State News

Occupational psychiatric claims, like all occupational claims, must be filed within time or be subject to the statute of limitations defense.  The challenge is always whether the employer can prove that the employee knew the nature of his condition and its relationship to work.  That was the issue in Bender v. Township of North Bergen, A-1988-15T4 (App. Div. August 25, 2017) where the petitioner, a former police officer with 25 years of experience, filed an occupational psychiatric claim three years after he retired.

Officer Bender worked for the Township from 1979 to 2004 when he retired as a lieutenant.  He testified that over the years he handled various gruesome assignments and suffered negative psychiatric consequences from his exposures.  He consulted with Dr. Ausberto Mckinney, the police department’s physician, in 2002 before petitioner retired.  Dr. Mckinney referred petitioner to a psychiatrist, Dr. Mercedes Rudelli, who began to see him on a continuous basis.  Petitioner testified that the work stress was a factor in his retirement.  However, petitioner did not report the condition to the Township, nor file a claim petition until 2007.  At that point he filed an occupational psychiatric claim and an occupational orthopedic claim.

The Township made a motion to dismiss the case based on the two-year statute of limitations, which requires a claimant in an occupational claim to file within two years from when he knows the nature of the condition and its relationship to work.  The Judge of Compensation ruled in favor of the Township, dismissing both claims.  Petitioner appealed and argued that there was no showing that petitioner knew that his condition was work related until he filed the claim petition.   Petitioner also argued that the Judge of Compensation did not adequately explain why he dismissed the orthopedic claims.

The Appellate Division affirmed the decision of the Judge of Compensation.  First, the Court explained what is not sufficient for an employer to prevail on the occupational statute of limitations.  “As this court has held, merely experiencing symptoms and receiving treatment for a work-related condition is not sufficient to trigger the statutory time limits.” The Court said that the petitioner “must have knowledge that the condition rises to the level of a permanent disability, since only permanent disability is compensable.”

Having said that, the Court found it pivotal that petitioner himself testified that he was aware as early as 2002 of the relationship between his psychological symptoms and his employment.  That was why he was treating with a psychiatrist. Petitioner had also filed claims in the past for various injuries, and the Court noted that petitioner was familiar with the workers’ compensation process.

Petitioner made a clever attempt to argue that the Township was aware that he was treating with its physician, who referred petitioner to a psychiatrist, and therefore the Township was actually in effect providing workers’ compensation treatment through Dr. Rudelli, even though it was not being billed through workers’ compensation.  He argued that the two-year statutory period should therefore be tolled.  The Court did not buy that argument, stating that petitioner was well aware from filing prior workers’ compensation claims of the requirement to file a formal, written claim petition in a timely fashion.

Where the Appellate Division did agree with petitioner was that there was not sufficient rationale for a dismissal of the occupational claim petition.  Petitioner argued that his orthopedic injuries were “insidiously progressive” and “did not manifest themselves until less than two years before the filing of the claim petition.”  The Appellate Division remanded this part of the case for further proofs on the issue of the statute of limitations on the orthopedic claims.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

The Alabama Court of Civil Appeals recently released its opinion in Ex parteGarrison Trucking Co., wherein it considered the issue of venue.

The Old Rules

In venue disputes, your residence means your permanent home: the place you plan on returning to after an extended absence, as opposed to a place of temporary residence, such as a beach house. In determining where an Alabama employee resides, the Court looks for evidence of the employee’s intent. Typical things that have been considered indicative of where an employee intends to reside are their own representations of their lawful residence on documents, such as where they get their mail and the address listed on bills.

There is one consideration that has always been treated as the smoking gun: the county where someone registers to vote. In the past, registering to vote in a certain county has been considered to answer the question of where someone resides. Put simply, if you register to vote in Mobile County, you reside in Mobile County.

The New Rules

In Ex parte Garrison Trucking Co., the employee claimed he resided in Washington County on the date of the accident and the employer claimed the employee resided in Mobile County. The Court concluded the evidence indicated the employee lived in Washington County.

The employer presented evidence showing the employee received his mail at the Mobile County address, listed the Mobile County address as his residence on multiple documents, including his job application and medical records, he received medical treatment in Mobile County for his alleged work related injury, and evidence that he registered to vote in Mobile County in 2016. The employer’s evidence spanned from March 2014 through May 2016, which presented an essentially uninterrupted timeline. 

