreg/index.shtml.
A copy of the proposed rule is also posted on the Division website at http://www.tdi.texas.gov/wc/rules/2024rules.html.
A public hearing on the proposed rules will be held at 11:00 a.m., Central
time, on April 16, 2024.
Written comments on the proposed rule may be submitted to RuleComments@tdi.texas.gov.
The deadline to submit comments is 5 p.m., Central time, on April 22, 2024.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Texas Department of Insurance, Division of Workers’ Compensation is
accepting public comments on a proposed rule amending TAC Chapter 147
concerning dispute resolution through agreements and settlements.
The rulemaking will amend 28 TAC §§ 147.4, 147,5, 1247.7, 147.10 and 147.11.
Sections 147.1, 147.2, 147.3, 147.6, 147.8, and 147.9 will be repealed and a
new § 147.1 added.
The amendments are calculated to streamline the agreements and settlements
process and eliminate unnecessary work for DWC staff.
The proposed new rule will be published in the April 5, 2024 issue of the Texas Register and available
at http://www.sos.state.tx.us/texreg/index.shtml.
A copy of the proposed rule is also posted on the Division website at http://www.tdi.texas.gov/wc/rules/2024rules.html.
Comments may be submitted to RuleComments@tdi.texas.gov.
The deadline to submit comments is May 6, 2024.
Copyright 2024, Stone Loughlin & Swanson, LLP
In an opinion filed
March 7, 2024, the 11th Court of Appeals (Eastland) reversed
the trial court’s summary judgment that Michael Belew developed pancreatic
cancer during his employment as a firefighter and emergency medical technician
with the City of Stephenville. Mr. Belew passed away in 2014.
Following a contested case hearing, the hearing officer relied upon Appeals
Panel Decision Nos. 150098-s and 151156 in determining that the statutory
presumption created by Section 607.055 (as it existed prior to its amendment
effective June 10, 2019) applied to the pancreatic cancer developed by Mr.
Belew, thereby relieving Appellees of the burden to prove causation, i.e. that
Mr. Belew’s cancer arose out of the course and scope of his employment as a
firefighter. The Appeals Panel adopted the hearing officer’s decision without
issuing a written decision.
The Eastland Court, however, determined that, in the decisions listed above,
the Appeals Panel “simply misapplied the effect of the statutory presumption.”
Section 607.055 that is applicable to this case provides:
(a) A firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter or emergency medical technician if:
(1) the firefighter or emergency medical technician:
(A) regularly responded on the scene to calls
involving fires or firefighting; or
(B) regularly responded to an event involving the
documented release of radiation or a known or suspected carcinogen while the
person was employed as a firefighter or emergency medical technician; and
(2) The cancer is known to be associated with fire fighting
or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as
described by Subsection (b).
(b) This section applies only to a type of cancer that
may be caused by exposure to heat, smoke, radiation, or a known or suspected
carcinogen as described by the International Agency for Research on Cancer
(IARC).
The IARC conducts critical reviews and evaluations on the carcinogenicity of a
wide range of human exposures and publishes the results of its evaluations in
monographs. The 98th Monograph evaluated the occupational cancer
hazards of painting, firefighting, and shift work. The authors of the monograph
found limited evidence of the development of cancer as it relates to exposure
as a firefighter; however, after considering a variety of studies, as well as
large meta-analyses, the authors concluded that the only cancers statistically
significant for cancer risks in firefighters were testicular, prostatic, and
non-Hodgkin’s lymphoma. Pancreatic cancer is not a type of cancer that is
connected to or may be caused by firefighting.
The Court agreed with the City that Mr. Belew’s pancreatic cancer does not meet
the requirements of section 607.055 and therefore the presumption of causation
does not apply. The court reversed the trial court’s judgment that Mr. Belew
sustained a compensable injury and rendered judgment in favor of the City.
Copyright 2024, Stone Loughlin & Swanson, LLP
It remains a popular preference for plaintiffs and plaintiffs’ attorneys to attend mediation virtually despite the default rule at the Commission being in-person mediations. From the defense counsel perspective, virtual mediations can prove more difficult than in-person mediations for several reasons. First, it is easier to engage in small talk before mediation when the parties are in-person, and that advantage can make plaintiff more comfortable with the process. Additionally, it is easier to read opposing counsel’s and plaintiff’s body language when attending mediation in-person. Whether mediations are in-person or virtual, they are an important step in the litigation process. When virtual mediation is the only choice, these five steps can help you prepare effectively:
1. Over prepare.
We all know that preparation can be the difference between a successful mediation and an unsuccessful mediation. It is important to not only know the basic facts in a case, but also to create a story. Creating a story out of the facts means identifying the theme of the case, highlighting key facts and singling out the issues you are trying to resolve. If the defense is not familiar with the case facts and issues it inevitably upsets plaintiff and hampers the ability to resolve the case.
2. Remain flexible.
Even though you can prepare as much as possible for mediation and have a strategy laid out, mediation involves other parties’ feelings which can change your strategy and the ultimate outcome of the mediation. When this happens, being flexible will help you move the case forward, even if it does not resolve through mediation.
3. Be familiar with opposing counsel and the mediator.
Choosing the right mediator can be key to having a successful mediation, whether it is virtual or in-person. You want to agree to mediate with a mediator that is knowledgeable in your area of law, has experience, and has the negotiation style you are looking for. Being familiar with opposing counsel’s personality will help you select the right mediator, determine your mediation strategy, anticipate their responses and maintain composure during mediation. If you are not familiar with opposing counsel, try reaching out to your colleagues to determine their reputation and negotiation style in advance.
4. Make eye contact as much as possible.
Many times, a plaintiff will come into mediation nervous or defensive. This is likely because they are unfamiliar with the mediation process or because they believe that opposing counsel is out to “get them.” Maintaining eye contact with plaintiff will help you display empathy and will give plaintiff the feeling of being heard. If the mediation is virtual, always explain to plaintiff that you will be taking notes during the mediation, so they do not assume you are distracted during the process.
5. Apologize, if appropriate.
Not every case requires an apology. Obviously when you are dealing with a denied case where causation or credibility are at issue, an apology is not necessary. However, if you have an admitted case and plaintiff was seriously injured and cannot return to his or her pre-injury employment, an apology goes a long way to ease plaintiff’s tension and defensiveness. It also puts plaintiff in the right frame of mind to resolve his or her case. Often, the defense counsel’s apology is the first-time plaintiff has heard a representative of the employer acknowledge the severity of the injury and the lasting effects it may have on plaintiff.
While remaining focused on the objective facts of the case is imperative, defense counsel must keep in mind that subjective nuances, such as those outlined above, can make or break a successful outcome for mediation.