State News

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Smith, et al. v. Ellis (09/10/2012)

A co-employee may be sued in tort even after the claimant settles his Workers' Compensation claim if the co-employee was acting outside employment when he injured the claimant.

An employee who was accidentally shot in the thigh by a co-worker, entered into a "no liability" settlement with his employer that was approved by the State Board of Workers' Compensation. He then brought a negligence action against the co-worker.  The trial court entered summary judgment in favor of the co-worker on grounds the tort suit was barred by Workers' Compensation Act's exclusive remedy provision.  Employee appealed. Upon an equal division of the Judges of the Court of Appeals, the case was transmitted to the Supreme Court.

The Supreme Court of Georgia held that:

(1)         a "no liability" settlement barred employee from bringing an action for the same injury against an employee of the same employer;

(2)         the phrase "employee of the same employer" means a person who is acting as an employee rather than as a third party to the employment relationship at the time of the injury in question; and

(3)         fact question regarding whether co-worker was acting in the scope of employment precluded summary judgment in favor of co-worker.

In February, 2009, Smith and Ellis were both employed by The Knight Group, a company that builds and sells new houses.  Smith was assigned to work at the Westcott Place subdivision in Dawsonville, and Ellis was assigned to the Red Hawk Ridge subdivision in Cartersville.

On February 12, Ellis called Smith to arrange a meeting so that he could borrow one of Smith's tools for his personal use.  Ellis also wanted to shoot some new guns he had purchased.  The next morning, the two men met at a house that Smith was finishing in Westcott Place. Ellis made one phone call regarding a problem with the house and then followed Smith through a couple more houses for which Smith was responsible before they went to lunch around 11:00 a.m. Smith and Ellis returned to the subdivision at 1:00 p.m., where Smith continued to work. Ellis had no work to do and left that part of the property to avoid being seen by one of his supervisors, since he was not supposed to be at Westcott Place. Later, Ellis began firing his new rifle while Smith organized his work tools next to his truck. The rifle jammed three times.  Ellis successfully cleared the first two rounds, but he accidentally shot Smith in the right thigh when he tried to clear the third round. The bullet went through Smith's right leg and into his left leg, causing serious injury.

The Knight Group fired both men shortly after the shooting.  Smith filed a workers' compensation claim against the employer, alleging his injury was compensable because it arose out of and in the course of his employment. The Knight Group ultimately agreed to pay Smith $6,000 in exchange for his stipulation that he had not sustained a compensable injury. Pursuant to O.C.G.A. § 34-9-15(b), the "no liability" settlement was submitted to and approved by the Workers' Compensation Board, which issued an award denying the employer's liability on June 4, 2009.

Nine months later, Smith sued Ellis for negligence, and Smith's wife sued for loss of consortium. The Supreme Court recognized that if the victim is a co-employee, the Workers' Compensation Act may protect employees who commit torts of all varieties in the course of their employment. The question in this case was whether the Act protects an employee tort-feasor when the tort Is committed outside the course of the tort-feasor's employment.

The answer to that question was a factual matter, so the trial court's judgment granting summary judgment to Ellis was reversed, and the case remanded to the Court of Appeals with directions that it be remanded to the trial court for further proceedings.

681014-1

MISPLACED PRIVACY

By Kevin L. Connors, Esquire

“No matter where you go, there you are!”

If the above quotation, mouthed by the character of Buckaroo Banzai, played without lips by Peter Weller, later infamous as the RoboCop character, when Buckaroo, playing with  his rock band, the Hong Kong Cavaliers, tried to talk Penny Pretty, played by Ellen Barkin, out of committing suicide, as the band was playing at a bar in Grover’s Mill, New Jersey, also infamous as the Martian landing site in Orson Wells’ radio broadcast in 1937, in the classic, and yes, it should be watched at least once a year, movie, The Adventures of Buckaroo Banzai Across the 8th Dimension.

If that “no matter…” sounds vaguely familiar, it is and will always remain, incisively existential in perhaps an all too obvious paradoxical universe of Berkleyan idealism, posited by the English philosopher, George Berkley, credited with the development of the philosophy of subjective idealism, also sometimes referred to as empirical idealism, which point will soon prove all too true for you the reader, as Berkley asked “if a tree falls in the forest, and no one is there, does it make a sound”?

