February 17, 2017

California: Does a Home Care Assessment Constitute “Treatment” Subject to Utilization Review?

Fine Lines and a Glimpse at the Future In Rodriguez v. Simi Valley Unified School District, 2016 Cal. Wrk. Comp. P.D. LEXIS 671 , applicant, a custodian, sustained injury at her employer. The injury was sufficiently serious that her treating physician deemed it necessary to ask that an independent evaluation occur to determine the nature and extent of home healthcare assistance required. An RFA was submitted to UR which...

February 16, 2017

North Carolina: No Jurisdiction for Out-of-State Injury Where “Last Act” in Making Employment Contract Occurred Outside State

Where a welder, who was living in North Carolina, received a communication from her union hall, which was located in Oklahoma, that she should report for an assignment in Huntsville, Texas and where, upon arrival in Texas, the welder was required to undergo a drug test and complete various forms—including an authorization for a background check—before she could begin working, under North Carolina’s “last act” test, her...

February 16, 2017

Ohio: Idiopathic Injury Not Compensable Where Employment Conditions Did Not Increase Danger

An Ohio nurse, who sustained injuries in a bizarre auto accident as she traveled to the residence of one of her clients, did not sustain an accidental injury arising out of her employment where she indicated she had stopped at a stop light and the next thing she remembered was waking up after hitting a utility pole along the side of the street. The appellate court acknowledged that an idiopathic injury was compensable...

February 16, 2017

Ohio: No Total Loss of Use of Hand Where Three Fingers Were Partially Amputated

Where an Ohio worker sustained partial amputation of three fingers on his left hand in an industrial accident, leaving him with a fully functioning thumb and index finger on that hand, he was not entitled to an award for total loss of use of his hand, held a state appellate court. The court acknowledged that under Ohio Rev. Code Ann. § 4123.57(B), where two or more fingers have been amputated and the nature of the employee...

February 16, 2017

Virginia: Worker Could Seek Unauthorized Medical Care Where Approved Physician’s Treatment Was Inadequate

The Workers’ Compensation Commission did not err in finding the employer liable for the costs of surgery and treatment of the employee’s work-related injuries performed by an unauthorized treating physician since, under Va. Code Ann. § 65.2–603, the employee sought medical treatment from the unauthorized physician in good faith after the treatment rendered by the approved physician was clearly inadequate...

February 16, 2017

Wyoming: Injured Worker Unable to Show Second Shoulder Surgery Was “Reasonable and Necessary” to Treat Original Condition

Affirming a decision of a state trial court, the Supreme Court of Wyoming agreed that an injured worker failed to show that a second round of shoulder surgery was “reasonable and necessary,” in spite of the fact that during the second procedure, the worker’s surgeon discovered and repaired a large hole in the acromioclavicular joint where the previous procedure had been performed. The Court indicated...

February 10, 2017

North Carolina: Workers’ Involved in “Ultra-hazardous” Activity May Not Sue Employers in Tort

A North Carolina appellate court held that the exclusive remedy provisions of the state’s Workers’ Compensation Act apply to bar civil actions against the employer for all employees—even those that are engaged in “ultra-hazardous” activity. Acknowledging that at common law, it might have been possible for such employees to sue the employer under a strict liability doctrine, the court stressed that there was no special...

February 10, 2017

New York: Co-Employee Immune From Tort Action Only When Acting Within Course and Scope of Employment

Acknowledging that under N.Y. Work. Comp. Law § 29(6), it was settled law that workers’ compensation was the exclusive remedy of an employee injured by the negligence or wrong of another “in the same employ,” a New York appellate court reiterated that the question of whether the defendant co-employee was acting within the scope of her employment when the accident occurred was separate and distinct from the question of...

February 10, 2017

New Hampshire: Board Erred in Finding Claimant’s Auto Accident Was Intervening Event That Would Defeat Continued Pain Management Treatment

New Hampshire’s Compensation Appeals Board erred when it failed to award pain management benefits to an injured worker who sustained an original injury in 2013, underwent a C5–6 anterior discectomy and fusion with hardware, and continued to experience pain, shoulder discomfort, occipital headaches, arm aches, and numbness in her fingers. While it was true that she was involved in an automobile accident some...

February 10, 2017

Nebraska: Injured Employee’s Suicide Held to Be Willful Negligence Barring Recovery of Death Benefits

A Nebraska compensation court did not clearly err in determining that an injured employee’s death was the result of suicide, where evidence indicated that the employee had been distraught for several days prior to her death—she had been evicted and advised that she would likely lose custody of her daughter, and medical evidence and an autopsy indicated she had ingested lethal amounts of opioids (oxycodone and methadone...

February 07, 2017

Trends to Watch in Workers’ Compensation Law

At the National Workers’ Compensation & Disability Conference last November, Brad Bleakney, a partner with Bleakney & Troiani, and Lora Northen, a Shareholder with Capehart Scatchard, led a seminar on recent trends in workers’ compensation. The following is a Q&A with Brad and Lora. Q. What was the biggest change or trend in 2016? Brad: 2016 saw a dramatic “rollback in cutbacks”...

February 05, 2017

California Workers' Comp Case Roundup (2/5/2017)

CALIFORNIA COMPENSATION CASES Vol. 82 No. 1 Jan 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.com or Lexis Advance to read the complete headnotes...

February 03, 2017

Uncovering the True Costs of Physician Dispensing of Drugs

Do the hidden, and not so hidden, costs of physician dispensing of drugs outweigh the benefits? Drugs prescribed and dispensed directly by physicians often cost substantially more to consumers, and by extension any covering insurer, than drugs dispensed by pharmacies. Last April, I looked at a recent study that examined the effect of state legislative and regulatory attempts to control these cost discrepancies through...

