Noteworthy Workers' Compensation Legal Trends 2016: Part Two

This article surveys recent legal trends in the states of Maryland, New Mexico, Tennessee, Texas and Wisconsin as explained by our workers’ compensation experts below.

MARYLAND:

Four of the hottest topics in Maryland are as follows:

1. Opioid use and abuse. Like the rest of the world, Maryland has seen an uptick in opioid use and abuse. To that end, on March 24th, the Maryland Workers’ Compensation Commission held a two-hour symposium to explore these issues. While nothing yet has been generated, we have been assured by the Commission they were looking at various options going forward.

2. The make up of the Commission itself. We have 10 commissioners including the chairman who all serve 12 year terms. It just so happens six of those terms expire within the next two years. Depending what the Governor decides to do, that could have a dramatic change on the make-up of the Commission and your expectations on litigated claims going forward.

3. Case law involving the going and coming rule. While the going and coming rule is still an established defense regularly used by employers, two of the exceptions, the free transportation exception and the special mission exception, have both been expanded. So while you can continue to rely upon the going and coming rule as a defense, understand that the exceptions are being looked at even more carefully.

4. Medical marijuana is continuing to grow like a weed. On August 15th, the Medical Cannabis Commission issued its stage one awards, allowing certain processors and growers who have an additional year to fulfill additional expectations. We have been told that medical marijuana qualified patients may start receiving marijuana as early as the end of this year, although it’s more likely to happen in 2017.

Albert B. Randall, Jr.
Franklin & Prokopik, PC
Baltimore, MD
410-230-3622
arandall@fandpnet.com

© Copyright 2016 Franklin & Prokopik, PC. Reprinted with permission.

NEW MEXICO:

The New Mexico Supreme Court in the case of Noe Rodriguez v. Brand West Dairy, 2016WL3611041, held on June 30, 2016, that the farm and ranch laborers exemption pursuant to Section 52-1-6-1.1 of the New Mexico Workers' Compensation Act, was unconstitutional, which had been in effect since 1939. Accordingly, farm and ranch laborers who previously have not enjoyed the protections of similar situated workers in other occupations in New Mexico are now entitled to Workers' Compensation coverage. New Mexico requires Workers' Compensation coverage pursuant to Section 52-1-6 to all employers who employ three (3) or more workers.

The New Mexico Workers' Compensation Administration published a memorandum July 16, 2016, advising that businesses that previously were exempt under the farm and ranch labor exception and who do not purchase Workers' Compensation coverage under the mandatory insurance provisions of the Workers' Compensation Act will potentially be subject to damages in District Court including compensatory and punitive damages.

A recent statutory change by the New Mexico legislature amended Section 52-1-12.1 and it became effective May 18, 2016. It applies for reduction in benefits when alcohol or drugs contribute to injury or death. The New Mexico Act now provides a Workers' Compensation judge to be able to reduce by degree to which the intoxication or influence contributes to a Worker's injury or death provided that the reduction of indemnity benefits shall be a minimum of 1 0% but no more than 90%.

Several aspects of the statute provide that an employer cannot take advantage of the statute unless it has a written policy which declares it is a drug and alcohol-free workplace and also must state the parameters of post-accident testing in compliance with the provisions of the statute. Additionally, provisions from the statute and its amendment are that compensation benefits for medical benefits are not reduced by the provisions of the statute and neither are compensation benefits that would be due and owing to payments of dependents of deceased workers.

Royce Hoskins
Trenchard & Hoskins
Roswell, New Mexico
575-622-7774
Royce.Hoskins@gmail.com

© Copyright 2016 Trenchard & Hoskins. Reprinted with permission.

TENNESSEE:

1. Medical Treatment Guidelines - adopted effective January 1, 2016. Medical treatment provided by the authorized treating physician, or other healthcare provider, in accordance with the ODG Guidelines, Chronic Pain Guidelines of the Tennessee Department of Health, and any other related appendices to the Guidelines, is presumed to be reasonable and necessary. The TN Bureau of Workers’ Compensation also adopted the ODG Drug Formulary.