Now, if you are Dirty Harry, you would ask “Well, did it feel lucky”?

So what, if anything, do the above ramblings have to do with litigation, a question perhaps best answered by Jack Sparrow’s character in Pirates of the Caribbean, who quixotically confessed “It’s nice to be here, it’s nice to be anywhere”.

And, of course, it might well depend upon the presidential precedent of “it depends upon what the meaning of the word is, is?”

Yes, there is a point.

At what point is anything private, or can legally be expected to support a claim of privacy, when posting stuff about yourself, in whatever medium or format, on the internet, seemingly the most public medium in the history of human civilization, where you have no control over what happens to whatever you post after it is posted, to include what others who have been exposed to your posting might do with it, with or without your permission.

And if you think that whomever or whatever you have shared this personal information or data with, should stop to consider what they should or should not do with it, after they have been exposed, then you are, quite simply, both clueless and naive.

One might precede the other, although the more relevant thought might be, what were you thinking if at all, when you posted that thought you thought so brilliant?

And yes, we are finally at our point of departure, which is the always fascinating battles, in the context of discovery, motions and arguments, over what is, or is not, discoverable, with the flashpoints being relevance and expectations of privacy. 

And into that conundrum, with those against whom social media and discovery requests are made, claiming “expectations of privacy”, and with those seeking social media discovery, contending that there can be no “expectation of privacy” in a medium so universally visible and accessible.

Having previously reported on several Facebookian Court rulings in the past, the newest rulings, by Courts in Pennsylvania, and in other jurisdictions, continue to cement the requirements both for seeking and disclosing social media discovery.

Recent Pennsylvania Rulings

Two recent Pennsylvania rulings are of interest.

The rulings areMazzarella v. Mount Airy Casino Resort,a case decided in the Monroe County Court of Common Pleas, andSimms v. Lewis,decided in the Indiana County Court of Common Pleas.

Mazzarella v. Mount Airy Casino Resort

Mazzarellais a ruling issued on November 7, 2012.

It involved a premises liability slip, and fall case, with the Trial Court Judge deciding, correctly we think, that the Plaintiffs expectation of privacy in her social media activity was “misplaced”, as the Trial Judge, the Honorable David Williamson, ruled that “those who elect to use social media, and place things on the internet for viewing, sharing and use with others, waive an expectation of privacy”.

So ruling, Judge Williamson held that the Defendant’s social media discovery request was not a violation of privacy, with the Plaintiff being ordered to answer the Defendant’s discovery request.

The discovery request in question sought disclosure of the Plaintiff’s social media user name and password, with there being no time limitation imposed upon the Defendant for access, as general prior Court rulings on this issue in other jurisdictions, have imposed a time limitation on the requesting parties’ access to the disclosing parties’ social media.

Simms v. Lewis

Simms is a ruling decided by the Honorable Thomas Bianco in the Indiana Court of Common Pleas.

Simms involved the Plaintiff’s personal injury lawsuit, following a motor vehicle accident, with the Plaintiff claiming that her injuries were both serious and permanent.

After determining that the Plaintiff had a social media account with Facebook, My Yearbook, and MySpace, and that each of the accounts had been active after the Plaintiff was injured in the motor vehicle accident, the Defendant sought access to the Plaintiff’s social media accounts, filing a Motion to Compel when the Plaintiff refused to allow access.

In the Defendant’s Motion to Compel, the Defendant indicated that the front page of the Plaintiff’s MyYearbook account contained the Plaintiff stating “chillin with my girl tonight.  We’re going to do some Zumba fitness: ) so excited!!! HTC:p,”.

Not surprisingly, the Defendant sought the Plaintiff’s user name and passwords for her social media accounts with Facebook, MyYearbook, and MySpace.  Access to the accounts was sought in order to view private portions and pages on the site, with the Plaintiff impolitely declining to provide that information, resulting in the Defendant filing a Motion to Compel.

TheSimmsCourt began with the premise “as a general rule, discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.” George v. Schirra, 814 A. 2.d 202 (PA.Supr. 2002).

It also reflected on Pennsylvania Rule of Civil Procedure No. 4003.1.

However, the Court indicated that there were no Pennsylvania Appellate Court cases that addressed the issue of discovery requests for information concerning an individual’s social networking account.

