Once again a plaintiff has failed to get past the exclusivity provision in the New Jersey Workers’ Compensation Act.  InEstate of Samuel Sellino and Phyllis Sellino v. Pinto Brothers Disposal, LLC., A-2064-12T1 (App. Div. September 23, 2013), the Appellate Division considered whether an employer could be sued for allegedly removing or bypassing a neutral relay switch leading to a tragic death.

Samuel Sellino worked for Pinto Brothers Disposal, LLC (Pinto Brothers).  On October 17, 2008, Sellino was working in Long Beach Township with Chris Pinto.  Sellino was driving the truck, and Pinto was getting on and off the truck to throw brush in to the garbage compactor.  Arriving at one house, Sellino exited the truck, and left the vehicle in drive with the parking brake engaged.  The truck started rolling down the street, and Sellino and Pinto pursued it.  Sellino fell under the wheels of the truck and died. 

The company policy was that drivers must remain inside the cab and are not to leave the cab to assist co-workers.  One witness testified that Sellino had been told not to leave the truck before the fatality occurred.

            Plaintiffs filed a suit and alleged that Pinto Brothers removed or bypassed a “neutral relay,”  which was an electrical switch that required the vehicle to be in neutral in order for the compactor to function.  The evidence was unclear whether the company did in fact remove or bypass the neutral relay but for purposes of the motion to dismiss the law suit, the court assumed that the company did bypass the switch.  Plaintiff’s expert testified that the death would not have occurred had the neutral safety switch not been bypassed.

            Pinto Brothers moved to dismiss the law suit and prevailed at trial, arguing that the suit was barred by the exclusivity provision of the New Jersey Workers’ Compensation Act.  The Appellate Division affirmed that ruling.  The court said, “ . . . bypassing the neutral relay created a risk of injury to its employees.  This falls short of showing that Pinto Brothers acted with knowledge that such action was ‘substantially certain to result in injury or death to the employee.’”  The court noted that just knowing that a workplace is dangerous is not the same as engaging in intentional wrong.

            The court also held that the type of accident that happened in this case is a fact of industrial life.  Indeed, Phyllis Sellino, the widow, testified that she was aware of injuries suffered by other garbage truck drivers involving similar factual situations.  Sellino himself was the driver of a truck that ran over an employee in the late 1980s.  “Accordingly, Sellino’s death and the circumstances in which it occurred cannot be considered to be ‘plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act,’ “ (citations omitted).

            This case underscores a recurring theme that intentional harm suits must meet an extremely high burden of proof  in New Jersey and in fact, it is truly only the most rare case that can meet this standard.

MISSOURI WORKERS'

COMPENSATION CASE LAW

UPDATE

JULY 2013 - SEPTEMBER 2013

Claim Denied Because Claimant Did Not Prove Fall Came From Hazard Related To Employment 

Jackie Porter v. RPCS, Inc., Case No. SD32492 (Mo. App. 2013)

FACTS: The claimant fell at approximately 4:00 P.M. in the restroom, at which time she fractured her hip. At a hearing before an ALJ, she testified that she had no memory of falling or what caused her fall. She recalled washing her hands and then waking up on the floor. No one witnessed her fall, and there was no testimony that anything was on the floor that caused the claimant to fall, or that when witnesses found her that her clothes were wet or had any substance on them. The ALJ denied the claim because the claimant failed to meet her burden of proof to establish why she fell, there were no witnesses and the claimant was an unreliable historian. The Commission affirmed the ALJ’s Award noting that they were unable to determine the specific risk or hazard that caused her to fall.

HOLDING: The Court noted that an injury shall be deemed to arise out of and in the course of the employment only if it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside and unrelated to the employment, in normal non-employment life. The Court noted that the claimant must show a causal connection between her injury and her work activity in order for the injury to arise out of and in the course of her employment. In order to do so, the claimant must identify the cause of the injury. The Court noted that in this case the claimant was in the bathroom and fell, but there was no evidence that something about her work caused her to fall. Therefore, she failed to prove that she fell due to some condition of her employment or due to an unsafe location due to her employment. The Court found that the only causal connection of the work activity to her injury was the fact that it occurred while she was at work. Therefore, the Court affirmed the denial of benefits. The Court did note that this opinion should not be read to automatically restrict or exclude benefits for injuries of relatively sedentary professional employees such as the claimant based on the risk or hazard of being unrelated to employment.

Claimant Entitled to PPD Benefits not PTD Benefits

Clark v. Second Injury Fund, Case No. SD31644 (Mo. App. 2013)

FACTS: The claimant sustained an injury to his low back, right leg, neck and left shoulder on February 22, 2013, and settled this claim against the employer for 20% of the body. The claimant went to a hearing against the SIF for PTD benefits. Before the claimant’s February 2013 work injury, he had two other documented work-related injuries and had developed diabetes. He had received prior settlements for 30% of the right shoulder, 25% of the left shoulder, 5% of the wrist and 3.25% of the body. After his February 2013 work injury, the claimant returned to work and sustained another injury on May 14, 2013, and again on June 10, 2013, to his neck and low back. The ALJ awarded the claimant PPD benefits, not PTD benefits. The claimant appealed to the Commission who agreed with the decision of the ALJ. The claimant again appealed. 

HOLDING: The Court of Appeals again affirmed, noting that the Commission’s determination that the claimant was not permanently and totally disabled by a combination of his prior injuries and his last injury was not against the overwhelming weight of the evidence. The Court noted that both the claimant’s rating physician and vocational expert opined that he was permanently and totally disabled as a result of a combination of his injuries. However, neither of them addressed the two subsequent injuries. As a result, the Commission found that their testimony was lacking in credibility. The Court further noted that since the claimant returned to work after both of these subsequent injuries, the Commission concluded he could not have been permanently and totally disabled as a result of the earlier May 2013 injury.

Claimant PTD Because No Employer Could Reasonably Be Expected to Hire Him

Larry Underwood v. High Road Industries, LLC, Case No. SD31731 (Mo. App. 2012)

FACTS: On November 28, 2005, while standing on a ladder to install a radiator in a truck, the ladder broke and the claimant fell to a concrete surface, landing on his right side and right hip. He underwent surgery and was initially released in September 2006, but returned to the doctor. Eventually Dr. Olive implanted a permanent spinal cord stimulator. He was again released from care in 2008, and the doctor noted that he did not believe the claimant could work. The claimant testified that he continued to have complaints, noting he could only sit for 30 minutes, stand for 30 minutes, and could only walk about a block and then would need to sit down. He also reported that he was on prescription pain medication and could drive no more than 10 miles at a time. The claimant then underwent an FCE which showed that he could work in the light to medium category. Therefore, Dr. Olive concluded that the claimant could return to the open labor market in some capacity, with restrictions. The ALJ found that the claimant was totally and permanently disabled. The Commission affirmed the decision of the ALJ. The employer appealed.

HOLDING: The Court stated that the test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. The Court found that there was competent and substantial evidence supporting the Commission’s determination that the claimant was unable to compete in the open labor market based on his physical restrictions, his limited transferable job skills, his below average intelligence and his concentration problems, and that no employer would reasonably be expected to hire him. 

Claimant's Job Duties Were A Substantial Factor in Causing His Heart Attack Which Caused His Death

William Riley (Deceased); Vicki Riley and Landon Riley v. City of Liberty, Case No. WD75879 (Mo. App. 2013)

FACTS: On October 6, 2004, the claimant died of a heart attack while at home. The claimant’s widow filed a claim for death and funeral benefits. An ALJ denied the claim. The relevant facts are as follows. The claimant was the Deputy Fire Chief and his duties were primarily administrative, but essentially kept him on call at all times. On October 5, 2004 the claimant had a heated discussion with a Captain while at work regarding a police dispatcher. After the conversation, the claimant appeared angry, was red faced and it took another Captain 45 minutes to calm him down. Later that day he responded to a medical emergency call. He assisted another fireman loading a man onto a stretcher, and removed him from the building and into the ambulance. Witnesses testified that the claimant did not appear well. The claimant then went back to the station and was using the treadmill at which time he looked pale, ashen and sweaty. There was also testimony that the claimant was having bad indigestion. A paramedic for the fire department testified that looking grey and having indigestion are signs of undergoing a heart attack. The claimant arrived home at 7:00 P.M., and at around 4:00 A.M. he went into cardiac arrest and was pronounced dead soon thereafter. The Commission found that the events of October 5, 2004 resulted in an increased demand on the claimant’s heart, which culminated in ischemia, which deteriorated to heart failure in the hours leading up to his death. Therefore, the claimant's widow was entitled to benefits as the claimant did sustain an accident arising out of and in the course of his employment.

