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Sometimes tensions flare up between employees resulting in physical altercations with unexpected consequences.  A case in point is Bhut v. Aluminum Shapes, No. A-4652-17T1, 2019 N.J. Super. Unpub. LEXIS 1322 (App. Div. June 10, 2019).  The petitioner, Mr. Bhut, worked as a technician fixing manufacturing equipment.  He said that on May 21, 2017, he entered the employee locker room.  A co-worker, Mr. Stevens, had his feet up on a bench.  Bhut said he asked Stevens to move his legs but Stevens refused.   Bhut jumped over Stevens’s legs but his feet caught Stevens’s leg in the process.  According to Bhut Stevens threw a cup of soda at Bhut. 

Petitioner said he left the room but came back a few minutes later to wash his hands.  He ran into Stevens outside the locker room in a narrow walkway.  Stevens was holding a pizza box.  Bhut testified that Stevens pushed the pizza box at him as Bhut passed Stevens.  To keep the box away from him, Bhut swung his arm toward Stevens and hit a hat on Stevens’s head.  Stevens then threw petitioner to the floor.  Bhut maintained that he was not trying to strike Stevens when he swung at him.

A completely different version of facts was advanced by Stevens, who said that Bhut never asked him to remove his feet from the bench.  Stevens said Bhut pushed and kicked his legs off the bench. He claims that when he stood up, petitioner stepped in front of him and caused the Coke drink to fall on him.  Co-workers separated them.  Stevens said Bhut then returned a few minutes later and Bhut came at him.  Stevens side-stepped with the pizza box, and the next thing he knew Bhut struck him in the back of the head.  Stevens said he grabbed Bhut’s arm and the two men bounced off the locker and landed on the floor with Stevens on top of Bhut.  Stevens said he never pushed the pizza box onto Bhut.

There was no dispute that Bhut injured his shoulder in the fall.  Bhut filed a motion for medical and temporary disability benefits resulting in an order for benefits in the amount of $15,583.54.  The respondent appealed the decision of the Judge of Compensation.  Respondent argued that Bhut deliberately struck Stevens leading to the fall, which caused the shoulder injury.   As such, respondent argued that this was in the nature of a deliberate assault, disqualifying Bhut from recovery.

The Judge of Compensation found that the altercation between the two men arose during the fulfillment of work duties or doing something incidental to that, namely eating lunch on premises.  The Judge noted that there was no evidence of hostilities between the two men outside work.  Therefore there was no personal animus between the two men.  The Judge also rejected the argument that Bhut intentionally assaulted Stevens.  She said that neither man had any willful intent to injure the other.  She said, “The reactions of both Stevens and the petitioner were in response to what each felt was aggressive behavior.”  She found Mr. Bhut credible in his testimony that he did not intend to strike Stevens when he pushed the pizza box away from himself.

The Appellate Division affirmed the decision below.  The Appellate Division viewed this as an injury arising from work tensions.  The Court deferred to the Judge of Compensation on her findings of credibility of the witnesses and her finding that there was no intent by either man to deliberately hurt the other.  She found that each man was trying to protect himself from the other.

This decision illustrates a number of important rules.  First, the trial judge is in the best position to assess credibility of witnesses in factual disputes.  Secondly, when a series of escalating tensions occurs, it is very difficult to find that one party deliberately assaulted the other party.  This was not a case where an employee decided to assault a co-employee without prior provocation or tensions.  The Judge viewed these facts as a series of two separate events minutes apart where each party saw the other as the aggressor and tried to defend himself.  The decision of the Judge of Compensation made good sense, and the Appellate Division properly deferred to the Judge below on determination of credibility.  Perhaps the case could have been viewed as one involving “horseplay.”  That rule says that the victim of horseplay is always covered for injuries, and the aggressor may also be covered under certain circumstances.

Thanks to Rick Rubenstein, Esq. for bringing this case to our attention.

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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. 

