June 23, 2016

Illinois: General Contractor May Not Take Advantage of Settlement Agreement It Did Not Sign

Where a worker settled his workers’ compensation claim and signed a settlement agreement that released his direct employer and a purported general contractor from liability for any claims arising out of the worker’s work-related accident, the worker could nevertheless pursue a civil action against the purported contractor where (a) the settlement agreement indicated that all issues, including the worker’s...

June 23, 2016

New York: Failure to Disclose Volunteer Activity Amounts to Misrepresentation for Purposes of § 114-a

A New York appellate court held that substantial evidence supported a determination by the state Board that claimant had made false statements on a questionnaire for the purpose of obtaining workers’ compensation benefits [see N.Y. Work. Comp. Law § 114-a] where she denied participating in any volunteer activity since her 2005 accidental injury, but video surveillance three years later showed her engaging in...

June 23, 2016

Arizona: Portion of Former Soldier’s PTSD Disability Apportioned to Special Fund

As is the case in a number of states, Arizona allows “apportionment” of certain permanent injury claims between an employer and a “special fund” where the employee’s permanency results from the combination of a pre-existing condition and a subsequent work-related injury. Not all pre-existing conditions will support apportionment, however. For example, in Arizona, if the pre-existing condition...

June 23, 2016

WCAB Panel Finds UR IMR Physician Need Not Be Licensed in California

The recent noteworthy panel decision of Navroth v. Mervyn’s Stores , 2016 Cal. Wrk. Comp. P.D. LEXIS --, is just fascinating for so many reasons beyond the content of the finding itself. How often does a pro per applicant make important case law despite the unsuccessful efforts of many talented attorneys before him? How often does a pro per applicant raise a new argument on an important issue that is accepted on...

June 23, 2016

California: Appellate Court Holds IMR Timeframes as Directive

The 2nd Appellate District has issued the first of what should prove to be several appellate decisions on the timeliness of IMR decisions and the assertion by a W.C.A.B. panel decision that IMR timelines were mandatory and late IMR vested jurisdiction with the W.C.A.B. to determine issues of medical necessity. The Court in SCIF v. W.C.A.B. (Margaris ) therefore annulled the W.C.A.B. decision and remanded with instructions...

June 22, 2016

Study of Texas Closed Formulary Offers Hope that Prescription Costs Can Be Controlled

Texas Saw Reductions in Both “Non-Preferred” Drug Prescriptions and Overall Prescription Costs In recent years, a host of workers’ compensation (WC) experts have touted the specialized drug formularies utilized in several states operate as two-edged swords, capable of reducing both (a) the number of inappropriate opioid prescriptions written each year for injured workers, and (b) the overall level...

June 20, 2016

National and State-by-State Workers' Comp News Powered by Larson's (6/20/2016)

Labor Official Touts 10th Anniv. of Mine Improvement/New Emergency Response Act . Implant Approved to Help Fight Opioid Dependency . CA: DWC to Enforce Lien Claimants’ Use of Uniform Assigned Name . CA: DWC Announces Temporary Total Disability Rates for 2017 . CA: Columnist: California State Bar a Mess, Should Be Split Up . CA: Former State Senator Pleads Guilty to Corruption Charges . CA: Lawmakers...

June 16, 2016

Arkansas: Car-pooling With Co-Employee Does Not Bring Commute Within Course and Scope of Employment

Substantial evidence did not support an award of workers’ compensation death benefits to an employee’s minor child where the employee was fatally injured in a car accident while carpooling home, held an Arkansas appellate court. The Court reasoned that while it was certainly true that the employee lived some distance from the employer’s “base” in Shreveport, Louisiana, most of his employment activities took place near...

June 16, 2016

West Virginia: Insurer Has No Subrogation Interest Since Benefits “Paid” Under Policy Were Less than Employer’s Large Deductible

Under the West Virginia subrogation statute [W. Va. Code § 23–2A–1], a party is entitled to a lien only to the extent that it has actually paid a sum of money. Accordingly, where a mining electrician suffered catastrophic injuries when he was struck and run over by an underground shuttle car and the electrician’s employer paid $1.8 million in benefits because its workers’ compensation insurance...

