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Christina Lumbreras

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com

You Be the Judge

Who Has Jurisdiction Over Interstate Truck Driver’s Claim?

When the Florida employee of a Texas company is injured in Ohio, a battle over the claim's jurisdiction rages.
By: | December 1, 2014 • 2 min read
You Be the Judge

An interstate truck driver from Florida worked for Joe Tex, a Texas company. He was temporarily in Ohio to pick up machinery when he was struck by a bungee cord and sustained numerous injuries to his left eye.

The driver filed a workers’ compensation claim in Ohio. The Industrial Commission allowed his claim. Joe Tex appealed.

It was undisputed that Joe Tex purchased a third-party insurance policy in compliance with Texas law whereby the driver received disability income, dismemberment benefits, and medical expenses. Under Texas law, an employer can be a lawful non-subscriber to its workers’ compensation system by purchasing such a policy.

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Workers are not covered under Ohio workers’ compensation if the worker is a resident of a state other than Ohio, he is insured in a state other than Ohio, and he is temporarily within Ohio. The driver argued that he was not similarly covered by the workers’ compensation laws of Texas. Joe Tex asserted that because the driver received benefits under the third-party insurance policy and Texas does not require employers to subscribe to the workers’ compensation system, the driver was similarly covered and received benefits under Texas law.

The trial court found that the driver was entitled to participate in the Ohio workers’ compensation system. Joe Tex appealed.

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The court found that a Texas employer that declines to participate in the workers’ compensation system and instead opts to obtain private insurance is not subject to the same standards as an employer that elects to participate in the workers’ compensation fund.

By Joe Tex purchasing a third-party insurance policy, the driver was removed from the procedural protections of Texas workers’ compensation laws. Ohio does not have an option for employers to purchase a third-party insurance policy instead of participating in its workers’ compensation system. Therefore, the court found the driver was not covered by a similar law in Texas and could participate in the Ohio workers’ compensation system.

B is incorrect. The court explained that even though the driver, a Florida resident, was only temporarily in Ohio, he was entitled to participate in the Ohio workers’ compensation system because he was not insured under the workers’ compensation law or similar laws of another state.

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C is incorrect. Although Joe Tex was a lawful non-subscriber in Texas, the court pointed out that an employee of a non-subscriber does not receive the benefit of exclusive remedies provided by Texas law. Because the driver was not covered by a similar workers’ compensation law in Texas, he was entitled to participate in the Ohio workers’ compensation system.

How the court ruled: A. The Ohio Court of Appeals held that the driver was entitled to benefits in Ohio because he was not covered by a similar workers’ compensation law in Texas.

Linardos v. Joe Tex, Inc., et al., No. CA2013-08-067 (Ohio Ct. App. 10/13/14).

 

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com
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The State of the States

Regulatory Review

A round-up of nationwide regulatory changes affecting the workers' compensation industry.
By: | December 1, 2014 • 4 min read
cali capitol resized

California

Medical Fee Schedule

The Division of Workers’ Compensation updated the physician services and non-physician practitioner services fee schedule portion of the official medical fee schedule to conform to changes in the Medicare system. Medicare’s practitioner services medically unlikely edits table was adopted. The division also adopted the Medicare quarterly update to the physician/practitioner national correct coding initiative edits. The changes went into effect for services rendered on or after Oct 1. Click here for more information.

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ICD-10 Implementation

The Division of Workers’ Compensation adopted changes to a medical billing regulation and to the medical billing and payment guide to postpone the ICD-10 compliance date until Oct. 1, 2015. The Department of Health and Human Services issued a final rule postponing use of the OCD-10 until Oct. 1, 2015 for Health Insurance Portability and Accountability Act-covered entities. The administrative director amended the medical billing and payment guide to align the workers’ compensation ICD-10 transition date with the transition date applicable to HIPAA-covered entities and the broader health care sector.

Hawaii

Medical Fee Schedule

The Department of Labor and Industrial Relations proposed amendments to the workers’ compensation medical fee schedule and billing codes in the supplemental medical fee schedule. The supplemental medical fee schedule will be dated Jan. 1, 2015. The department held a public hearing on Nov. 20.