Legal Update by Attorney Tyler Smith

Gumm v. Easter Seal Society of Iowa, File No. 18-1051 (Iowa, May 15, 2019)

The issue in this case involved whether a claimant, after sustaining a traumatic, acute injury, is allowed to bring a cumulative injury claim with regard to symptoms/injuries to that same body part. The Court of Appeals addressed the two Supreme Court of Iowa cases that have addressed acute-then-cumulative injury claims: Ellingson v. Fleetguard (requiring claimant to show a “distinct and discreet” disability/injury as a result of cumulative work duties) andFloyd v. Quaker Oats (allowing a cumulative injury claim in the certain circumstance where the claimant had not been compensated via an award, volunteered benefits, etc. and doing so was unavailable due to the statute of limitations). In this case, the Court of Appeals reversed and remanded the Commissioner’s finding that the claimant failed to establish a distinct and discreet disability/injury underEllingson. The Court of Appeals extended/expanded the Floyd case in holding that if a claim relating to the first injury is barred by the statute of limitations (regardless of whether benefits had been paid with regard to the initial acute injury), a cumulative injury claim can be made for the increase in disability brought on by subsequent work duties. Appellees have filed Applications for Further Review.

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NOTICE TO THE PUBLIC 

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legislative Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2019 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Alison Stewart

Two recent Iowa Supreme Court decisions have addressed liability of workers’ compensation carriers and third-party administrators. In both cases, the Court declined to extend liability.

Clark, et al v. Ins. Co. of the State of Penn., File No. 17-2068 (Iowa, May 3, 2019)

Recently, the Iowa Supreme Court addressed whether Iowa Code section 517.5, which mandates that no inspection of any place of employment made by insurance inspectors shall be the basis for imposition of civil liability upon the inspector or insurance carrier, is constitutional. In Clark, the plaintiffs alleged employees of the insured were exposed to hazardous chemicals while manufacturing wind blades and that the workers’ compensation carrier’s failure to inspect the employer was the cause of plaintiffs’ injuries. These claims were brought in district court. The Iowa Supreme Court disagreed and outlined a detailed history of the policy behind the exclusive remedy doctrine which requires injury claims brought by employees against their employer must be brought before the workers’ compensation commissioner. This means that immunity remains for carriers who either fail to inspect or negligently inspect the premises of an insured.

De Bois v. Broadspire, File No. 18-1227 (Iowa, May 10, 2019)

The Iowa Supreme Court ruled an injured worker cannot sue a workers’ compensation third party administrator for civil bad faith. In Iowa, an injured worker can establish damages beyond those entitlements provided pursuant to the workers’ compensation chapter where benefits are denied without a reasonable basis and that the carrier knew or should have known its refusal or delay was without such a basis. The Court reasoned that the duties imposed upon a workers’ compensation insurer are non-delegable, and thus, the acts of a third-party administrator, are the acts of the insurer. The liability of third party administrators remains limited to the contractual obligation they have to their insurers.

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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legislative Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2018 Peddicord Wharton. All Rights Reserved.

Most doctors who take the Designated Doctor test fail.  At least, that is what data recently obtained from the Division via an open records request revealed.  For instance, in 2018 the failure rate was 56% on the first attempt, 64% on the second, and 61% on the third. 

The 2011 Legislature mandated more stringent testing requirements on designated doctors, with the goal of addressing the increasing discrepancy in the number of physicians versus chiropractors on the designated doctor list.  However, that doesn’t appear to have happened.  When broken out by provider type, data reveal that medical doctors (MDs) and doctors of osteopathy (DOs) have lower failure rates than chiropractors.  The percentage of chiropractor DDs rose from 20% to 49% between 2010 and 2015.  By contrast, the number of MDs and DOs dropped from 70% to 55% during the same timeframe.  And overall, the number of DDs continues to drop—in April 2017 there were 586, compared to 475 in March 2019.  Of those, just 133 are MDs.  Chiropractors take a different test containing more questions on musculoskeletal injuries.  (The Division maintains two lists of designated doctors—one for musculoskeletal conditions, and one for all other injuries; chiropractors fall into the first category, as they are only allowed to address musculoskeletal conditions.) 

The data and discouraging pass rates leave some doctors to conclude that the test is impassable.  Complaints run the gamut, including allegations that the test asks irrelevant questions, questions that have not been validated, and questions that have more than one correct answer.  An article from WorkCompCentral earlier this month provided an example of one such question said to have been on the DD test: “Who determines compensability?”  The choices, reportedly, were: (1) the Division, (2) the designated doctor, and (3) the insurance carrier.  The “correct” answer was both (1) and (2).  However, this isn’t entirely true, as the carrier could ultimately make the decision if it denies a claim and there has been no challenge to the denial.  The question is also confusing, as DDs are told when assessing MMI/IR to rate the carrier-accepted injury, which is noted in Box 37 of the DWC-32 Request for Designated Doctor form provided to the DD in advance of the exam.  If there is no dispute as to the compensability of any specific diagnoses, and the DD is not being asked to address extent of injury, then effectively the insurance carrier has determined which diagnoses are compensable.