HOLDING: The Court noted that in this case the claimant only had to prove that his work was a substantial factor in causing the heart attack. The Court noted that Dr. Schuman testified on behalf of the claimant, and opined that the claimant’s work activities on October 5, 2004 were the prevailing factor in his cardiac arrest. Dr. Thompson, the employer’s medical expert, testified that the claimant’s job duties were not a substantial contributing factor in causing his death. The doctor noted that according to studies, heart attacks are only related to a firefighter’s work activities if they occur within one hour of extreme exertion. The Court noted that the Commission chose to rely on Dr. Schuman’s opinions and the evidence supports the Commission’s conclusion that the claimant suffered an accident in the course of his employment and his employment was the substantial factor in his cardiac arrest. Therefore, the Court affirmed the Commission’s Award of benefits.

[Editor’s Note: Please note that this is an old law case and therefore the claimant only had to prove that his job duties were a substantial factor in causing the heart attack. However, please note Dr. Schuman did testify that the claimant’s job duties were the prevailing factor in causing his heart attack. Therefore, it is possible this case would come out the same way under the 2005 Amendments.]

To Win a Retaliation Suit Claimant Has to Prove that Exercising His Rights Under Workers’ Compensation Was the SOLE Reason for His Termination

Templemire v. W&M Welding, Inc., Case No. WD74681 (Mo. App. 2012)

FACTS: On October 10, 2005 the claimant began working for the employer and on January 9, 2006 he sustained an injury to his foot and received benefits. During his employment the claimant only had one disciplinary write-up which occurred after his injury. On November 26, 2006 Gary McMullin, the owner of the company, received a request from a customer to have a railing painted and ready to pick up by 4:30 that afternoon. Before the railing could be painted it had to be washed. Therefore, the claimant’s supervisor assigned him to make various deliveries and he returned at 1:50 P.M. Before reaching the wash bay he stopped to rest his foot, at which time he was approached by the employer, Mr. McMullin and fired because the rail had not been completed. The claimant asked why he was fired and he was told that he wanted the railing done and he hadn’t washed it. The claimant called the insurance company who then called the employer to discuss the claimant’s termination. Mr. McMullin advised that he told the claimant to wash some parts, he refused and therefore he was fired. They discussed the claimant’s need for breaks and Mr. McMullin advised that the claimant was milking his injury. The claimant then filed a lawsuit against his employer alleging retaliation.

HOLDING: At a trial, Mr. McMullin testified that he fired the claimant for insubordination. The claimant put on evidence showing that Mr. McMullin had previously referred to injured employees as whiners, and there was a witness that had previously been an employee of Mr. McMullin, who filed a work comp claim and was later terminated. He also pointed to an employee who had multiple disciplinary write-ups and a drug problem; however, he had not been terminated. Furthermore, the type of disciplinary write-up the claimant received after his injury was not a type of violation for which other employees had received write-ups. At the trial the jury found in favor of the employer and the claimant appealed. The Court of Appeals confirmed the decision of the trial court, noting that the jury instruction was in line with the law. The jury instruction read that the exclusive cause of the claimant’s discharge was his filing of a workers’ compensation claim. The Court looked to prior cases and confirmed that the claimant has to prove that the sole reason he was fired was because of exercising his rights under the Act.

Employer Not Insurer Has Right to Direct Treatment

Demore v. Demore Enterprises, Inc. and America First Insurance Company, Case Nos. SD32350 and SD32362 consolidated (Mo. App. 2013)

FACTS: Herschel and Doris Demore, and their daughter Delores, worked for the family business, Demore Enterprises. Delores got a call at the employer’s office during business hours reporting vandalism of one of their nearby properties. All three of the Demores left the office and headed to the property, all in Herschel’s personal vehicle. In route they were injured in a car accident. Doris Demore filed for workers’ compensation after the insurer refused benefits and medical treatment, and the ALJ awarded temporary and permanent total disability benefits, past medical expenses and future medical treatment. The ALJ also opined that the “employer/insurer” waived its rights to select the claimant’s medical providers for future medical care. The Commission affirmed the Award in part. The Commission reversed the ALJ’s decision that the “employer/insurer” waived its right to control future treatment. The Commission noted that the general rule still applies and the “employer/insurer” maintains control over the selection of the claimant’s future medical providers.

HOLDING: The Court, in essence, agreed with the Commission’s award noting that the “employer/insurer” did not waive its right to direct treatment. However, it did note that pursuant to Statute it is actually employers alone, not insurers, that have the right to direct medical treatment. Therefore, the result in this case was that the claimant, who was the employer, was able to direct her own treatment.

Claimant Has to Prove Employer Not Prejudiced By Lack of Notice Before Burden Shifts To Employer to Prove Prejudice

Aramark Educational Services, Inc. et. al. v. Leotha Faulkner, Case No. ED99439 (Mo. App. 2013)

FACTS: On January 29, 2010 the claimant slipped and fell on black ice while walking between two buildings on Washington University’s campus, where she was working. She did not immediately report the incident to the employer, as she did not believe she was hurt. Ten days later she noticed swelling and sought treatment on her own. At this time, she again did not report an injury to her employer. She underwent unauthorized surgery on April 8, 2010. Prior to her surgery, she did report her injury to her employer on March 31, 2010, two months after her injury at which time the employer offered medical treatment. However, she denied the offer since she already had scheduled surgery. The claimant then filed a Claim and at a hearing the ALJ denied the claimant benefits on the grounds that she failed to provide proper notice of the injury. On appeal, the Commission reversed the ALJ’s decision, and awarded benefits. The employer appealed, alleging the claimant should be denied all benefits because she failed to give the employer timely notice.

HOLDING: The Court noted that the employer has the burden of establishing any affirmative defense which includes statutory notice. Once the employer establishes a lack of timely written notice, the burden shifts back to the claimant. The claimant must then establish that her failure to give timely written notice did not prejudice the employer. A claimant can prove lack of prejudice in one of two ways. First, if the claimant offers substantial evidence that the employer had “actual knowledge” of the injury, there is no need for written notice. If this is the case, it is assumed that the employer was not prejudiced and the burden then again shifts to the employer, who has to show prejudice. 

The second way a claimant can prove lack of prejudice is presenting actual facts showing that the employer was not prejudiced. The Court noted that in light of the fact that it was undisputed that the claimant failed to provide employer with proper notice, it is her burden to prove lack of prejudice. The Court found that the claimant did not provide any evidence supporting that the employer was not prejudiced. The Court noted that the Commission equated the employer's admission that the claimant’s injury occurred in the scope of her employment with admission that it was not prejudiced. The Court noted that admission of a claimant’s injury did not relieve the claimant of her duty to establish a lack of prejudice. The Court noted that, basically, the Commission shifted and placed the burden on the employer prematurely, as the claimant did not meet her burden. The Court further noted that all cases which have shifted the burden to an employer to prove prejudice, where there was untimely notice, have required the claimant to first provide evidence of no prejudice to both the employer’s investigation and the employer’s need to provide medical treatment to the claimant to minimize disability. The Court found the claimant did not prove any evidence of lack of prejudice. Therefore, the Court reversed and remanded the decision of the Commission.

Widow Entitled to Entire Benefit Amount For Two Years When Remarry

Ash v. Millennium Restoration and Construction, Case. No. SD32381 (Mo. App. 2013)

FACTS: The claimant was fatally injured when he fell down an elevator shaft while working for the employer. He was survived by his spouse and their two young children. On January 21, 2009 the Commission awarded weekly benefits in the amount of $742.72. The Award allocated $495.15 per week to the children and $247.57 per week to the spouse. The spouse remarried on December 9, 2011. On October 3, 2012 the Commission issued a decision modifying its previous Award based on the Statute, which grants a spouse a remarriage benefit equal to the entire death benefit for two years. Therefore, the spouse was awarded $77,242.88, which represented the weekly benefit of $742.72 x 104 weeks. The employer appealed, arguing that the remarriage benefit should have been calculated only using the portion of the weekly benefits that was allocated to her, in this case, $247.57.

HOLDING: The Court noted that the issue in this case was whether a spouse that remarries receives the entire death benefit or only the portion of the death benefit that was initially awarded to the widow as the surviving spouse. The Court noted that strict construction is used to interpret the Statute and that §287.240 does not contain any language which expressly indicates that the remarriage benefits should be calculated based on only the amount of the weekly death benefit initially given to the remarrying spouse. The Court noted that if the legislature intended for the spouse to only receive the part of the benefits that was initially awarded to her, specific language would have been added to the Statute. Therefore, the Court affirmed the Commission’s decision that the widow was entitled to a lump sum of $77,242.88.

