Kansas Court Strikes Words “Accidentally” Introduced into Medical Fee Schedule

Saves Hospital $600,000 in Lost Reimbursement

Stressing that a rule or regulation adopted by an administrative agency can only be given binding legal effect if the agency complies with the full requirements of the state’s Rules and Regulations Filing Act [See Kan. Stat. Ann. § 77-415], the Court of Appeals of Kansas recently held that a three-word modification in language introduced into the 2011 version of the Kansas Workers’ Compensation Schedule of Medical Fees could not be enforced [see Via Christi Hosps. Wichita, Inc. v. Kan-Pak LLC, 2017 Kan. App. LEXIS 67 (Aug. 25, 2017)]. Utilizing the schedule, with the three-word modification from the 2010 version, a hearing officer awarded a hospital reimbursement in the amount of $136,451.60 for its services to a severely burned workers’ compensation claimant. Had the three words not been introduced into the 2011 schedule, the hospital would have entitled to an additional $600,000. The hearing officer and the state’s Workers’ Compensation Appeals Board ruled that the schedule had to be enforced as written. The Appellate Court detailed the proper procedure to be followed in making regulatory changes and noted that none of the required safeguards had been utilized in adding the suspect language. The Court concluded that since the appropriate procedure had not been followed, the 2011 schedule should be read as if the changes in wording had never occurred.

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Bob Wilson May Have a “Cluttered Desk;” His Prediction of Opt Out Reprise is Spot On!

What if Employers Are Willing to Give Up Exclusive Remedy Defense?

In his typically lucid and engaging style, Bob Wilson mused in his post this morning that the employer opt out movement in workers’ compensation law isn’t dead; it’s only sleeping. For what it’s worth, I agree.

It’s as if all too many in the comp world have become susceptible to a form of “Jedi mind trick.” Like the Stormtroopers who stopped Obi-Wan and Luke as the duo searched for a starship, only to be side-tracked when Ob-Wan waved his hand, saying, “He can go about his business,” many in the comp arena heard about the Oklahoma Supreme Court holding last year in Vasquez v. Dillard’s, Inc., and numbly repeated to ourselves, “You can go about your business.”

Obi-Wan waves that hand again and continues, “Move along.” All too many of us nod quietly and say, “Move along …, move along.” Continue reading

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Eighth Circuit: North Dakota Need Not Substitute Colorado’s More Generous Death Benefits Rules for Claim Filed in the Peace Garden State

In a case of first impression, the 8th Circuit Court of Appeals affirmed a U.S. District Court decision that had dismissed a widow’s civil action seeking a declaration that N.D. Cent. Code § 65–05–05(2)(2013) was invalid and unenforceable under the Due Process, Equal Protection, and Full Faith and Credit Clauses of the United States Constitution and, therefore, could not be applied to suspend her North Dakota benefits while she sought a hearing on her claim for Colorado benefits [DeCrow v. North Dak. Workforce Safety & Ins. Fund, 2017 U.S. App. LEXIS 13877 (8th Cir., July 31, 2017)]. Citing Carroll v. Lanza, 349 U.S. 408, 412, 75 S. Ct. 804, 99 L. Ed. 1183 (1955), the 8th Circuit indicated that a State need not substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.

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Florida MDs Have No Duty to “Cross-Examine” Workers’ Comp Claimant Regarding Known Misrepresentations

A Florida appellate court held that misrepresentations regarding a claimant’s medical history can disqualify the claimant from receiving benefits even if there is no direct link between the allegedly false or misleading statements and the particular injury for which benefits are being sought [Cal-Maine Foods v. Howard, 2017 Fla. App. LEXIS 10681 (1st DCA, July 26, 2017)]. Moreover, oral or written misrepresentations to a physician about a claimant’s prior medical history cannot be excused or “nullified” because the doctor actually possessed accurate medical information from some other source. Florida’s fraud statute [§ 440.105(4), Fla. Stat.] places no affirmative duty on an evaluating physician to interrogate the claimant regarding known misrepresentations.

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Mississippi Commission’s Decision to Deny Claim Because of Employee’s “Refusal” to Take Breathalyzer Test Cannot Stand

Yesterday, in a divided decision, the Court of Appeals of Mississippi reversed a decision by the state’s Workers’ Compensation Commission (“Commission”) that had denied an employee’s workers’ compensation claim because the employee had refused to take a breathalyzer test after the injury occurred [McCall v. Sanderson Farms, 2017 Miss. App. LEXIS 420 (Aug. 1, 2017)]. The Court found that the Commission’s decision was not supported by substantial evidence where the employer’s own evidence showed that the employee had remained on the employer’s premises for more than an hour and a half after suffering a painful back injury, that the employee left the premises at that point to go to a nearby hospital emergency department for treatment, and that shortly after the injured employee left, a contracted technician arrived at the employer’s premises to administer the breathalyzer test.