Massachusetts

Cost-of-Living Adjustments

The Department of Industrial Accidents issued a circular letter regarding cost-of-living adjustments, maximum and minimum weekly compensation rates, and the attorney’s fees schedule. For injuries occurring on or after Oct. 1, the weekly compensation rate for temporary and total disability benefits is 60 percent of the worker’s average weekly wage before the injury, but no more than a maximum weekly compensate rate of $1,214, unless the AWW of the worker is less than the minimum weekly compensation rate of $243, in which case the weekly compensation is the worker’s AWW. The weekly compensation rate for permanent and total disability benefits is two-thirds of the worker’s AWW before the injury, but no more than the maximum weekly compensation rate of $1,214 or less than the minimum weekly compensation rate of $243. To be eligible for a COLA, the date of injury must have occurred at least two years before Oct. 1. The department noted that it will later establish an electronic submission process for COLA reimbursement requests.

Michigan

Health Care Services

The Department of Licensing and Regulatory Affairs, Workers’ Compensation Agency proposed amendments to the health care services rules and fee schedule. The rules were revised to provide the agency’s external customers with updated health care fee schedules for reimbursement to providers for treatment of injured workers and to guide providers and payers on the scope of reimbursement.

Ohio

Employer Application for Workers’ Compensation Coverage.

The Bureau of Workers’ Compensation proposed changes to a rule regarding an employer’s initial application for coverage. The rule sets forth the procedure the bureau will use when it is determined that an employer was required to obtain workers’ compensation coverage and failed to do so. An application for coverage must include the legal name and business entity type, employer’s address, the federal tax identification number or Social Security number of the employer, information related to the description of the employer’s operations, information related to whether the applicant purchased an existing business or has another associated policy, name of the owners or corporate officers, signature of the person completing the application, and a nonrefundable application fee. If the bureau receives an application that does not include all of the required information, it will attempt to contact the employer. If the employer does not provide the information, the bureau will deny the application.

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Prospective Billing

The Bureau of Workers’ Compensation amended rules regarding prospective billing. The bureau amended a rule regarding officers of corporations, elective coverage entities, and ministers. The rule states that coverage that is extended to a person who in his household employs household workers does not include such person himself. The bureau also proposed new rules regarding reporting of payroll and reconciliation of premium due and penalties for late payment and reporting.

Oregon

Annual Reporting Requirements

The Workers’ Compensation Division proposed changes to rules regarding annual reporting requirements for self-insured employers. The division proposed to increase the reporting threshold for individual claims to $15,000, effective Jan. 1, 2015, to remain consistent with reporting requirements used by the National Council on Compensation Insurance.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com
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View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | November 13, 2014 • 13 min read
judge

Fall injuries Compensable Despite Visible Intoxication

St. Regis Hotel, 114 NYWCLR 148 (N.Y. W.C.B., Panel 2014)

Ruling: The New York Workers’ Compensation Board held that a server was entitled to benefits for his ankle injury from a fall.

What it means: In New York, no compensation is awarded when the worker’s intoxication from alcohol or a controlled substance while on duty was the sole cause of the worker’s accident.

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Summary: The board found that a banquet server for the St. Regis Hotel was entitled to benefits for an injury to his left ankle when he tripped and fell. He was carrying a tray of wine glasses when he opened the door to the ballroom in the kitchen, stepped on something, twisted his left foot, and fell. The server testified he was a recovering alcoholic but had two glasses of wine that evening and was on medication to treat his HIV. The server also said that the medication gave him side effects such as stomach problems, dizziness, lack of sleep, and tiredness, but he was on the medication for so long that he was used to the side effects. In finding that the workers’ compensation law judge properly established the claim, the board noted that the server had been working the entire evening before the accident. The injury did not occur solely from alcohol the server had consumed but rather arose in and out of the course of employment. The board found that walking down a ramp with a heavy tray of glasses, alone, could have contributed to the server’s accident.