While there were no Appellate rulings on that issue, there were a number of Trial Court rulings, with theSimmsCourt citing to the Zimmerman v. Weiss Markets Decision out of Northumberland County in May of 2011, where the Plaintiff had been ordered to provide login and password information for the Plaintiff’s Facebook account, although the Trial Court in Zimmerman specifically limited access to a threshold determination obtainable from access to the Plaintiff’s public page, requiring that the public pages indicate that private postings might contain relevant information.

Adopting theZimmerman threshold, theSimmsCourt ruled that the Defendant must first show that access to the Plaintiff’s social media account would lead to the discovery of relevant information, which the Defendants were able to sustain inSimms, but only as to the Plaintiff’s MyYearbook account.

TheSimms Court denied the Defendant’s request for disclosure of the Plaintiff’s social media account user name and password for the Plaintiff’s Facebook and MySpace accounts, as the Court indicated that the Defendant “has failed to articulate the factual predicate necessary to meet his burden” with regard to those accounts.

So, while an expectation of privacy might be “misplaced”, the right to seek disclosure of social media user information is not absolute, and may well require a requesting party to meet a threshold pre-requisite, proving that public postings implicate the potential relevance of private postings.

New York, New York

Hot off the presses, is the ruling of the United States District Court for Eastern District of New York in the Federal District Court case of Karissa Reid v. Ingerman Smith LLP, which involved the Plaintiff suing the Defendant for economic and non-economic damages arising from the Plaintiff’s alleged sexual harassment by an employee of the Defendant.

In the course of discovery being conducted, the Defendant sought information relating to the Plaintiff’s social media accounts.

The Federal District Court Judge granted that Motion in part, and denied the Motion in part.

Recognizing that the law regarding the scope of discovery of electronically-stored information (ESI) remained unsettled, the Court also indicated that there was no dispute that social media information may be a source of relevant information that is discoverable.

This is particularly true in cases involving claims of personal injury, where social media information may reflect a “Plaintiff’s emotional or mental state, their physical condition, activity level, employment, this litigation, and the injuries and damages claimed.”

The Court cited toSourdiff v. Texas Roadhouse Holdings, LLC a case decided by the United States District Court for the Northern District of New York, in 2011.

As an example, the Court indicated that Plaintiffs who had placed their emotional well-being at issue, in the course of asserting claims of sexual harassment or discrimination, had been subject to some Courts finding that “Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the contents’ posting.” Bass v. Miss Porter’s School, 2009 WL 3724968 (D. Conn. 2009).

Conversely, other Courts had observed that “the relevance of the content of a Plaintiff’s Facebook usage… is more in the eye of the beholder than subject to strict legal demarcations.” Bass.

Tripping the light fandango, whether electronically-stored and disseminated on the internet or not, “anything that a person says or does might in some theoretical sense be reflective of their emotional state.” Rozell v. Ross-Holst, 2006 WL 163143 (S.D.N.Y. 2006).

InReed, the Defendant claimed that the Plaintiff’s Facebook postings were relevant, as those postings contradicted the Plaintiff’s claims of mental anguish, allegedly resulting from her alleged sexual harassments, and subsequent termination of employment.

Not surprisingly, the Plaintiff argued that she should not be subject to broad discovery, to include the entirety of her social media accounts, potentially resulting in disclosure of private information.

Considering both arguments, for disclosure and in opposition to disclosure, the Court held in Reed that photographs and comments that the Plaintiff had posted on her publicly available Facebook pages provided probative evidence of her mental and emotional state, and the same could reveal the extent of activities in which she was engaged.

The Court also found that her private postings might likewise contain relevant information similarly reflective of her emotional state.

More germane, maybe to the point of this discourse, the Court further ruled that “even had the Plaintiff used privacy settings that allowed only her ‘friends’ on Facebook to see her postings, she had no justifiable expectations that her friends would keep her profile private”, citing toU.S. v. Meregildo, 2012 WL 3264501 (S.D.N.Y. 2012).

Moreover, the Courts founds that the wider the Plaintiff’s circle of friends might be, the more likely that her post would be viewed by someone that she never expected to view her post.