June 16, 2016

New Jersey: Employment Contract Clause Limiting Statute of Limitations Is Ineffective Against Employee

In a case of first impression, the Supreme Court of New Jersey, reversing a decision by the Superior Court, Appellate Division, held that a clause in an employer’s job application form that required any claim or lawsuit against the employer to be filed no more than six months after the date of any adverse employment action could not operate as a waiver of any applicable New Jersey statute of limitations. Accordingly...

June 16, 2016

Florida: 104-Week Limit on TTD Benefits Found Unconstitutional

In a split decision, the Supreme Court of Florida struck down the state’s 104-week limit on TTD benefits for injured workers who remain totally disabled after the capped time period, but who have not yet reached MMI. The majority held the limit [set forth in § 440.15(2), Fla. Stat.], violated article I, section 21, of the Florida Constitution, in that it deprived an injured worker of disability benefits for...

June 15, 2016

Request for Additional Information Extended Time to Issue Utilization Review Determination: Cal. Comp. Cases June Advanced Postings (6/15/2016)

Here’s the latest batch of advanced postings for the June 2016 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the case to read the complete headnotes and summaries. © Copyright 2016 LexisNexis. All rights reserved. Rachel Wells, Petitioner v. Workers' Compensation Appeals Board, Seltzer, Fontaine, Beckwith, et al., Respondents, lexis.com , Lexis Advance Medical...

June 15, 2016

California: Compromise and Release and Medicare Set-Aside: Informed Consent and Assumption of Risk

Liability for future medical treatment for a work related condition cannot be transferred to Medicare without its permission In Alvarenga v. Scope Industries , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel rescinded the WCJ’s order approving the parties’ Compromise and Release, which included a Medicare Set-Aside (MSA) of $24,079.23 that the parties did not submit to the Centers for Medicare & Medicaid...

June 15, 2016

JOEM Study Supports Contention that EBM Guidelines Result in Better Outcomes for Injured Workers and Reduced Costs for Employers

First Comprehensive Study Evaluating EBM Guidelines in Comp Setting In recent years within the workers’ compensation (WC) arena, proponents of evidence-based medicine (EBM) have contended that managing an injured worker’s care according to established practice and treatment guidelines results not only in a savings in overall medical care costs, but also in better outcomes for the injured worker. A recent...

June 13, 2016

National and State-by-State Workers' Comp News Powered by Larson's (6/13/2016)

PCI Issues New Report on Medical Cost Shifting From WC Opt Out Systems . PCI Insurers Support Town Hall to Discuss Florida Workers’ Comp System . WCRI Study Finds Large Decreases in Opioids Received by Injured Workers . AZ: Arizona Adopts IC Rules for ODG Drug Formulary Evidence-Based Guidelines . CA: WCIRB Governing Committee to Meet June 15 . CA: DWC Posts Adjustments to OMFS (Physician/Nonphysician...

June 10, 2016

CWCI Notes California Workers’ Comp Benefit Increases For 2017

California’s State Average Weekly Wage (SAWW) rose just over 3.9 percent from $1,120.67 to $1,164.51 in the year ending March 31, 2016, which the California Workers’ Compensation Institute (CWCI) reports will boost temporary total disability (TTD) and permanent total disability (PTD) rates for 2017 work injury claims, and other workers’ comp benefits that are tied to changes in the SAWW. California’s...

June 09, 2016

Florida: An Overview of Recent Decisions on Constitutionality of Workers’ Compensation Act

By Robert J. Grace, Jr., Esq., The Bleakley Bavol Law Firm, and Lyle Platt, Esq., Clarke & Platt, P.A. For two years now we have written about a collection of cases which represent the most closely watched and eagerly anticipated workers’ compensation cases since our statute went into effect in 1935. At the present time, Florida’s workers’ compensation statute continues to be with small exception...