Claimant Assaulted and Killed By Boyfriend at Work Found Not Compensable and Parents Could Pursue Wrongful Death Suit against Employer 

Flowers v. City of Campbell, Missouri and William Riley, and Dolgen Corp. d/b/a/ Dollar General Stores, and Billie Gage, Case No. SD31440 (Mo. App. 2012)

FACTS: The parents of the employee shot to death by her boyfriend while she was at work at the employer's store brought a wrongful death action against the employer, store manager, city and police officer. The employer filed for summary judgment arguing that workers’ compensation was the exclusive remedy because the death arose out of and in the course of the employment because the employee was a victim of unprovoked violence or an assault while at work. The trial court granted summary judgment and the employee’s parents appealed.

HOLDING: The Court of Appeals reversed the summary judgment stating that the employee’s assault was not compensable. The Court noted that although the assault on the employee was unprovoked and unjustified, her injuries did not arise out of her employment because the assault was directed at her for purely personal reasons. Therefore, the employee's parents could proceed with the wrongful death suit.

Commission Has Statutory Authority to Approve Settlement 

Nance v. Max & Electric, Inc., Case No. WD74942 (Mo. App. 2012)

FACTS: An ALJ found that the claimant was permanently and totally disabled as a result of an occupational disease he sustained at work and was awarded lifetime benefits. Thereafter, the parties entered into an agreement to commute the claimant’s PTD benefits into a lump sum settlement of $181,434.24. The agreement was executed by the parties and the attorney for the employer sent the agreement to the Commission for approval on October 27, 2011. Later that afternoon the claimant died of causes unrelated to the work injury. When the employer learned of the claimant’s death, it filed a Motion to Withdraw the agreement. However, the claimant’s surviving wife moved to have the agreement approved. The Commission entered an Order denying the request to commute and denying the claimant’s spouse’s request to approve the settlement agreement, finding that it did not have the authority to approve the agreement because the value of the claim, once the claimant had died, was zero.

HOLDING: The Court of Appeals held that the Commission did have the statutory authority to consider the settlement agreement and under the Statute, the Commission was required to approve the settlement unless it was procured by fraud or undue influence, or was against the rights of the parties. The Court reversed and remanded the case to the Commission with instructions to approve the agreement.

Attorney's Fee Lien Has Priority Over Department of Social Services Lien

Lake v. Department of Social Services, Case No. WD74306 (Mo. App. 2013)

FACTS: Attorney Lake represented the claimant in a workers’ compensation claim. The claim was tried before an ALJ on stipulated facts between the claimant and his employer. They agreed to 38% PPD to the body, and that the claimant had incurred medical expenses in the amount of $45,001.73. The Missouri Department of Social Services had filed a lien in that amount to recover funds that Medicaid had paid for the claimant’s treatment for the work injury. The employer stipulated that they would issue payment in that amount directly to the Missouri HealthNet Division to resolve the lien.

HOLDING: The Commission entered an Award which included a 25% attorney’s fee specifically on the medical expenses. The Commission noted that this 25% fee applied to the amount the employer paid to the Department of Social Services (Department). Since the employer paid the entire amount of the lien to the Department, Lake was to recover the portion of his lien directly from the Department. Lake then demanded payment from the Department which rejected his claim. Lake brought a civil suit against the Department for his attorney’s fees, and the Circuit Court entered judgment in favor of the Department. The Court of Appeals reversed, holding that an attorney's fee lien, by Statute, has priority over the Department of Social Services liens for Medicaid reimbursement.         

Employer Not Responsible For Unauthorized Treatment Because Claimant Did Not Ask For Treatment

In Rainbolt v. Audrain Medical Center, Injury No. 09-002662, an ALJ determined that the claimant sustained a compensable injury. The ALJ awarded past medical expenses incurred in the course of her treatment with Dr. Brockman, a physician that she chose to go see on her own. The Commission reversed this aspect of the ALJ’s Award in that it found that the claimant did not ask the employer to furnish her with any psychiatric treatment prior to seeing Dr. Brockman, and there was no evidence that the employer had notice of the claimant’s need to see a psychiatrist and thereafter failed to furnish treatment. The Commission noted that this was not a case wherein the claimant was forced to see her own provider after the employer denied the claim. Therefore, the employer was not liable for the charges incurred for treatment with Dr. Brockman because the claimant sought treatment on her own and it was at her own expense.

Fall on Stairs Found To Be Compensable Because Had to Use Stairs to Access Tower 

In Morris v. Curators of the University of Missouri, Injury No. 11-021524, the claimant had retrieved a patient’s cell phone from the ground floor of the hospital and was taking it to the 5^th floor of the ICU tower, when she was walking up the stairs at which time she fell forward on the stairs and injured her low back. It was noted that in order to get to the ICU tower she had to use the stairs. In its Answer, the employer admitted the claimant sustained an accidental injury. There was no request to file an amended Answer denying the accident until approximately one hour into the hearing. Therefore, the ALJ found at the hearing that the employer had admitted that the claimant sustained a compensable accident and injury.

The ALJ went on to note that assuming that the issue had been properly and timely raised, it was clear that the claimant did indeed sustain a compensable accident and injury arising out of and in the course of her employment with the employer. The ALJ noted there was an unexpected traumatic event, as the claimant fell on the staircase. The event was identifiable by a specific time and place on the date listed, and in the location noted. The claimant had immediate symptoms of the injury, and the hazard or risk of falling on the stairs was a risk or hazard related to the employment as claimant could not access the 5^th floor of the ICU tower without using the stairs. This was a temporary ward, and therefore the Judge found that the matter was in fact compensable, and the employer/insurer was to provide medical treatment.

Rotator Cuff Tear Related to Prior Injury Not Work Injuries 

In McAndrew v. Metro Materials Inc., Injury No. 09-073619, the claimant, a teamster driving a cement truck, exited his truck and while walking into the plant he fell and hit his right arm and shoulder on a concrete slab on September 15, 2009. He felt massive pain throughout his right side. Three months prior to his injury, on June 1, 2009, he fell off a bicycle in his yard at home and landed on his right side. Thereafter, he began treating with a chiropractor and was diagnosed with a rotator cuff strain. He continued to treat for his shoulder, and on September 8, 2009, a week prior to his injury, he was seen by his family physician at which time he reported continued shoulder pain and weakness, along with difficulty lifting anything. It was noted in the records that the claimant believed that his rotator cuff was torn because he was having so much trouble when he lifted his arm. The claimant denied telling his doctor this. In any event, prior to his injury an MRI was ordered and scheduled for a day after the claimant’s work injury. The MRI showed a complete rotator cuff tear involving the entire supraspinatus tendon and superior fibers of the subscapularis tendon, with significant retraction.

On September 22, 2009, a week after the first work injury, the claimant had another work accident when he stepped out of the cab of his truck, he lost strength in his right arm and fell hitting his right shoulder on the ground. After this injury he was unable to move his arm. He underwent surgery with Dr. Fagan who opined that the cause of the rotator cuff tear was most likely the claimant’s September 22, 2009 injury. Dr. Wayne, the employer's expert, opined that the claimant’s shoulder pathology and symptoms were due to the June 2009 fall which was prior to both of the work accidents. The ALJ found that the claimant failed to meet his burden of proving that the work accidents were the prevailing factors in causing his rotator cuff tear. The ALJ found Dr. Wayne more credible. The ALJ also did not find the claimant credible in that he testified that he only had one visit to the chiropractor and his shoulder was fine, and the medical records did not corroborate his testimony. The Commission affirmed the ALJ's decision.

Carpal Tunnel Compensable Because No Evidence that Condition Was Caused By Anything Other Than Job Duties

In Lane v. City of Independence, Injury No. 11-014662, the claimant was a records clerk at the Independence Police Department and alleged carpal tunnel syndrome as a result of her job duties. The claimant was referred out for evaluation, prescribed splints and provided an ergonomic layout of her work station. Her symptoms continued and she was referred to Dr. Rosenthal, who believed that she had carpal tunnel but it was not work-related. Dr. Stuckmeyer, the claimant’s expert, opined that the carpal tunnel was a result of her job duties. The ALJ noted that claimants seeking benefits for an occupational disease must present “substantial and competent evidence that he/she has contracted an occupationally induced disease rather than an ordinary disease of life.” An occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The ALJ further noted the claimant must also establish the probability that the occupational disease was caused by work place conditions. The ALJ noted that there was no evidence introduced that anything but repetitive typing all day long for 5 years at the police department caused the claimant’s carpal tunnel syndrome. The ALJ determined that the competent evidence supported a determination that the claimant’s work for the police department was the prevailing factor that caused her carpal tunnel syndrome, and the employer shall provide medical treatment to cure and relieve the effects of the injury. The Commission affirmed the ALJ’s Award.

