NC Court Approves Medical Claim for Non-FDA-Approved Compound Cream

A North Carolina appellate court recently held that non-FDA-approved drugs could not be categorically excluded from medical compensation under the state’s workers’ compensation system [Davis v. Craven County ABC Bd., 2018 N.C. App. LEXIS 368 (Apr. 17, 2018)]. The court noted that the text of the Workers’ Compensation Act did not limit the types of drugs that might reasonably be required solely to those that are FDA-approved. The court stressed that instead, the statute indicates that whether a particular medical treatment “may reasonably be required to effect a cure or give relief” is a fact question that must be individually assessed in each case [N.C. Gen. Stat. § 97-2(19)]. The court concluded that were the court to create a categorical exclusion for non-FDA-approved medical treatments, it would, in effect, be adding an exception to the Act where one does not exist in the text.

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PA Court Nixes Chiropractor’s Separate Charges for “Office Visits” in Connection with Treatments

A Pennsylvania appellate court has concluded that an examination involving no new medical condition, change in medical condition, or other circumstances that require an examination and assessment above and beyond the usual examination and evaluation for the treatment performed on the same date does not constitute “a significant and separately identifiable service” for which a chiropractor may be paid under 34 Pa. Code § 127.105(e) [Sedgwick Claims Mgmt. Servs. v. Bureau of Workers’ Comp., 2018 Pa. Commw. LEXIS 124 (Apr. 11, 2018)]. Accordingly, a chiropractor treating an injured worker was not entitled to payment for 39 “office visit” charges of $78 each on dates on which he provided chiropractic treatment to the worker and billed for the other treatments.

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No Recovery For Swooning Virginia EMT

Repeat After Me: “Correlation Doesn’t Mean Causation”

The Virginia Court of Appeals recently reversed an award of workers’ compensation benefits to an emergency room paramedic who fainted, sustaining a skull fracture and hematoma, as the physician he was assisting began to insert a needle into a patient’s lumbar spine [Lynchburg Gen. Hosp. v. Foster, 2018 Va. App. LEXIS 90 (Apr. 10, 2018)]. The Court acknowledged that while the EMT’s injury certainly occurred in the course of his employment, he had failed to prove that the accident arose from that employment. Stressing the fact that Virginia used what its courts call the “actual risk test,” the Court noted that the causative danger must be peculiar to the work and not “common to the neighborhood.”

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20 Shades of Gray: NY Court Construes “Risks of Street Travel” Rule

Where a New York office worker sustained injuries when she tripped and fell while walking on a public sidewalk approximately 20 feet from the door to the building that contained her office, after she had parked her car in an employer-owned parking lot one block away, her injuries did not arise out of and in the course of her employment, in spite of New York’s special “gray area” rule, held a state appellate court [Matter of Brennan v. New York St. Dept. of Health, 2018 N.Y. App. Div. LEXIS 1851 (3rd Dept. Mar. 22, 2018)]. The appellate court observed that there was no evidence the worker faced any sort of special hazard on the uneven sidewalk where she fell.

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Commentary: How Equitable is Florida’s New PTSD Coverage?

What Does Florida Have Against Teachers and Bartenders?

As I posted Monday [click here to view that post], a bill to extend relatively broad PTSD coverage to Florida’s first responders was passed unanimously by both state houses earlier in March. On Tuesday [March 27], Governor Rick Scott signed the bill into law. While I am generally in favor of the amendment to the state’s Workers’ Compensation Act, I’m left with the nagging question: “What does Florida have against teachers and bartenders?” The new PTSD coverage will not, of course, apply to those professions (or any others, for that matter) in spite of the fact that they may sometimes face the same sorts of shocking scenes as first responders. Moreover, unlike Florida’s first responders, teachers and bartenders generally receive no special training to help them deal with such horrific situations. Florida’s amendment confirms a thought that I’ve had for some time: “hot” issues often make for “bad” law.

