September 21, 2017

CWCI Study Finds California Workers’ Comp IMR Volume May Be Leveling Off

Oakland – A new study on the California workers’ compensation independent medical review (IMR) process established by state lawmakers to resolve medical disputes finds that in the first half of this year, more than 91% of all utilization review (UR) physicians’ modifications or denials of treatment that were reviewed by an IMR physician were upheld , and after increasing steadily since 2013, IMR volume...

September 21, 2017

California: Step One in Building Your Case – Lay the Foundation

Before you build a house, you first make sure to construct a sturdy foundation. The same is true, in litigation. Before you build a case with evidence, you must set the foundation by verifying that the evidence you present is sufficiently credible and authentic to meet your burden of proof. Still, it is surprising as to how many practitioners are still unclear on this concept. Set forth below are some examples of how...

September 15, 2017

United States: Workers’ Compensation Disability Findings Not Binding in Social Security Disability Claim

Observing that it is well settled law that an administrative law judge (ALJ) hearing a Social Security claim for Disability Insurance Benefits (DIB) need not give controlling weight to a treating physician's opinions concerning a claimant's “disability” in connection with a Worker's Compensation proceeding, a federal district court found that an ALJ had not erred in denying a DIB claim in spite of the fact...

September 15, 2017

United States: Discharged Employee Fails to Show Employer Was Aware of His Intent to File Claim

Construing Pennsylvania law, a federal district court held that plaintiff, a former employee, had not established a prima facie case of retaliatory discharge when it was undisputed that he had sustained a work-related injury, but where he had given no indication that he was going to file a workers’ compensation claim prior to his termination on what the employer contended were unrelated grounds. The employer had...

September 15, 2017

Ohio: Officer May Maintain Intentional Tort Action Against Fellow SWAT Team Member for “Assault” During Training Exercise

In a case with somewhat bizarre facts, an Ohio appellate court ruled a state trial court appropriately found that there was a genuine issue for trial regarding whether the defendant, who served along with plaintiff on a county SWAT team, knew that it was substantially certain that he would injure plaintiff when, during a SWAT team training exercise, defendant struck plaintiff in the head with a submachine gun. The two...

September 15, 2017

New York: Minimal Activity at Nonprofit Concession Stand Does Not Violate § 114-a

New York’s Workers’ Compensation Board could reasonably conclude that a claimant had not violated N.Y. Work. Comp. Law § 114-a—the false statement/misrepresentation of material fact provision—where a surveillance video showed the claimant, who received PTD benefits, walking around at a concession stand at an amateur, non-profit sporting event organized by the claimant’s spouse and another...

September 14, 2017

California: What Constitutes “Substantial Medical Evidence”?

Physicians went to medical school to use their skills to improve the health of their patients. The composition of medical-legal reports was not a mandatory class, nor was it even provided as an elective. Evaluating physicians pour their hearts and souls into the process of drafting an accurate evaluating report, only to be told later that their report does not constitute substantial evidence upon which a judge can rely...

September 14, 2017

Little Acorns: The Myth of Maximum Medical Improvement

By Stephen Embry and Aida Carini, Embry and Neusner, Groton, Connecticut Since the days of Plato and his “Republic”, Judges and lawyers have adopted, often unwittingly, the vision of the cave to analyze and promulgate rules to govern our conduct based on forms, which are at best the shadows of reality. We often call these “precedents” and assume that they are fixed statements of eternal truths and revealed law. In...

September 11, 2017

California Workers’ Comp Case Roundup: 9/11/2017

CALIFORNIA COMPENSATION CASES Vol. 82 No. 8 August 2017 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 2017 LexisNexis. All rights reserved. LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and...

September 08, 2017

New York: Board’s Decision to Reduce WCLJ’s Loss of Wage-Earning Capacity was Justified

Substantial evidence supported the Board’s determination that claimant sustained a 65 percent loss of wage-earning capacity—instead of the 75 percent loss found by the WCLJ—where the Board acknowledged that claimant was unable to return to her job involving constant typing and writing, based upon her medical restrictions but, on the other hand, claimant had an Associate's degree in liberal arts and science, was proficient...

September 08, 2017

North Dakota: WSI Need Not Prove Intent to Defraud in Order to Justify Forfeiture of Benefits

A North Dakota district court committed error when, in relevant part, it affirmed an ALJ’s finding that claimant’s false statements as to his income and work activities were not willful and were instead “inadvertent,” and not made with the intent to defraud. The state appellate court explained that, for purposes of N.D. Cent. Code § 65-05-33, the term “willfully" does not require...

September 08, 2017

North Carolina: Commission Correctly Computed Average Weekly Wage of Symphony Violinist

Where a violinist, employed by the Charlotte Symphony, earned $39,412.83 for the Symphony’s regular 36-week season (September through May) and earned an additional $1,080 per week for eight summer weeks performing for the Chautauqua (N.Y.) Symphony, her average weekly wage should be computed using the “fifth” method described in N.C. Gen. Stat. § 97-2(5), pursuant to which the Commission resorts to a method that most...

September 08, 2017

Arizona: Comp Carrier’s Lien May Be Equitably Reduced Even When Worker’s Dependents Settle for Less than Policy Limits of Third-Party’s Coverage

Where an injured worker (or the worker’s dependents) have accepted workers’ compensation benefits and have further sought to recover over against one or more third parties that are responsible for the worker’s injuries, that worker—or his or her dependents—may obtain a judicial determination of whether the lien should be reduced to account for the employer’s comparative fault, even when the worker (or dependents) settle...