Horseplay Found Compensable and Claimant Awarded Medical Treatment and Disfigurement Equal To Cost of Medical Treatment

In Johnson v. City of Carthage, Injury No. 11-054387, the claimant, a lifeguard, was injured while engaging in an incident in which another employee was shooting him with a squirt gun filled with soda. The claimant was keeping the other employee at bay by holding a chair with its legs in the air facing the other employee. The other employee grabbed the chair and pushed it towards the claimant, at which time his teeth were chipped. The employer alleged horseplay, which would not be compensable. The claimant testified that earlier he had used a squirt gun filled with water to shoot the other employee, and that this type of activity was a regular occurrence for the 7 weeks of his employment with the City of Carthage. The manager of the pool and supervisor of the lifeguards would tell the participants who were using the squirt guns to knock it off. However, the activity continued. No one was disciplined for using squirt guns.

The ALJ looked to Wisely v. Sysco Foods, 972 S.W.2d 313, wherein the Court held that if an injury was sustained during horseplay, which had become an incident or risk of employment, then that accidental injury was compensable even if the party was the aggressor or voluntary participant in the activity. Here, the ALJ found that the activities which resulted in the ultimate accidental injury to claimant in this case were prevalent at the City of Carthage pool, where the claimant worked as a lifeguard and were an incident or risk of his employment. Therefore, the ALJ concluded that the claimant was injured through activities which arose out of and in the course of his employment, and were the prevailing factor in causing both his condition and his disability.

The ALJ awarded both past and future medical treatment for his tooth, as well as the loss of one tooth or 1.25 weeks of disability, which was agreed on by the parties. The claimant also sought disfigurement for loss of a tooth. The ALJ noted that Missouri Regulations provide that disfigurement shall be allowed for the loss of a front tooth, which was the injury in this case, in an amount sufficient to cover the reasonable costs of the artificial teeth. The ALJ found that the claimant was entitled to disfigurement in the amount of $770.00, the cost of the treatment and artificial tooth. The claimant did argue that he would be entitled to additional disfigurement in the event that replacement dental devices were required as future medical benefits. However, the claimant provided no basis for that assertion, and the ALJ only ordered disfigurement to the extent of the past medical provided. The Commission affirmed the decision of the ALJ.

Commission Reversed Decision of ALJ Denying Benefits for Carpal Tunnel Syndrome 

In Harris v. Bi-State Development Agency, Injury No. 10-021927, the claimant was 63 years old at the time of the hearing. She had worked for the employer for ten years as a van driver and alleged carpal tunnel syndrome as the result of her job duties. Prior to working for the employer she was diagnosed with diabetes, and was initially able to control the diabetes by diet, but eventually began taking oral medication. About the same time she started working for the employer she was also diagnosed with hypertension. She also struggled with obesity. The claimant drove up to 100 miles a day throughout the St. Louis metropolitan area. She noted that there was power steering in the van, but it was more difficult to steer than her car. She also had to assist passengers in wheelchairs, which required her to strap wheelchairs into the van. The claimant was sent to BarnesCare and the doctor concluded that the claimant’s condition was not work-related. She sought treatment on her own with a hand surgeon and underwent bilateral carpal tunnel releases. Dr. Schlafly and Dr. Margolis testified on behalf of the claimant, noting that the claimant’s work was the prevailing factor in causing her condition. Dr. Kaoo and Dr. Crandall testified on behalf of the employer, finding that the claimant’s job duties did not cause her carpal tunnel syndrome. An ALJ found Drs. Kaoo and Crandall’s opinions more credible than the opinions of Dr. Schlafly and Dr. Margolis, and that the claimant did not meet her burden to show that the carpal tunnel syndrome arose out of the repetitive work activities. The claimant appealed alleging that the ALJ erred in crediting the employers’ experts over her experts.

The Commission reversed the decision of the ALJ, noting that the claimant’s job duties did require firm repetitive grasping and repetitive stress to the flexor tendons and muscles of the claimant’s forearms. The Commission adopted the opinions of Dr. Schlafly and Dr. Margolis, and found that the claimant’s work was the prevailing factor in causing her bilateral carpal tunnel syndrome, as it appeared that the claimant’s occupational disease had its origin in a risk connected with the employment, and appeared to have flowed from that source as a rational consequence. Therefore, the Commission found that the claimant sustained an occupational disease arising out of and in the course of her employment and the employer was liable for past medical expenses, TTD and PPD.

Commission Reversed ALJ's Award Denying That Rotator Cuff Was Due To Occupational Disease

In Bowyer v. Mineral Area Community College/MACC, Injury No. 10-034774, the claimant testified that he had worked for the employer for approximately thirty years, mostly as a maintenance supervisor, half supervising and half performing general maintenance tasks. The employer's witness disagreed and estimated that the claimant spent 75% of his time on supervisory or administrative duties. The claimant first noticed pain in his shoulder in early 2010 when plowing snow. He testified that in May 2010 he was very busy performing maintenance as they were getting the campus ready for graduation. On May 6, 2010 the claimant reported to his supervisor that he felt he hurt his shoulder. Dr. Milne opined that the claimant’s job duties likely aggravated his condition, but were not the primary or prevailing factor in causing his condition, and therefore, the employer denied treatment. The claimant treated on his own with Dr. Ralph, who opined the claimant’s job duties were the prevailing factor in causing a right rotator cuff tear for which the claimant underwent surgery. The ALJ denied the claim, concluding that the claimant failed to offer credible evidence that he sustained an occupational disease arising out of and in the course of his employment.

The Commission reversed the decision of the ALJ finding that Dr. Ralph’s opinion was the most persuasive. The Commission noted that Dr. Ralph’s credible findings demonstrate that the claimant sustained an occupational disease that appears to have had its origin in a risk connected with the employment and appears to have flowed from that source as a rational consequence. Therefore, the claimant sustained an occupational disease to his shoulder arising out of and in the course of his employment.

Personal Assault on Employer's Parking Lot Not Compensable

In Brown v. George’s Processing, Inc., Injury No.: 09-063503, the claimant was going on a break to smoke when he was attacked by two aggressors. He was hit by a baseball bat swung by one of the aggressors, was placed in a choke hold and knocked out. The claimant admitted at a hearing that there was a personal disagreement between the aggressor and the claimant regarding his former girlfriend. There had been an earlier fight between the two which resulted in charges being filed against the claimant. The claimant admitted that the assault had nothing to do with his work at the employer. (Editor's note: It is not noted whether the aggressor was also an employee of the employer).

The ALJ looked to former case law, noting that an injury sustained by an injured worker is not compensable if an assault arose out of a personal matter unconnected with the claimant’s work duties, and that private personal quarrels are not compensable. The ALJ noted that the changes to the Statute in 2005 did not in any way change the application of the assault doctrine. The ALJ noted that the claimant appeared to assert that there was some special hazard from the claimant’s work location through testimony elicited that there were no cameras, nor was there any security, a fence or windows from which other workers could observe the parking lot where the claimant was assaulted. However, the ALJ noted that testimony also showed that there were numerous workers at the location who would transport materials at the mill using trucks and trains at various times. The ALJ noted that there was nothing inherent in the testimony that showed the claimant was exposed to a greater risk than that which he would have been exposed to outside of his work. The ALJ finally noted that the record as a whole proved only that the work place provided a locale for the personal assault, rather than exposing the claimant to any greater hazard at that location. Therefore, the claimant had not met his burden of proof and the claim was denied. The Commission affirmed the decision of the ALJ.

Claimant PTD Because Surveillance Was Not Persuasive Since Only Showed Limited Activity

In Mark Dannenmueller v. Noranda Aluminum, Inc., Injury No. 03-001980, the claimant injured himself while lifting a 90 pound block in 2003, sustaining a herniated disc at L5-S1, for which he underwent surgery. In 2004, the authorized physicians believed that the claimant was permanently and totally disabled.  However, years later, the employer’s experts, Dr. Cantrell and Dr. Coyle, viewed surveillance footage from 2006 and 2007 as well as 2009 and determined that the claimant was not permanently and totally disabled. The claimant’s experts, Mr. England and Dr. Volarich, never reviewed the surveillance but on cross admitted that if the surveillance showed that the claimant was capable of repetitive activity their opinions could change. The ALJ viewed the surveillance and found that there was no evidence that the claimant needed to avoid any repetitive bending or operation of heavy equipment or needed limitations regarding squatting, walking, carrying, kneeling, lifting, or climbing. The ALJ determined that the claimant was not permanently and totally disabled.

