State News

Rose Fonrose Louis worked at a Burger King restaurant in the Monmouth Mall in Eatontown, N.J.  On August 29, 2008, Louis was working in a walk-in freezer when an assistant manager, Hany Salib, followed her into the freezer and proceeded to touch her breast and buttocks through her clothes, kissing her neck, and attempting to insert his tongue into her mouth.  While she was in the freezer, Emad Ghaitey, the manager of the restaurant, opened the door, looked at both employees, and then left.  When the door had been briefly opened, Salib ceased touching Louis, but later in the same day, Salib again touched her and kissed her in the freezer.

Louis did not report either incident on the day the two incidents occurred.  However, the following day, Louis’s husband called to complain about how his wife had been treated.  Louis’s husband then came to the restaurant the following day to provide more details of the alleged assault. Burger King had a written policy prohibiting workplace harassment which all employees received.  Ghaitey followed the policy and reported the allegations to the district manager, who conducted an investigation.  Salib was suspended, then transferred to another store, and eventually terminated when he did not report to work.  Louis ceased her employment with Burger King two weeks after the alleged assault.

On September 10, 2008, Louis reported the two incidents to the local police, who arrested Salib and charged him with fourth-degree criminal sexual contact.  Salib pled guilty to a down-graded charge of violating an ordinance.

In March  2009, Louis brought a workers’ compensation claim against QQR, (the restaurant owner), alleging workplace injuries and sexual assault. That case was settled for $7,500 on a Section 20 basis.  Louis and her husband also brought a civil claim against Salib, Burger King Corporation, QQR, and Ghaitey.  The claims against Burger King were dismissed and the claims against Salib were settled and dismissed.

The remaining defendants, QQR and Ghaitey, moved for summary judgment, arguing that the civil suit was barred by the exclusive remedy provision of the workers’ compensation act. The trial judge dismissed the suits, and Louis and her husband appealed.  They relied on a 1988 federal case, Cremen v. Harrah’s Marina Hotel Casino, 680F. Supp. 150 (D.N.J. 1988) where the court held that the civil suit survived the workers’ compensation bar.  The Appellate Division in this case held that the facts inCremen were distinguishable.

In Cremen, the employee lodged a verbal complaint against a supervisor employee who sexually assaulted her. . . She was assured by a Harrah’s employee in charge of investigating such allegations that the supervisor would be promptly dealt with. . . Harrah’s failed, however, to address the matter and the harassment continued. . . . When Harrah’s moved for summary judgment arguing that the Act barred the employee’s common-law claims, the district court denied summary judgment because Harrah’s was put on notice and failed to take action.  . . As already pointed out, there are no facts showing that QQR or Ghaitey had any prior notice of Salib’s intentional actions, and when the complaint was brought to QQR’s attention, prompt action was taken and no further harassment occurred.

The Appellate Division held that this case was simply a matter of negligence.  It felt that Ghaitey acted negligently in that he should have asked what was going on when he walked in to the freezer.  To get past the workers ‘comp bar, Louis had to prove intentional conduct, but the court said that this sort of inaction cannot be equated with intentional harm.  The court also held that QQR engaged in no conduct that could be deemed to be intentional.  It acted consistent with its harassment policy once the claim was reported. Therefore, the workers’ compensation act barred the civil suit against both Ghaitey and QQR.

This case illustrates once again how strong New Jersey’s workers’ compensation bar remains.  It is exceedingly difficult for a plaintiff to prove intentional harm.  The case can be found atRose Fonrose Louis and Fritzner Louise v. Burger King Corporation, et. al., (A-1000-14T2, App. Div. December 4, 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. 

                                Leonard E. Salway v. Hanson Maves Company and Zurich American Insurance

Claimant was a 76-year old worker who sustained a work-related injury when he broke his right ankle. Approximately 6 months after the injury, Claimant was placed at MMI and returned to work doing the same job as he was prior to the injury. Claimant admitted that he did not feel that he was receiving special treatment and admitted that the only reason he filed his Petition was because he believed someday he would develop arthritis in his ankle. Despite the allegations in the Petition regarding favored work, the Department found that Claimant was not performing "favored" or "light duty" work because he was doing the same job he did before the injury. Rick Ostrander provided a report that Claimant was receiving favored work, but the Department rejected the opinion because it was based on misinformation.