The employee claimed that he had lived in Washington County for the past 15 years. However, out of all of the documents he submitted, he did not submit any documents that showed he resided in Washington County in 2014. Rather, the only evidence he submitted were documents from 2011, 2013, and 2015. Furthermore, his evidence consisted of two pistol permits, his drivers’ licenses, a vehicle registration, loan documents, and a Transportation Worker Identification Credential card thatexpired on April 20, 2014. The employee also told the Court he became one of the owners of the Mobile County address when his mother died in 2013, but he did not submit any other evidence showing he owned the property. Considering he claimed it was his residence for the past 15 years, it should not have been difficult to obtain better evidence.

After reviewing the evidence, the Court concluded “other than documents listing an address,no evidence was presented to show that [the employee] resided or intended to reside at the [Mobile County] address.” The Court discounted evidence that has historically been regarded as sufficient for purposes of establishing a person’s residence or a person’s intent to reside (i.e. county of voter registration).

In support of its finding, the Court stated that “there was no evidence from neighbors indicating that [the employee] appeared to be living in [Mobile County] or that he was involved in church or community activities in [Mobile County].”

Conclusion

According to the Alabama Court of Civil Appeals, to prove where an employee resides, the employer has to prove the employee actually lives there and that the employee is an active member of that community. Voter registration is no longer a determinative factor.  If the employee is a hermit that merely owns property in another county, or has any recent connections to another county, you may be out of luck.

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This article was written by Ashleigh Hunnicutt, an attorney at Fish Nelson & Holden, LLC in Birmingham, Alabama. Fish Nelson & Holden is dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Ashleigh and her firm are members of The National Workers’ Compensation Defense Network. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact Ashleigh atahunnicutt@fishnelson.com or (205) 271-7626.

The National Workers' Compensation Defense Network (NWCDN) is hosting an excellent conference in Atlanta on October 18 and 19.  It is by invitation only, so if you are interested in attending, please contact Jane Stone atjstone@slsaustin.com.

Another attorney pled guilty to conspiracy to commit health care fraud, admitting to a scheme under which he received more than $26 million from the US Department of Labor Office of Workers’ Compensation Program.  Dallas attorney, Tshombe “Shaun” Anderson, admitted that he and four family members ran a durable medical equipment billing scheme involving patient information taken from Union Treatment Centers.  Anderson had previously worked for Union Treatment Centers as an attorney.  The scheme involved duplicate billing for unwanted durable medical equipment that was not medically necessary, using outdated medical information.  Anderson faces sentencing on 11/19/17, and faces up to 10 years in prison and restitution.  In addition, $8.4 million was seized from 25 bank accounts associated with him, his firm and his family, as well as two houses, several luxury cars and almost $700,000 in cash seized from his home and that of his sister.  It appears that the powers that be are starting to take workers’ compensation fraud seriously!

DWC has lost two more long-time Hearing Officers. Carol Fougerat is leaving the San Antonio Field Office and Patrice Squirewell-Jean is leaving the Houston East Field Office.  These two ladies have been Hearing Officers for many years.  Their retirement follows a continuing pattern of attrition of experienced Hearing Officers at the DWC.

On 8/1/17, DWC announced changes to the form DWC-45 to allow system participants to request to proceed directly to a contested case hearing.  The DWC explained that parties are not required to participate in a BRC when the DWC determines that mediation would not prove effective to resolve the dispute or that the overall policy of the Workers’ Compensation Act would be advanced by proceeding directly to a contested case hearing.  The stated goal of this change is to “focus BRC time and resources on disputes in which participation is thought to be the most productive.  The revised form can be found athttp://www.tdi.texas.gov/forms/form20numeric.html.  

On 8/18/17, DWC posted changes to the Designated Doctor Rules and asked system participants for informal comments.  The stated reason for the changes is to “simplify certain DD processes, retain and recruit doctors to continue to ensure the most optimally qualified doctor is selected for an examination, provide transparency, and allow for better monitoring of designated doctors. 
 
The DWC Designated Doctor List (DDL) has undergone significant demographic changes since Rule 127 was adopted in September of 2012.  Specifically, there are half as many doctors on the DDL and there has been a dramatic decrease in the number of medical doctors on the DDL, while the number of chiropractors has steadily increased.  Of the 540 total doctors on the DDL, 167 of them are medical doctors and 352 are chiropractors.  When Rule 127 was adopted, there were 1247 doctors on the DDL, 929 of whom were medical doctors and 203 were chiropractors.
 
In an effort to keep designated doctors in the program, and ostensibly to lure more medical doctors back to the fold, the DWC is proposing changes to the selection and qualification criteria that would allow more examinations per appointment and more specialization (in other words, more exams for medical doctors and doctors of osteopathy) for more complex injuries, which have been further defined by the proposed rules.  The current selection process “penalizes” the more specialized doctors by moving them to the bottom of the appointment list when appointed to complex cases.
 