2. Attorney’ Fees - legislative amendment now allows for reasonable attorney fees and costs to be awarded against the employer/carrier by the court of workers' compensation claims (subject to a two-year sunset provision) when the employer (a) fails to furnish appropriate medical treatment to an employee provided for in a settlement, expedited hearing order, compensation hearing order, or judgment; or (b) wrongfully denies a claim by timely filing a notice of denial, or fails to initiate any of the benefits to which the employee is entitled, if the workers' compensation judge makes a finding that such benefits were owed at an expedited hearing or compensation hearing.

3. Case Management - new regulations significantly limit the scope of permissible activities by a nurse case manager on a Tennessee workers’ compensation claim.

4. Ombudsman - new statute allows for ombudsmen who are licensed attorneys to provide “limited legal advice” to unrepresented injured workers.

5. Notice - the notice requirement for injuries by accident has been reduced from 30 days to 15 days.

Fredrick R. Baker
Wimberly Lawson Wright Daves & Jones, PLLC
Cookeville, TN
931-372-9123
fbaker@wimberlylawson.com

© Copyright 2016 Wimberly Lawson Wright Daves & Jones, PLLC. Reprinted with permission.

TEXAS:

The Texas legislature has enacted new laws: spouses of first responders are now entitled to lifetime death benefits, even if they remarry; the presumptions given to first responders have been expanded and strengthened; burial benefits are increased at $10,000; a small increase has been made in the payments of temporary income benefits to injured workers who make less than $10 an hour.

The Texas Supreme Court issued a decision affirming the Division of Workers' Compensation which intervened in a settlement where the injury worker and the insurance carrier resolved their dispute on the entitlement of supplemental income benefits by agreeing to a reduced amount. This calls into question all types of settlements and agreements going forward. See Tex. Dep't of Ins. v. Jones, __ S.W.3d __, 2016 Tex. LEXIS 575 (Tex. 2016).

Traveler's has convinced an Administrative Law Judge at the State Office of Administrative Hearings that compounds are indeed an experimental drug and, therefore, requires preauthorization. Note that the Division of Workers’ Compensation will be auditing the prescribers of these compound medications.

Enforcement continues to be one of the primary concerns for stakeholders, so expect significant enforcement activity for lifetime income benefits and death benefits, but, truly, you should be concerned about the accuracy and timeliness of all indemnity benefits, and also pay attention to the language on notices and utilization review agents. We hear this is going to be a significant piece of enforcement for years to come.

Stuart Colburn
Downs Stanford, PC
West Lake Hills, Texas
512.891.7771
scolburn@downsstanford.com

© Copyright 2016 Downs Stanford, PC. Reprinted with permission.

WISCONSIN:

Significant changes to the Wisconsin Worker’s Compensation Act took effect on March 2, 2016. Physicians may now apportion permanent disability ratings between the percentage caused by a work injury and the percentage attributable to other factors. Additionally, the legislature reduced the statute of limitations for traumatic injuries from 12 years to 6 years (it remains 12 years for occupational exposure claims); employees may now claim prospective vocational retraining benefits at Hearing; and employers/insurers may deny indemnity benefits when an employee’s injury is caused by a drug and/or alcohol policy violation.

The new statutory changes provide employers/insurers with an additional defense to temporary indemnity benefits. If an employee released to light duty work is suspended or terminated due to misconduct or substantial fault as defined in Wisconsin’s unemployment statute, Chapter 104, temporary disability benefits may be denied. On balance, the statutory changes are favorable to employers and insurers.

Most recently, the Wisconsin legislature changed the way real estate agents are treated for worker’s compensation purposes. Wisconsin worker’s compensation law previously categorized real estate agents as employees, requiring brokerages to purchase worker’s compensation insurance for them. Effective July 1, 2016, Wisconsin real estate agents are now treated as independent contractors, and brokerages are not required to purchase coverage for their agents. This marks the first time in recent memory that the legislature successfully changed Wisconsin worker’s compensation law outside of the agreed-upon bill process.

Douglas M. Feldman
Lindner & Marsack
Milwaukee, Wisconsin
414-273-3910
DFeldman@lindner-marsack.com

© Copyright 2016 Lindner & Marsack. Reprinted with permission.