Regarding Claimant’s request that the Department retain jurisdiction, the Department declined to do so, saying that Claimant was employed in the same position as he was before the injury with no restrictions or limitations, and just because he was worried he would someday develop arthritis, that was not enough for the Department to retain jurisdiction, therefore the case was dismissed.

If you have questions on this or any other matter in South Dakota, please contact Charlie Larson atcalarson@boycelaw.com or 605-336-2424 

                            Sarah Sorenson v. Harbor Bar, LLC and Midwest Family Mutual Ins. Co., 2015 SD 88

This matter came before the South Dakota Supreme Court on appeal by the Employer/Insurer. Claimant was injured during her employment in December 2009 when she sustained a head injury, ultimately ending in her having brain surgery. There were three separate surgeries, and the Department found that the first two surgeries were the responsibility of the Employer/Insurer and that the third surgery was not. Employer/Insurer appealed the decision, and the Circuit Court affirmed in part and remanded in part for clarification regarding the amount of the compensable damages.

On appeal, the issues appealed were (1) Whether the Department was clearly erroneous in its finding that the alleged second incident actually happened before the work-place incident, if it happened at all; (2) Whether the Department was clearly erroneous in its determination that the work-related injury was a major contributing cause of Sorensen’s intracranial hemorrhage; and (3) Whether the Department abused its discretion by admitting Dr. Sabow’s undisclosed testimony as rebuttal testimony. As to the first issue, the S.C. held that they would not substitute their judgment for that of the Department, as the Department heard the witnesses live and was able to determine their credibility. As to the second issue, the S.C. held that it was the function of the fact-finder to assess the credibility attributed to the expert opinions and they believe the fact-finder got it right. As to the last issue, the S.C. stated that disclosure of a rebuttal witness has never been required in SD by statute, rule or caselaw. The S.C. went on to say that absent evidence of bad faith on the part of the Claimant, there was no reason to exclude this testimony and would only serve to stifle the Department’s truth-finding process. The Court also stated that even if they were to find that the Department abused its discretion, it would not merit reversal because the Employer/Insurer would have to show that they were prejudiced, and they would not be able to do so because they were able to supplement the record with additional expert testimony of their own.

 If you have questions on this case or generally in South Dakota, please contact Charlie Larson atcalarson@boycelaw.com or at 605-336-2424 

The Department of Justice charged five individuals, including two medical doctors and a
chiropractor, for their participation and profit in a scheme which provided illegal kickbacks to dozens of doctors, chiropractors, and other individuals in exchange for the referral of patients to
Pacific Hospital in Long Beach, California.
From 2005 through 2013, the DOJ estimates that insurers were billed over $580 million for spinal
surgeries performed on more than 4,400 patients who were referred to the hospital. The participating
doctors, chiropractors, and others referred patients in exchange for illegal payments which included
up to $15,000 for a lumbar fusion and $10,000 for a cervical fusion. The hospital, its owner, and its
executives made the payments using a combination of nefarious means, including making rental
payments to the referring doctors for use of their offices (the hospital never used the offices), making
$100,000 per month “option payments” to the referring doctors for the right to purchase medical
practices (a right that was never exercised), and paying the doctors to help the hospital collect on
surgical bills (the doctors did not participate in the collection efforts).
The individuals recently charged in the scheme were: James L. Canedo, former CFO of the hospital;
Philip Sobol, an orthopedic surgeon; Alan Ivar, a chiropractor; Paul Richard Ragnall, a health care
marketer; and Mitchell Cohen, an orthopedic surgeon. In April 2014, the former CEO and owner
of the hospital, Michael Drobot, pleaded guilty to participating in the scheme. Each of these
individuals is reportedly cooperating with the DOJ in its investigation.
“Operation Spinal Cap” is ongoing. Stay tuned.

The DWC is proposing a revision to DWC Form-048, to incorporate the 2014 revisions to Rule
134.11(a), which allows injured workers to request travel reimbursement to attend DD exams,
RMEs, or post-DD RMEs. The proposed revision also creates separate Spanish and English forms
and includes a section for a plain language explanation for the approval/denial of the travel
reimbursement request. The public comment period on the new form closes on December 28, 2015.

The DWC also proposes a new form to report administrative violations to the DWC. In accordance
with Rule 180.2(a), any person may submit a complaint to the DWC for alleged administrative
violations, and TEX. LAB. CODE §402.023(c), directs the DWC to develop a standardized form for
the filing of workers’ compensation complaints. The proposed Workers’ Compensation Complaints
Form is the DWC’s effort to meet these regulatory requirements. In its current draft, the proposed
form may be inadequate because it fails to provide sufficient space for the complainant to identify
his, her, or its relationship to the claim. Informal comments on the proposed complaint form are due
on or before January 4, 2016.

The DWC is proposing revisions to Rules 132.7 and 132.13 to incorporate changes to death benefits
codified in the recent legislative session. In accordance with House Bill 1094, the DWC proposes
to add subsection (f) to Rule 132.7 to specify that an eligible spouse who remarries is eligible for
death benefits for life if the employee was a first responder who died in the course and scope of
employment or while providing services as a volunteer. The proposed revisions to Rule 132.13, as
provided by Senate Bill 563, would increase to $10,000 (from $6,000) the amount of burial benefits
due for a compensable injury that occurs on or after September 1, 2015. The public comment period
closes on January 4, 2015, for these proposed rule revisions. The proposed rules may be reviewed
here.

The Texas Supreme Court recently held that an employer did not retaliate against a Claimant for
filing a workers’ compensation claim when the Claimant was terminated in accordance with the
employer’s uniformly applied leave policy following the expiration of the Family Medical Leave
Act (FMLA) leave period. Kingsaire, Inc. v. Melendez, ___ S.W.3d ___, 2015 WL 7950716, * 8
(Tex. 2015).
The Claimant sustained a compensable work injury on 07/02/09. Claimant was notified that he
would be placed on unpaid FMLA leave effective 07/03/09, for up to twelve weeks and that he was
required to provide status updates on his ability to return to work every two weeks. Claimant
provided the work status updates as required by the employer. On 09/24/09, the employer notified
Claimant that his FMLA leave expired, that he had not yet been released to return to work by his
workers’ comp doctors, and that his employment was terminated effective 09/25/09. In October 2009, Claimant sued the employer for wrongful termination in retaliation for his filing a workers’
compensation claim. The jury entered a verdict in favor of Claimant.
The Court reviewed the evidence on a legal sufficiency standard and determined that the evidence
showed Claimant was terminated in accordance with the employer’s consistent and uniform
enforcement of its leave policy. The Court held that no evidence supported the jury’s verdict on the
retaliatory discharge claim.

Grades are in. The PBO assessment evaluated the providers in four categories: (1) timely filing of
DWC 69s, (2) completeness of DWC 73s, (3) documentation supporting return to work
determinations recorded on DWC 73s, and (4) usage of MRIs. In each category, the DWC identified
which of the health care providers evaluated were high performers, average performers, and poor
performers. A complete list of the PBO Assessment results are available here.

In an article by EmploymentLawAcademy.com, WorkersCompensation.com reports that the
National Conference of Insurance Legislators plans to investigate efforts by several of the country’s
largest employers to expand the number of states allowing employers to opt out of workers’
compensation coverage. The investigation was prompted by media reports from ProPublica and NPR
criticizing the opt-out plans in Texas and Oklahoma as providing fewer benefits, more restrictions,
and less oversight. The National Conference’s endorsement or disapproval of the opt-out plans will
likely influence future legislation in many states.

Effective January 1, 2016, the standard mileage reimbursement rate for Alabama was decreased to 54 cents per mile.