April 22, 2016

California: IMR Reviewer’s Conclusion Contradicted by IMR Reviewer’s Own Summary of Case

Beware of UR and IMR physicians who use MTUS, ACOEM, and ODG guidelines to deny treatment when, in fact, other MTUS, ACOEM, or ODG guidelines do support an RFA from a treating physician In Gonzalez-Ornelas v. County of Riverside , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB rescinded the WCJ’s order denying the applicant’s appeal of a 9/11/2015 independent medical review (IMR) determination denying authorization...

April 22, 2016

Ohio: PTD Benefits Not Available to 90-Year-Old Since He Could Return to Work

In making its determination that a 90-year-old claimant was not permanently and totally disabled, the Industrial Commission was free to reject a report from claimant’s vocational consultant in favor of its own analysis of relevant vocational factors. While the Commission acknowledged that claimant’s age was a negative factor, it also noted that claimant had a high school education and a lengthy and successful...

April 22, 2016

South Carolina: Statement to Employer That Employee Was “Pretty Sore” Constituted Notice of Injury

Evidence that one day after moving tires, rims and heavy frame equipment while cleaning his employer’s shop, an auto body paint technician told the employer’s owner that he was “pretty sore” and he “must have hurt [himself],” was sufficient to constitute notice of injury under S.C. Code Ann. § 42–15–20, particularly where the Commission—after hearing the testimony of both parties—found the employee more credible than...

April 22, 2016

United States: UIM Insurer May Not Offset Workers' Compensation Benefits Received by Plaintiff

Construing Colorado law, a federal district court held that in a suit to recover UIM benefits under an insurance policy issued to plaintiff by the defendant insurance company, evidence related to the plaintiff’s prior recovery of medical expenses, wages, and other benefits through workers’ compensation should be excluded. The defendant argued that evidence of such a collateral source should be presented to a jury, lest...

April 22, 2016

Oklahoma: Commission May Rule on Specific Constitutional Issues

Oklahoma’s Workers’ Compensation Commission is appropriately empowered to determine whether a provision of the state’s workers’ compensation law [Title 85A] is being constitutionally applied to a particular party in a proceeding before the Commission, held the state’s Supreme Court in a per curiam decision. The Court’s decision came after it had asked the state Attorney General’s office to brief the issues. In its brief...

April 22, 2016

New York Workers’ Compensation Trends and Developments for 2015

Many of the new developments in Workers’ Compensation Law and Practice in New York in 2015 were in the area of administrative and regulatory changes resulting from the Workers’ Compensation Board’s Business Process Re-engineering Project (BPR). There were very few legislative developments, but the appellate courts handed down numerous decisions affecting almost all issues under the Workers’ Compensation...

April 22, 2016

Do You Know When Your Fee Petition Is Due? The Rocky Road Untimely Attorney’s Fee Petitions Travel

William Dorsey, Administrative Law Judge [fn1], Scott Hardy, Attorney Advisor, OALJ San Francisco A ttorney’s fees and costs often are available under the Longshore and Harbor Workers’ Compensation Act (33 U.S.C.S. § 901 et seq.)  to lawyers who successfully represent a “person seeking benefits” [fn2] (usually but not always a worker) after an employer or its carrier denies requested benefits. [fn3] Yet the Act doesn...

April 20, 2016

Vermont Workers' Compensation Update: January to March 2016

This list of recent noteworthy cases was compiled by Keith J. Kasper of McCormick, Fitzpatrick, Kasper & Buchard, PC. The Voice of The Department, Ellen Gonyaw, the receptionist, has retired after almost 9 years to move to Maine to open a campground. We all wish her well and hope she survives black fly season! Paula Liberty is starting to take cases ending in 8 as the WC Specialist II At the annual meeting...

