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.
There are two new administrative law judge appointments pending. First is Phil Rich of Louisville, KY. Phil Rich has been practicing law for more that 30 years. He worked as an insurance defense attorney for 10 years before transitioning to the representation of Plaintiffs in workers' compensation, social security disability and personal injury claims. Second is Kimberly O'Bryan of Paintsville, KY. She has been practicing for more than 20 years representing Plaintiff's in personal injury, social security disability, and workers' compensation claims.
Scott M. Miller will be reappointed to the Workers' Compensation Board for a four year term beginning January 5, 2024. Judge Miller was previously appointed in December of 2021 to replace R. Scott Borders, for a term expiring January 4, 2024.
KRS 342.020(4) states medical providers shall submit billings within 45-days of service. Claimant’s medical providers did not submit billings for multiple visits until several months after the visits. The medical obligor rejected the bills since they were not submitted within 45 days of the date of service.
The ALJ determined the 45-day rule did not apply until after an award of benefits. The Workers’ Compensation Board affirmed the decision, relying partly on Wonderfoil, Inc. v. Russell (holding 60 day time limit for Claimant to submit unpaid medical bills for reimbursement only applies after an award). P & P appealed arguing that the Wonderfoil decision was not applicable to the statutory duties of medical providers.
The Supreme Court of Kentucky held that medical providers must bill within 45 days of treatment, regardless of whether claim has been adjudicated as work-related, or they have lost the right to be compensated for their services under workers’ compensation.But note, the Court does reference 803 KAR 25:096 Sec. 6, which states if the provider fails to submit a statement for services as required by KRS 342.020(4) without reasonable grounds, the medical bills shall not be compensable. There was no evidence in this claim of reasonable grounds for the late submissions.
Injury Claim Existing But Not Joined at Time of Settlement of Prior Injury Claim is Barred
Rodarte v. BlueLinx Corporation, 2022-SC-0423-WC rendered 9/28/23
Claimant sustained a work-related knee and ankle injury in 2016 and work-related shoulder injury in 2018. In 2019, Claimant filed an application for resolution of a claim (Form 101) for the knee and ankle injuries. At that time he was receiving TTD for the 2018 shoulder injury. Claimant and employer settled the 2016 knee and ankle injury. There was no language in the agreement regarding the 2018 shoulder injury. Eleven months after settling the 2016 claim, the Claimant's TTD benefits for the 2018 shoulder claim were stopped and he filed a Form 101 three months later. The Employer denied the claim, arguing it was barred under KRS 342.270 which states an employee must join all accrued causes of action against the named employer and failure to join will result in those claims being barred.
The ALJ dismissed the 2018 claim. The Board reversed, stating the 2018 claim had not yet accrued at the time of the settlement of the prior claim, because Claimant was not yet at Maximum Medical Improvement (MMI). Claimant also filed a motion to reopen the 2016 claim, arguing it was a mutual mistake that the shoulder claim was not addressed in the 2016 agreement. The Motion to Reopen was denied by the ALJ and the Board upheld the denial.
The Supreme Court of Kentucky affirmed the ALJ opinion that the 2018 claim was barred, holding Claimant was required to join his 2018 shoulder claim to his 2016 knee and ankle claim prior to finality of that settlement. The Court found that the shoulder injury claim accrued on the date of the injury and had therefore accrued at the time of the settlement of the prior claim. The Court also upheld the denial of the Motion to Reopen finding no basis for same as there was no evidence the Employer mistakenly failed to include reference to the shoulder claim when settling the 2016 claim.
Timely Notice to Subsequent Employer of Harmful Change in Pre-existing CWP Condition
Tennco Energy, Inc. v. Lane, 2023-SC-0028-WC rendered 9/28/23
Claimant was a coal miner for more that 30 years. He had been diagnosed with CWP (black lung disease) on multiple occasions starting in 2003. In 2005 he settled a CWP workers' compensation claim against his then employer. He continued working in coal mining, joining Tennco in 2009 and remaining there until his last day of employment on 1/21/19. On 7/11/19, Claimant advised Tennco he was filing a CWP claim. The medical evidence established a worsening of his CWP. Tennco argued that Claimant's prior CWP diagnoses in 2003 and 2004 rendered his 2019 notice untimely and the ALJ agreed.
The Supreme Court of Kentucky reversed, holding that evidence of a harmful change in one's CWP condition attributable to the new employer is a likely prerequisite to any successful subsequent CWP claim, thus the Claimant's awareness of such change is the event triggering the statutory obligation to provide notice rather than the original CWP diagnosis.
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
A long-time friend of
this firm, Machelle Davidson, a senior claim representative at Accident Fund,
has been named a 2023 recipient of AF Group’s Legend Award.
In announcing the award, AF Group explained that the award recognizes AF Group
teammates who demonstrate its People First culture through their
outstanding character, leadership, and commitment to excellence. Lisa Corless,
president and CEO of AF Group, said that “each of our winners is an absolute
shining example of who we are as a People First, values-driven organization
. . . We’re all made better by having them as part of our team.”
We could not have said it better. Congratulations, Machelle!