June 09, 2016

Federal: Leased Employee May Not Sue Leasing “Employer”

Where corporation A supplied licensed truck drivers to corporation B—an affiliated entity—under a three-year agreement under which the drivers worked at B’s facilities, but remained employees of A, who paid the drivers their wages and taxes, and retained total control over labor negotiations, employee grievances, and collective bargaining, both A and B were joint employers. Accordingly, an injured driver’s exclusive remedy...

June 09, 2016

New York: Medical Testimony as to Possible Causes of Heart Attack Did Not Meet Evidentiary Standard

The New York Workers’ Compensation Board erred when it found that a corrections officer's work activities were causally connected to his myocardial infarction where the employer’s medical expert opined that the infarction was not caused by work-related physical activity, but instead was suffered hours later after claimant underwent a stress test at the hospital. Claimant’s own expert testified that...

June 09, 2016

Iowa: Employer’s 401k Contributions Not Included in Average Weekly Wage Computation

The employer’s matching contributions to an employee’s 401k plan are not weekly earnings for purposes of calculating the employee’s workers’ compensation benefits, held an Iowa appellate court, affirming a decision by a state district court on that issue. The appellate court acknowledged that the employee’s own contributions to the plan would be used in the calculation, but noted that an...

June 09, 2016

Federal: Oregon’s Retaliatory Discharge Statute Offers No Protection Where Comp Claim Filed in Another State

A federal district court in Oregon, construing Or. Rev. Stat. § 659A.040—the state’s retaliatory discharge provision—held that the statute protects only those workers who apply for, invoke, or utilize the procedures of the Oregon workers’ compensation system, and not the system established by any other state. Accordingly, where Plaintiff, who worked out of his Oregon home for a New York employer...

June 08, 2016

California: WCAB Panel Finds Defense Counsel’s Failure to Provide RFA to Claims Administrator Was Unreasonable

Sometimes common sense trumps strict application of UR rules In Czech v. Bank of America , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel affirmed the WCJ’s finding that the defendant failed to timely complete utilization review (UR) pursuant to Labor Code § 4610 [ LC 4610 ] and that the applicant who suffered industrial orthopedic injuries on 4/3/2012 was entitled to medical treatment in the form of...

June 07, 2016

Split Panel Finds Pro Baseball Player’s Cumulative Injury Claim Barred by Statute of Limitations: Cal. Comp. Cases June Advanced Postings (6/6/2016)

Here’s the latest batch of advanced postings for the June 2016 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the case to read the complete headnotes and summaries. © Copyright 2016 LexisNexis. All rights reserved. Leo Estrella, Petitioner v. Workers' Compensation Appeals Board, Milwaukee Brewers, San Francisco Giants, ACE USA, Respondents, lexis.com , Lexis Advance...

June 06, 2016

National and State-by-State Workers' Comp News Powered by Larson's (6/6/2016)

CA: Ins. Dept. Announces 10.5 Percent Workers’ Comp Rate Reduction . CA: New Round of Charges Filed Against Medical Providers in WC System . CA: Sen. Mendoza Calls for Study, Investigation of WC Fraud . CA: UnitedHealth Exits ACA Market in California . CO: CDLE Workers Comp Division Hits Small Businesses With Heavy Noncompliance Fines . GA: Governor Signs HB 818 to Increase Benefit Rates . KY: Judge...

June 02, 2016

CWCI Finds Consistent Outcomes in California Workers’ Comp Independent Medical Reviews

A new analysis of California workers’ compensation independent medical review (IMR) decisions issued in the first quarter of 2016 shows that the medical dispute resolution process mandated by the 2012 workers’ comp reform bill is yielding consistent results in terms of the number of IMR determinations, the percentage of modified or denied treatment requests that are upheld, the types of medical services that...