NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Hartford Insurance Group v. Kamara et. al. 976 EDA 2016 (Pa. Super., 2017)
By Jeffrey D. Snyder, Esquire
The Supreme Court of Pennsylvania has accepted allocatur of the above captioned case, which considers whether an insurance carrier can independently pursue a third-party case “on behalf of” a claimant.
The Superior Court was faced with Preliminary Objections to Hartford’s Complaint, it being argued that Hartford did not have standing to file a Complaint because the Complaint was not verified by someone with personal knowledge, because the claimant had not assigned a cause of action to Hartford, and because the claimant was not a party to the lawsuit.
As background, the claimant Chen was standing in a parking lot of a Thrifty Car Rental location when she was struck by a rental car operated by defendant Kamara. The Complaint against Kamara et. al. averred that Chen was in the employ of Alliance Sourcing Inc., with Hartford paying funds in both medical and wage loss benefits to Chen under a workers’ compensation policy maintained by Alliance Sourcing Inc.
There were two counts of negligence in the Complaint.
Responding to the Preliminary Objections, Hartford asserted that the Supreme Court of Pennsylvania’s holding inDomtar Paper (Liberty Mutual Insurance Co. as subrogee of Lawrence v. Domtar Paper Co. e. al., No. 19 WAP 2014 (Pa., 2015) denying standing to sue was inapplicable because inDomtar the suit was brought “as subrogee of” while in this case suit was brought “on behalf of Chunli Chen”. It was further asserted that the verification to the Complaint was proper because the Hartford employee signing it had knowledge of the facts through her work on the claim.
The trial court dismissed Hartford’s Complaint with prejudice, in reliance on its interpretation of the law asserted as applicable by the defendants, notably that the case was controlled by the Supreme Court’s Opinion inDomtar Paper and because the trial court did not consider the Complaint properly verified. The trial court further stated that it did not grant leave to amend the verification because Hartford had failed to assert a legally cognizable cause of action against the defendants, thus granting leave to attach a sufficient verification would have been futile.
On appeal to the Superior Court, Hartford raised two issues. First, did the trial court misapplyDomtar given that Hartford had filed suit “on behalf of” and not as “subrogee of” and, second, whether the trial court improperly characterized the verification as faulty when it was signed by a representative of Hartford with knowledge of the claim - or in the alternative whether the Court should have allowed an amended verification.
The Superior Court agreed that Domtar Paper was inapplicable because Hartford filed suit “on behalf of Chen” and was attempting to establish the liability of third party tortfeasor to Chen. The Court, relying on prior case law, considered that either joining the employer as a party plaintiff or as a use plaintiff would operate to secure the employer’s interest in its recovery of its subrogation lien. “We therefore hold that Section 319 is an exclusive remedy and that for an employer or its insurer to enforce its subrogation rights, it must proceed in an action brought on behalf of the injured employee in order to determine the liability of the third party to the employee. If such liability is determined, then the employer or its insurer may recover, out of an award to the injured employee, the amount that is paid in workers’ compensation benefits”. The Superior Court then stated: “Hartford is not attempting to ‘pursue a subrogation claim directly against a third-party tortfeasor’, is not seeking to recover only the amount that it paid to Chen in workers’ compensation benefits, and is not splitting Chen’s cause of action”. The Court observed that Hartford had otherwise brought a single action against the third-party tortfeasors in the name of the injured employee and was trying to recover the entire amount to which Chen might be entitled.
The Superior Court also noted that because the suit was filed in Hartford’s name it was a party in the litigation and therefore its representative could verify the Complaint as a representative of “one or more of the parties filing the pleading”, remanding for further proceedings.
Ultimately, the Supreme Court of Pennsylvania, Eastern District, at No. 205 EAL 2017, granted a Petition for Allowance of Appeal, which raises three specific questions:
(a) Can a workers’ compensation lienholder bring a third party action on behalf of the injured worker to recoup amounts paid to the injured worker from the alleged tortfeasor to the standard set inLiberty Mutual Insurance Company v. Domtar Paper Company [citation omitted]?
(b) Did the Superior Court fail to see that the failure to attach the verification of Chunli Chen to plaintiff’s Complaint and decision to attach the verification of the insurance adjuster with knowledge of the lien, supports the argument of [Petitioners] that this lawsuit was brought without the cooperation of Chunli Chen and solely on behalf of the insurance company in an attempt to subrogate its lien in direct contradiction of the standard set inLiberty Mutual Insurance Company v. Domtar Paper Company [citation omitted]?
(c) Is the caption, and effect of the caption, “The Hartford Insurance Group on behalf of Chunli Chen” synonymous with “Liberty Mutual Insurance Company, as subrogee of George Lawrence” as it appears inLiberty Mutual Insurance Company v. Domtar Paper Company [citation omitted]?
ConnorsO’Dell LLP
Trust us, we just get it! It is trust well spent!
We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania. We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.
Every member of our Workers’ Compensation practice group is AV rated. Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.
