NEW - Info from the Workers'
Compensation Conference

10/28/98

 


Below is a list of topics from the latest Defense Research Institute Seminar regarding
workers' compensation ; for further information on any topic please do not hesitate to contact us.


Violence in the Workplace

Psychological Conditions Arising from Employment

Overview of Current Status of Sexual Harassment and Applicability of the Exclusive Remedy Doctrine

Coordination of Issues Under the Americans with Disabilities Act and Workers Compensation Law

Cumulative Trauma Disorders and Repetitive Stress Injuries from Both a Legal and a Medical Perspective

Legislative Activity in the Workers Compensation Area

Managed Care Issues as the Same Relate to the Workers Compensation System

Proper Utilization of the AMA Guidelines for Impairment Ratings

Workers Compensation Insurance Fraud

Occupational Reactive Airwaves Dysfunction Syndrome

Ethical Considerations in the Workers Compensation /Insurance Defense Practice

 


Standard of Proof to Obtain Weekly Worker's Compensation
Benefits for a Recurrence of Incapacity

Recent rulings of the Rhode Island Supreme Court appear to have made it easier for an employee to prove that she or he is entitled to weekly benefits for an alleged recurrence of disability from a prior work injury.

R.I.G.L 28-35-45 of the Rhode Island Workers' Compensation Act allows an employee to seek a review by the Court of an agreement, decree, or order based upon the contention that the employee's incapacity has increased or returned.

Prior to the September 1, 1990 Amendments to the Rhode Island Workers' Compensation Act, it was our opinion that it was difficult for an employee to meet the burden of proof that was required in order to obtain benefits for a recurrence. This was because the Rhode Island Supreme Court in numerous cases stated that it was the burden of the employee to introduce comparative medical evidence based upon a reasonable degree of certainty that the employee's condition had worsened when contrasted with the employee's condition prior to his or her benefits being suspended. Such evidence usually centered around the existence of some objective medical finding, which was absent at the time when benefits were suspended. It was rare for such a finding to be present, except in cases where the employee's entitlement to a resumption of weekly benefits was so obvious that the employer or insurer would most always agree to resume their payment.

The bottom line was that employee's petitions to review to obtain benefits for recurrence were not frequently filed, unless coupled with an original petition alleging a new injury or an aggravation of a pre-existing condition.

In 1990, the Rhode Island General Assembly enacted R.I.G.L. 28-33-20.1(b) which stated:

"For all petitions filed as of September 1, 1990, to prove recurrence of incapacity to work, regardless of the date of injury, the employee must document that the incapacity has increased or returned without the need for the employee to document a comparative change of condition." (emphasis added)

Despite this, most of the judges had difficulty awarding benefits for a recurrence of incapacity without medical proof that the employee's condition had worsened. A worsening by its nature usually required the introduction of comparative medical evidence; therefore, despite the provisions of R.I.G.L. 28-33-20.1(b), it was difficult, in practice, for an employee to prevail in a petition for recurrence absent some medical findings that were related to the earlier injury which represented a worsening in the employee's condition when compared with the employee's condition at an earlier point in time.

The Rhode Island Supreme Court has held that based upon R.I.G.L. 28-33-20.1(b), that an employee is no longer required to "introduce evidence of comparative change of condition," and further, "...all that is required is that an employee must prove that his /her incapacity has returned and hat the incapacity is by reason of the effects of the earlier work related injury." The court went to state that an employee need only present medical evidence that persuades the trial judge that the employee is once again incapacitated and that the incapacity is causally related to the employee's prior work injury for which liability has been established, despite the existence of a prior suspension agreement , pre-trial order, or decree which indicates that the employee was no longer disabled either in whole or in part.

The practical effect of this ruling is that it seems to increase an insurer/employer's long term exposure for a compensable injury(s). In the past, despite the fact that an employee could always seek to have benefits reinstated, once weekly benefits were properly suspended, it was difficult for an employee to once again receive weekly benefits. In many cases, an insurer/employer could close their file once a suspension of an employee's weekly benefits for total and partial disability had been obtained. In our view, this is no longer the case.

Procedures for Approval of Rehabilitation Plans

We would like to share with you a Decision we just received from the Rhode Island Workers' Compensation Court concerning the approval process at the Donley Center for proposed rehabilitation plans.

The Court held that rehabilitation counselors employed by the Department of Labor may not submit rehabilitation plans for approval on behalf of the employee/claimants.

This case should have the effect of changing the present practice at the Donley Center where Donley Center employees act as advocates for workers' compensation claimants seeking the Donley assistant director's approval for rehabilitation plans.

We argued to the Court that the procedures at Donley violated the State Code of Ethics (found in the Rhode Island General Laws) which prohibits state employees from presenting evidence or arguments before the state agency by which they are employed on behalf of another person, for the purpose of influencing the judgment of the agency in favor of that other person. In this case, an insurer had hired a rehabilitation expert to propose a rehabilitation plan for approval by the assistant director at Donley. The employee/claimant did not hire a private provider as did the insurer, but instead relied upon a counselor employed by the Donley Center to submit his own plan. The employee's plan was ultimately approved over that of the insurer's rehabilitation expert.

We argued that there was an inherent conflict of interest in a procedure where a private provider hired by the carrier must compete with a Donley Center employee, where both sides are seeking approval from the assistant director at Donley.

We wondered how often, if ever, the Donley assistant director would reject a rehabilitation plan submitted by her own employee. We suggest that anytime you have a case where a Donley Center (Department of Labor) employee proposes a plan of rehabilitation for Department of Labor approval, you assert your right to object on grounds that the procedure violates the Rhode Island General Laws Code of Ethics. Each of the parties, employee and carrier, should be represented by private rehabilitation providers and not by employees of the State of Rhode Island.

We expect that this Decision will be appealed to the Appellate Division of the Rhode Island Workers' Compensation Court, but in the meantime, we urge every employer and claims representative to insist that this Decision be followed so that the employer is not prejudiced by the Department of Labor procedures that appear to favor employee/claimants.


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