Unseen Crash Not Abnormal Working Condition

A claimant can prove that he suffered a psychological injury (just like a physical injury) that was caused my work. However, the law states that he/she has to prove that the incident that caused the injury was an abnormal working condition.

In the case of Norton v. J.B. Hunt Transport, PICS Case 08-1569 (Pa. Workers' Compensation Appeal Board Aug. 28, 2008), the Workers' Compensation Appeal Board dealt with this very issue. In this case, the facts were as follows:

On Sept. 16, 2005, a tandem, or a pair of wheels bolted together, separated from the rear of the truck he was driving for J.B. Hunt. Norton said he noticed passing a New Jersey State Police car and then a short time later heard yelling over the citizens band radio that someone's tandem had hit a police car. When Norton heard that the wheels had come from one of J.B. Hunt's trucks, Norton "instantly started panicking," according to the opinion. He stopped in a rest area and checked his truck. When he saw that it was missing a set of wheels, Norton called a police dispatcher. Police arrived and took Norton to a police barracks where he was kept for five or six hours. There, police told Norton that the officer had been air lifted for medical treatment. Norton testified that he believed the officer had been killed. Norton testified that when he returned to work three days later, he felt very uncomfortable driving his tractor-trailer and began having a panic attack. Norton sought psychiatric treatment the following day but continues to suffer nightmares, headaches and panic attacks, which he believes are a result of the accident.

The Workers' Compensation Appeal Board, in their infinite wisdom, ruled that this occurrence was NOT an abnormal working condition. Therefore, given their logic, they believed this type of thing happened to truck drivers often.

The appeal board cited prior case law for the holding that incidents involving death and serious injury may not be abnormal working conditions in certain types of work. "In this case, it is difficult to conclude that a situation where an object falls from a truck and causes an accident with another vehicle constitutes an abnormal working condition for one employed as a truck driver," Commissioner Robert A. Krebs wrote in an opinion for the board. The board found further fault with the driver's argument in the fact that he did not personally witness the wheels of his truck strike the parked police car, which "further removes him from any alleged abnormal working condition," Krebs wrote.

Go to Pennsylvania Law Weekly to see the entire article.

How will the increase in natural gas drilling change our area?

I have heard several people in the community discuss the changes that are coming to our area due to the gas drilling in the Marcellas shale fields. Bradford County Pennsylvania is in the heart of the fields. Community leaders and business people are trying to determine some of the positive as well as the negative changes that will be coming to our communities due to the influx in money as well as traffic and workers.

With this in mind, I recently saw a news article from the Associated Press indicating that oil field and gas field worker deaths are on the rise sharply. At least 598 workers died on the job between 2002 and 2007 according to the US Bureau of Labor and Statistics. During that period, the number of deaths per year rose by around 70% from around 72 victims in 2002 to 125 in 2006 and a preliminary count of 120 in 2007.

Many of the deaths happened in Texas which is the nation’s largest producer of crude oil and natural gas. There are several factors to blame for the increase in work related oil field and gas field deaths, including: a dramatic increase in drilling spurred by the record breaking oil and natural gas prices; an influx of new workers hired to operate all the new rigs: a high pressure environment where workplace safety lapses are common; rampant drug and alcohol use among workers.

Many experienced oil field workers left the industry in the mid 1980's during the oil bust, when a barrel sold for less than $10.00. Now, with prices over $100.00 a barrel, many drilling companies are hiring workers with little or no experience.

SURPRISING POLICY CHANGE IMMEDIATELY IMPACTING MEDICARE SET-ASIDE ACCOUNTS

On August 25, 2008, the Centers for Medicare & Medicaid Services ("CMS"), issued a Memorandum immediately rescinding a previous policy pertaining to claimants requesting termination of Workers' Compensation Medicare Set-Aside ("WCMSA") funds.

