FY 2009 Narcotic Prescribing Analysis

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James Barnes,
Carmine D’Alessandro,
Timothy Wahlin,
Beth Giebel Mandel,
J.D.
J.D.
J.D.
J.D.
Ohio
James Barnes, J.D.
“Psychological or psychiatric conditions that do not
arise from a compensable physical injury or
occupational disease are excluded from the definition
of ‘injury’ ….”
‘Injury’ includes any injury, whether caused by
external accidental means or accidental in character
and result, received in the course of, and arising out of,
the injured employee’s employment.
‘Injury’ does not include:
(1) Psychiatric conditions except where the claimant’s psychiatric
conditions have arisen from an injury or occupational disease
sustained by that claimant or where the claimant’s psychiatric
conditions have arisen from sexual conduct in which the claimant
was forced by threat of physical harm to engage or participate
Maryland
Carmine D’Alessandro, J.D.
 For close to 80 years, “emotional” or “mental” injuries
were not covered under Maryland’s Workers’
Compensation Act.
 BUT: Act is completely silent as to these types of injuries.
 With no legislative guidance, courts were free to
develop a body of law on subject.
 Psychiatric Overlay (Physical-Mental)
 Accidental Injuries
 Occupational Diseases (Mental-Mental)
 Claimant’s suffering significant physical injuries can
recover for the “overlay” of emotional issues.
 Depression
 Decreased self worth
 “Significant” physical injury?
 Emotional injuries without a physical component.
 Result from specific event
 Accidental personal injury arising out of and in course
of employment.
 Can that mean non-physical injuries?
 Claimant was working in her office
 Construction taking place on surrounding building
 Three ton beam crashed through ceiling, landing five
feet from claimant’s desk
 Resulting “injury”: Nightmares, sleep disturbances,
anxiety…..
Court:
These injuries are “as real as broken bones”
and capable of objective determination.
Test: “Zone of Danger” or
“Unexpected Violent Event”
 No guidance from Maryland’s Workers’ Compensation
Act.
 Act discusses physical agents as cause of an
occupational disease: and
 Is disease due to nature of work
 Focus has moved to “work”
 Can “disease” logically flow from the work
 Davis
 King
 Means
North Dakota
Timothy Wahlin, J.D.
10. "Compensable injury" means an injury by accident arising
out of and in the course of hazardous employment which
must be established by medical evidence supported by
objective medical findings.
A. The term includes:
(6) A mental or psychological condition caused by a
physical injury, but only when the physical injury is
determined with reasonable medical certainty to be
at least fifty percent of the cause of the condition as
compared with all other contributing causes
combined, and only when the condition did not
preexist the work injury.
b. The term does not include:
(10) A mental injury arising from mental
stimulus.
Basically, ND covers but only those conditions caused directly
by the physical injury and only if there is no preexisting
condition. ND’s position is this eliminates most
depression, anxiety, and almost every PTSD claim.
Lawyer says teller deserves workers comp
By DAVE KOLPACK Associated Press Writer | Posted: Friday, December 18, 2009 2:10 pm |
FARGO, N.D. (AP) — A bank teller from a small North Dakota town says she's scared and can no longer
work after she was held up at gunpoint and left handcuffed on the floor. Now she's getting robbed by
the state workers compensation agency, her lawyer says.
Workers Safety and Insurance denied the claim for Edith Johnson, 56, who was diagnosed with posttraumatic stress disorder after the May 26 robbery in Gilby, Bismarck attorney Tom Dickson said. It
was the third time the bank had been robbed in Johnson's tenure and the second time while she was
working.
"She is stressed out by all this. Those guys who robbed the bank were just horrible, horrible men,'' said
Dickson, a Gilby native. "I'm just astonished that WSI would fight this, but they are.'‘
The letter of denial, which became public record after Dickson sued the agency to allow an appeal, said
state law does not cover a"mental injury arising from a mental stimulus.'' Dickson said that exclusion
is meant to apply to normal stress from performing everyday tasks at work.
"To say that being handcuffed, placed face down on the floor and have your life threatened by an armed
robber is everyday stress at a bank ... that is absurd,'' he said.
Workers comp officials say state law prohibits them from discussing a specific claim without the
applicant's approval. Asked to speak generally, WSI director Bryan Klipfel said the law provides
benefits only as the result of a physical injury that occurred at work.
A post-traumatic stress disorder that is directly related to a physical workplace injury may be
compensable if it can be shown that it was primarily caused by the physical work injury, as opposed
to all other contributing causes,'' Klipfel said.
William Collins of Nashville, Tenn., and Clifton Patterson of Grand Forks have been charged in federal
court with the bank robbery.
Authorities said one of the men held a sawed-off shotgun to Johnson while the other man took cash from
the bank vault and teller drawer. The robbers then handcuffed her hands behind her back and left
her face down on the floor.
"Because of the events of that day, it being my second and most awful bank robbery, I have been scared
and extremely stressed to go to work,'' Johnson said in court documents.
Dickson sued the state agency after it said Johnson did not file an appeal within 30 days. Dickson said his
client missed the deadline because she never received the letter of denial. Northeast Central District
Judge Joel Medd ordered the agency to reconsider the claim. A hearing date has not been set.
Six years ago the Legislature debated changing the workers comp bill to cover mental health issues for
first responders involved in so-called "critical incidents.'' The House defeated the measure 48-46.
Rep. Lois Delmore, D-Grand Forks, one of the sponsors of the 2003 bill, said the law should be changed
to cover cases like Johnson's.
"Mental health is something that is hard to pin down sometimes, but it is a very important issue,''
Delmore said. "When you have depression or whatever that is documented medically by a physician,
I think it should be covered. I certainly will look into this before next session.'‘
Minnesota
Beth Giebel Mandel, J.D.
 Mental stimulus produces physical injury;
 Physical stimulus produces mental injury;
 Mental stimulus produces mental injury (MN among
the minority of jurisdiction which does not allow).
 In order to prove:
 Medical causation – must have proof that the mental
stress resulted in the employee’s physical condition;
AND
 Legal causation – must have proof that stress was
extreme or at least “beyond the ordinary day-to-day to
which all employee’s exposed.”
Egeland v. City of Minneapolis, 36 W.C.D. 465
Aker v. Minnesota, 32 W.C.D. 50
Employee suffered a heart attack after removing two
decomposing bodies from a remote campsite.
Egeland v. City of Minneapolis, 36 W.C.D. 465
The employee, a police officer, was subjected to beyond
ordinary day-to-day stress over a long period of time.
**Stress-induced ulcer was awarded.
**Stress-induced depression was denied.
 Mitchell v. White Castle Systems, Inc., (32 W.C.D. 288)
 Employee developed traumatic neurosis a few days after
she was slapped in the face.
(Does not have to be physical injury – can be physical
stimulus.)
 Dunn v. U.S. West, (W.C.C.A. March 21, 1995)
 The employee was a victim of attempted robbery at the
store where she worked. Employee’s hand held behind
her back and a switch blade knife to her back. Claim
denied because incident did not produce actual cuts,
bruises, etc.
 Dodds v. Red Lake School District #38
 Use of brain imaging to prove physical injury
 VA/Mayo using sophisticated brain imaging to prove
existence of PTSD.
QUESTIONS??
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