April 18, 2016

National and State-by-State Workers' Comp News Powered by Larson's (4/18/2016)

Senators Slam Obama Directive for Sick U.S. Nuclear Workers . AK: WCD Posts Director’s Interpretation on Issues Impacting Medical Fee Schedule . AZ: Governor Signs SB 1323 Pro Se Vexatious Litigant . CA: WCAB Chairman Ronnie Caplane to Retire From State Service . CA: Supreme Court Grants Review in King v. CompPartners, UR Malpractice Case . CA: WCIRB Submits July 1, 2016 Filing . CA: WCIRB Sets Hearing...

April 15, 2016

United States: Sales Executive’s Claims for Negligent Hiring and Emotional Distress Held Barred

A federal court sitting in Nevada dismissed a sales executive’s cause of action against his former employer for negligent hiring, training, supervision, and retention of another employee and dismissed as well a claim that the former employer was liable for intentional infliction of emotional distress (IIED), finding that all the claims are precluded by Nevada’s workers’ compensation statute (the “Nevada Act”). Taking...

April 15, 2016

Louisiana: Parish Sheriff’s Office May Not Be Sued by Prisoner Injured While on Work Release

A Louisiana parish sheriff’s office that administered a work release program, pursuant to which a prisoner worked for the parish “police jury” as a “hopper” on a garbage truck, was not the prisoner’s employer and did not owe a duty of providing a safe working environment in spite of the fact that the sheriff’s office assisted in securing work assignments and received the prisoner’s wages through the inmate banking system...

April 15, 2016

Defendant’s Claim for Credit Rejected When FEHA Violation Led to Applicant’s Injury: Cal. Comp. Cases April Advanced Postings (4/15/2016)

Here’s the latest batch of advanced postings for the April 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. Hartzheim Dodge, Inc., Auto Dealers Compensation of California, Inc., PSI, adjusted by CorVel Corporation, Petitioners v. Workers' Compensation Appeals...

April 15, 2016

Connecticut: FedEx Driver Recovers for Physical and Psychological Injuries

The Supreme Court of Connecticut affirmed an award of TTD benefits for an 11-month time period where evidence indicated the employee, who delivered parcels for the employer, fell ill while delivering a package to a fire station and, upon examination, fire personnel detected an abnormal heart rhythm and called an ambulance. Subsequent tests at a local hospital showed the employee’s heart rhythm devolved into a form of...

April 15, 2016

Oklahoma: Supreme Court Strikes Down Yet Another Provision in State’s Comp Act

In a split (7–2) decision, the Supreme Court of Oklahoma has struck down yet another provision of the state’s controversial 2013 “reform” of its workers’ compensation law. The provision, Okla. Stat. tit. 85A, § 45(C)(5), defers the payment of a permanent partial disability award if the injured employee returns to her pre-injury position and pay. The employee sustained an admitted injury...

April 14, 2016

California: More UR Timeliness Nuances Decided by WCAB Panel

WCAB panel determines single RFA requires single response even where multiple modalities requested A recent WCAB panel decision has provided additional guidance in the seemingly endless stream of issues involving nuances in timing of UR determinations for identifying when the WCAB may have jurisdiction to decide medical treatment disputes under the en banc decision in Dubon v. World Restoration (2014) 79 Cal.Comp.Cases...

April 14, 2016

Physicians and Drug Companies Strike Back at Attempts to Curb Drug Costs

Are reform efforts aimed at controlling the costs of physician-dispensed drugs having the desired effect? It appears not, at least in California, Florida, Pennsylvania, Illinois, and Tennessee. In recent years, at least 20 states have made legislative or regulatory changes attempting to control the cost of drugs dispensed directly by physicians, which have often cost consumers much more than the same drugs dispensed...

April 13, 2016

Missouri: Court Awards Benefits for Slip from Sidewalk

An administrative assistant in 2012 was leaving work, stepped off of a ramp onto a sidewalk on the employer’s property on the way to her car and injured her ankle. The court of appeals affirmed an award of benefits and found that the accident arose out of her employment. Lincoln University v. Kathy Narens , 2016 Mo App. Lexis 345 WD 79003 (Lexis Advance), 2016 Mo App. Lexis 345 (lexis.com) (Mo. App. 2016). The...