The Commission disagreed, noting that the surveillance covered August 2006 - March 2007, and July 2009 - October 2009. From approximately 310 hours of surveillance the investigators only gathered 48 hours of video footage. The Commission viewed the surveillance footage which showed the claimant engaged in about 15 or 16 individual incidences of activities such as bending to pick up a garden hose, pulling weeds, riding an ATV, operating equipment such as lawn mowers and leaf blowers, and running to catch a dog. The Commission noted that during the entire period that the investigators followed the claimant, only about 5 days demonstrated him engaging in any activities spanning a time period over an hour. The longest period of activity was approximately two hours on October 1, 2006, when the claimant was mowing the lawn. The Commission further noted that the investigators did not capture any significant activity by the claimant 9 days after that date, which supported the claimant’s testimony that he was “laid up” with back pain after engaging in activities such as those depicted on the videos. Therefore, the Commission found that the videos depicted only isolated moments over a lengthy period of time rather than anything approaching the demands of full-time employment. Despite the surveillance, the Commission found that the claimant was permanently and totally disabled.

Claimant's Live Testimony More Credible Than Employer's Affidavit

In Ricky Blanchard v. Staples, Inc., Injury No. 10-051990, the claimant alleged carpal tunnel syndrome as a result of his job duties. The claimant worked for the employer for 23 years and last worked as a shipping supervisor for 5 - 7 years. The claimant testified that his job duties as shipping supervisor involved both supervisory tasks and manual labor. The claimant testified at length with respect to his job duties at the hearing. The employer prepared an Affidavit describing his job duties and submitted it at the hearing. The ALJ found that the claimant failed to establish that his work was the prevailing factor in causing his carpal tunnel syndrome, and denied the claim.

The Commission reversed the decision of the ALJ, noting that the claimant testified that the list of the job duties prepared by the employer were incomplete, because they did not include all of the physical tasks that he performed on a daily basis. The Commission further noted that the employer did not present any live witnesses to rebut the claimant’s testimony as to his job duties or to show that the employer’s written description of his duties were more accurate than the claimant’s testimony. The Commission found that the claimant’s testimony was more persuasive than the Affidavit from the employer describing the claimant’s job duties. The Commission also believed that the claimant's expert, Dr. Beatty, was more credible because he took into account all of the claimant's job duties and the employer's expert, Dr. Goldfarb relied on the employer's description of the claimant's job duties which was incomplete.

Claimant's Date of Injury Determines Whether Dependents Are Entitled to Benefits 

In Donald Busick v. Wilson Plumbing Company, Injury No. 06-110636, a living claimant went to a hearing before an ALJ arguing thatSchoemehl will apply to his claim and therefore his wife is entitled to permanent total disability benefits if he dies of a cause unrelated to the work injury.

[Editor's note: Schoemehl v. Treasurer of State, 217 S.W. 3d 900 (Mo. App. 2007), found that if a claimant dies from causes unrelated to the work injury, the claimant's dependants are entitled to continuing PTD benefits.Schoemehlwas abrogated by an Amendment on June 26, 2008. The Courts have held that forSchoemehl to apply the Claim had to be pending between January 9, 2007 whenSchoemehl was decided and when the Amendment abrogatingSchoemehl took effect, June 26, 2008.]

The ALJ found that Schoemehl applied because his date of injury was September 26, 2006 and therefore his claim was pending in between January 9, 2007 and June 26, 2008. Therefore, the claimant’s wife was entitled to PTD benefits in the event he dies of causes unrelated to the work injury. The employer appealed arguing that because the claimant did not file his claim until January 19, 2009, which was afterSchoemehl was abrogated, the claimant did not have a claim for PTD benefits that was pending during the Schoemehl window. The claimant again argued that because his date of injury was November 26, 2006Schoemehl applied. The Commission agreed with the claimant noting that the Court previously focused on the date of injury to determine whether the claimant’s dependents may recover under Schoemehl. Therefore, the Commission affirmed the decision of the ALJ noting that Schoemehl did apply. However, in light of the fact that the claimant was still living, the claimant’s wife’s right to receive benefits pursuant toSchoemehl remained contingent and could not be adjudicated at this time.

Plantar Fasciitis After 13 Hour Shift Found To Be Compensable Accident

In Ricky Bisch v. St. Louis Area Insurance Trust, Injury No. 09-065775, the claimant was a janitor and on June 27, 2009 he had to work an overnight shift stripping and refinishing floors in preparation for an important event on the employer’s premises. No one was available to help the claimant perform this task, and he worked 13 hours on his feet. After he finished his job duties, he sat down for about 5 minutes and when he stood back up, he felt excruciating pain in the center of his right foot towards the heel. He hadn’t noticed any pain in his foot over the course of his shift, and testified that he had been focused on completing the job and wasn’t thinking about anything else. He reported his injury on Monday, since none of the supervisors were available over the weekend. The claimant requested treatment; however, he was advised that there was no response from workers’ compensation. He began treating on his own and was diagnosed with plantar fasciitis. The claimant was eventually sent to Dr. Byler by the employer, who opined that the plantar fasciitis was not work-related. He underwent an unauthorized endoscopic surgery to correct the plantar fasciitis. Dr. Berkin testified on behalf of the claimant opining that the plantar fasciitis was work-related. The ALJ found that the claimant failed to meet his burden to demonstrate that an injury by accident occurred. The claimant appealed.

The Commission found that the facts satisfied the criteria in the Statute regarding an accident. The claimant suffered an unexpected traumatic event or unusual strain (working on his feet for 13 hours). The accident was identifiable by time and place (June 27, 2009, at the employer’s premises). The claimant had objective symptoms (pain in the right foot) of any injury (plantar fasciitis) which was caused by a specific event (working on one’s feet for 13 hours) during a single work shift. Therefore, the claim was compensable.

The employer also argued that the claimant did not prove that his injuries arose out of and in the course of his employment because the hazard or risk that resulted in the claimant’s injuries was standing up after sitting down for 5 minutes, which was not a risk related to his employment. The Commission noted that it cannot view work place injuries in a vacuum so microscopically focused to ignore the reality of what actually happened to the claimant. The Commission found that the claimant’s injuries resulted from the risk of working a 13 hour shift on his feet. Furthermore, the Commission found no evidence that would support a finding that workers would have been equally exposed to that hazard or risk outside the employment in normal unemployment life. Therefore, the claimant’s injuries arose out of and in the course of his employment.

Claimant’s Job Duties as EMT Caused Injury to His Back and Shoulder By Occupational Disease

In Richard Yarbrough v. Rural Metro Ambulance, Injury No. 10-060138, the claimant worked as an EMT from 1992 until 2011. His job duties included responding to the scene of a medical emergency, assessing the patient, providing emergency assistance and transporting patients. The claimant averaged 3 - 4 emergency calls per day, and he and his partner would have to pull a stretcher weighing 81 - 87 pounds out of the ambulance and carry or roll the stretcher to the patient, and get the patient on the stretcher which involved significant physical strain. In 2002 the claimant underwent a lumbar laminectomy at L4-5 and L5-S1. He was released from care and returned to his normal job duties without restriction. In July 2010 he began to experience more severe pain in his right shoulder, right leg, right hip and low back. The claimant underwent authorized treatment for his right shoulder involving surgery and physical therapy for his low back. He was then sent to Dr. Colle for his back complaints. The doctor concluded the claimant’s back problems were not work-related.

The claimant had a report from Dr. Woiteshek, who diagnosed traumatic internal derangement of the right shoulder and traumatic right sciatica with an L4-5 herniation, which was related to the claimant’s job duties. The employer then obtained a report from Dr. Randolph, who opined that the claimant’s pre-existing degenerative conditions were the prevailing factor in his condition, not his job duties. The Commission found the opinion of Dr. Woiteshek more pervasive and concluded that the claimant’s conditions were work related and he was in need of additional treatment. However, the Commission did not agree with Dr. Woiteshek’s testimony that the claimant was unable to work after July 1, 2010. The Commission noted that even on cross-examination the doctor admitted that the evidence showed that the claimant continued to work for the employer up through March 2011. Therefore, the claimant was not entitled to TTD back to July 1, 2010.

Claimant's Deposition Testimony Could Not Be Used In Lieu of His Live Testimony

In Ruben Walker v. Bon Appetit Management, Injury No. 02-144836, the claimant’s case was set for numerous pre-hearings and mediations between 2005 and 2013. Notices were sent to the claimant but returned to the Division as “unable to forward.” The claimant’s case was set on the show cause docket on December 6, 2011, and the notice was again returned as “unable to forward.” The claimant’s attorney and the employer’s attorney appeared and since the claimant did not appear, the Judge dismissed the case with prejudice for failure to prosecute. The claimant’s attorney filed an Application for Review alleging the case was dismissed in error. The Commission set aside the Order of Dismissal and reinstated the claim finding no record was made at the show cause hearing, and the Commission did not have any evidence to review.

