State News

Reasonable accommodation has its limits as is noted in the case of Belasco v. Warrensville Heights City School District, 2015U.S. App. LEXIS 21493 (6^th Cir. 2015).  Norma Belasco, a long-time teacher, began to have serious health issues in 2007, starting with renal failure with an eventual kidney transplant in 2013.  She also had heart surgery in 2010 and suffered from shortness of breath, balance problems and fatigue, sometimes requiring the use of a walker. 

Over time her class became more and more uncontrolled with students fighting frequently and the Principal having to intervene fairly regularly.  The school security guard testified in a deposition that she had to respond to Belasco’s classroom four or five times a day.  Students would be out of their seats, playing loud music, and sometimes laying on the floor.  One student would occasionally draw lesson plans for other students to work on. 

Belasco conceded in a deposition that she needed assistance but maintained that the assistance she needed was related to her disabilities. 

Q. So when you requested assistance, you were requesting assistance to deal with their behaviors, not assistance to perform your duties as a result of the limitations that you experienced?

A. Well, they were related, obviously.

Q. How were they related?

A. As I said, my balance and things like that were not perfect, so I was a little afraid that the children would hurt each other, but also could knock me down, which has happened with teachers.

The School District was also concerned that Belasco was not implementing a program called “Action 100,” which was a Reading Challenge program.  Belasco was entering false data into the database, claiming she was instructed to do so.  She was absent from work frequently, missing 26 days in one semester, and was frequently late for school.

The School District arranged a fitness-for-duty examination which Belasco failed to pass.  She challenged the results of the fitness exam and set up her own examination, which she also failed.  Both fitness exams noted that Belasco could not ensure safety of students because that required quick reactions on the part of the teacher.  Belasco had poor balance and shortness of breath with minimal tasks.  Following these examinations, the District conducted a hearing in which Belasco requested the assignment to her of a teaching aide and the use of a walker.

The District refused to hire a teaching aide but did agree to allow the use of a walker if Belasco’s doctor could certify that using the walker would enable Belasco to perform the essential functions of her job.  After further hearings, the District terminated Belasco’s employment.  Belasco sued alleging that she was discriminated against based on her disabilities.

The federal court found in favor of the District, and Belasco appealed to the Court of Appeals for the Sixth Circuit.  The Court found that Belasco failed to show that she could safely perform the essential functions of her job, even if she was disabled.  The Court added that “Belasco does not explain why her failure to pass the relevant aspects of the fitness-for-duty tests cannot independently support the examiners’ conclusions that she was unable to perform essential functions of her job – namely, supervising students, ensuring their safety, and responding in emergencies.”

With regard to her requests for reasonable accommodations, the Court said that Belasco failed to produce a medical certification explaining how the use of a walker would allow her to perform the essential functions of her job.  Further, the Court said that the ADA does not require an employer to hire another person to help someone with a disability perform the essential job functions.  In this case the union collective bargaining agreement prohibited hiring part-time educational aides without the express consent of both the prospective aide and the union.  The union refused to provide its consent. Lastly, the Court said that Belasco’s request to shift unruly students to another classroom was unreasonable because the District should not have to reassign essential job functions to another employee.

The case illustrates a number of important principles: first, that requests for accommodations must be linked to helping the employee perform the essential job functions. Moreover, certain requests for accommodation are unreasonable on their face, particularly those requests that would require other employees to do part of the disabled employee’s job. 

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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. 

Wellness programs are becoming a new area of litigation as can be seen in Equal Employment Opportunity Commission  v. Flambeau, Inc., 2015U.S. Dist. LEXIS 173482 (W. D. Wisconsin December 31, 2015).  The case involved a manufacturer of plastic products which offered its employees various employee benefits, including participation in a health insurance plan.  Employees were not required to participate in the health insurance plan, but for those employees who wanted to be in the plan, the company established a “wellness program.”

The wellness program had two parts:  a health risk assessment and a biometric test.  The health risk component required a participant to complete a questionnaire regarding his or her medical history, diet, mental and social health and job satisfaction.  The biometric test was akin to a routine physical examination, including height and weight measurements, a blood pressure test and a blood draw.

The information from the health risk assessment was only reported to the company in the aggregate, so as to make sure that the company had no idea of any individual participant’s results.  This information helped the employer estimate the cost of providing health insurance as well as appropriate premiums and co-pays.  The information also was useful to the company in formulating weight loss competitions and modified vending machine options.

