Copyright 2019, Thomas A. Robinson
All rights reserved. Reprinted from www.workcompwriter.com with permission.
Top 10 Workers’ Compensation Cases of 2019
At about this time each year, I highlight what I think are the ten most important workers’ compensation decisions reported during the calendar year. In some respects, 2019 has been relatively quiet. The frothy former days during which numbers of us argued about “Padgett,” “opt outs,” or “the gig economy” are largely behind us (IMO, there’s still plenty to be said and written, however, on all sides of that third issue) and the workers’ compensation world seems to be catching its breath so as to be able to dive back down into a host of worker/employer concerns. Still, there were a number of important constitutional cases decided during the past 12 months. There were also two important — or at least relatively important — decisions dealing with medical marijuana. And so, I take this opportunity to highlight what I think are the 10 most important workers’ comp decisions during 2019. The order presented is somewhat random. As I have said in previous years, “importance” — like beauty — is in the eye of the beholder. If you have a different list, by all means, share it with me.
NY Court Hints that Employer Might be Required to Pay for Medical Marijuana
In the first appellate decision from New York to deal with the intersection of the state’s medical marijuana law with its Workers’ Compensation Law, a state appellate court held that while it was proper for the Workers’ Compensation Board to deny an injured employee’s variance request for medical care in the form of medical marijuana to the extent that such care had already been provided [see N.Y. Comp. Codes R. & Regs. tit. 12 § 324.3(a)(1)], the Board should have addressed the merits of the request for prospective medical marijuana treatment [Matter of Kluge v. Town of Tonawanda, 2019 N.Y. App. Div. LEXIS 7510 (3d Dept. Oct. 17, 2019)]. Its failure to do so required the case to be remanded for further proceedings. With this decision, the Court appeared to signal that, under appropriate circumstances, a variance request for medical marijuana could be granted.
PA Court Says “Protz-Fix” is Constitutionally OK
Section 306(a.3) Mandating Use of AMA Guides, 6th Ed., Stands
In enacting 77 Pa. Stat. § 511.3, which mandates a physician’s use of the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th edition (second printing April 2009) for determining impairment in workers’ compensation cases, the state’s General Assembly did not delegate its legislative authority, but rather adopted existing standards as its own in the exercise of its power to legislate, held a state appellate court in Pennsylvania AFL-CIO v. Commonwealth, 2019 Pa. Commw. LEXIS 913 (Oct. 11, 2019). Accordingly, the court sustained the Commonwealth’s demurrer to a Petition for Review filed by the Pa. AFL-CIO that had challenged the constitutionality of the new section of law. (i.e., the “Protz fix”).
Florida Illegal Immigrant Caught in Catch-22
Court Affirms Denial of Benefits Based on Improper Social Security Number
Signaling how easy it is in Florida to deny workers’ compensation benefits to an injured illegal immigrant, a Florida appellate court affirmed an order by a Judge of Compensation Claims (JCC) that had denied benefits to an injured worker described by the court as “an illegal alien without a valid SSN” [Hernandez v. Food Mkt. Corp., 2019 Fla. App. LEXIS 16441 (1st DCA, Oct. 30, 2019)]. In its decision, the court ratified what amounted to a Catch-22 for the worker: if she failed to fill in the SSN box on a “registration” form at her medical care provider, the claim would be denied. If she filled it in with an invalid number—she had no valid SSN number herself—the claim could be denied based on “fraud” [see § 440.105(4)(b)]. “Heads the employer wins; tails the worker loses.”
Ninth Circuit Says California Insolvency Fund Need Not Reimburse CMS for Medicare Conditional Payments
The Ninth Circuit Court of Appeals reversed a decision by a U.S. District Court for the Central District of California in which the lower court had found that the California Insurance Guarantee Association (“CIGA”)—the Golden State’s guaranty fund for insolvent insurers—was required to reimburse Medicare for conditional payments Medicare had made concerning the medical expenses of certain individuals whose workers’ compensation benefits CIGA was administering [California Ins. Guar. Ass’n v. Azar, 2019 U.S. App. 30339 (9th Cir. Oct. 10, 2019)]. The Ninth Circuit found that the district court erred in concluding that California law, which prohibited CIGA from reimbursing state and federal governmental agencies, including Medicare, was preempted by federal law. The Ninth Circuit panel held that CIGA was specifically not a “workmen’s compensation law or plan,” that insurance regulation was a field traditionally occupied by the states, and that nothing in the Medicare statute or its implementing regulations suggested that Congress meant to interfere with state schemes to protect against insolvent insurers.