The case was set for a hearing on February 6, 2013, and the claimant did not appear. The claimant was deposed in 2007 and his deposition testimony was admitted into evidence without objection. The claimant’s attorney contended that his deposition testimony in lieu of his live testimony was sufficient to establish the elements of his case. The ALJ looked to Chapter 492 which allows a deposition to be admitted into evidence instead of live testimony if: the deponent is dead, if he is unable to give testimony by reason of mental incapacity, he was rendered incompetent, or if he was removed from the hearing. The ALJ noted that in the claimant’s case none of these instances were present; therefore the deposition could not be used instead of the claimant’s live testimony. Furthermore, the ALJ noted that the claimant’s deposition was taken in August 2007; therefore it was outdated and could not be relied on to establish the claimant’s current condition. Therefore, the deposition was not sufficient to establish any elements of his case and the case was dismissed for failure to prosecute.

Fall Down Step Not Compensable Because Not Hazard or Risk Related to Employment, Claimant Simply Missed Step

In Cathy Werner v. Madison Warehouse Corp., Injury No. 08-122998, the claimant fell down stairs at a restaurant while out of town. She testified that she was meeting co-workers at a restaurant to discuss the work to be done the next day because she and her co-workers were busy during the day. The dinner meeting was the only time available to discuss what needed to be done the next day. She explained dinner meetings were a frequent and regular aspect of her duties when she was working out of town for the employer. The ALJ denied the claim finding that the claimant did not sustain an accident during a single work shift.

The Commission agreed that the claim should be denied. However, it found that the claimant did in fact sustain an accident pursuant to Statute, but the claimant’s fall did not come from a hazard or risk unrelated to the employment. The Commission noted that the Courts have stated that a claimant must prove a causal connection to the work activity in order to prove that the injury arose out of and in the course of her employment. Here the claimant’s injuries resulted from the risk of descending a single step at a restaurant, while the claimant was out of town traveling for work. The claimant testified that she simply didn’t see the step and she fell. She did not identify any abnormally hazardous aspect of the step as contributing to her fall. The Commission noted she was certainly engaged in activities related to her work in that she was exiting a restaurant where she had gone for a business dinner. However, it is not enough that a claimant’s injury occurs while doing something related to or incidental to the claimant’s work. The Commission noted that absent any evidence suggesting that the step at the restaurant was an abnormal hazard or posed some particular danger to the claimant, there was no basis for a conclusion that the claimant’s work exposed her to a greater risk or hazard than she would otherwise face while descending a step in her normal non-employment life. Therefore the claimant’s injuries did not arise out of and in the course of her employment and the claim was denied. 

Opioid medications have become a major problem in the New Jersey workers’ compensation system.  The number of workers being prescribed opioids has increased dramatically along with other attendant issues, such as addictions to the medications, excessive periods of use, and large numbers of unused opioid pills.  Every workers’ compensation professional can attest to these and other problems with opioid medications, including cases where urine testing shows no trace of opioids in the system despite repeated renewals of prescriptions.

            A draft of a bill to be introduced in the New Jersey Senate proposes that medical expenses shall not include coverage of opioid drugs unless the prescribing doctor does the following:

            1) takes a thorough medical history and physical examination focusing on the cause of the patient’s pain;

            2) does a complete assessment of the potential addiction of the patient to opioids, which would include a baseline urine test and assessment of past and current depression, anxiety disorders and other mood disorders associated with risk of opioid abuse;

            3) provides a written treatment plan with measurable objectives, a list of all medications being taken and dosages, a justification for the continued use of opioid medications, a description of the pain relief from the medications, documentation of attempts at weaning, a description of how the patient responds to the medication, and alternative treatments under consideration;

            4) provides a description of either sustained improvement in function and pain reduction or consultation with a pain management specialist (if the dosage exceeds 120 mg morphine-equivalent dose or if the duration of treatment exceeds 14 days);

            5) provides an explanation to the patient of the risks and benefits of the prescribed medications and expected duration of treatment.

            The Act will allow an employer, carrier or TPA to disqualify any physician from its network who fails to provide such documentation.  If approved, this Bill would be a major step forward for the New Jersey workers’ compensation system.  New Jersey is a member of the National Prescription Drug Monitoring program, which allows physicians to check on an electronic database for prior or current prescriptions for controlled substances before dispensing narcotic pain medication to a patient. 

The PDMP program along with this proposed bill would go a long way to curb the abuse of opioid medications in workers’ compensation, often among patients who have a history of problems with opioids and other controlled substances.  The bill simply establishes a list of best practices that physicians would need to follow in order to prescribe opioids in the workers’ compensation system, as well as in personal injury protection coverage in automobile insurance. It would not prevent the dispensing of medications to those with chronic or short term pain; it would simply require the physician to undergo careful written analysis before making the decision to prescribe opioid drugs.  Many pain management doctors already engage in these practices and require their patients to sign pain management contracts allowing for urine testing.  However, not all physicians who prescribe opioid medications follow these practices, and this Bill is aimed squarely at those physicians

Jennifer Caswell andErin Fox successfully obtained a reversal of the trial court’s award of medical and indemnity benefits to the claimant following an appeal. The trial court awarded additional medical evaluation and ongoing temporary total disability benefits. The Nebraska Court of Appeals agreed with the employer’s argument that there was insufficient evidence in the record to support the trial court’s finding that the employee’s work caused her injury. The Court also agreed that some portions of the trial court’s decision were clearly erroneous. Therefore, the decision was reversed in full and no benefits were due.
Roness v. Wal-Mart Stores, 21 Neb. App. 211 (2013).

Nancy Haley worked as a Registered Nurse for Community Mercy Health Partners doing business as Springfield Regional Medical Center (hereinafter SRMC).  She began there in June of 1978.  In November 2009, she was diagnosed with breast cancer and underwent two surgical procedures.  She took approximately five and a half weeks of FMLA leave during this time period and returned to work on January 18, 2010.

SRMC had a progressive discipline policy which involved discipline pursuant to “Corrective Action.”  There were four steps in the Corrective Action process, the first of which was an oral warning.  The second step involved a written warning, the third a “final warning,” and the last led to termination. 

In the summer of 2009, SRMC issued a written warning because Haley missed pages while she was on call.  She did not initially respond to the hospital’s page, was called at home, and arrived at the hospital 37 minutes after the initial page on June 2, 2009.  A similar incident occurred a month later.

SRMC placed Haley on level three discipline in November 9, 2009 for two incidents involving patient “site marking,” which required marking the site of surgery for the surgeon.  On October 9, 2009, Haley took an unmarked patient in the operating room. 

Haley used several FMLA days in 2010 for her serious health condition.  The last FMLA day was April 16, 2010.

On February 12, 2010, Haley’s husband was transported to SRMC with a serious heart condition.  Haley contacted SRMC regarding her inability to work her shift that day and the next two days. SMRC marked her absence on February 12, 2010 as unexcused.

Three days after returning from her April 16, 2010 FMLA leave, SRMC terminated her employment.  Haley’s absence on February 12, 2010, when she was with her husband, was listed as one of the three unexcused absences on the Corrective Action form completed in support of her termination.  Her three unexcused absences along with 11 instances of tardiness were listed as the reasons for placing her at the final termination stage.

Haley sued for violations of her FMLA and ADA rights.  She argued that her cancer condition was covered under the ADA. The court said, “Haley’s cancer was a physiological condition affecting multiple body systems and was treated by a mastectomy, resulting in an anatomical loss.  It unquestionably qualifies as an impairment under the ADA.”

Next, the court considered whether that impairment substantially limited a major life activity with reference to the Americans with Disabilities Act Amendment Acts of 2008. “A major life activity may also include ‘the operation of a major bodily function’ such as ‘’normal cell growth.’”The court added:

A reasonable jury could conclude that Haley was disabled under the ADA, and therefore fulfills the first element of her prima facie claim  She was obviously disabled when the cancer was active, as it substantially limited the major life activity of normal cell growth.  In addition, the cancer substantially limited the major life activity of her work.  Haley took extensive time off for surgery and recuperation between the end of November 2009 and January 18, 2010, during which time she could not work at all.

The Court noted that it does not matter that the cancer was in remission at the time her employment was terminated.  She was still covered under the ADA.

SRMC argued that Haley said in her deposition before trial that she did not consider herself disabled.  The court said that Haley’s own statements “are not particularly probative of the determination of whether she is disabled under the ADA, which is a legal definition quite distinct from the colloquial meaning of ‘disabled.’”  The Court held that Haley made out a prima facie case and therefore denied SRMC’s motion for summary judgment, leaving the matter for the jury to decide.