For the year 2011, the company gave employees a $600 credit if they participated and completed both the health risk assessment and the biometric test.  This credit was eliminated in subsequent years, and health insurance was only offered to those employees who completed the wellness program. 

This particular litigation arose from one employee, Mr. Arnold, who refused to complete the program tests.  That led the company to discontinue Arnold’s health insurance.  After losing his coverage, Arnold filed a union grievance and a complaint with the EEOC.  Eventually Arnold decided to participate in the program, and his benefits were reinstated.  However, the EEOC filed a law suit anyway, challenging the program.

The EEOC charged the company with violating the ADA alleging that the company could not show that it had a job related need for the medical examination.  The company countered that the ADA has a “safe harbor” provision for insurance benefit plans.  Section 12201(c)(2) provides that the ADA “shall not be construed to prohibit or restrict” an employer from establishing or administering ‘the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks.”

The federal court Judge who heard the challenge agreed with the employer.  He held that the safe harbor noted in the ADA does apply to wellness programs as a term of defendant’s benefit plan.  The Judge also found that the wellness program was “based on underwriting risks, or administering such risks.”  42U.S.C. 12202(c)(2). The Court said that underwriting risks, classifying risks or administering risks refer to the process of developing an insurance plan. 

The wellness program requirement was clearly intended to assist defendant with underwriting, classifying or administering risks associated with the insurance plan.  The undisputed evidence establishes that defendant’s consultant used the data gathered through the wellness program to classify defendant’s projected insurance costs for the benefit year.  They then provided recommendations regarding what defendant should charge the plan participants for maintenance medications and preventative care.  They also made recommendations regarding plan premiums, which included a recommendation that defendant charge cigarette smokers higher premiums. Finally, after identifying the risks through the wellness program, defendant decided to purchase stop-loss insurance as a hedge against the possibility of unexpectedly large claims.  These types of decisions are a fundamental part of developing and administering an insurance plan and therefore fall squarely within the scope of the safe harbor.

The Court also rejected the EEOC’s argument that the purpose of the ADA was to prohibit employers from asking for medical and disability-related information. The Court said the real purpose of the ADA is to eliminate discrimination against individuals with disabilities.  

“Regardless of their disability status, all employees that wanted insurance had to complete the wellness program before enrolling in defendant’s plan.  Furthermore, there is no evidence that defendant used the information gathered from the tests and assessments to make disability-related distinctions with respect to employees’ benefits.”

Employers can expect more challenges to wellness programs in the future, as the EEOC seems to be decidedly opposed to such programs. 

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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 case of Cabrera v. Cousins Supermarket, A-5287-13T1 (App. Div. February 23, 2016) covers a point not previously addressed underN.J.S.A. 34:15-40, the provision dealing with the employer’s subrogation rights to third party recoveries.

Jose Cabrera injured his right hand while operating a meat perforating machine and recovered workers’ compensation benefits under an order approving settlement in 2010.  He received both temporary and permanent disability benefits. 

Cabrera also brought a civil complaint against the manufacturer of the machine and his employer, but the arbitrator found no liability.  However, pursuant to a “high/low” agreement, Cabrera did recover counsel fees of $25,000. Those fees went to his attorney and to cover costs, but nothing went to Cabrera.

In May 2012, Cabrera issued a subpoena on Amerihealth Casualty, his health insurance carrier, to find out the amount of medical bills paid on his behalf in relation to the work injury.  Cabrera asked if Amerihealth Casualty was asserting lien rights.  Amerihealth did not respond to the subpoena.  Three months later (just prior to the arbitration) Cabrera contacted Cousins’s counsel with a request that counsel call Amerihealth to obtain the lien number.  Cousins was not informed of the impending arbitration.  The next day, Cabrera advised Cousins that he would not be honoring any lien because the lien amount had not been provided to Cabrera.  Cousins responded that it was not waiving any lien.  One day after the arbitration, the lien figures were provided to Cabrera.

Cousins filed a motion to enforce the lien underN.J.S.A. 34:15-40, arguing that there can be no waiver of lien rights where the plaintiff is already aware of the existence of a lien.  Cabrera countered that he did not get any money at all from the third party case, so there could not be a Section 40 lien.  The Appellate Division disagreed: “When a plaintiff recovers from a third party, a lien attaches regardless of whether the cumulative awards are sufficient to fully compensate for all injuries.” (citing toFrazier v. N.J. Mfrs. Ins. Co., 142N.J. 590 (1995).

The Court specifically rejected the notion that a plaintiff can avoid a workers’ compensation lien by making a demand for specific lien information and putting a deadline on supplying the lien figures.  “As to the waiver of the right to assert a lien, we do not find the argument has sufficient merit to warrant discussion in a written opinion.”   The Court added that there are sometimes risks to bringing a third party action.  “The decision to pursue a third-party action with its attendant costs is a known risk, one that is part and parcel to litigation.”

This case is interesting for two reasons:  the plaintiff got no money at all from the third party case, but the award of counsel fees was considered a double recovery.  Secondly, plaintiff’s ploy in setting a deadline to provide lien information was rejected by both the Judge of Compensation and the Appellate Division.  While it is true that the respondent was not aware of the pending arbitration hearing when the subpoena was served, the key to the decision is that Cabrera was aware of the potential lien and that was enough to establish the lien rights of the employer. 

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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. 

Governor Greg Abbott has reappointed Ryan Brannan as Commissioner of Workers’ Compensation
for a term to expire February 1, 2017. Mr. Brannan was originally appointed by Governor Rick Perry
in 2014.

This month a Houston court of appeals rejected the Division’s definition of the term “imbecility”
for purposes of determining entitlement to Lifetime Income Benefits.
The case involved Francisco Chamul, a brick mason who fell from a scaffold onto a concrete slab
ten feet below, suffering multiple skull fractures and consequential brain injury. According to a
designated doctor he now functions at the level of an 11 or 12 year-old and will require a caretaker
for the rest of his life. He applied for LIBs.
Under Labor Code §408.161, LIBs are payable for an injury to the brain resulting in incurable
“insanity or imbecility.” However, the statute does not define the term “imbecile.”
A Division hearing officer found that Chamul was not entitled to LIBs. The hearing officer cited
prior decisions of the Appeals Panel which rely on a definition of the term “imbecile” in the 1991
edition of Webster’s Ninth New Collegiate Dictionary. That dictionary defines “imbecile” as a
“mentally deficient person, especially a feebleminded person having a mental age of three to seven
years and requiring supervision in the performance of routine daily tasks or caring for himself.” The
hearing officer determined that Chamul had not been shown to exhibit the mental age range in
question (a mental age of three to seven years).
The court of appeals reversed and remanded to the Division for further proceedings. It noted that
the Legislature added imbecility as a criterion for LIBs in 1917 and that dictionaries written at that
time included more generalized definitions of the term “imbecile” and did not limit the term to the
mental age range of three to seven years. According to the court, the 1991 dictionary on which the
Division relied is “not an appropriate source to discern the meaning of a term incorporated into a
statute more than 70 years earlier.”
Chamul v. Amerisure Mutual Ins. Co.

The Division has amended Rule 129.3, regarding Amount of Temporary Income Benefits, to
increase the hourly wage that determines whether a worker is paid TIBs at the rate of 70% or 75%
of the Average Weekly Wage for the first 26 weeks of benefits. The rule implements the amendment
to Labor Code section 408.103 which became effective September 1, 2015 and which raised the
threshold from $8.50/hour to $10.00/hour for claims with a date of injury of September 1, 2015 or
later.

This month a California judge sentenced Dr. Hsiu-Ying “Lisa” Tseng to 30 years to life in prison
for the murders of three of her patients who fatally overdosed. Tseng is among a small but growing
number of doctors charged with murder for prescribing painkillers that killed patients. She is
reported to be the first doctor in the United States to be convicted of murder by over-prescribing
drugs.

Oklahoma’s system of allowing businesses to opt out of the state workers’ compensation program
(the “Oklahoma Opt-Out”) is unconstitutional, the Oklahoma Workers’ Compensation Commission
said on February 26.
Under the Oklahoma statute, an employer may opt out of the workers’ compensation system but
retain exclusive remedy protections if they provide workers with an alternate benefits plan. Some
have said the system allows Oklahoma employers to “have their cake and eat it too.”
According to the Commission, the opt-out provision established a dual system in which injured
workers are

Many of you have been contacted by petitioners’ attorneys about their inability to obtain conditional payments over the past several months due to a revision in Medicare protocols and processes.  This article gives an overview of the changes to the process and we will provide more information as the full extent of the changes come to light.

Workers’ compensation carriers were required to report compensation claims to Medicare online since 2009 under Section 111 of the Medicare Act.   However, Medicare allowed both the petitioners’ attorneys and the carriers to seek conditional payment information by reporting a claim, providing proof of representation and utilizing the Medicare portal.  Conditional payments were coordinated through Medicare’s Benefit Coordination & Recovery Center (BCRC).

Medicare has now created a new entity to determine when it paid medical bills that should have been paid by a compensation carrier:  the Commercial Repayment Center (CRC).  This entity is responsible for seeking payment for recoveries initiated after October 1, 2015 while the BCRC will continue to handle open claims prior to that date.

The focus of the CRC is different:  rather than creating an itemization of payments and divulging it to the first party who requests it, the CRC will have direct contact with the carriers regarding obligations it believes they owe.

An overall description of the process is set forth athttps://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/InsurerServices/Insurer-NGHP-Recovery.html

The process indicates that when Medicare learns that a beneficiary has workers’ compensation insurance through a carrier report or a beneficiary report, it updates its records and then begins identifying claims it believes were paid based upon the type of injury or illness alleged.  The search will include claims from the date of injury forward.

The CRC will then issue a Conditional Payment Notice (CPN) to the carrier.  The notice will advise the carrier that certain actions must be taken within 30 days of the date on the notice or the CRC will automatically issue a demand for payment.  The notice will list all of the claims and advise the carrier how to dispute items that are not related to the case.  A courtesy copy will be sent to the beneficiary and his attorney.  If a carrier has designated a specific recovery agent, they will also receive a copy of the notice.

Note: If a beneficiary or his or her attorney or other representative reports a no-fault insurance or workers’ compensation situation before the carrier submits a Section 111 report, the CRC will send the carrier a Conditional Payment Letter (CPL). The CPL provides the same information as a CPN, but there is no specified response timeframe. When this occurs, the applicable plan is encouraged to respond to the CPL to notify the CRC if it does not have ongoing responsibility for medical treatment (ORM) and will not be reporting ORM through Section 111 reporting or if the applicable plan would like to dispute relatedness.

The carrier has 30 days to challenge the claims in the CPN.  The carrier may contact the CRC or use the portal to dispute the charges.

Medicare will then issue a demand for payment to the carrier and request reimbursement within 60 days of receipt of the letter.  If the CRC agrees that some items need to be removed, they are omitted from the demand letter.

The carrier then has 120 days from receipt of the demand letter to file an appeal.  It appears that when Medicare seeks recovery from a carrier, only the carrier has appeal rights.  The beneficiary cannot appeal.  An attorney or a vendor may act on behalf of a carrier (plan) with proof of representation. Seehttps://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/InsurerServices/Downloads/Appeal-Rights-for-Applicable-Plans.pdf.  Medicare has its own appeal process and it clearly states it is not required to establish causation to prove a debt. https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/InsurerServices/Downloads/Applicable-Plan-Appeals-Presentation.pdf

If no appeal is initiated, the carrier makes payment and the CRC will send a letter that the debt was resolved but that new claims may be demanded if the carrier is obligated to provide ongoing medical.

Interest accrues from the date of the demand letter and if the debt is not resolved within 60 days, the interest is applied every 30 days.  If the carrier fails to make payment, the matter is referred to the Department of Treasury for collection.

This new process imposes significant burdens on carriers as they will be expected to ensure all Medicare beneficiary claims are reported, scrutinize the demands for payment to verify which diagnosis codes are related to the claim and timely dispute them.  However, the Medicare website acknowledges that the carriers may retain vendors and agents to work out conditional payment obligations if an authorization is received that meets its specifications.  https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/InsurerServices/Downloads/2015-Insurer-Services-Whats-New-Archive.pdf

The exact nature of the process and the degree to which it excludes petitioners’ attorneys from acting on their clients’ behalf to resolve conditional payment issues is unknown at this point.  Many petitioners’ attorneys are frustrated because the Medicare offices are no longer allowing them to report workers’ compensation claims to initiate the conditional payment process.  They are being told by Medicare representatives that only the carrier can report and develop the case.  This appears contrary to the information on the CMS website that both a beneficiary and the carrier may report the claim to trigger the CRC to open a file, compile conditional payments and send them to the carrier for consideration for payment.  See https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/InsurerServices/Insurer-NGHP-Recovery.html

Another concern is whether outstanding conditional payments should hold up settlement of the underlying workers’ compensation case.  At a recent meeting of the New Jersey State Bar, there was no consensus how the conditional payment issue should be handled if a carrier fails to fulfill its obligations to communicate with the CRC and if the workers’ compensation settlement must be held up for resolution of the conditional payment process.  Some petitioners’ attorneys argued that they should be allowed to settle their claims without conditional payments being resolved since Medicare was not looking to the beneficiary for payment.  Other attorneys suggested that they will file motions for penalties if the carrier does not comply.  The Division of Workers’ Compensation does not yet have a formal policy and the State Bar Executive Committee proposed to present a seminar on the topic at the Mid Year Bar meeting in May 2016.

The impact upon resolution of New Jersey workers’ compensation cases is problematic.  Once can foresee serious complications in denied occupational claims where there may be multiple employers and carriers involved.  How will the CRC handle apportionment of liability and demands for payment amongst multiple employers and carriers involving the same petitioner?  The answer is anyone’s guess.  In addition, the settlement of the compensation case and the negotiation of the conditional payment obligations may be on two wholly separate timelines and the petitioners’ attorneys and judges are not going to want to delay resolution of the compensation matters.  However, settlement of the compensation case may prejudice the carrier since it will lose access to a motivated petitioner or petitioner’s attorney who may be needed to provide information to assist an appeal when liability for payments is disputed.

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Nancy J. Johnson, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Ms. Johnson concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation. Should you have any questions or would like more information, please contact Ms. Johnson at 856.813.4142 or by e‑mail at njohnson@capehart.com. 

Terrence Preddie was employed from 2010-20This 11 as a fifth-grade teacher at Columbus Signature-Codrea Elementary School in Indiana.  Dr. Diane Clancy assessed Preddie’s job performance in the first school term as effective in some areas and needing improvement in others.  One specific area where improvement was needed was in leaving organized lesson plans for substitute teachers.  Another concern was Preddie’s missing time from school in part to care for his son, who had Sickle Cell Disease. Preddie claimed that Clancy told him that he was missing too much time and asked whether there was anyone else who could pick up his son from the hospital or care for his son.

During the 2010-2011 school year, Preddie recorded 23 days of absence, five of which were for “family illness,” and seven of which were for “sick days.”  Two days were missed for his own problems with diabetes and six were missed for his own hypertension and kidney failure.  The Board recorded three of the absences as “personal days” and the other three as “leave without pay” because Preddie had already exhausted his allotment of paid sick days.

After Peddie used all his sick days, he spoke with Clancy who said that he could apply for leave under the FMLA but he would need to make a written application for that leave.  Preddie never requested leave under the FMLA.

At the time of Preddie’s second semester review, Preddie said that Clancy advised he could not take any more time off for his son because it was affecting his classroom.  On one occasion, Preddie called his wife to come down from Indianapolis to pick up their son since he was worried about his job. Preddie’s second semester review received lower grades as “needing improvement” in all categories.  Clancy recommended non-renewal of Preddie’s contract, and the Board followed that recommendation.

Preddie sued under the ADA and FMLA.  First he argued that the non-renewal violated his rights under the ADA.  The federal court and the Court of Appeals rejected this argument for two reasons.  The Court pointed out that attendance is an essential job function, and the ADA does not protect persons with erratic attendance.  Additionally, Preddie was not entitled to reasonable accommodation because his sporadic attendance rendered him not a qualified individual under the law.

On the FMLA issue, Preddie argued that the Board interfered with his rights. The Court of Appeals disagreed with the federal court, which had ruled for the Board.  The Court said that an individual need not mention rights under the FMLA or specifically ask for FMLA leave.  The burden is on the employer to provide information about the FMLA once the employee provides enough information that he or she needs FMLA qualifying leave.  The Court found sufficient evidence that Preddie had provided detailed information to the Board about his son’s Sickle Cell Disease and his need to care for him.  That information should have caused the Board to provide Preddie with FMLA paperwork.

Of extreme importance was the Court’s comment that the Board may have used protected leave under the FMLA as a negative factor in evaluating Preddie’s performance.  The conversation about Preddie’s need to spend less time caring for his son, if believed by a jury, could be sufficient for Preddie to establish interference with his rights under the FMLA.  An employer cannot discourage an employee from using federally protected FMLA rights.  The Court therefore permitted Preddie to bring his case before a jury on the FMLA interference issue.

Most employers know that they must provide information about the FMLA when an employee provides information that should lead the employer to realize FMLA rights have been triggered.  However, some employers continue to misunderstand the difference between the ADA and FMLA.  Under the ADA, the burden is on the employee to request an accommodation, but the employee under the FMLA does not have to specifically reference the FMLA.  If an employee has provided sufficient information to the employer that a leave may be needed for FMLA reasons, the employer must provide FMLA information.  This case can be found atPreddie v. Bartholomew Consol. Sch. Corp. 31 AD Cases 1761 (7^th Cir. 2015).

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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.