A security officer said there was no liquid on the ramp, and the catering supervisor said the server was incoherent and slurring after the accident. The board found this testimony did not establish that alcohol and intoxication were the sole cause of the accident. Therefore, the hotel could not establish the intoxication defense.

Employer Not Liable for Stolen Workers’ Comp Checks

Yerdon v. Eihab Human Services, 29 PAWCLR 149 (Pa. W.C.A.B. 2014)

Ruling: The Workers’ Compensation Appeals Board affirmed the workers’ compensation judge’s decision that the employer/insurer was not required to issue new compensation checks or pay a penalty for nonpayment.

What it means: In Pennsylvania, where the employer properly issued compensation checks in a timely manner, but the worker never received those funds because her signature was forged on the checks and they were cashed by a third party, the employer is not required to issue new checks to the worker.

Summary: In affirming the WCJ, the board held that although the worker did not receive four compensation checks that were sent to her, the employer/insurer was not required to issue new checks or pay a penalty for nonpayment. It was undisputed that the worker did not sign the four compensation checks that were sent to her. It was also undisputed that the checks were sent to the appropriate address and never returned to the employer/insurer. The worker’s signature was apparently forged on the checks, and they were cashed by someone other than the worker. The board ruled that although the worker argued she never actually received her compensation payments because somehow those payments were intercepted by a third party, the employer/insurer honored its obligation to make payment of compensation. The employer/insurer could not be made responsible for the actions of a third party.

Therefore, although the worker technically never received her payment of indemnity benefits, this was not due to any action on the part of the employer/insurer, and it should not be forced to pay twice.

Widow Wins Four Years of Interest on Death Benefits

Stenz v. Industrial Commission of Arizona, No. 2 CA-IC 2013-0022 (Ariz. Ct. App. 10/08/14)

Ruling: The Arizona Court of Appeals held that a widow was entitled to interest on death benefits dating back to a worker’s death.

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What it means: In Arizona, interest on benefits begins to accrue when there is a legal indebtedness or other obligation to pay benefits and the carrier has notice of this obligation to pay.

Summary: A worker for the City of Tucson suffered a compensable injury. The insurer, Pinnacle Risk Management, accepted the claim and paid benefits. Later, the worker died, and his widow sought death benefits. Pinnacle denied the claim for death benefits. Subsequently, an administrative law judge granted the widow’s claim for death benefits. The following month, Pinnacle paid the benefits dating back to the worker’s death but did not pay any interest. The widow asserted that she was entitled to interest on the unpaid death benefits for the four-year period between the worker’s death and their payment. Pinnacle asserted that no interest was due because it timely paid the claim following the ALJ’s award. The Arizona Court of Appeals held that the widow was entitled to interest on the death benefits.

The court explained that a workers’ compensation claimant is owed interest on benefits not timely paid. Interest begins to accrue when there is a legal indebtedness or other obligation to pay benefits and the carrier has notice of this obligation to pay. Interest is allowed on “liquidated claims” but not “unliquidated claims.” Liquidated means the evidence furnishes data that makes it possible to compute the amount with exactness without reliance on opinion or discretion. The court explained that death benefits are “susceptible to mathematical computation” and subject to a “statutory payment schedule.” Therefore, the death benefits the widow was awarded were liquidated and constituted a legal indebtedness or other obligation to pay upon the ALJ’s award.

The court found that Pinnacle had notice of its obligation to pay when it received notice of the widow’s claim. It could have begun payments to the widow after receiving notice of her claim and before the Industrial Commission made its determination. The court found the benefits were not timely paid, and interest began to accrue from the time Pinnacle received notice of the widow’s claim.

The court found its decision was supported by the public policy considerations underlying the workers’ compensation law. An award of interest serves to compensate the injured party. The court pointed out that Pinnacle’s initial challenge to the widow’s entitlement to benefits did not affect its analysis. Also, permitting carriers to avoid paying interest on liquidated benefits from the time they are notified of a claim provides carriers a disincentive to pay legitimate claims because there would be no penalty for contesting payment until a final award is issued.