On the FMLA issue, the court held that a jury “could reasonably conclude that Haley gave sufficient and timely notice that FMLA leave might apply to her absence on February 12, 2010, because SRMC knew of it the day it occurred and it concerned her husband’s serious medical condition.”  The court said that a reasonable jury could conclude that SRMC denied her FMLA leave by categorizing her February 12, 2010 absence as unexcused.

This case is a reminder to employers to fully analyze FMLA and ADA considerations before making termination decisions, even if there is a specific step plan of discipline in place. The case may be found atHaley v. Community Mercy Health Partners, 2013 U.S. Dist. LEXIS 11193 (January 28, 2013).

On September 27, 2013, the Alabama Supreme Court released its opinion in Ex parte Schnitzer Steel Industries, Inc. wherein it addressed the discoverability of post-accident investigation reports.　　 The subject report was prepared following a workplace accident resulting in an amputation.　The trial court initially ruled that the report was privileged and not discoverable.　The judge later reversed that ruling and ordered that the report be produced.　The employer then petitioned the Alabama Supreme Court for a writ of mandamus directing the judge to vacate the order.

On appeal, the employer argued that the report was prepared in anticipation of litigation and, thus, protected as work product.　 On the flip side, the employee argued that the employer conducted post-accident investigations and prepared reports containing the findings of the investigation for all accidents regardless of whether or not there was any anticipation of litigation.

In this case, the employer’s workers’ compensation manager testified that there was no written policy that a post-accident investigation be undertaken and that such a report　is only prepared when litigation is anticipated.　The employer’s safety director, however, testified that the report was prepared in the normal course of business and to address safety concerns and not in anticipation of litigation.　The Court resolved the inconsistencies between the two deponents by pointing out that, while it is necessary for the report to be prepared in anticipation in order to be afforded the protection of the work product doctrine, it does not have to be the sole reason.　　 Since it was reasonable under the circumstances for the employer to assume that litigation could be expected, the Court granted the petition　 and issued the writ directing the trial court to vacate its order granting the motion to compel the discovery of the report.

My Two Cents:

This opinion makes it very clear that employers must reasonably expect future litigation when preparing investigative reports in order to enjoy the protections of the work product doctrine.　 A standard post-accident investigation report may end up being discoverable unless it can be shown that there was some perceived threat of a lawsuit at the time the report was created.　 For this reason, it is advisable to do something different than your standard operating procedure when you do expect litigation such as involve an attorney in the investigation phase of a claim.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com　or any firm member at 205-332-3430.

On September 20, 2013, the Alabama Court of Civil Appeals released its opinion in the case of Malone v. Steelcase, Inc., dealing with the applicability of § 25-5-57(c)(3) of The Alabama Workers’ Compensation Act. § 25-5-57(c)(3), known as the set-off statute, provides that an employer is allowed a set-off against compensation benefits owed to an injured employee when the employer continues the salary of the employee during the period in which benefits are owed. Malone suffered an injury to her lower back occurring in and arising out of her employment with Steelcase, but she was able to return to her job earning wages equal to those she was earning prior to the injury. The trial court awarded permanent partial disability benefits for a 25% disability to Malone’s body as a whole, in the amount of $81.54 per week. However, the trial court also awarded Steelcase an offset in the amount of $67.30 per week for wages Steelcase paid to Malone after she was placed at maximum medical improvement, pursuant to § 25-5-57(c)(3). Malone appealed, and the Court of Appeals reversed the trial court’s decision.

Malone argued that § 25-5-57(a)(3)i, which is often referred to as the "return to work statute" was controlling, and that under that statute, her compensation for her injury was to be based on her physical disability rating, without consideration for loss of earnings capacity. Malone argued that under that statute, Steelcase was not entitled to a set-off, because § 25-5-57(c)(3) did not apply to her situation. In reaching its decision, the Court of Appeals stated that it agreed with Malone, because when two statutes conflict, the "more specific" statute is controlling, and § 25-5-57(a)(3)i is the more specific statute. The Court further stated that § 25-5-57(a)(3)i would be rendered meaningless under the interpretation of the set-off statute advocated by Steelcase. The Court of Appeals noted that benefits awarded in cases where the return to work statute applies, like scheduled benefits, should be awarded regardless of whether an employee is receiving full wages.

_______________________________

MY TWO CENTS:

The Court of Appeals’ analysis begs the question: So exactly when does the set-off statute apply? The Court of Appeals’ ruling is interesting in that it found that § 25-5-57(a)(3)i would be rendered meaningless if the employer was allowed an offset against an award for wages paid in situations where the employee is earning wages equal to her pre-injury wage. The decision further implies that the set-off statute does not apply in scheduled member injury cases either, for the same reason. The only other statute that applies to permanent partial disability awards is § 25-5-57(a)(3)g, which provides that an employee’s compensation for injury is equal to 66 2/3% of the difference between her average weekly earnings at the time of the injury and the average weekly earnings she is able to earn in her partially disabled condition. It certainly seems that if the legislature intended that the set-off statute only apply to awards made under § 25-5-57(a)(3)g that the statute would clearly and unambiguously state as much. However, the answer is contained in the statutory language concerning the employer continuing the salary of the employee. It appears that the Court of Appeals’ interpreted it to mean when the employer continues thefull salary of the employee. In other words, when the employer is paying the employee herfull wages for either performing less work, or for performing a less demanding job, the employer is entitled to a set-off, but when the employee is performing her regular job for her regular wages, the employer is not entitled to a set-off.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

Employers cannot always make accommodations to persons with disabilities, and the obligation only arises if the employee can show that he or she is qualified to perform the essential functions of the job with or without accommodation. 

            In the case of Atkins v. Eric Holder, Attorney General, 2013 U.S. App. LEXIS 12340 (4^th Cir. 2013), the plaintiff was a Correctional Counselor for the Federal Bureau of Prisons.  He suffered from a disability due to polyarthropathy of the right  knee and degenerative disc disease.  As a result of his medical conditions, he had significant restrictions limiting the amount of time he could walk or stand.  In fact, he utilized two metal canes and stated that sometimes he was afraid for his safety in working.  His doctors indicated that his restrictions were permanent in nature.

            The Bureau of Prisons terminated Atkins’s employment because it concluded that there was no way for him to safely perform his job.  Atkins sued and argued that he was discriminated against on the basis of his disability.  The federal district court and the Fourth Circuit Court of Appeals rejected his law suit.  It laid out the requirements for Atkins to prove his case:  “(1) that he has a disability; (2) that he is otherwise qualified for the employment or benefit in question; and (3) that he was excluded from the employment or benefit due to discrimination solely on the basis of the disability.”

            The Court ruled in favor of the Federal Bureau of Prisons on the ground that Atkins could not show he was otherwise qualified:

There is no dispute that Atkins was disabled at the time of his termination.  However, we conclude that the district court did not err when it held that Atkins was not otherwise qualified for his position.  Only persons who are ‘qualified’ for the position in question may state a claim for disability discrimination.

The Court went on to explain that the plaintiff has to show that he can perform the essential functions of the employment position that he holds or desires.  42U.S.C. § 12111(8) (2006). See also 29 C.F.R. § 1630.(m) (2012).  It further held:

At the time of his termination, Atkins was under several medical restrictions that significantly curtailed the time he was allowed to walk or stand.  Prior to being barred from the institution, Atkins was assisted by two metal canes with forearm braces and stated that he was afraid for his safety.  Because the correctional counselor position was a law enforcement position that required Atkins to physically restrain and control inmates, and no accommodation could be made to alleviate his restrictions, we conclude that Atkins did not make a prima facie claim for disability discrimination.

On September 9, 2013, the Alabama Court of Civil Appeals released its opinion inSouthernCare, Inc v. Margaret Cowart wherein it reaffirmed that a mere possibility does not establish medical causation. Although it affirmed the trial court’s finding of medical causation, it reversed the permanent and total disability award and remanded it for the trial court to determine the level of disability.

The facts before the Court involved a preexisting back injury and then 4 separate accidents injuring the lower back over a 3 year period with SouthernCare, Inc. Prior to a 2004 fall on the job, Cowart had a preexisting back injury but she had been working without restriction. After the 2004 fall and injury, Cowart had periods of disability but returned to full duty. She then had 2 incidents in 2005 and 2 in 2007 where she felt pain in the same region and of the same nature as she did after the 2004 fall. After the 2007 injury was determined not to be work related by the employer, Cowart returned to work but testified that she worked in constant pain. Cowart suffered another accident on the job injuring the same area of the back but testified that the pain was even more excruciating this time.