Another case of good intentions gone bad?  We’ll plead the Fifth.
 

Speaking of the Appeals Panel, if you ever happen upon a written AP decision, it might behoove you to march right down to the local convenience store and buy yourself a lottery ticket.  An open records request regarding Appeals Panel decision outcomes in 2018 reveals that the overwhelming majority of CCH decisions become final by operation of law.  This will not come as a surprise to most, but some might find the actual percentage astounding.  In 2018, a total of 2,766 Requests for Review were submitted to the Appeals Panel.  Of those, the Appeals Panel reviewed and affirmed 18, reversed and rendered 6, remanded 31, and partially remanded 36.  (Thirty decisions were a mixture-- some issues being affirmed, some reversed and rendered.)  Of the 2,766 total Requests for Review of CCH decisions submitted, a staggering 2,744, or 99.2%, became final by operation of law. 

What does this mean?  The odds the Appeals Panel will write a decision in a case are 4.2%.  The odds the Appeals Panel will reverse and render or remand in a case are 3.5%.  

These odds not quite as bad as the lottery, but even if one happens upon an actual written decision from the Appeals Panel, the outcome might not be as favorable.  A lottery ticket at least provides one the momentary dream of owning his/her own private island.
 

The Appeals Court in El Paso held that the student worker provision required upward adjustment of the student’s calculated average weekly wages, but the statute capping benefits for UT System part-time employees capped his benefits at 60% of the adjusted average weekly wage.  UT argued that the student worker wage adjustment provision in Texas Labor Code §408.044 did not apply because §503.021(b) provisions applicable to part-time employees of the UT System cap any benefits recovery at 60%.  The court found that the two provisions were not in conflict, noting that Chapter 503 explicitly incorporated by reference nearly all provisions of Chapter 408, including the student worker adjustment provision. Ferrell v. The University of Texas System, No. 08-17-000065-CV, 2019 WL 2148089 (Tex. App.—El Paso, May 17, 2019). 

The Appeals Court in Beaumont held that an employer, AmeriGas, was covered by a workers’ compensation policy, and therefore, entitled to assert the exclusive-remedies defense.  The injured workers sued AmeriGas for damages sustained in a work-site explosion.  AmeriGas asserted a general denial and the exclusive remedy defense under the Texas Workers’ Compensation Act.  The injured workers argued that AmeriGas did not provide workers’ compensation insurance, noting that the insurance policy did not specifically list AmeriGas Propane, L.P. in the policy.  AmeriGas argued that it was due to an administrative error that its name was not included in the policy.  It provided an endorsement naming AmeriGas as a named insured under the policy as well as evidence showing that it paid premiums and that its payroll and employment information was used in determining the policy price.  Further, AmeriGas provided evidence that the policy paid workers’ compensation benefits to an employee who was injured in the explosion.  The court found that AmeriGas provided sufficient evidence to reflect that the parties’ true agreement was to cover AmeriGas as an insured, but that due to a mutual mistake, the policy document did not reflect the parties’ true intent.  Therefore, AmeriGas was entitled to the exclusive-remedies defense provided under the Texas Workers’ Compensation Act. AmeriGas Propane, L.P. v. Aboytes-Muñiz, No. 09-18-00122-CV, 2019 WL 2127750 (Tex. App.—Beaumont, May 16, 2019) (memorandum opinion). 

-  Copyright 2019,Erin Shanley, Stone Loughlin & Swanson, LLP.

On May 27, the Texas House and Senate signed the bipartisan Senate Bill 2551.  The bill provides that a firefighter or emergency medical technician suffering from cancer resulting in death or disability is presumed to have developed the cancer while in the course and scope of employment if the worker regularly responds to scenes involving the documented release of radiation or “known or suspected carcinogens.” Cancers that are presumed to be “occupational” are cancers that originate in the stomach, colon, rectum, skin, prostate, testes or brain, non-Hodgkin’s lymphoma, multiple myeloma, malignant melanoma, and renal cell carcinoma.  The bill additionally allows self-insureds to establish a pool for the payment of death benefits to first responders with compensable injuries.