Cousineau, Waldhauser, & Kieselbach attorney Whitney Teel attended and presented at the Larson’s Annual Advisory Board Meeting on Minnesota’s workers’ compensation trends for 2017. The Advisory Board consists of one lawyer from each state. Thomas Kieselbach has been a member of Larson’s Advisory Board for years, advising all members on Minnesota workers’ compensation law.
Whitney presented on three significant Minnesota Supreme Court cases Kubis,Hohlt, and Sanchez. The Sanchez decision received nationwide attention for the emerging issues intersecting employment, workers’ compensation and immigration law. Lexis Nexus listed theSanchez case as one of the top 10 workers' compensation cases for 2017.
Whitney has also prepared the Minnesota submission for the Lexis Workers’ Compensation Emerging Analysisbook that will be published later this year.
Natalie Lund will be lecturing at the 2017 Workers’ Compensation Deskbook seminaron December 1, 2017 sponsored by Minnesota CLE. Her topic will be Attorney Ethics.
The Deskbook seminar is an annual event. All key cases and developments over the past year will be covered. This is the premier Minnesota workers compensation seminar.
We congratulate Natalie for being selected as a speaker.
Cousineau, Waldhauser, & Kieselbach is proud to welcome two new Associate Attorneys to the firm. Scott Ferriss and Bryan Wachter will be great additions to the team. See below for their biographies.
Scott Ferriss
Prior to joining Cousineau Waldhauser, & Kieselbach, Scott worked in E-discovery. During law school, Scott was a legal extern at the Minnesota Department of Transportation Chief Counsel’s Office and at a large health insurance company in the government programs compliance department. His externship work included legal research, drafting memoranda, and ensuring compliance with government audits.
In his previous career, Scott served as Legislative Assistant to a United States Congressman in Washington, DC covering legislative issues that included, transportation, education, environment, healthcare, and telecommunications. After nearly five years of working for the Congressman, Scott and his then betrothed, Kristen, decided to go to law school. He does not recommend planning a wedding during the first year of law school.
Scott is passionate about the game of golf, railroads, and The Beatles. When he is not golfing, he enjoys spending time with his wife and two cats, Ringo and Eleanor Rigby.
Bryan Wachter
Prior to joining Cousineau, Waldhauser, & Kieselbach, Bryan was a law clerk to the Honorable Mike Furnstahl, Referee of District Court, Fourth Judicial District, Minnesota. He performed legal research, wrote memoranda, recommended decisions, and drafted orders for the Court.
While in law school, Bryan served as a law clerk at Mid-Minnesota Legal Aid in the consumer division and worked as a research assistant under Professor Neil Hamilton in the development of the American Bar Association publication “Roadmap: The Law Student’s Guide to Preparing and Executing a Successful Plan for Employment.”
Outside of work, Bryan enjoys staying active and spending time with his wife and two dogs. He is an avid reader, sports fan, and music fan.
Cousineau, Waldhauser, & Kieselbach is proud to be the Minnesota representative for the National Workers’ Compensation Network (NWCDN). The NWCDN is a network of law firms from 45 states dedicated to protecting and representing employers and insurers in workers’ compensation cases.
NWCDN's annual seminar will be held on October 19, 2017 at the Ritz-Carlton Buckhead, 3434 Peachtree Road NE, Atlanta GA. The seminar is open to clients of NWCDN member firms. The cocktail party will be held on October 18, 2017.
Below is a link to the NWCDN website where you can register. There is no cost for the conference and cocktail party. We hope you can attend.
The College of Workers’ Compensation Lawyers was established to honor attorneys who have distinguished themselves in the area of workers’ compensation. Thomas Kieselbach attended CWCL's annual board meeting which was held on August 18, 2017 at the Union League Club of Chicago. CWCL’s annual induction ceremony for new Fellows will be held in Nashville on March 3, 2018 in conjunction with the American Bar Association annual Workers’ Compensation seminar. |
Tom Coleman, Jennifer Fitzgerald, Tom Kieselbach, Mark Kleinschmidt, Richard Schmidt and Jim Waldhauser have been selected for inclusion in the 2018 Edition of Best Lawyers in America.
For more than 30 years Best Lawyers has published premier guides for the legal profession recognizing talent throughout the word. Currently, lawyers in over 70 countries are recognized. Inclusion in Best Lawyers is based solely upon peer review.
We congratulate our Best Lawyers for their hard work and dedication to our clients.
When a petitioner files a motion for medical and temporary disability benefits and the only issue is which carrier or employer is responsible, the Judge of Compensation can order benefits paid by one of the parties pending the outcome of litigation. The logic behind this rule is that it is unfair to delay benefits to an injured claimant while two potentially responsible employers or carriers fight out which of the two should be legally responsible. But there are limits to this practical rule, as noted in Calix v. A2Z Universal Landscaping and Utica National Insurance Group No. A-3978-15T2 (App. Div. September 7, 2017).
The case began with a serious injury to Mr. Calix, who was not sure who his employer was. He filed motions against both RNR Technologies, Inc. and A2Z. RNR was not insured and never answered the claim petition nor responded to the motion. Utica, as carrier for A2Z, began to make payments but stopped when it determined that there was no evidence petitioner was employed by A2Z.