Cowart was seen by several different doctors and all the medical records indicated that the tests were unremarkable and that Cowart’s symptoms were degenerative or related to fibromamyalgia and not work related. After the June 2007 injury Cowart was treat by Dr. James White. Dr. White opined that without further testing he could not say if stenosis was causing the symptoms or if there was a herniated disk below the stenosis. Dr. White also testified that without further testing he could not say if the injury was work related. He did testify that the back pain could be due to fibromyalgia but the fact that Cowart did not have radiating pain prior to the first fall in 2004 indicated that fibromyalgia was not causing the current symptoms.

The trial court considered the medical records, Dr. White’s testimony and heard the plaintiff’s testimony in a compensability hearing and found the injury compensable and ordered the tests requested by Dr. White. The trial court later held a disability hearing with the only testimony being the employer’s vocational expert, which resulted in a permanent and total disability award. The employer then appealed the compensability decision and the permanent and total disability award.

The Court of Civil Appeals reviewed the testimony but did not re-weigh the evidence as it related to the decision on medical causation and permanent and total disability. The Court noted that the applicable standard for medical causation set forth by the Alabama Supreme Court was the evidence must establish more than a mere possibility that the injury was caused by the work place accident.Ex parte Southern Energy Homes, 873 So. 2d 1116, 1121-22 (Ala. 2003). The court also stated the "expert medical testimony is not always required to establish medical causation; however, an employee’s testimony, while not always insufficient alone to establish medical causation, cannot establish medical causation when ‘the evidence as a whole weighs heavily against finding the [employee’s] testimony alone to be substantial evidence of medical causation.’"Id at 1122. In the instant case the Court of Appeals noted that the only record that specifically said the injury was not related was from a doctor that reviewed the wrong MRI after the first 2007 incident. In addition, Cowart’s doctors stated that her symptoms were related to degenerative problem and/or fibromylgia. The Court then turned to the only detailed opinion on the subject of medical causation, Dr. White’s deposition testimony. This testimony stated that without further testing he could not say if the symptoms were related to the falls at work or not but that it was not until after the fall that Cowart reported radiating pain. The Court of Appeals then turned to Cowart’s testimony to determine if, when viewed with all the evidence, it could provide substantial evidence as to medical causation. Cowart’s testimony was that prior to the 2004 fall her fibromylgia had seldom caused her to miss work. She also testified that after the first fall she had returned to work at full duty with several subsequent incidents causing severe pain in the same region of her back. Cowart further testified that after the first incident in 2007 she returned to work but was in constant pain. The Court of Appeals pointed out that the trial court may infer medical causation from circumstantial evidence that indicates the employee was working normally before the incident, but afterwards the symptoms appeared and continued. Based on this, the Court of Appeals found that substantial evidence was present for the trial court to find medical causation.

The Court of Appeals did find that there was not sufficient evidence to support the permanent and total disability award. They pointed to Cowart’s testimony that she had been able to perform her duties despite her pain, her testimony that she desired to return to work and the employers vocational expert stating she had transferable skills and no loss of earnings capacity. Based on this, the Court of Appeals found there was not sufficient evidence to support a permanent and total disability award and the trial court should review the evidence again to determine the level of disability.

Of Note:

It has long been the position of the Alabama Appellate Courts that they are not to re-weigh the evidence in a workers’ compensation appeal. However, Judge Moore, in his concurring opinion, stated that when the legislature eliminated the certiorari review of workers’ compensation case in 1992 and created the substantial evidence standard, the standard of review for an appeal also changed. Judge Moore stated that the prior standard of review applicable to certiorari review only required support by any evidence, not substantial evidence. Therefore, by changing to the substantial evidence standard the legislature intended to change the standard of review and allow the Court of Appeals to re-weigh the evidence. Judge Moore also asserted that, under the current ruling by the Alabama Supreme Court, the Court of Appeals cannot re-weigh the evidence and must leave the trial court’s ruling alone if there is any evidence that supports the trial court’s ruling, which is the same as the certiorari review pre 1992 amendment. With the legislature creating the substantial evidence standard, Judge Moore opined that the Court of Appeals should be allowed to re-weigh the evidence to establish if there is substantial evidence and not just any evidence to support the decision.

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.

Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

A POSTSCRIPT TO PENNSYLVANIA RETIREMENTS INVOLVING WORKERS’ COMPENSATION

By

Jeffrey D. Snyder, Esquire and Kevin L. Connors, Esquire

On the Achilles heel of the Pennsylvania Supreme Court’s recent Opinion in theCity of Pittsburgh UPMC v. WCAB, a Decision that discussed the burden of proof in voluntary withdrawals from the workforce cases, the Commonwealth   Court has now rendered an Opinion on that same issue inFitchett v. WCAB, decided on April 8, 2013.

Fitchett involved a 2001 injury.

The Claimant was working as a Teacher’s Instruction Aide, and was injured in a student attack.

Multiple Petitions were litigated, including a Termination Petition, a Review Benefit Offset Petition, and a Penalty Petition.

Obviously, the employer, the PhiladelphiaSchool District, was litigating the Termination and Review Petitions, and the Claimant was retaliating with a Penalty Petition.

Oddly enough, there were no pleadings, nor amendments to pleadings, under which the employer had alleged that it was seeking a suspension of indemnity compensation benefits, based on the Claimant’s voluntary withdrawal from the workforce.

That issue was, however, nevertheless the subject of testimony in the course of the claim being litigated before the WCJ.

The Claimant began receiving Pension benefits in April of 2002, and then began receiving Social Security Retirement benefits in October of 2004.  After the work injury, the Claimant never sought any other work as the Claimant agreed that she was collecting “retirement” with her testifying that “but for” her work injuries, she would have continued working.

Questioned as to whether she had retired, she responded “at this point”, … “yes”, although she clarified her testimony, by indicating that she had left the workforce because of her work injuries.

She testified that she would still be working, if she was able to do so.

The WCJ found that the Claimant had retired, and voluntarily withdrawn herself from the workforce.  On credibility issues, the WCJ commented that the Claimant’s testimony “sounds good”, but “on close inspection falls apart”.

Moreover, the WCJ found that the surgery that the Claimant had undergone was unrelated to the work injury, that the Claimant had not searched for employment of any sort, while the Claimant was contending that she took a Pension benefit, as well as, Social Security Retirement benefits due to financial hardship, but that at the time she applied for the Pension benefits, she was receiving workers’ compensation benefits.

The Workers’ Compensation Appeal Board affirmed the WCJ’s Decision.

Before the Commonwealth Court, the Claimant argued that the WCJ had erred in deciding the issue of voluntary retirement, claiming that the employer never requested a suspension of benefits on the basis of retirement, and that there had never been any amendments to the pending Petition seeking that form of relief.

Brushing aside the Claimant’s arguments, the Commonwealth Court held that the issues before the WCJ and WCAB included issues related to the employer’s entitlement to an offset for Pension and Social Security Retirement benefits, such that the presence of those offset issues should have put the Claimant on general notice that her wage loss benefits could be suspended, based on a voluntary withdrawal from the workforce, under the “totality of the circumstances”, a legal nexus that the Pennsylvania Supreme Court had utilized in the City of Pittsburgh UPMC Decision, a recently issued decision.

No less true, the Commonwealth Court held that the issue of the Claimant’s voluntary retirement had been fully litigated before the WCJ, and that issue had been preserved for the WCAB.

Holding that the employer need not prove the availability of suitable work, when the employer establishes, under a totality of the circumstances, that a Claimant has voluntarily retired from the workforce, theFitchett Court also considered that a voluntary retirement from the workforce can be presumed from the acceptance of a Retirement Pension, a holding seemingly in some conflict with the Pennsylvania Supreme Court’s Decision inCity of Pittsburgh UPMC.

If we are to remove the notice issue from the Fitchett Decision, as the Claimant had argued that she did not have “notice” of the potential suspension of her workers’ compensation benefits based on a voluntary withdrawal from the workforce analysis, the Commonwealth Court appears to be following the Opinion rendered by the Supreme Court in theCity of Pittsburgh UPMC, with two key caveats.

The first, is that the Fitchett Court appears to be of the view, in stark contrast to theCity of Pittsburgh UPMC holding, that the receipt of a Retirement Pension benefit results in a rebuttable presumption of a voluntary withdrawal from the workforce.

Secondarily, the Fitchett Court is indicating that the issue of a voluntary withdrawal from the workforce is a matter of credibility for the WCJ to decide, making it a question of fact, rather than a pure question of law, or even a mixed question of fact and law.

What remains as the clear directive is that when an employer seeks to establish a voluntary withdrawal from the workforce, it remains the employer’s burden of proof to establish that a Claimant has done so under a “totality of the circumstances”, as is the holding of the Supreme Court in the City of Pittsburgh UPMC.

Practical Tips

Get it in writing!

Sustain your burden!

Make it real!

Make the Claimant look incredible!

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With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.