April 06, 2018

New York: Decision Reversed Where Board Misread Record Regarding Expert Testimony

Noting that the Board was free to reject the medical opinion offered by the claimant’s expert and credit one rendered by an independent medical examiner, a New York appellate court held that the Board was not, however, free to misread the record in doing so. The Court indicated that here, the Board held that claimant’s expert could not offer an opinion on causation because he was not familiar with claimant's...

April 06, 2018

Virginia: Employee Gets Just One “Swing” at Proving Her Case

A September 2015 determination that there was no medical evidence causally linking an employee’s workplace injury to her arthritis was not an invitation for the employee to create the evidence and “take another swing” on appeal, held the Court of Appeals of Virginia. The Court added that the employee had an opportunity to present such evidence at a hearing; she chose not to do so. She could not subsequently be rewarded...

April 05, 2018

California Workers' Comp Case Roundup (4/5/2018)

CALIFORNIA COMPENSATION CASES Vol. 83 No. 3 Mar 2018 A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review CONTENTS OF THIS ISSUE © Copyright 2018 LexisNexis. All rights reserved.  LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and...

April 02, 2018

Annual Longshore Conference, March 2018

Loyola University Law School Presents Its Annual Longshore Conference in Conjunction with the U.S. Department of Labor, March 15-16, 2018 By Ralph R. Lorberbaum, Zipperer, Lorberbaum & Beauvais, Savannah, Georgia Well, it is March in New Orleans, and that means only one thing. No, not that Mardi Gras is over. It is time for the Annual Longshore Conference, sponsored by Loyola University, New Orleans, School...

April 02, 2018

California: Keys to Selecting the Appropriate Medical Evaluator

There is a great deal of uncertainty these days concerning what constitutes an appropriate request to replacement a Panel of Qualified Medical Evaluators (PQMEs) from the Department of Industrial Relations Medical Unit. When the initial PQME selected is deemed by one or both of the parties to be inappropriate in some way, what do you do? Below is a set of recent Noteworthy Panel Decisions (NPDs) discussing this issue...

March 30, 2018

Nebraska: No “Waiting-Time Penalties and Fees” Where Employer Mailed Settlement Check to Wrong Address

The Compensation Court correctly denied an injured worker’s request for waiting-time penalties and attorney fees where the employer mailed the second of two installments to the wrong address, but where the first check—also mailed to the incorrect address—was actually delivered by the USPS to the employee’s attorney. Here the parties settled the case under terms in which the employer agreed to make one payment of $15,000...

March 30, 2018

Washington: Frustration with Claims Management Not Good Cause for Refusing to Attend IME

In a case not designated for publication, a Washington appellate court affirmed an employer’s suspension of workers’ compensation benefits to a claimant who refused to attend an IME schedule by the employer where the claimant requested treatment by a new physician—the existing physician did not recommend further surgery and indicated the claimant had reached MMI—and no new physician had been assigned. The Court determined...

March 30, 2018

New York: Housekeeper’s Fall While Walking to Bathroom at Employers’ Hampton’s Residence Found Compensable

Substantial evidence supported an award of benefits to a housekeeper who worked for a couple at both their private residence in Manhattan and the Hamptons the evidence indicated the housekeeper, while staying overnight at the Hamptons residence, sustained injuries in a fall as she went to use the bathroom early in the morning. The couple maintained the injuries did not arise out of and in the course of the employment...

March 30, 2018

Kentucky: Hearing Impairment Limitation Ruled Unconstitutional

A Kentucky statute, Ky. Rev. Stat. Ann. § 342.7305(2), which provides workers’ compensation benefits for occupational hearing loss only where a claimant’s binaural hearing impairment, converted to impairment of the whole person, results in impairment of more than eight percent pursuant to the AMA Guides, is unconstitutional, said the Court of Appeals of Kentucky. The Court saw no rational basis or substantial and justifiable...

March 28, 2018

California: The Important Role of IBR in Resolving Billing Disputes

There are several aspects of the medical treatment benefit in California’s workers’ compensation process. The aspect that is most frequently discussed is whether a specific treatment should be provided to the injured worker. For example, the question may be whether the worker should receive an X-ray for his low back. These types of questions are resolved through the Utilization Review (UR) and Independent Medical Review...

March 28, 2018

Workers’ Compensation and the Future: The Macro Versus the Micro View

By Deborah G. Kohl, Esq., Fall River, MA Over the past several weeks, practitioners in the field have been discussing what the workers’ compensation should or might look like in the future. For example, at one conference, an interesting discussion took place regarding what we as lawyers, judges, court administrators and claims people would seek to change if we had a magic wand and could “fix” workers’...

March 23, 2018

Montana: Amendment Modifying Definition of “Physician” Should be Applied Retroactively

The Supreme Court of Montana held the Workers’ Compensation Court had committed error when it held a chiropractor could not make a medical determination regarding a claimant’s 1991 work-related injury where the Montana statute in question, Mont. Code Ann. § 39-71-116(30)(b), was revised so as to include chiropractors within the definition of “treating physician,” at least for purposes relevant in the case at bar. The...

March 23, 2018

Georgia: Court Acknowledges “Quagmire” in State’s “Arising Out of Employment” Requirement

Labeling the state’s case law concerning the all-important “arising out of and in the course of employment” standard a “quagmire,” a Georgia appellate court agreed with a trial court that the Board’s Appellate Division misconstrued the legal framework when it found a teacher’s act of “turning and walking was not a risk unique” or peculiar to her work, and was “a risk to which she would have been equally exposed apart...

March 23, 2018

Florida: JCC Correctly Disregarded Portion of EMA’s Opinion

The Judge of Compensation Claims appropriately disregarded the expert medical advisor’s (EMA’s) opinion that a claimant had a permanent impairment rating of at least 15 percent, as provided in the Class 2 classification of arrhythmias under the 1996 Florida Uniform Permanent Impairment Rating Schedule (Guide). The EMA had been appointed because of a disagreement among physicians as to whether the claimant’s...

March 23, 2018

West Virginia: High Court Says Claimant’s Continued OxyContin Prescriptions Not Compensable

In a memorandum decision, the Supreme Court of Appeals of West Virginia affirmed the denial of continued use of OxyContin to an injured worker who sustained a back injury in August 1992, yet who complained of continuing back pain 23 years later, at the time of an IME. The IME noted that at the time of his examination, the worker was receiving a cocktail of drugs: Xanax, Wellbutrin, Zanaflex, Neurontin, OxyContin, and...

March 23, 2018

WCRI Study Reveals Causal Connection Between Long-Term Opioid Prescribing and Duration of TTD Benefit Periods

A recent study published by Workers’ Compensation Research Institute (WCRI) argues that there is indeed a causal relationship between the practice of providing extensive opioid prescriptions to an injured worker and the duration of that workers’ temporary disability benefits [ see Bogdan Savych, et al., “The Impact of Opioid Prescriptions on Duration of Temporary Disability,” ISBN 978-1-61471-675...

March 16, 2018

North Carolina: Lay Testimony Insufficient to Establish Asthma Claim

The North Carolina Industrial Commission properly denied a worker’s claim for benefits in connection with his alleged work-related asthma on the basis that he failed to present expert medical evidence to establish that the conditions of his employment placed him at a greater risk than members of the general public for contracting the disease or condition. The worker did submit medical testimony by deposition, in...

March 16, 2018

Arkansas: Employer Estopped from Asserting Worker’s Claim Was Time-Barred

A worker's compensation claim was not time-barred even though it was filed more than two years after the date of the injury where the employer had told the employee he did not have workers' compensation insurance, the employer had actual notice of the injury on the date of the injury, and the employer's own testimony showed that he failed to post notice that he had subsequently obtained workers' compensation...

March 16, 2018

West Virginia: Worker Loses His “Deliberate Intention” Action Against Employer

The Supreme Court of Appeals reversed a trial court’s denial of post-trial motions following an adverse jury verdict in a “deliberate intention” action filed pursuant to W. Va. Code § 23-4-2(d)(2)(ii) (2005). The plaintiff, who suffered permanent injuries after he fell through a grating that had been left open by a maintenance crew in a power plant’s flyash silo and landed on a concrete floor. The maintenance workers...

March 16, 2018

Oklahoma: Employer’s Shareholder Not Always Shielded by Exclusive Remedy Doctrine

In a split decision, the Supreme Court of Oklahoma, answering a certified question for the Tenth Circuit Court of Appeals, held the state’s Administrative Workers’ Compensation Act fully abrogated the so-called “dual-capacity” doctrine with regards to employers , but it did not necessarily bar an employee from bringing a cause of action in tort against a stockholder of the employer for independent tortious acts where...

March 15, 2018

Recent Veterans Study Has Important Implications for Workers’ Comp World

Concomitant Benzodiazepine-Opioid Use Increases Risks of Adverse Outcomes Adding additional strength to the swell of medical research warning us about the dangers of combining opioid and benzodiazepine medications, a recent study published by the International Association for the Study of Pain [see Gressler, Laura E., et al., “Relationship between concomitant benzodiazepine-opioid use and adverse outcomes among US...

March 15, 2018

California Workers’ Comp IMR Volume Fell Slightly in 2017, But Outcomes Held Steady

Oakland – New data on the Independent Medical Review (IMR) process used to resolve California workers’ comp medical disputes show that IMR volume dipped for the first time ever in 2017, but the outcomes were unchanged as IMR physicians again upheld 91.2% of modified or denied medical service requests that they reviewed. The California Workers’ Compensation Institute (CWCI) analysis is based on a review...

March 13, 2018

CWCI Study Tracks the Changing Mix of Workers’ Comp Drugs as Opioid Use Declines

Oakland–Opioids remain the most common type of prescription drug used to treat California injured workers with lost-time injuries, but sustained efforts to curb their use are paying off as new data show that in the past decade they fell from about a third of indemnity claim prescriptions to less than a quarter, while there was a concurrent increase in anti-inflammatories and anticonvulsants which are often used as opioid...

March 13, 2018

California: Sanity Prevails – Appellate Court Reverses W.C.A.B. Award of TTD Beyond 5 Years From Date of Injury

The 4th District of the Court of Appeals has reversed a puzzling W.C.A.B. decision which had awarded TTD benefits beyond 5 years from the Date of Injury ignoring the plain language of Labor Code 4656(c)(2). In County of San Diego v W.C.A.B. (Pike), the appellate court had little difficulty in reading the rather straightforward statutory language to firmly reverse the WCJ and W.C.A.B. decisions awarding TTD beyond the...

March 09, 2018

Maryland: AWW for Newly-Hired Worker Need Not Be Based on Actual Earnings

Stressing that for some newly-hired employees, the actual earnings before the injury may not accurately represent what the employee normally would earn from the employer, a Maryland appellate court held that where a newly hired worker’s actual hours worked were shortened by inclement weather in the period before his injury, it was not unreasonable for the Commission to determine his average weekly wage by multiplying...