The legislation awaits Governor Abbott’s signature.  If the bill is signed, it will take effect immediately.
 

-  Copyright 2019, Erin Shanley, Stone Loughlin & Swanson, LLP.

Senate Bill 1897, which would have expanded chiropractors’ scope of practice to allow them to go beyond the musculoskeletal system and to diagnose and treat disorder of the nervous system, failed to make it through committee.  The Senate Health and Human Services Committee heard testimony on the bill on April 29^th.  The chiropractors argued that because nerves are associated with the musculoskeletal system, one cannot treat one without affecting the other, so they needed to be permitted to treat the nervous system. The Texas Medical Association disagreed, arguing that this was akin to saying that treatment of the musculoskeletal system also requires treatment of the heart and circulatory system because the heart provides blood to the bone and muscles.  The Association also argued that treating neurological disorders was far beyond a chiropractor’s education and training, even for chiropractors designated as chiropractic neurologists by the American Chiropractic Neurology Board.  Sara Austin, MD, an Austin-based neurologist testifying in opposition to the bill, argued that adding neuro to chiropractors’ practice was not merely the addition of the nerves that may connect muscle tissue or bones.  Rather, “[i]t is the addition of the entire neurological system that includes the brain, spinal cord, and the regulation of many bodily functions beyond chiropractors’ education and training.”

-  Copyright 2019,Erin Shanley, Stone Loughlin & Swanson, LLP.

A cardinal rule in workers’ compensation is that an employee cannot sue his or her employer in civil court for a work injury except for rare circumstances involving intentional harm.   But what if the employee has two employers?  Does that rule apply to both employers?  The answer is yes, the rule applies to both employers, so the focus in many cases is on whether there really is an employer relationship to begin with.  The case of Carabello v. Jackson Dawson Communications, Inc. and Transcend Creative Group, LLC, A-3294-17T3 (App. Div. March 26, 2019) provides some helpful insight on the requirements to establish “the second employer.”

Mr. Carabello worked for the New Jersey Sports and Exposition Authority as a teamster truck driver. The NJSEA contracted with Transcend and Jackson Dawson for a Mercedes Benz event at the IZOD Center which the NJSEA owned.  Carabello was the only forklift operator at the IZOD Center during the event.  NJSEA assigned him to operate the forklift to unload the trucks of Transcend and Jackson Dawson Communications.  Carabello was told to report to Jackson’s head man for further instructions in securing the tent structure for Transcend and Jackson. 

The head man for Jackson instructed Carabello to transport barrels filled with water using the forklift.  Carabello proposed that it might be wiser to transport the barrels while they were empty but that suggestion was not followed.  While loading the filled barrels on the forklift, two barrels fell off.  As Carabello moved the last of sixteen barrels off the forklift, he felt a pop in his shoulder.  His injury was promptly reported to the NJSEA, and the NJSEA paid workers’ compensation benefits.

Carabello then attempted to sue Transcend and Jackson Dawson for negligence in a third party action.  Jackson and Transcend argued in essence that Carabello could not bring a civil suit against them because he was their “special employee.”  The trial judge agreed and barred the civil suit, leading to an appeal by Carabello.  In his appeal, Carabello argued that the five-pronged test of a special employee did not apply to his situation.

First, he argued that there was no express contract between Carabello and Transcend and Jackson.  Second, he argued that he was doing the work of the NJSEA.  It was on NJSEA property.   The Appellate Division agreed with Carabello on both of these points.

Next, Carabello argued that his work was not controlled by Jackson and Transcend.  The Appellate Division said this point was unclear.  NJSEA told Carabello to use the forklift to help the exhibitors set up the event.  Jackson and Transcend told him to move the filled water barrels to help secure their tent.  On balance, the Court felt that NJSEA really controlled the work.  “Plaintiff testified the scope of his employment for NJSEA included helping production personnel with event setup, which involved operating the forklift and assisting others during the production process.”

Fourth, Carabello argued that he was paid by NJSEA.  The Court noted that Transcend and Jackson paid a fee for operation of the forklift, but they did not pay Carabello’s salary. 

Lastly, Carabello argued that he could not be fired by any entity other than the NJSEA.  The Court agreed that the license to produce the exhibition at the IZOD center did not provide Jackson and Transcend with the authority to hire or fire Carabello. 

For these reasons, the Appellate Division reversed and allowed Carabello to sue Jackson and Transcend in a civil suit for their alleged negligence in contributing to his shoulder injury.  One key distinction between this case and other special employee cases involving assigned nurses is that Carabello was working on NJSEA property when he was injured.  In many of the nursing cases where special employment status is found, the nurses work on hospital property under direct control of the hospital.

Thanks to Rick Rubenstein, Esq. for bringing this case to our attention.

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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. 

It can be challenging to prove that a fairly common cancer occurring frequently in the general population is work related.  The case of Proscia v. Advanced Biotech, A-3017-17T2 (App. Div. April 26, 2019) offers interesting guidance on how an injured worker can prove such a case.  

Frank Proscia worked for Advanced Biotech (AB) from 2005 until 2013.  The company manufactures and sells natural flavor ingredients.  During his employment, there was occasional flooding in his work site in Paterson, N.J.  When that occurred, he would wear waders to walk through space to secure manufacturing materials, which included drums filled with chemicals.  He would examine and sample many containers when they arrived and supervised pouring of chemicals by others.  His desk was 15 feet away from the sealed-off storage room where drums of chemicals were stored.

Petitioner testified that there were multiple spills of hazardous chemicals over the years he worked at AB.  The chemicals would adhere to his skin and clothing.  There was one spill of acetic acid in February 2011. That caused petitioner to be hospitalized on account of breathing problems at work.  He left AB in October 2013.  Two years later, petitioner was diagnosed with colorectal cancer, and he filed a claim petition alleging that his work exposures either caused or contributed to the cancer.

A key fact in this case was that the expert for each side agreed that there were about 1,000 chemicals to which petitioner was likely exposed, and several of those chemicals were suspected carcinogens. 

The petitioner’s expert testified that Acetaldehyde and Diacetyl are carcinogenic, and they were two of the chemicals to which petitioner was exposed.  In fact, petitioner’s expert said that Acetaldehyde is a Class One carcinogen.

Petitioner’s expert provided statistical information on colorectal cancers, noting that 11 to 15 percent of such cancers are related to workplace chemical exposures.  The expert added that petitioner, who was 42 years of age at the time, could not return to work due to his stage three or four cancer.  He said that his cancer was not yet at maximal medical improvement and petitioner required more treatment. 

AB’s expert disputed the testimony that Acetaldehyde causes cancer.  AB’s expert said that there were no studies establishing such a causal relationship.  The Court noted that respondent’s expert was an oncologist.  The Court noted that petitioner’s expert was qualified in the field of environmental and occupational health medicine.  Respondent’s expert did agree that some of the chemicals to which petitioner claimed exposure were carcinogenic. 

The Judge of Compensation found that it was more probable than not that petitioner’s exposure on the job caused his cancer.  The Judge ordered further temporary disability benefits as well as further medical treatment. AB appealed. 

The Appellate Division first observed that petitioner did not have to prove direct causation; aggravation or exacerbation of a condition is sufficient.   The Court also commented that the Judge of Compensation is in the best position to weigh the credibility of the expert’s testimony.  “He could, at his option, decide to give petitioner’s expert testimony greater weight than the expert who testified on behalf of AB.” For these reasons, the Appellate Division affirmed the ruling in favor of petitioner.

Petitioner had several key advantages at trial. First, the experts agreed that some of the chemicals to which petitioner was exposed were carcinogenic.  Second, petitioner proved by his testimony that he had likely exposure to certain chemicals. Respondent did not present lay testimony disputing anything petitioner said on exposure.  That left no real dispute that there was serious exposure to chemicals.

The Judge of Compensation seemed to accept that the two named chemicals were carcinogenic.  There was nothing in the Appellate Division record showing that respondent offered medical articles debunking any relationship between Acetaldehyde and cancer.  Under these circumstances, petitioner made out a very strong case.  For respondent to win in a difficult case like this, its expert needed to offer into evidence persuasive scientific evidence based on medical literature establishing that there is no known causal relationship to colorectal cancer.  Alternatively, respondent needed to contest the alleged exposure through lay testimony. 

In a difficult case like this, the best argument that respondent had was that its expert was far more qualified than that of petitioner to give an opinion on causation, as only respondent’s expert was an oncologist. There is nothing in the appellate decision addressing that point, however, so it is hard to tell if that was argued.

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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.