Of interest is the fact that the DWC has not addressed any increase in the fee schedule to take into account changes in the complexity of the system, the Designated Doctor rules and the kinds of examinations designated doctors are appointed to address.
 
The informal comment period closes on 9/1/17, but the rules will be posted for formal comment.  

On August 29, 2017, Commissioner Brannan issued a bulletin, which can be read in its entirety at the following:http://www.tdi.texas.gov/bulletins/2017/b-0020-17.html.  The bulletin refers to the Governor’s disaster proclamation and directs that, for the duration of that proclamation, Carriers must provide or continue to provide: (1) processing and delivery of benefits checks and medical care, services, supplies and equipment; (2) waiver of penalties and restrictions related to necessary and non-emergency health care provided out of network; (3) coverage of payment for necessary emergency and non-emergency health care services obtained out of network; (4) extended deadlines for medical examinations; authorization of payment to pharmacies for up to a 90 day supply of prescription medications (subject to the number of days authorized by the provider) regardless of the date on which the prescription had most recently been filed; and (5) expedited change of address processing.
 
In addition to the direction to carriers, the bulletin informs system participants of a tolling of deadlines for participants who reside in the counties listed in the Governor’s disaster proclamation. For the duration of the proclamation, deadlines are tolled for: (1) workers’ compensation claim notification and filing deadlines; (2) medical billing deadlines; (3) medical and income benefits payment deadlines; (4) electronic data reporting deadlines; and, (5) medical and income benefit dispute deadlines.
 
The DWC also reminded political subdivisions that first responders are on the front lines of the disaster and DWC and those subdivisions shall accelerate and give first priority to an injured first responder’s claim for workers’ compensation medical benefits if that first responder sustains a serious bodily injury in the course and scope of employment.  OIEC has designated a First Responder Liaison, Yolanda Garcia, who can be reached at 512-804-4173 orFirstResponderHelp@oiec.texas.gov.  

Governor Abbott issued a disaster proclamation on 8/23/17, certifying that Hurricane Harvey posed a threat of imminent disaster, including severe flooding, storm surge and damaging winds for the following counties: Aransas, Atascosa, Austin, Bastrop, Bee, Bexar, Brazoria, Brazos, Burleson, Caldwell, Calhoun, Cameron, Chambers, Colorado, Comal, DeWitt, Fayette, Fort Bend, Galveston, Goliad, Gonzales, Grimes, Guadalupe, Hardin, Harris, Jackson, Jasper, Jefferson, Jim Wells, Karnes, Kerr, Kleberg, Lavaca, Lee, Leon, Liberty, Live Oak, Madison, Matagorda, Montgomery, Newton, Nueces, Polk, Refugio, San Jacinto, San Patricio, Tyler, Victoria, Walker, Waller, Washington, Wharton, Willacy and Wilson counties.  On 8/28/17, the Governor added Angelina, Orange, Sabine and Trinity counties to the proclamation.  

Cases involving temporary staffing agencies and professional employer organizations often lead to unusual and complex legal issues in workers’ compensation.  The recent case of Detres v. Workforce Logistics Corp., A-4963-15T1 (App. Div. August 25, 2017) illustrates this point quite well by delving deeply into coverage and conflicts of law issues in a very high exposure claim.

On October 18, 2013, Carlos Ariel Detres was injured seriously when struck by a truck while working for Buy Wise, which specialized in automotive parts distribution.   He was a temporary worker provided by Workforce Logistics Corporation to Buy Wise.  Detres was a New Jersey resident and was injured at the Buy Wise location in Jersey City.  Detres filed a workers’ compensation claim against both Buy Wise and Workforce Logistics Corporation.  Workforce, which was insured in New York by Public Service Mutual Insurance Company, denied that the injury occurred in the course of employment.  Its carrier,  Public Service Mutual Insurance Company, asserted that its policy only applied to New York State locations.  Buy Wise, which was insured by Hanover Insurance in New Jersey, denied that its policy applied to this accident, and pointed at Public Service.

How this tangled mess occurred went back to April 23, 2013 when Workforce applied for workers’ compensation coverage to Public Service.  The application only listed two locations in New York and never mentioned locations in New Jersey.  The application also said that no employees “travel out of state” or “perform work for other businesses or subsidiaries,” and that Workforce did not “lease employees to or from other employers.”  Relying on these representations, Public Service issued the workers’ compensation policy from May 1, 2013 to May 1, 2014.  Under the policy conditions, only the workplaces and locations listed in the policy were covered, and there was language that there was no “duty to defend a claim, proceeding, or suit that was not covered.”  It also said that New York law should apply.