Ohio Statute Prohibiting “Solicitation” in Workers’ Compensation Claims or Appeals Violates First Amendment
A provision in Ohio Rev. Code Ann. § 4123.88(A) that bars any person, either directly or indirectly, from soliciting authority to represent a claimant or employer in respect of a worker’s compensation claim or appeal violates the First Amendment, held the U.S. Court of Appeals for the Sixth Circuit [Bevan & Assocs., LPA v. Yost, 2019 U.S. App. LEXIS 20201 (6th Cir., July 8, 2019)]. The Court acknowledged that the state had an interest in protecting the privacy of recipients of attorney solicitation. The Court said, however, that a total ban on solicitation was too broad and too restrictive.
Kentucky’s Special Hearing Loss Threshold is Constitutional
Ky. Rev. Stat. § 342.7305, pursuant to which workers’ compensation claimants suffering hearing loss may not be awarded income benefits unless their whole person impairment rating (“WPI”)—as determined by converting their binaural impairment under AMA Guides—is at least 8%, does not violate the equal protection guarantees in the 14th Amendment to the U.S. Constitution nor relevant sections of the Kentucky Constitution, held a divided Supreme Court of Kentucky [Teco/Perry County Coal v. Feltner, 2019 Ky. LEXIS 210 (June 13, 2019)]. That other types of non-hearing loss traumatic injury claimants need not meet that same threshold impairment rating to qualify for income benefits is not problematic, held the majority of the Court, as there is a rational basis for treating hearing loss claimants differently from other types of traumatic injury claimants. With its decision, the high court reversed and vacated an earlier decision of the state’s Court of Appeals.
Washington Delivery Service Hit With $1 Million in Workers’ Comp Premiums, Penalties and Interest
In Delivery Express, Inc. v. Department of Labor & Indus., 2019 Wash. App. LEXIS 1465 (June 10, 2019), a Washington appellate court affirmed a ruling by the state’s Department of Labor & Industries that had assessed almost $1 million in workers’ compensation premiums, penalties, and interest against a firm operating a Seattle delivery service that maintained its drivers were not employees, but rather independent contractors not subject to the workers’ compensation law.
Oklahoma’s Retaliatory Discharge Statute Withstands Constitutional Challenge
Oklahoma’s retaliatory discharge statute [85A O.S.Supp. 2013 § 7], which restricts jurisdiction in relevant instances to the Workers’ Compensation Commission and, therefore, prevents claimants from having their causes heard by a jury, is constitutional, according to a recent ruling of the Supreme Court of Oklahoma [Southon v. Oklahoma Tire Recyclers, LLC, 2019 OK 37, 2019 Okla. LEXIS 37 (May 21, 2019)]. The high court held a wrongful discharge claim was not an action with a guaranteed right to trial by jury under the state constitution, nor did the statute violate claimants due process rights.
Florida’s 6-Month Limitation on Temporary “Physical-Mental” Benefits is Constitutional
A Florida appellate court has upheld the constitutionality of a provision within the state’s Workers’ Compensation Act [§ 440.093(3), Fla. Stat.] that cuts off temporary benefits for psychiatric injuries six months after a claimant reaches (physical) maximum medical improvement [Kneer v. Lincare & Travelers Ins., 2019 Fla. App. LEXIS 5131 (1st DCA, Apr. 3, 2019)]. Thus, where a claimant filed a petition for temporary partial disability benefits related to his back injury more than 18 months after he reached MMI, his claim was appropriately barred by the JCC.
NH High Court Issues Ruling on Medical Marijuana for Injured Worker—Sort of
Opinion Raises as Many Questions as It Answers
In March 2019, the Supreme Court of New Hampshire handed down a decision that reversed, in pertinent part, a state Appeals Board decision that had refused to require a workers’ compensation carrier to reimburse an injured worker for charges related to medical marijuana dispensed under a state-approved program [Appeal of Andrew Panaggio, N.H. Comp. Appeals Bd., 2019 N.H. LEXIS 35 (Mar. 7, 2019)]. The high court deftly danced around the nagging question in medical marijuana cases—it’s still illegal under federal law. It said that the Board had erred in finding reimbursement was prohibited under a specific provision of the state’s medical marijuana law, but it remanded the case for additional consideration, indicating the Board had failed, among other things, to analyze whether the carrier’s compliance with an order to reimburse would actually violate any federal laws.