February 03, 2017

AMA Guides Are for Determining Whole Person Impairment, Not Apportionment

The AMA Guides under the California’s workers’ compensation system are for determining whole person impairment (WPI) and not apportionment under Labor Code §§ 4663 and 4664 In two separate cases, Caires v. Sharp Healthcare, 2014 Cal. Wrk. Comp. P.D. LEXIS 145 (WCAB panel decision) and Hosino v. Xanterra Parks & Resorts, 2016 Cal. Wrk. Comp. P.D. LEXIS 351 (WCAB panel decision), the WCAB held...

February 02, 2017

Texas: AMA Guides Must be Utilized in Determining Impairment Rating

Where an injured worker’s medical expert opined that utilizing Advisories 2003–10 and 2003–10b—and not the AMA Guides—the worker, who underwent four surgeries, including a spinal fusion and a laminectomy, had a 20 percent impairment rating, that rating did not comply with Tex. Lab. Code Ann. § 408.124(b) and was invalid. Because the trial court was left with no valid rating, remand was required. The Court also stressed...

February 02, 2017

Tennessee: Injured Worker’s Testimony Sufficient to Establish Total Disability in Spite of Light Work Capabilities

In an unpublished opinion, the special appeals panel of the Tennessee Supreme Court has affirmed a finding that an injured employee was entitled to permanent and total disability benefits in spite of the fact that a functional capacity evaluation (FCE) indicated the employee was capable of performing light work for eight hours per day. Noting that a court must look at a variety of factors in determining whether an injured...

February 02, 2017

Texas: Pro Se Litigant Fails to Establish Causal Connection Between Back Injury and Work-Related Fall

Where a pro se litigant testified that she sustained injuries when she slipped and fell during the course and scope of her employment, but she did not introduce expert medical testimony that showed a causal link between her claimed conditions—disc herniations, cervical radiculitis, and lumbar radiculopathy—and her fall, it was appropriate for the Texas trial judge to direct a verdict in favor of the employer. The Court...

February 02, 2017

Kansas: Providing Inadequate Urine Sample is Not Refusal to Take a Drug Test

The term “refusal,” as it is used in Kan. Stat. Ann. § 44–501(b)(1)(E)(2012), carries with it an element of willfulness, indicated a state appellate court recently. Accordingly, where an injured Kansas worker was unable to provide an adequate urine sample in a post-injury drug test at his employer’s job site, that failure did not constitute a refusal to comply with the company’s drug testing policy and it could not support...

January 27, 2017

United States: Michigan Federal Court Reiterates that RICO May Not Be Used for Bad Faith Claims

Citing two earlier precedents, a federal district court sitting in Michigan has once again ruled, in pertinent part, that racketeering activity leading to a loss or diminution of benefits that a plaintiff expects to receive under a state workers compensation system does not constitute an injury to “business or property” under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act. Accordingly, where an injured...

January 27, 2017

Florida: Carrier’s Failure to Respond Does Not Mean Claimant Can Switch Medical Specialties

Resolving a split among the state’s judges of compensation claims, a Florida appellate court held that an employer/carrier’s failure to respond timely to a request for a one-time change of physician does not entitle the employee to a physician in a different specialty from that of the originally authorized physician. The court added that procedures existed for claimants to seek authorization for physicians beyond the...

January 27, 2017

New York: Cautious Medical Testimony Dooms Claim for Stroke Allegedly Caused by Work-Related Stress

Reiterating the rule that the state’s Workers’ Compensation Board could not rely upon expert medical opinion that amounted to mere speculation, a state appellate court affirmed the Board’s determination that a claimant did not sustain a causally related disability resulting from his stroke where his physician repeatedly indicated that the claimant’s employment-related stress “may have been” or “could’ve been a contributory...

January 27, 2017

Pennsylvania: IRE Physicians Not Limited to Impairment Issues Identified in NCP

In a 5–2 decision, the Supreme Court of Pennsylvania, reversing an earlier decision by the Commonwealth Court, held that a physician performing an Impairment Rating Evaluation (IRE) under § 306(a.2)(1) of the state’s Workers’ Compensation Act [77 Pa. Stat. § 511.2(1) must exercise independent professional judgment and, therefore, consider all conditions that the physician believes are related...

January 26, 2017

CWCI Score Card Looks at Why San Diego Work Comp Claims Cost Less

Oakland – The California Workers' Compensation Institute (CWCI) has published its fifth Regional Score Card, providing detailed data on claims filed by workers from San Diego County for job injuries that occurred between 2005 and 2015. The Score Card, which features data from more than 154,000 claims that resulted in $1.83 billion in payments for medical and indemnity benefits shows that for the 11-year period...

January 25, 2017

CWCI Spotlights Workers’ Comp Claim Differences Between Bay Area and Other Regions

Oakland – A new California Workers’ Compensation Institute (CWCI) analysis finds that San Francisco Bay Area residents account for 17.5% of California job injury claims but only 15.4% of claim costs, and points to several reasons, including faster notifications and less delay in initial treatment, fewer medical visits and lower treatment costs, less attorney involvement, shorter claim durations, and fewer...

January 25, 2017

California: When the “Date of Injury” Becomes a Moving Target

The California Labor Code distinguishes between two different types of industrial injuries, a specific injury and a cumulative trauma (CT) injury. This is not the case in other states where their law recognizes only specific injuries. However, there is great justification for allowing workers’ compensation benefits to be bestowed on an employee who suffers a repetitive trauma injury over a number of years, months...