Inadequate Protective Equipment Doesn’t Prove Intentional Wrong

Blackshear v. Syngenta Crop Protection, Inc., No. A-3525-12T1 (N.J. Super. Ct. App. Div. 10/06/14)

Ruling: The New Jersey Superior Court, Appellate Division held that the exclusive remedy provision barred a widow’s suit against an exterminator’s employer.

What it means: In New Jersey, the intentional wrong exception to the exclusive remedy provision applies when the employer possesses a “substantial certainty” that harm will result from the action.

Summary: An exterminator for Corbett Exterminating died from brain cancer. His widow sued Corbett, asserting that his death was connected to the pesticides to which he was exposed at work. The New Jersey Superior Court, Appellate Division held that the exclusive remedy provision barred the widow’s suit.

The widow asserted that the intentional wrong exception to the exclusive remedy provision applied. The intentional wrong exception applies when the employer possesses a “substantial certainty” that harm will result from the action. The widow’s proof at most demonstrated that Corbett, by providing the exterminator with inadequate personal protective equipment, knowingly exposed him to cancer-causing pesticides and concealed that information from him. The court found this failed to meet the substantial certainty test.

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The court noted that the coverage of occupational diseases under the workers’ compensation law reflected a general awareness of potentially hazardous conditions in the workplace that can result in debilitating diseases necessitating compensation. Assuming the exterminator’s brain cancer was a result of his exposure to pesticides at work due to inadequate personal protective equipment, the court could not conclude that such was beyond what the legislature intended to be covered under workers’ compensation. The court found the exterminator’s exposure could be fairly “viewed as a fact of life of industrial employment” for which recovery under workers’ compensation was designed.

Policy Violation Doesn’t Bar Coverage of Knee Injury

Best Western Inn v. Paul, No. CV-14-277 (Ark. Ct. App. 10/01/14)

Ruling: The Arkansas Court of Appeals held that a housekeeper was entitled to benefits for her knee injury, including additional medical treatment.

What it means: In Arkansas, a compensable injury does not include an injury inflicted upon the worker at a time when employment services were not being performed.

Summary: A housekeeper for Best Western was cleaning a room and discovered that she needed new towels. As she was walking downstairs to the laundry room to retrieve some towels, she slipped and fell on water, injuring her knee. She was also carrying food that she found in one of the hotel rooms to put in the refrigerator in the laundry room. Best Western claimed that the housekeeper was not acting in the course and scope of her employment at the time of the incident because she was taking food to the laundry room refrigerator for her own benefit when she fell. The housekeeper denied that the food was for her own personal use. The Arkansas Court of Appeals held that the housekeeper was entitled to benefits, including additional medical treatment.

Best Western asserted that the housekeeper was not performing employment services when she was injured because she was taking food from the room of a former hotel guest for her own use in violation of hotel policy. The court rejected the argument, finding that the housekeeper was performing employment services at the time she was injured.

Best Western also asserted that the housekeeper was not entitled to additional medical treatment because she only suffered a sprain and additional diagnostic testing was related only to her long-standing and ongoing right knee problems that resulted in surgery just months before the accident. The housekeeper’s surgeon examined her after the work injury, determined that she suffered a new injury, and was worried about a re-tear. The surgeon recommended an MRI to understand the extent of her injury. The court found that the housekeeper was entitled to the additional medical treatment.

Nurse Fails to Obtain Reimbursement for Ayurvedic Therapy

Babu v. Workers’ Compensation Appeal Board, No. 166 C.D. 2014 (Pa. Commw. Ct. 09/15/14)

Ruling: The Pennsylvania Commonwealth Court held that a nurse was not entitled to reimbursement of bills for Ayurvedic therapy and treatment performed in India.

What it means: In Pennsylvania, services provided by non-licensed medical providers are not compensable if they are not provided under the supervision of or upon referral by a licensed practitioner.

Summary: A nurse sustained two work-related injuries to her shoulders and neck. She received indemnity benefits and sought reimbursement for Ayurvedic treatment, a type of holistic massage, which she received while in India. The Pennsylvania Commonwealth Court held that the nurse was not entitled to reimbursement for the Ayurvedic treatment.