September 07, 2017

California: Temporary Disability Benefits Limit for Post 1/1/08 Injuries

For Post 1/1/08 Injuries, Are Temporary Disability Benefits Limited to Five Years From the Date of Injury? In a recent Workers’ Compensation Appeals Board (WCAB) panel case, Pike v. County of San Diego , 2017 Cal. Wrk. Comp. P.D. LEXIS 321 , a divided panel of three commissioners addressed the appropriate application of Labor Code section 4656(c)(2). Though there was no dispute in Pike that an injured worker is limited...

August 29, 2017

Lexis Advance® Workers’ Compensation Practice Center

Find top workers’ compensation law sources as soon as you sign in. The Lexis Advance® Workers’ Compensation Practice Center brings your trusted, go-to sources to the first screen you see—comprehensive primary sources (statutes, regulations, agency decisions and other guidance); authoritative analysis; expert commentary; plus relevant and trusted news you can’t find elsewhere. Designed specifically for workers’ compensation...

August 25, 2017

Medical Marijuana and Opioids in the Workplace

By Albert B. Randall, Jr., Esq., Franklin & Prokopik, P.C. Navigating federal and state laws regarding medical marijuana and dealing with the workplace implications of the national opioid epidemic are challenging issues facing many businesses today. Currently, twenty-nine states have legalized the use of marijuana for medicinal purposes. However, marijuana remains a Schedule I substance under the federal Controlled...

August 25, 2017

Virginia: Injured Worker Not an Employee Where General Contractor Had Essentially No Control Over His Activity

Where there was virtually no evidence that a construction worker’s actions were controlled by the purported employer and where it also appeared that the purported employer exercised little, if any, control over the injured worker’s work or employment actions and the worker consented to be treated, for W-2/tax purposes, as an independent contractor, it was not error for the Commission to make a finding that...

August 25, 2017

United States: Employment Agreement Clause Requiring “Christian Mediation” in Retaliation Civil Action is Valid

An arbitration clause in a two-page employment contract that provided for the resolution of disputes by "following the biblical pattern of Matthew 18:15-17," and which also stated that any unresolved disputes would be submitted to "Christian mediation and, if necessary, legal binding arbitration,” did not amount to a forfeiture of a former employee’s federal rights. The clause was fully binding...

August 25, 2017

United States: Wyoming’s Pay Schedule for Air-Ambulance Services Transporting Injured Workers is Preempted by Airline Deregulation Act

To the extent that Wyo. Stat. Ann. § 27-14-401(e) and its associated rate schedule set forth a mandatory maximum reimbursement rate for air-ambulance claims under the state’s Workers’ Compensation Act, the statute and schedule were preempted by the Airline Deregulation Act, 49 U.S.C.S. § 41713(b)(1), held the Tenth Circuit Court of Appeals. The Court added that the McCarran-Ferguson Act did not preclude federal preemption...

August 25, 2017

Pennsylvania: Court Finds Entire Impairment Rating Evaluation Process Unconstitutional, based upon Protz

The Commonwealth Court of Pennsylvania held that one legal effect of the recent decision of the state’s Supreme Court, in Protz v. Workers' Comp. Appeal Bd. (Derry Area Sch. Dist.) , 161 A.3d 827 (Pa. 2017), was essentially to undermine the legal authority for the entire impairment rating evaluation (IRE) process set forth within the state’s Workers’ Compensation Act. Accordingly, it was error for the Board to affirm...

August 22, 2017

California: Home Health Care: When Neri-Hernandez Meets Patterson

Senate Bill 863 was implemented over four years ago, but this paradigm shifting package legislation left the workers’ compensation community with quite a few challenging questions. New rules regarding reimbursement of home health care services is only one of the issues still facing the WCAB in recent months. In particular, cases have grappled with when is it appropriate for defendants to terminate these services once...

August 18, 2017

CMS Unveils New Details About “Amended Review” Process

By Jennifer C. Jordan, Esq. Since the very beginning of its MSP enforcement efforts around the turn of the century, CMS has avoided the regulatory process and developed MSP related policies and practices informally. By doing this, CMS has been able to make changes whenever it sees fit without being subject to public comments. CMS can update user guides and reference manuals as often as it wants to implement changes...

August 18, 2017

North Dakota: Employee Misclassification Can Result in “Dual” Liabilities for Employer

Answering seven certified questions from a magistrate judge for the U.S. District Court for the District of North Dakota, that state’s Supreme Court concluded that to the extent that a worker could show that her purported employer intentionally and not inadvertently misrepresented the amount of payroll upon which a workers’ compensation premium was owed to Workforce Safety and Insurance (“WSI”), or intentionally and not...

August 18, 2017

Minnesota: Injured Worker Could Pursue Relief Under Both State Workers’ Comp Act and the Longshore Act

The Supreme Court of Minnesota held that although the state’s Workers’ Compensation Act includes a provision on election of remedies for employees who work primarily outside the state, but are injured in Minnesota [Minn. Stat. § 176.041, subd. 4 (2016)], which generally provides that the injury will be covered by the Minnesota Act only if the employee does not pursue workers’ compensation claims in another state, such...

August 18, 2017

Washington: High Court Clarifies Standard of Proof in Occupational Disease Cases

Stressing that in Washington, the proof of medical causation related to an occupational disease does not require “magic words,” the Supreme Court of Washington affirmed a lower court decision that sustained an award of workers’ compensation benefits claimant’s occupational disease in the form of a low back condition. The Court observed that under Washington’s workers’ compensation law...