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Maine High Court Blocks Employer’s Attempt to Challenge Continued Existence of Disability

Highlighting the fine line that exists, on the one hand, between a party’s attempt to relitigate an issue already decided and, on the other hand, a party’s contention that a change of condition or circumstances warrants revisiting the issue of an injured worker’s continued level of disability, the Supreme Judicial Court of Maine affirmed a decree of the state’s Workers’ Compensation Board Appellate Division that concluded that a 2007 determination of permanent impairment as of the date of MMI was final and, therefore, res judicata princples barred relitigation of the issue [Bailey v. City of Lewiston, 2017 ME 160, 2017 Me. LEXIS 170 (July 20, 2017)].

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Missouri Court Stresses Importance of Injury “by Accident” in Recent Horseplay Case

The Missouri Court of Appeals recently affirmed a decision of that state’s Labor and Industrial Relations Commission that had denied workers’ compensation benefits to a tire shop employee who sustained severe burns when he used a lighter to ignite a can of glue held in a coworker’s hand during an apparent lull in the workday [Hedrick v. Big O Tires, 2017 Mo. App. LEXIS 660 (June 29, 2017)]. Agreeing with the Commission, that the claimant’s intentional ignition of the glue was not an accident, as that term is defined in Mo. Rev. Stat. § 287.020 (2017), the Court stressed that it is the accident, and not the injury, that is the event which is unforeseen. The Court added, “It is therefore possible that an expected traumatic event may produce unexpected injuries, but that does not change the event from a non-accident to an accident” [2017 Mo. App. LEXIS 660, emphasis by the Court].

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Mississippi Officer’s High Speed Driving, Without Seatbelt, Did Not Amount to Willful Intent To Injure Himself

Although crash data indicated not only that a Mississippi patrol officer increased his speed steadlily from 53 mph to more than 90 mph in the twelve seconds prior to an accident, but that the officer was not wearing his seatbelt at the time of the accident—he sustained serious injuries when he was ejected from his vehicle—there was no credible evidence that the officer willfully acted with the intent to injure himself, held a Mississippi appellate court in City of Jackson v. Brown, 2017 Miss. App. LEXIS 382 (June 27, 2017). Accordingly, Miss. Code Ann. § 71–3–7(4) (Supp. 2016) did not bar his recovery of workers’ compensation benefits.

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Louisiana High Court Says Employer—Not Injured Employee—Has Right to Choose Pharmacy

Last Thursday, in a split decision, the Supreme Court of Louisiana held that the choice of pharmacy in a workers’ compensation case belongs to the employer, and not the employee [Burgess v. Sewerage & Water Bd. of New Orleans, 2017 La. LEXIS 1387 (June 29, 2017)]. Resolving a split in the state’s circuit courts of appeal, the Court acknowledged that La. Rev. Stat. § 23:1203 obligates an employer “to furnish all necessary drugs” to the injured employee. The statute did not, however, directly address who had the right to choose the pharmacy to dispense the drugs. The Court added that nowhere in the statute did the legislature provide the employee with the right to choose a pharmaceutical provider from which to obtain the necessary prescription drugs. By contrast, the legislature had specifically delegated to the employee the choice of physician [see La. Rev. Stat. § 23:1121(B)(1)]. The Court reasoned that had the legislature intended the employee to have the choice of pharmaceutical provider in § 23:1203(A), it could easily have done so.

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Rock and a Hard Place: Placing Injured Undocumented Worker on Unpaid Leave May Be Retaliatory Discharge

In a divided decision, the Supreme Court of Minnesota held that an injured undocumented worker had raised a genuine issue of material fact as to whether an employer had discharged him—and whether that discharge was motivated by the worker’s action of seeking workers’ compensation benefits—where the employer placed the worker on unpaid leave until the worker could show that his return to employment would not violate federal immigration law [Sanchez v. Dahlke Trailer Sales, 2017 Minn. LEXIS 372 (June 28, 2017)]. The Court also specifically found that federal immigration law does not preempt an undocumented worker’s claim for retaliatory discharge under Minn. Stat. § 176.82, subd. 1 (2016). Continue reading

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