The Judge of Compensation heard a great deal of complex testimony regarding the applicable policies.  One key fact was that an agent for Workforce – after the accident with Detres – -sent an email to an Office Manager with Workforce, informing him that there was no coverage for any New Jersey locations. Workforce’s agent was concerned about other potential claims in New Jersey and suggested that the New Jersey location should be added to the policy.  Eventually there was a request to add two New Jersey locations to Workforce’s workers’ compensation coverage effective December 16, 2013, which was several months after the accident to Detres. The premium more than doubled, and the policy was supposed to start December 16, 2013.  However, the amended policy actually listed the same period as the original policy, namely May 1, 2013 to May 1, 2014 (during which time petitioner had his accident). There was no language limiting the effective date of the New Jersey locations to December 16, 2013.

In December 2015, Hanover Insurance and Buy Wise moved for a judgment that coverage must be provided either by Public Service or by the New Jersey Uninsured Employers’ Fund.  The Judge of Compensation eventually ruled that Public Service had to provide coverage for Detres’s injury as well as providing legal representation for Workforce.  The Judge focused on the fact that the New Jersey locations had been added and that they became part of the original policy dating back to May 1, 2013.

Public Service appealed and argued in part that New York law should be applied, and that the amendment to the policy in January 2014 should not be given retroactive effect.  Public Service also argued that Workforce made several material misrepresentations to obtain coverage and therefore should not be given coverage.

The Appellate Division affirmed the decision of the Judge of Compensation on all points.  The Court focused on the fact that the amendment to the policy adding two New Jersey locations was included in the original policy beginning on May 1, 2013.  While Public Service produced emails showing that the amendment was only supposed to take effect in December 2013 (after the work accident), the Court said that the policy was clear and unambiguous in stating that it began on May 1, 2013.  The Court also rejected the argument that Hanover Insurance, which insured Buy Wise at the New Jersey locations, should pay the claim.

The Court reviewed a little known provision on the New Jersey Workers’ Compensation Act, N.J.S.A. 34:15-87, which states that if an insurer wants to restrict liability of the insurer to a specific location, it must ensure that there is concurrent separate insurance for other locations.  The Court read this provision as meaning that Public Service was required to provide coverage to New Jersey’s locations.  The Court relied on Lohmeyer v. Frontier Ins. Co., 294 N.J. Super. 547 (App. Div. 1996), certif. denied, 148 N.J. 461 (1997).  That case held that a trainer thrown from a horse was entitled to coverage even though the stable where he worked was not specified in the stable’s workers’ compensation policy.

Public Service next raised potential fraud by its insured, Workforce, as a defense.  It argued that Workforce misrepresented that it only did business in New York.  The Court accepted that there were misrepresentations but said that there is no defense to coverage simply because the insured made untrue statements to the carrier.

Lastly, the Court rejected the argument that New York law should apply, not New Jersey law.  The Court began by noting that ordinarily the choice of law made by the parties in a contract is followed, unless some other state has a more significant relationship.  The Court also observed that New York law allows a workers’ compensation carrier to exclude specific locations from a policy, but New Jersey law does not.  In the end, the Court felt that New Jersey had a greater interest in resolving the dispute than New York because petitioner resides in New Jersey and was injured in New Jersey.  “While we acknowledge that two New York corporations entered into a contract for workers’ compensation insurance coverage, and the original policy applied only to the New York locations, we are satisfied that application of New York law would be contrary to the fundamental policies and protections of New Jersey’s Workers’ Compensation Law.”  The Court said that New Jersey had a strong interest in ensuring that an employer and its carrier cannot exclude certain locations from coverage.

The Court added, “Although both Workforce and Public Service are New York corporations, they purposefully availed themselves of New Jersey law by doing business in New Jersey and contracting for workers’ compensation coverage of a New Jersey location.”

One question left unanswered is what would have happened if the Public Service policy amendment had correctly stated that its policy covering the two New Jersey locations had been changed to reflect the commencement date of December 2013.  That may have made a significant difference to the Appellate Division.   It is likely that it was an oversight to issue the amended policy using the same original policy dates, but in the end the Court held the carrier to the language of its policy.

The case is also helpful in realizing that misrepresentations by an insured to its carrier will not exculpate the carrier when a worker is injured.  There may be civil remedies against the insured, but an employee is entitled to workers’ compensation benefits because the employee had nothing to do with the misrepresentations.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.