As you may recall, CMS had previously issued a Memorandum date July 11, 2005, establishing guidelines and allowing for requests for the reduction of WCMSAs. If the treating physician concluded that the beneficiary's medical condition had substantially improved, then the beneficiary (or the beneficiary's representative) may submit a new WCMSA proposal covering future expected medical expenses.

That policy has now been eliminated. Pursuant to the recent CMS Memorandum:

Effective immediately, the July 11, 2005 memorandum at Question and Answer 10, entitled "Beneficiaries that Request Termination of a WCMSA Account," is rescinded. Section 1862(b)(2) of the Social Security Act (the Act) (42 USC 1395y(b)(2)) requires that Medicare payment may not be made for any item or service to the extent that payment has been made under a workers' compensation (WC) law or plan. Medicare does not pay for an individual's WC related medical services when that individual received a WC settlement, judgment or award that includes funds for future medical expenses, until all such funds are properly expended.

The ramifications of this Memorandum is that CMS will no longer consider a reduction of the funds required to be "Set-Aside" to protect Medicare's interests, at least in Workers' Compensation cases, once the proposal has been submitted and a determination has been issued, even if the client's condition substantially improves and can be documented by medical records. The funds must remain in the WCMSA account as originally proposed. Time will tell if this policy will also be extended to "liability only" cases, but practitioners should be forewarned of same.

Now, more so than ever, it is critical that Plaintiff's counsel consider the timing of the submission of a WCMSA proposal, based upon not only a client's current medical condition, but also the future prognosis for improvements which may eliminate costly surgical procedures and/or cause the "weaning off" and discontinuance of prescription medications.

This information has been provided by Settlement Professionals, Inc.

Employee Free Choice Act

Funny video posted at C&C Law's main blog. You can see it here.

New procedure as alternative to lumbar fusion surgery

Many of our clients suffer from back injuries and symptoms emanating from their spine. Also, many of our clients treated at the Southern New York Neurosurgical Group, specifically by Dr. Bajwa or Dr. Sethi.

I just noticed an ad in a free health magazine from Dr. Bajwa and Dr. Sethi requesting patients to be enrolled in a new study. The doctors are conducting an investigational research trial with a surgically implanted motion restoring device that replaces the facet joints of the spine as an alternative to fusion surgery.

They are asking for anyone to contact them that has experienced chronic leg pain with or without back pain, have been diagnosed with spinal stenosis and are considering surgery as a treatment option. The participants must be between 50 and 85 years of age and can not have a history of fusion surgery of the lumbar spine.

People who are interested are urged to call the Southern New York Neurosurgical Group at (607) 754-6247

Use of pre-paid debit cards in workers' compensation cases

Some of the major issues that our workers’ compensation clients face on a daily basis is the payment of medical bills, the payment for prescriptions and the timely receipt of their bi-weekly or weekly wage benefit checks. Often, the staff at C&C law take care of what is normally a minor issue of red tape but is a major issue for injured workers who either cannot get prescribed medications or cannot pay their bills because their workers compensation check is late.

Our friends at Ziff Law pointed this out on their blog:

J.P. Morgan announced that they are issuing prepaid debit cards so insurance companies can deliver workers’ compensation benefits to injured or disabled workers in a timely and effective way. From the press release from J.P. Morgan, “card holders benefit from efficient, economical and reliable access to insurance payments without having to wait for a check to arrive in the mail.” One of the “benefits” of having this type of debit card, as per the press release, is that the injured worker would be able to receive cash back at ATM machines and retail locations and also pay bills on-line and make purchases that accept Visa debit cards.

Although this seems, at first glance, a benefit, it certainly has the risk of being abused and/or misunderstood. If we ever see these cards in our practice area, I am sure that a separate letter and counseling to the injured worker would be in order to ensure the cards are not a credit card and provide credit. They are merely a debit card and will only work if there are funds in the account.

In any event, it is certainly a intriguing use of current technology for a burdened workers’ compensation system.