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Florida Legislature Approves PTSD Coverage for First Responders

Earlier this month, the Florida Senate and House both unanimously passed Senate Bill 376, so as generally to allow workers’ compensation benefits for first responders who suffer PTSD as a result of their work. The coverage protection, which treats PTSD as an occupational disease, in spite of the fact that PTSD is typically triggered by a specific event, will be effective on October 1, 2018. Passage of the bill was seem by most to be a reaction to the tragedy surrounding the Marjory Stoneman Douglas High School shooting on February 14, 2018 in Parkland, Florida.

The legislation, the House version of which was sponsored by Representative Matt Willhite, who serves as a captain in the Palm Beach County Fire Rescue Department, will become law unless it is vetoed by Governor Rick Scott within the time allowed him under law. Such a veto is not expected.

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Oklahoma Supreme Court: Parent Corporation Not Always Shielded by Exclusive Remedy Doctrine

Certified Question From Tenth Circuit re: “Dual-Capacity”

A divided Supreme Court of Oklahoma, responding to a question certified to it by the Tenth Circuit Court of Appeals, has held the state’s 2013 Workers’ Compensation Act (the “AWCA”) does not fully abrogate the so-called “dual-capacity” doctrine with regards to stockholders of an employer; they may be subject to suit for independent tortious acts if the stockholder was not acting in the role of employer [Odom v. Penske Truck Leasing Co., 2018 OK 23, 2018 Okla. LEXIS 23 (Mar. 13, 2018)]. The Court noted that, as to employers, the dual capacity doctrine could not be utilized to avoid the exclusive remedy provisions of the AWCA.

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Greetings From Nashville

ABA Workers’ Compensation Midwinter Conference is Ongoing in “Music City”

Heavy rain greeted attendees yesterday at this year’s ABA Workers’ Compensation Midwinter Conference in Nashville, but inside the Westin Nashville Hotel, the atmosphere was convivial and the sessions were informative.

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WCRI’s Upcoming Annual Conference Looks Like a Winner

Speakers Include Former Head of U.S. Bureau of Labor Statistics

The 34th Annual Issues and Research Conference, sponsored by Workers’ Compensation Research Institute (WCRI), promises to be an outstanding forum of ideas and insights relevant to today’s workers’ compensation world. To be held March 22-23, 2018, at Boston’s Westin Copley Place, the theme for this year: “Work and the Comp System: Evolution, Disruption, and the Future.”

Among the conference speakers is Dr. Erica L. Groshen, former head of the U.S. Bureau of Labor Statistics, who will offer her expertise in a session entitled, “Future Labor Force Trends and the Impact of Technology.” Advance work indicates that Dr. Groshen will discuss, inter alia, the effects artificial intelligence, robots, driverless cars, and gig work are having—and will have—on the American workforce.

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California Grubhub Driver is Independent Contractor, Not Employee

From Comp Standpoint: Are Uber, Lyft & Grubhub Truly “Disruptive?”

Lamenting that in California, a worker’s status as an employee, vis-a-vis an independent contractor, is an “all-or-nothing proposition,” a U.S. Magistrate Judge, presiding over a bench trial in the Northern District of California, has reluctantly determined that an aspiring actor, who moonlighted as a Grubhub driver for four months in late 2015 and early 2016, was an independent contractor—not an employee—and, accordingly, was not subject to California’s minimum wage, overtime, and employee expense reimbursement laws [see Lawson v. Grubhub, Inc., 2018 U.S. Dist. LEXIS 21171 (N.D. Cal., Feb. 8, 2018)].

The decision echoes a refrain heard from various parts of the workers’ compensation world and beyond, that existing laws are inadequate in handling the disruptive influences of Uber, Lyft, Grubhub, and other firms within the so-called “gig economy,” whose work forces are often made up largely of episodic, part-time workers. And yet, are existing laws really so inadequate? Are gig economy firms actually so disruptive that the workers’ compensation framework is not equipped to handle the issues presented? Do we really need some new third category of worker to respond to Uber and Grubhub? I argue below that the gig economy is not nearly as unique and troublesome as some would have us believe. Moreover, lessons from the distant past should show us that existing laws are more than sufficient to meet the demands of today and tomorrow.

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