The court explained that the practitioners who performed the Ayurvedic treatment were not licensed providers in Pennsylvania and the services were not performed under the supervision of a licensed Pennsylvania health care practitioner. Also, the medical certificates did not describe the treatment, what body parts the treatment was applied to, or include any medical reports required by the workers’ compensation law. Neither of the nurse’s physicians ever recommended such treatment to a patient. No evidence showed that the treatment was pursuant to a prescription or referral.

The nurse argued that she should be deemed the “supervising health care practitioner” over her own care in India. The court rejected the argument, finding no evidence that she was trained in massage therapy or that she exercised supervisory control over the practitioners in India or guided them during the treatment.

The court also rejected the nurse’s assertion that the workers’ compensation law that limits payment of medical bills to services by Pennsylvania licensed health care providers is unconstitutional. The court explained that the requirements for Pennsylvania licensing of health care providers promotes legitimate state interests of cost containment and cost certainty, and any classification of injured workers is related to promoting those interests.

Comp Doesn’t Cover After Hours Death From Hurricane Sandy

Empire Parking, 114 NYWCLR 141 (N.Y. W.C.B., Panel 2014)

Ruling: The New York Workers’ Compensation Board held that the death of a worker, who drowned during Hurricane Sandy while in his employer’s parking garage, did not arise out of and in the course of his employment.

What it means: In New York, where a worker chooses to remain on the employer’s premises even though his shift has ended and he has been instructed repeatedly to leave for his own safety due to an impending storm, the worker’s resulting death does not arise out of his employment.

Summary: The board held that the death of a worker, who drowned during Hurricane Sandy while in his employer’s parking garage, did not arise out of and in the course of his employment. The worker’s manager testified that the worker’s shift ended earlier in the day and that he instructed the worker several times to leave the premises. The manager also testified that on previous occasions he had allowed employees to spend the night in the garage.

In denying benefits, the board noted that for reasons unknown the worker chose to remain on the employer’s premises even though he was repeatedly told to leave the area. The worker’s shift had ended, and it was unreasonable for him to have remained at the garage since the garage was located in a mandatory hurricane evacuation zone.

The board said there was no work-related reason for the worker to be in the garage that evening. His decision to remain there was strictly a personal one, as evidenced by the fact that he refused to leave after numerous attempts to get him to do so.

Worker Allowed Travel Reimbursement for Weekly Rx Runs

Burkhamer v. AT&T Corp., No. 13-0521 (W.Va. 09/29/14)

Ruling: The West Virginia Supreme Court of Appeals held that an operator was entitled to travel reimbursement to pick up her prescriptions once per week.

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What it means: In West Virginia, a worker is not entitled to reimbursement for travel expenses to pick up prescriptions when the worker traveled an excessive and unreasonable number of times.

Summary: A telephone operator for AT&T was injured in the course of her employment when she was electrocuted. She took nearly 30 medications and traveled 157 miles roundtrip from her home to pick up her prescriptions. The claims administrator sent the operator a letter stating that there had been an excessive amount of trips to pick up medication. The trips were often one or two days apart. The claims administrator authorized reimbursement for previous trips but stated that the operator needed to arrange to pick up her medications once per month. The claims administrator also stated that if she needed assistance organizing the pick-up, the claims administrator would provide it. The claims administrator also offered to set up a mail order pharmacy program. The operator continued to travel to pick up her medications twice per week. The claims administrator denied travel reimbursement to pick up medications. The West Virginia Supreme Court of Appeals held that the operator was entitled to travel reimbursement to pick up her prescriptions once per week.

The operator asserted that she had problems in the past with mail being taken from her rural mailbox. Also, she argued that some of her medications were narcotics and could not be filled early, making it difficult to pick up all of her prescriptions at once. The court agreed with the Workers’ Compensation Board of Review’s decision finding that the operator traveled an excessive and unreasonable number of times. She took numerous medications and possibly had problems obtaining them. However, AT&T asserted its willingness to assist her in organizing her medications to be picked up once per month. The court allowed reimbursement for trips made once per week.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com
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