Although the Court declined to require full disclosure of all materials in the Plaintiff’s social media accounts, holding that not all postings might be relevant to her claims, the Court did order the Plaintiff to provide access to postings on her social media accounts that dealt with her social activities, where relevant to her claims of emotional distress and loss of enjoyment of life.

The Court also indicated that those postings might also provide information regarding potential witnesses with knowledge as to the Plaintiff’s social activity, as well as to the Plaintiff’s claims of emotional distress and loss of enjoyment of life.

So, in conclusion, it really does depend on what the meaning of the word is, is, aswell as no matter what your post, it might become relevant in discovery.

All three of the social media decisions reflected upon herein, clearly established a requesting parties’ right, dependent upon a threshold factual predicate, being that the parties subject to disclosure, and their public postings, suggests the availability of relevant information entitling the requesting party to seek disclosure of private postings, with there being a secondary predicate, being that the information being sought is “relevant” to the claims being asserted by the party to disclosure, as well as obviously relevant to the party seeking disclosure.

Kevin L. Connors can be reached at: kconnors@connorslawllp.com

Notice of Compensation Rate Changes:

The maximum compensation benefit rate for work-related injury and illness occurring during the periodbeginning November 1, 2012 and ending October 31, 2013,has changed to$771 per week for Temporary Total Disability (TTD), Permanent Total Disability (PTD), and Death.

The maximum compensation benefit rate for work-related injury and illness occurring during the periodbeginning August 27, 2010 and ending August 26, 2015,remains at$323 for Permanent Partial Disability (PPD)/Permanent Partial Impairment (PPI).

OVERVIEW OF OKLAHOMA WORKERS’ COMPENSATION

WHAT IS WORKERS’ COMPENSATION?

Workers’ compensation is an insurance program that provides compensation for disability, and medical and rehabilitation benefits, for employees injured on the job. In the case of accidental death of an employee, it includes benefits to the employee’s dependents. Under workers’ compensation, both workers and employers are protected. Each covered worker has a right to benefits for a compensation injury. In return, employers are protected from liability lawsuits outside the workers’ compensation system.

DEFINITIONS

“Compensable injury" means any injury or occupational illness, causing internal or external harm to the body, which arises out of and in the course of employment if such employment was the major cause of the specific injury or illness. An injury, other than cumulative trauma, is compensable only if it is caused by a specific incident and is identifiable by time, place and occurrence unless it is otherwise defined as compensable in this act. A compensable injury must be established by objective medical evidence. The employee has the burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There is no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment.

"Compensable injury" means a cardiovascular, coronary, pulmonary, respiratory, or cerebrovascular accident or myocardial infarction causing injury, illness, or death, only if, in relation to other factors contributing to the physical harm, a work-related activity is the major cause of the physical harm. Such injury shall not be deemed to be a compensable injury unless it is shown that the exertion of the work necessary to precipitate the disability or death was extraordinary and unusual in comparison to the usual work of the employee, or alternately, that some unusual incident occurred which is found to have been the major cause of the physical harm.

"Consequential injury" means injury or harm to a part of the body that is a direct result of the injury or medical treatment to the part of the body originally injured in the claim. The Court shall not make a finding of a consequential injury unless it is established by objective medical evidence that medical treatment for such part of the body is required.

"Cumulative trauma" means a compensable injury which is repetitive in nature and engaged in over a period of time, the major cause of which results from employment activities, and proved by objective medical evidence.

"Light duty" describes the status of an employee when a physician has declared the employee available for work with specific temporary physical restrictions.

"Maximum medical improvement" means that no further material improvement would reasonably be expected from medical treatment or the passage of time.

"Permanent partial impairment" means any anatomical abnormality or loss of use after maximum medical improvement has been achieved which can be evaluated by a physician. Any examining physician shall only evaluate impairment in accordance with the method prescribed in Section 33 of this act. All evaluations of permanent impairment must be supported by objective medical evidence.

"Permanent total disability" means incapacity, because of accidental injury or occupational disease, to earn wages in any employment for which the employee may become physically suited and reasonably fitted by education, training or experience, including vocational rehabilitation. Loss of both hands, or both feet, or both legs, or both eyes, or any two thereof, shall constitute permanent total disability.

"Temporary partial disability" describes the status of an injured worker who is under active medical care that is expected to improve his or her condition and who is unable to perform some of the normal activities of his or her work or is limited to a portion of his or her normal hours of employment.