April 12, 2016

National and State-by-State Workers' Comp News Powered by Larson's (4/11/2016)

Express Scripts Releases New Drug Trend Report . Leahy Bill in U.S. Senate Could Kill Key Provision in TX Nonsubscriber ERISA Plans . AZ: RBRVS Fiscal Impact Study Released . AZ: ICA Requests Oct. 1 Effective Date for UR Rules for Opioid Use . CA: Ninth Circuit to Hear Challenge to Class Action in Uber Case . CA: Governing Committee Votes for Mid-Year Filing . CA: WCIRB Posts FAQs for 2017 Experience Rating...

April 11, 2016

CWCI Report Tracks California Workers’ Comp Medical and Indemnity Payment Trends

Oakland - New CWCI research that tracks average California workers’ comp medical loss, indemnity benefit and medical cost containment (MCC) payments on accident year (AY) 2005 - 2014 lost-time claims valued at the end of June 2015 shows mixed results, with more developed data on older claims showing paid medical losses and indemnity leveling out or declining, while less developed data on newer claims indicating...

April 08, 2016

Alabama: Removal of Safety Equipment Does Not Expose Employer to Tort Liability

Allegations that an employer removed “explosion doors” from a furnace and that a furnace explosion subsequently injured a furnace operator were insufficient to state a cause of action against the employer; the claim was barred by the exclusive remedy provisions of the Alabama Workers’ Compensation Act (“Comp Act”), held the Supreme Court of Alabama. Nor could plaintiffs state a claim under...

April 08, 2016

Ohio: Worker Not Entitled to TTD Compensation Where His Loss of Income Was Due to Voluntary Retirement

Denial of an injured worker’s application for TTD compensation was appropriate where the Commission determined that the worker’s loss of income was due to his voluntary abandonment of his employment in 2012 due to reasons unrelated to a 2009 industrial injury to his knee. While the worker testified that he retired because of difficulties with his knee, the evidence also indicated that he had returned to work following...

April 08, 2016

Texas: Police Sergeant’s Widow May Not Recover Wrongful Death Benefits Against Police Department

A widow’s civil action to recover damages from the Houston Police Department related to an incident in which her husband, a police sergeant, was killed in the line of duty by a man who was present in this country illegally, and who was subsequently convicted of the police sergeant’s murder, was barred by the exclusive remedy provisions of the Texas Workers’ Compensation Law. Her allegations that her...

April 08, 2016

Virginia: Failure to Follow Physician’s Cautionary Statement Made 19 Years Before Accident No Bar to Recovery

Reversing a decision of the state’s Workers’ Compensation Commission, a Virginia appellate court held that a physician’s instruction, following a 1995 work-related knee injury, that the worker should avoid walking on uneven ground, was not sufficiently specific to justify denial of benefits for a 2014 injury that occurred when the worker and a co-worker simultaneously stepped across a drainage ditch...

April 07, 2016

California: Another Hurdle for Lien Claimants

In Guerrero v. Easy Staffing , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, in a split panel opinion, affirmed the WCJ’s order dismissing the lien of Advance Care Specialist Medical Clinic (ACSMC) for failure to timely file the lien pursuant to the 18-month statute of limitations applicable to services provided on or after 7/1/2013 as described in Labor Code § 4903.5 (a) [ LC 4903.5 ]. (Publisher’s...

April 07, 2016

Opt-Out Lessons From Lone Star State

Shining the Real Light on So-Called Texas Opt Outs By Thomas A. Robinson, co-author Larson’s Workers’ Compensation Law As Lex Larson and I point out in the opening article in Workers’ Compensation Emerging Issues Analysis , 2015 Edition, 2016 will shape up to be an important one in determining whether the workers’ compensation “opt-out” phenomenon currently going on in Oklahoma...