Copyright 2023, Stone Loughlin & Swanson, LLP
A worker in Austin, Texas lost his bid to carve out an exception to the
exclusive remedy of the Texas Workers’ Compensation Act on the ground that, at
the time of his injury, he was performing duties outside of the course and
scope of his employment.
Melvin Gonzalez worked as a car detailer and porter for Dynamic Motors, a used
car dealership and service garage whose advertising catchphrase is “Don’t
Panic. GO DYNAMIC!”
The service manager asked him to help with repairs on the roof, and while doing
so Gonzalez stepped through a skylight and fell 20 feet to the concrete floor
below.
Dynamic filed a report of injury with its workers’ compensation insurance
carrier and Gonzalez accepted workers’ compensation insurance benefits. He then
sued Dynamic, alleging that the company was negligent in failing to provide
fall protection.
Dynamic asserted the affirmative defense that workers’ compensation insurance
benefits were Gonzalez’ exclusive remedy, and the trial court agreed. On
appeal, Gonzalez argued that because roof repairs are not part of Dynamic’s
business, and because he was injured while performing such repairs, he was not
engaged in the usual course and scope of Dynamic’s business and was, therefore,
not an “employee,” as that term is defined by the Texas Worker’s Compensation
Act, at the time of the injury. The Austin court of appeals disagreed and said
that the Act does not contemplate a “task-by-task” approach to the issue of
whether a worker is injured in the course and scope of employment.
You can read the decision here.
Copyright 2023, Stone Loughlin & Swanson, LLP
In our August newsletter, we reported optimism that the Texas Department of Insurance, Division of Workers’ Compensation may begin requiring applicants for Supplemental Income Benefits to provide material evidence of job applications they have submitted in their search for work. Two conflicting developments this month have heightened the intrigue.
The source of our optimism in August was a memo to stakeholders from General
Counsel Kara Mace enclosing proposed changes to the DWC Form-052, Supplemental
Income Benefits Application. The proposed revision included an FAQ page with
the following guidance for applicants looking for work on their own:
Show you were actively looking for a job by attaching job applications or other documents showing you were looking for a job.
The first development this month buoyed our optimism – it was the Division’s
filing of a legal brief in the Supreme Court of Texas in the long-running
litigation over the validity of the SIBs rule. As we have reported, on behalf
of our client, Accident Fund Insurance Company of America, we challenged the
rule as facially invalid because, among other things, it allows the Division to
award SIBs to claimants who purport to be looking for work on their own but who
do not document an active work search with job applications submitted as
required by the Texas Workers’ Compensation Act. A Travis County district court
agreed that the rule is invalid and enjoined the Division from applying it, but
the Division appealed that ruling and then the Austin court of appeals muddied
the water by affirming in part and reversing in part. Accident Fund now has
filed a petition for review by the Supreme Court of Texas in an attempt to
obtain clarity. On October 6, the Division, represented by the Attorney
General, filed a response to the petition. When describing applications for
SIBs filed by workers who purport to be looking for work on their own, the Division
made this representation to the court:
The Division requires injured workers independently looking for work to document their searches by job applications. If the worker submits an online or hard-copy written application, a copy must be provided to the Division with the worker’s SIBs application.
See page 19 of
Division’s Response to Petitions for Review in Accident Fund Insurance Company of America and Texas Cotton
Ginners’ Trust v. Texas Department of Insurance, Division of Workers’
Compensation, Cause No. 23-0273, which is available for review and
downloading here.
This representation by the Division seems to confirm that change is afoot because the
position it is taking now certainly is not the position it has taken in the
past. Indeed, one of the reasons that Accident Fund challenged the validity of
the SIBs rule in the first place is that the Division historically has not required SIBs recipients
to provide copies of job applications they claim to have submitted to employers
– instead, it has merely asked them to check boxes and fill in blanks on the
Form DWC-052 (Application for Supplemental Income Benefits) describing actions
they have taken.
But the second development this month has clouded the picture. On October 13,
we received a decision from a contested case hearing that directly contradicts
the Division’s representations to the state’s highest court. In that contested
case hearing, in which the issue was entitlement to SIBs, we argued that the
worker was not entitled to SIBs because
she had not provided copies of job applications that she claimed she had
submitted to employers. The Administrative Law Judge dismissed that
argument and ordered payment of SIBs. In her decision, she wrote:
The insurance carrier
questioned the claimant’s credibility because she did not
provide any documentary evidence of the applications or emails she sent to the
companies listed. The insurance carrier also contended that the claimant did not
make an active effort to obtain employment. The insurance
carrier’s argument was considered, but it was not persuasive.
Based on a careful review
of the evidence presented, the
claimant met her burden of proof to establish that she demonstrated an active
effort to obtain employment.
The claimant performed three work search contacts each week of the qualifying
periods. Accordingly, the claimant is entitled to supplemental income benefits
for the third and fourth quarters.
So we have to ask –
have Division ALJs not gotten the memo that the Division’s position has
changed? Or was the Division’s representation to the state’s highest court
incorrect?
Copyright 2023, Stone Loughlin & Swanson, LLP