OKLAHOMA WORKERS’ COMPENSATION COURT
L. Brad Taylor, Presiding Judge
Michael Clingman, Court Administrator
Joyce Sanders, Court Clerk
www.owcc.state.ok.us

Useful websites:

Oklahoma Workers’ Compensation Court

http://www.owcc.state.ok.us

Oklahoma Insurance Department

http://www.ok.gov/oid

Oklahoma Department of Labor

http://www.ok.gov/odol

Currently in South Dakota you cannot force a claimant to attend an IME unless the doctor conducting the IME is licensed in South Dakota.  If the claimant volunteers to go to a non-SD licensed doctor, the IME is valid and can be used.

There is going to be some legislation proposed where the defense bar would be allowed to use non-SD licensed doctors in exchange for increasing the notice period from 3 days to 7 days.  This seems like a good compromise as there are very few doctors licensed in SD who will do IMEs, and there are lots of exceptions to the notice provision.  We will wait and see if this compromise gets passed.  If it does, the new law would take effect on July 1, 2013. 

If you have questions, please contact Charlie Larson at 605-336-2424 or calarson@bgpw.com

South Dakota had a recent SD Supreme Court case where the department and appellate court held for the employer and insurer on a medical issue.  The case went up to our high court.  The issue was whether the work injury remained a major contributing cause of the claimant's need for treatment.

The treating doctor testified on behalf of the employee.  The insurer had a record review done by an orthopedic surgeon. The court reversed the department's ruling on causation for two very important reasons: 1. the court indicated a strong preference for the treating doctor; and 2. the court indicated it's disdain for record reviews.

Record reviews are helpful, but in order to have a fighting chance in SD, you must have the patient examined.  The court discussed how the record review doctor never took a history and found that to be very important. 

Record reviews are still a helpful tool as you do not need to disclose them if they are adverse.  If you have a favorable record review and the case is litigated, you need to get an IME and have that doctor testify at hearing in order to have a chance at prevailing.

Please contact me if you have any questions.  Charles Larson - (605) 336-2424 -calarson@bgpw.com

Whitney Teel is a contributing author toThe Complete Guide to Medicare Secondary Payer Compliance, a comprehensive handbook published by Matthew Bender and that be purchased throughLexisNexis.

This legal treatise covers Medicare reporting requirements nationwide, techniques to avoid pitfalls and delays under CMS’ policies and procedures to obtain MSAs, state specific WCMSA requirements, overview of understanding MSA evaluations, avoiding rejection of MSA proposals, achieving better CMS outcomes and avoiding overly inflated MSAs. Teel is the contributing author for the Minnesota section on State Specific WCMSA. Other contributions were provided by insurance industry in-house counsel and private firm attorneys.

  Industry news outlet Work Comp Central recently interviewedTom Atchison regarding the Supreme Court ruling inDykoff v. Xcel Energy.

The article discussed the Minnesota Supreme Court’s endorsement of the “increased risk” test as the standard for compensability.

The article also discussed how Minnesota courts have previously interpreted the statutory requirement that injuries “arise out of and in the course of” employment. According to Atchison, the interpretation has “varied from court to court and case to case” over the years and the recent ruling “clears up a point of uncertainty” for workers, employers, and carriers.

The full article is available from Work Comp Central here.

Thomas Coleman will be a presenter at the March 7 Advanced Workers' Compensation Seminar. The covered topics include: Undocumented Workers’ Right to Work Comp Benefits, Permanent Total Disability Claims Litigation, Evaluating Exposure and Settlement, Employer Protections, Legislative and Case Law Update, WC Attorney and Ethical and Professional Behavior, and A View from the Department of Labor and Industry provided by Commissioner Ken Peterson.

Tom will present on ethics and professional behavior and evaluating exposure and settlement.

For more information on this all day seminar or to register, please visit: Advanced Workers' Compensation Seminar

James Waldhauser will moderate and speak at theWorkers' Compensation Update in Minnesota hosted by Lorman on February 7.

Attendees will hear speakers discuss a general overview of forms, benefits, time lines and penalties, as well as case law, new legislation, interplay between ADA and work comp, subrogation, retaliation and a panel on settlements, fraud and return-to-work.

To learn more specifics about this event or to register, visit www.lorman.com