Mr. Calix testified that he began working at 3200 Bordentown Avenue in Parlin, N.J. a few months prior to the accident and was paid cash. He never received any documentation identifying his employer. The petitioner’s certification asserted that the address above was that of RNR. Petitioner testified that he never heard the name of A2Z and never saw any signs bearing the name of A2Z. He said he was hired by Roger West and an individual named Steve. That was the extent of his knowledge.
The Judge of Compensation directed A2Z to pay Calix temporary disability benefits retroactively to the date of accident on the basis of an administrative court rule under N.J.A.C. 12:235-3.2 (h). That is the rule which states that the Judge can order one of the carriers or employers to pay pending litigation where the only issue is which employer or carrier is liable. A2Z appealed the court order and contended that this rule did not apply where the critical issue in the case is employment by one of the companies.
The Appellate Division reversed the order of the Judge of Compensation. It said, “There is no evidence supporting the judge’s implicit finding A2Z was Calix’s employer and therefore no basis upon which the judge could properly award temporary benefits under N.J.S.A. 34:15-15.” The Court added that this administrative rule “presupposes that a respondent ordered to pay temporary benefits is the petitioner’s employer in the first instance.”
The case is instructive because in today’s workplace it is increasingly common that employees do not always know the identity of their employer. In this case, petitioner only knew he worked at the address of RNR, which was uninsured and did not even respond to pleadings in the case. There was no evidence at trial that A2Z was in fact petitioner’s employer; hence, the logic of the administrative rule did not apply. A2Z was entitled to try the issue of employment, and the burden was on petitioner to prove employment.
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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.
Light duty was the issue in Smith v. DuPage Cnty. Sheriff, 33 AD Cases 789 (N.D. Ill. June 5, 2017). Four Sheriff’s Deputies suffered work injuries in 2013 and 2014 and received full salary for one year while on leave from their injuries. After the one-year period, the officers received the statutory amount for temporary disability benefits in Illinois, which was substantially less than their full salary. The temporary disability benefits constituted two thirds of their regular salary without withholding taxes and pension contributions. In addition, the County policy required that after 12 weeks of Family and Medical Leave, the employee is responsible for the cost of their entire health insurance premium. All four officers had to pay the full cost of their health insurance following the 12-week period.
The officers repeatedly sought light duty assignments and contended that the Sheriff’s Office would not even consider their requests. The Sheriff maintained the jobs of the officers while they were on leave and maintained their seniority but did not offer them light duty. The officers sued under the Americans with Disabilities Act and argued that the County failed to make reasonable accommodation by denying them light duty assignments that they could have filled and which would have allowed them to regain their full pay and health benefits. For its part, the County argued that it did in fact accommodate the officers because it maintained their job status and seniority. Additionally, the County argued that the officers were not disabled under the ADA.
The Court considered 42 U.S.C. 12111 (9) which states that a “reasonable accommodation” includes “job restructuring, part-time or modified work schedules, reassignment to a vacant position.” Further, the Court noted that the ADA Amendments Act liberalized the definition of disability to include injuries where workers have lifting restrictions along the lines of the plaintiffs’ injuries. One officer could lift only a maximum of 10 pounds and was unable to bend, stoop, or climb. Another could lift only 10-25 pounds and was restricted from bending and twisting. Another had restrictions limiting her from pushing, pulling or grasping more than five pounds. The Court concluded that there was enough evidence for a jury to determine that the officers were disabled under the ADA.
The evidence was conflicting whether there were in fact vacant light duty position that the officers could fill. The Court said as follows:
Here, plaintiffs have identified positions which they believed were suitable light duty assignments. Defendants dispute that positions in R & D and the warrants division were suitable light duty assignments because they were for civilians and were governed by a separate collective bargaining agreement that restricted deputies in the Law Enforcement Bureau from holding positions in the Corrections Bureau. However, it appears in the record that there was a light duty policy that did not prohibit employees from working light duty assignments in a different bureau.
The Court also observed that there was evidence that the Sheriff’s Office did not respond to the officers’ requests for light duty and did not engage in the interactive dialogue. For these reasons, the Court denied summary judgment for the County and permitted plaintiffs to proceed to a jury trial.
The case illustrates a number of important points for workers’ compensation practitioners and employers. While the EEOC Guidance states that an employer never has to create light duty positions, this is not applicable where an employer already routinely offers light duty assignments. The question then becomes where there are vacant light duty positions and whether the employer engages in the interactive process. This case also underscores a point that this practitioner often makes, namely that workers’ compensation cases can often lead to very costly ADA litigation. Practitioners of workers’ compensation must keep one eye on the compensation case and another on potential employment litigation.
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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 Workers' Comp Blawg is 10 years old! We would like to take this time to thank all of our readers who have helped to makehttp://www.alabamaworkerscompblawg.com a go to reference for Alabama workers' compensation! We would also like to take this opportunity to wish a happy birthday to Scott Baio, Joan Jett, Bilbo Baggins, and Tommy Lasorda. Next year we need to have a group party!
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly