Author Archives: Kristina Brown Thompson

Workers’ Compensation Nurse Case Managers: Why our firm does not consent to a “task” assignment.

Nurse case managers can be useful for employers and injured workers. Rehabilitative services are frequently used in accepted workers’ compensation cases to help document the medical treatment plan.

 

The term “rehabilitative services” falls under the “Medical Compensation” definition of North Carolina General Statute § 97-2(19). It is also defined under the Rehabilitation Professional Rules (Rule 103) as the “planning and coordination of health care services by a medical case manager or coordinator, with the goal of assisting an injured worker to be restored as nearly as possible to the worker’s pre-injury level of physical function.”

 

When a nurse case manager is assigned to an injured worker’s claim, s/he must comply with the requirements of the Rehabilitation Professional Rules. Specifically, s/he must: meet the requisite qualifications of Rule 105, file a Form 25N: Notice to the Commission of Assignment of Rehabilitation Professional and identify the purpose of the rehabilitation involvement (Rule 107), and, if requested by the injured worker’s attorney, meet with the injured worker and the attorney within 20 days of the request. There are many other rules regarding the nurse case manager’s conduct under Rules 107 (Communication), 108 (Interaction with Physicians), and 109 (Vocational Rehabilitation Services and Return to Work).

 

Despite the foregoing, occasionally an injured worker will receive a phone call indicating that a nurse is requesting permission to attend an upcoming medical appointment. Frequently, these requests are given with little notice and the nurse is unknown to the injured worker. To further confuse the situation, the nurse indicates that his/her involvement is merely a “task” assignment meaning that s/he anticipates popping into the injured worker’s appointment, asking critical questions of the doctor, reporting back to the insurance company and will assume no further role in the case.

 

It is the North Carolina Industrial Commission’s “long-standing position” that “rehabilitation professionals (‘RPs’) who are given one-time ‘task’ assignments do not have the privilege and protection afforded them under the NCIC Rehabilitation Rules because one-time assignments do not meet the definition of medical or vocational ‘rehabilitation.’” Accordingly, “. . . prior to any one-time ‘task’ activity that involves contact with the injured worker or, if represented, the injured worker’s attorney.” (See NCIC Minutes from February 2008).

 

Given the limitations of a “task” assignment and highly limited role of the nurse case manager in those situations, we do not consent to task assignments.

 

 

 

Opioid Task Force, Recent Studies, and CDC Opioid Recommendations

The North Carolina Industrial Commission recently joined many other states (i.e. Massachusetts) in tackling the issue of opioids in the workers’ compensation cases by creating a Workers’ Compensation Opioid Task Force. The goal of the task force is to “study and recommend solutions for the problems arising from the intersection of the opioid epidemic and related issues in workers’ compensation claims.” According to the Chair, “[o]pioid misuse and addiction are a major public health crisis in this state.” 

As of last June, a study by the Workers’ Compensation Research Institute (WCRI) noted “noticeable decreases in the amount of opioids prescribed per workers’ compensation claim.” From 2012 – 2014, “the amount of opioids received by injured workers decreased.” In particular, there were “significant reductions in the range of 20 to 31 percent” in Maryland, Massachusetts, Michigan, Oklahoma, North Carolina, and Texas. 

Additionally last March, the Centers for Disease Control and Prevention (CDC) issued new recommendations for prescribing opioid medications for chronic pain “in response to an epidemic of prescription opioid overdose, which CDC says has been fueled by a quadrupling of sales of opioids since 1999.” 

Currently, the CDC’s recommendations for prescribing opioids for chronic pain outside of active cancer, palliative, and end-of-life care will likely follow these steps:

1.  Non-medication therapy / non-opioid will be preferred for chronic pain.

2.  Before starting opioid therapy for chronic pain, clinicians should establish treatment goals and consider how therapy will be discontinued if benefits do not outweigh risks.

3.  Before starting and periodically during opioid therapy, clinicians should discuss with patients known risks and realistic benefits of opioid therapy. 

What Happens If an Employee Gets Hurt at the Work Holiday Party?

“Frosting and beer can be a very fun but lethal combination starting at around midnight,” says Miller, star of the upcoming ensemble comedy “Office Christmas Party” (in theaters Dec. 9). As you know, it’s holiday party season and there’s a new comedy film coming out with some great comedians (Jason Bateman, Kate McKinnon, Jennifer Aniston, Vanessa Bayer) depicting the most out-of-control work holiday party ever. Based on the preview, the employees of a large corporation really, really let loose for an insanely crazy and highly dangerous holiday party. Which leads to the legal question, what happens if an employee is injured at a work holiday party? Like most (if not all) attorney responses, the answer is “well . . . it depends.”

The answer is based on a factors laid out in a North Carolina Supreme Court case from 2007, Frost v. Salter Path Fire & Rescue, and reiterated more recently in the Court of Appeals case Holliday v. Tropical Fruit & Nut Co. In both of these cases, the employee was injured at an employment-related event out of the office. However, in one case (Frost) the worker was denied benefits whereas in the other (Holliday) the injured worker prevailed. In rendering their decisions, the court reviews six factors: 

  1. Did the employer sponsor the event?
  2. To what extent was the attendance really voluntary?
  3. Was there some degree of encouragement to attend by factors such as: taking attendance, paying for time, requiring employee to work if s/he did not attend, and/or maintain known custom of attending.
  4. Did the employer finance the occasion to a substantial extent?
  5. Did the employees regard it as an employment benefit?
  6. Did the employer benefit from the event, not merely in a vague way through better morale and good will, but through tangible advantages such as having an opportunity to make speeches and awards?

Thus, the more the employer is involved in paying for the event and requiring employees to attend, the more likely that a “party-related injury” will also be deemed a work-related injury. So with that in mind, everyone enjoy your holiday parties and go see “Office Christmas Party” for examples of what not to do. Please stay safe and have a happy holiday. 

Workers’ Compensation Medicare Set-Aside (MSA) Not a “Countable Resource” for North Carolina Medicare Eligibility

Earlier this week, the North Carolina Court of Appeals issued an opinion that will improve the lives of many injured workers who need Medicaid assistance after sustaining a work-related injury. 

In the case of Phoebe Williford v. N.C. Dep’t of Health and Human Services and N.C. Division of Medical Assistance, the Court held that assets placed in a workers’ compensation Medicare Set-Aside account should not be considered a “countable resource” for purposes of determining a petitioner’s eligibility for North Carolina Medicaid. This opens the door for many injured workers to now apply (or re-apply) for Medicaid assistance even if they have a separate bank account containing thousands of dollars earmarked for future medical treatment. 

A workers’ compensation MSA is not a piggy bank that an injured worker can use for anything s/he wants. “The purpose of a MSA is to allocate a portion of workers’ compensation award to pay potential future medical expenses resulting from the work-related injury so that Medicare does not have to pay.” The injured worker must keep the funds separate from his/her other accounts, must maintain an accounting, and must only use the funds for future medical treatment related to his/her injuries. MSA accounts are regulated and injured workers must report to Medicare. CMS recently published a toolkit to help injured workers manage their MSAs. As you see, there are specific restrictions and requirements on how the money is used.

In the Williford case, the petitioner originally did not qualify for Medicaid because she had more than $2,000 in liquid assets (i.e. her MSA account). The issue before the Court was whether the petitioner’s MSA account, containing approximately $46,000, should be counted as a “financial resource for purposes of determining the petitioner’s eligibility for Medicaid.” 

The Court concluded that the WC MSA was not a countable resource because “…federal standards clearly establish that, in order for a given asset to be a countable resource, the asset must be legally available to the applicant without legal restriction on the applicant’s authority to use the resource for support and maintenance.” Because there are requirements governing the WC MSA, the funds were not “legally available” “without legal restriction” and not a “countable resource.” 

That said, when settling a workers’ compensation claim any other portion of the settlement (i.e. lump sum cash) would likely be considered “legally available” funds. If appropriate, a special needs trust should be considered in certain cases to avoid these funds from disqualifying a person from Medicaid.

Can I Get Workers’ Comp Benefits For My Loss of Sense of Taste and Smell?

What is your sense of smell and sense of taste worth to you? These senses are truly priceless. In a medical malpractice case, the plaintiff – a chef – was awarded $1.5 million in damages when he lost his sense of taste following a tonsillectomy when the surgeon failed to disclose that this was a risk.

 

Unfortunately, sometimes an injured worker may suffer a head injury or other type of injury that causes him or her to lose his/her sense of smell and/or taste. While no amount of money will ever make a person whole after losing one of their senses, North Carolina workers’ compensation law allows for an injured worker to be awarded some compensation for the loss of sense of smell and taste if the loss was a result of compensable workplace injury. Under North Carolina General Statute § 97-31(24), the “loss or permanent injury to any important organ or part of the body for which no compensation is payable under any other subdivision of this section. . .”. The maximum award for the loss of both senses (combined) is capped at $20,000 in North Carolina.

 

North Carolina law treats the “loss of sense of taste and smell” as the loss of an important internal organ.” See Cloutier v. State, 57 N.C. App. 239, 291 S.E.2d 362 (1982).  In 1997, the North Carolina Court of Appeals (Bess v. Tyson Foods, Inc., 125 N.C. App. 698, 482 S.E.2d 26 (1997) held that the injured worker was entitled to compensation for permanent damage to the olfactory organ but not for compensation for two separate compensable injuries. As a result, in North Carolina the most a plaintiff can receive for losing his or her sense of taste and smell is $20,000.

 

Based on a brief look at other states, it appears that many states do not compensate injured workers for their loss of sense of taste or smell at all. When compensation is allowed, the states have compensation caps less than North Carolina’s cap.  For example, Connecticut allows 17 weeks (max) compensation for loss of sense of taste, and 17 weeks (max) for loss of sense of smell. Minnesota allows a 1% disability rating for total loss of taste and 1% rating for total loss of sense of smell. Washington caps the total body impairment for the loss of taste and smell at 3% (or a max award of $5,977.41). Finally, Wisconsin has a cap of 2.5% for permanent total disability for losses of taste and smell. 

North Carolina Labor Commissioner Race

North Carolina needs a Commissioner of Labor who is fair to workers. Certainly cooperation between employers and employees is key. However, when thousands of workers are not being paid their duly-earned wages, we have a problem.

 

In 2014, the News & Observer published an article entitled “For Many Workers Cheated out of Wages, NC Department of Labor Offers No Help.” The article stated that “[f]or at least 2,011 workers, more than half of the 3,694 who asked for help in the past fiscal year, the agency took no action. Employers didn’t get fined. No one was charged with a crime for not compensating the workers’ time and labor.” When Berry ran for office in 2000, her campaign platform centered on how “[g]overnment should tread lightly in the lives of people and business . . . [w]hen her agency must get involved, Berry favored working in consultation with businesses rather than confronting them.” (see N&O article from 2014, and from 2015 “At NC Department of Labor, Little Help for Unpaid Workers”).

 

Fast-forward to 2016. Cherie Berry is now being criticized for accepting “improper contributions” from corporate executives who have cases pending before her agency. Berry accepted $20,000 from at least four companies which were recently being investigated by the Labor Department. In particular, one donor, Ronald Cameron, is chairman and CEO of Montaire Farms which investigated for a workplace fatality. Berry responded to the criticism by saying that “everyone gets treated the same.”

 

Former Raleigh mayor, Charles Meeker, is running against Berry for Labor Commissioner. Meeker’s campaign focuses on improving worker safety, accurate classification of workers, and making sure that workers are paid what they are owed. Meeker also would like to remove Berry’s photo from all elevators and, in its place, put up photos of working people. Both candidates deserve serious consideration. I encourage you to evaluate them and be sure to vote for the candidate of your choice.

 

Scorpion Sting While Working at the Grocery Store – Compensable?

In Raleigh, North Carolina, we see a lot of crickets, wasps, bees, lightning bugs, and an occasional cicada. What we don’t have – thank goodness – are scorpions. Those belong far, far away – preferably in other countries or in the Southwest. However, just a few weeks ago, an employee at a grocery store in Raleigh sustained a scorpion sting while working near the bananas in the produce section of the store. Based on the news article, it’s unclear what s/he was doing exactly – perhaps unloading or sorting bananas?

So, would this mean that the stung employee would have a workers’ compensation claim? Based on the limited details from the news article, the answer is “quite possibly.” The Industrial Commission would apply an “increased risk” test to determine whether the employee’s injury from the insect sting arose out of his or her employment, and whether the employment peculiarly exposed the employee to a risk of being stung by a scorpion sting greater than that of other persons in the community. See Minter v. Osborne, 127 N.C. App. 134, 487 S.E.2d 835 (1997).

The case will likely hinge on coworker testimony and expert testimony (i.e. an entomologist testifying about insect habitats and behaviors). In this particular example, a local entomologist from North Carolina State University stated that “scorpions and spiders get to the state [North Carolina] from tropical areas by hitchhiking on bananas or other imported produce.” So, based on this statement, it’s likely if the employee was unloading bananas from out-of-state, s/he was at an increased risk due to his/her employment of encountering and subsequently being stung by a scorpion than, for example, I am sitting in my office just down the street.

The compensability of the case is going to center on a lot of factors. Insect bite cases involving workers’ comp issues are highly fact sensitive and quite interesting. Hopefully the injuries are typically minor and heal in a matter of days. However, when there are complications or reactions from an insect bite, it would be wise to consult with an attorney to discuss aspects of the case.

Kratom for Pain Relief? What’s that?

Mitragyna speciosa, aka “kratom,” is a tropical plant in the coffee family, native to Southeast Asia, historically used in Thailand for its medicinal qualities. Thailand banned kratom in 1943 due to abuse and now North Carolina, among other states, is seeking to set limits on the drug too.

 

What’s the concern about kratom? According to a state senator in North Carolina, the state medical examiner found the drug in 24 people while investigating their deaths. Additionally, the FDA warns that  “consumption of kratom can lead to a number of health impacts, including respiratory depression, nervousness, agitation, aggression, sleeplessness, hallucinations, delusions, tremors . . . “ and more.

 

Technically, kratom is categorized as a “botanic dietary supplement.” Thus, the FDA cannot intervene unless kratom is shown to be unsafe or its producers claim that it treats a medical condition. For decades (if not longer), workers in Thailand used kratom to ward off exhaustion, enhance their mood, and to alleviate pain. Modern proponents of kratom say it’s a natural painkiller and that it helps people avoid or wean off opiates and narcotics. In fact, some business in North Carolina will even serve you kratom tea (described as “green brown sludge . . . ladled from some South Pacific swamp”). Generally, kratom can be found in convenience stores and, of course, online. However, some states (e.g. Indiana, Tennesssee, Vermont, and Wyoming) have already banned kratom entirely.

 

Overall, there’s not a consensus on the health effects of the plant. Some say it’s like trading one addiction for another. It’s a very gray, murky area. If Kratom is being used, be wary.