The Southern Association of Workers’ Compensation Administrators (SAWCA) is an organization that provides educational and networking opportunities to both state workers’ compensation regulators and members of the community that they regulate.
At the 2019 SAWCA All-Committee Conference, a panel of regulators discussed a variety of issues. The panel was:
- Frank McKay – Chairman, Georgia State Board of Workers’ Compensation
- Karl Aumann – Maryland
- Paul Touriello – Colorado
- Wes Marshall – Virginia
- Scott Beck – South Carolina
- Cassie Brown – Texas
- Abbie Hudgens – Tennessee
Question: Can an inured worker receive physical therapy in your state without a referral from a medical doctor?
While this may be allowed in group health it is not allowed in workers’ compensation.
A physician must make the referral to the physical therapist.
Physical therapists are not included in the definition of “physician” on panels.
Question: How is your state encouraging early return to work?
Adjuster training and the treatment guidelines emphasizes the importance of recovery which includes prompt treatment and return to work. Getting back to work as soon as possible is a key element in the workers’ recovery.
The unemployment rate is so low that it is in the employers best interest to provide modified work so that injured workers can return as soon as possible. It is difficult for them to find replacement workers.
One of the founding principles of workers’ compensation is returning the injured worker to the workplace as soon as possible. On litigated claims we are focused on trying to expedite the adjudication so that the disputes can be resolved timely.
Our studies show that injured workers who treat “in networks” receive treatment faster and also have shorter durations of disability.
The goal of our system is getting injured workers back to maximum functional gain. This includes keeping the worker engaged in the workplace through the use of modified duty. Our studies show that injured workers who get back to work sooner ultimately have better medical outcomes.
Part of the statutory definition of a successful workers’ compensation claim is a return to work following the injury.
Question: How is your state approaching permanent impairment?
We still use the AMA 3rd edition for evaluating impairment which is specified in the statutes. The plaintiff’s bar is pushing hard to keep using this edition because they feel it results in higher impairment ratings.
Our state uses the AMA 4th edition for evaluating impairment. This was adopted by rule, not statute. They have considered using later editions but felt that the higher editions would result in lower impairment ratings.
Our state uses the AMA 6th edition as defined by statutes. The AMA is looking to make changes in the guides whereby they would be perpetually updated without changing editions. There is concern about how this would fit into their statutory structure.
Our state does not strictly use the AMA guidelines in impairment evaluations. There is debate in their state over the different versions of the guides. Attorneys tend to feel the newer editions are worse because of lower benefits, while medical practitioners tend to feel the newer editions are more accurate.
We do not require a particular edition of the AMA guidelines for evaluating impairment. The impairment rating is a “piece of the evidence” used in determining impairment, not the sole determining factor.
Question: Tell us about interesting case law in your jurisdiction.
In SC, courts initially denied benefits for mental-mental injury to first responder because it did not rise to “unusual and extraordinary” level. Circuit Court requested the order be modified to allow for benefits. This is heading to the Court of Appeals.
In VA, law requires “injury by accident” traceable to a specific date, time, and place. Courts have been loosening this requirement to allow claims for injuries occurring during a short period of time (hours not days). There has been much litigation in this area but courts are thus far staying away from allowing cumulative trauma claims over a longer period of time.
In MD, physician characterized meniscal tears in the knee as an occupational disease with the thought that they occurred over time. This was awarded by a lower court but is on appeal. This is viewed as a game changer as it would allow degenerative conditions to be considered an occupational disease.
In TN, there was a case involving a dispute over whether a panel of physicians was required in a certain circumstance vs just providing a referral to a specific physician. This case is expected to result in new legislation in TN on this issue.
In TX, carrier significantly reduced payment for authorized treatment. As this was litigated, courts ultimately ruled burden of proof on this issue lies with the medical provider. This goes against the TX medical fee guidelines. This is on appeal.
In CO, employer without coverage received a significant fine based on pattern of conduct. Employer argues this was a violation of the 8th amendment for “cruel and unusual punishment” because the fine was excessive. Court ultimately ruled 8th Amendment did apply to corporations and that Division should have considered things such as ability to pay in their determination fo the fine.
In GA, the journey to and from work is not covered under workers’ compensation. The exception is the parking lot and entering/exiting the building. There is litigation around whether this exception also allows to regularly scheduled breaks.
Question: Do peace officers/first responders in your state receive different death benefits than other employees?
In TX, dependents of first responders killed receive higher benefits than other workers killed on the job. Specifically, benefits do not stop if the widow of a first responder remarries
CO analyzed the impact of the remarriage penalty specifically for peace officers but they ultimately decided not to change their statutes.
In TN, widows of first responders receive additional benefits but these are outside of the workers’ compensation system.
The other jurisdictions on the panel do not provide any additional benefits for the widows of first responders.
Question: How is your state approaching medical marijuana in workers compensation?
In CO, they had a case where a ski resort employee was killed. Autopsy showed he had high levels of THC in his blood. The carrier asserted a statutory 50% reduction in benefits due to the intoxication. There was much discussion around this case because marijuana is legal and THC remains in your system a long time. However the specific levels in his system were so high they indicated he had likely used marijuana on the worksite and he was certainly impaired so the reduction was upheld.
In TX, the state law now allows medical marijuana. This is very new and they have not seen it in workers’ comp yet.
In TN, the state failed to authorize medical marijuana twice and it is up for review by the legislature again. The law as drafted would not apply to certified “drug free” workplaces.
VA now has legal medical marijuana but they have not seen this in workers’ compensation yet.
In SC this is on the legislative agenda for the 5th straight year but it has not passed yet.
In MD they have medical marijuana but it is seldom seen in workers’ compensation.
In GA they allow for medical marijuana but only for a narrow list of diagnosis. None of these are things seen in workers’ compensation.