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.
West Star Transportation, Inc. faces a $5.3 million dollar liability judgment. The company did not carry workers’ compensation insurance at the time of the near-fatal fall suffered by one of its workers. This was a case in which the worker sued the company for negligence– a suit which would have been barred by the exclusive remedy provisions of the Labor Code had there been comp coverage. The 7th District Court of Appeals affirmed the judgment both as to the finding of negligence and as to the amount of the verdict. The appeals court found that the company created an unusually precarious work environment and an unreasonable risk of harm to its employees. The Amarillo Court of Appeals issued its opinion in the case last Friday.West Star Transportation, Inc. v. Charles Robison, et al, No. O7-13-00109-CV (7th Dist.).
If you haven’t been able to get through using the numbers you are used to, it is because the field office phone system has been revamped. You can get an updated directory of field office personnel numbers by emailing Hugo Salazar athugo.salazar@tdi.texas.gov. Or contact us and we can send you a copy current as of December 16, 2014.
Surprise. DWC may be on the enforcement war path in regard to BRC exchanges required by Rule 141.4 (b). There has been a rule in effect since 1991 governing when parties to a dispute must exchange pertinent claim information with one another. The rule was tightened up in 2010 but to date has not been strictly enforced. We recently became aware that BROs are being asked to inform DWC of instances when the rule was not followed. Monitoring letters are now being issued. As carrier attorneys are aware, and most likely plaintiff attorneys as well, it can be logistically difficult (and sometimes impossible) to comply with the rule which requires all “pertinent” information in a party’s possession to be sent to DWC and the other parties to a dispute no later than 14 days before a BRC, or not later than 5 days before an expedited BRC. And, as we all know, time flies.
The rule does not expressly provide for punitive consequence to the parties for failure to timely exchange, but it does give the BRO the power to schedule a second BRC if she determines that pertinent necessary information necessary to resolve the dispute was not submitted or exchanged. But beware – a violation of any provision of the Labor Code or DWC rules can be the basis for a monetary penalty or other sanction.
There is a second part to the rule – Rule 141.4(c)(d). This part requires that whenever a party requests a BRC, it must send the opposing party all pertinent informationbefore filing a BRC request with the DWC. The responding party then has an obligation to send all pertinent information in its possession to the other party within 10 working days after receiving the BRC request.
Gov. Terry E. Branstad today appointed Joe Cortese Iowa’s Workers’ Compensation Commissioner. Cortese will replace Michelle “Miki” McGovern, who had been serving as the acting Commissioner since September 2014. A photo of Cortese can be found here.
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With over thirty years of experience in workers’ compensation, I’m confident Joe Cortese will serve as an independent and fair commissioner,” said Branstad. “I appreciate Miki’s service to the department and the state in the interim.”
The Workers’ Compensation Commissioner is the head of theDivision of Workers’ Compensation which is part of Iowa Workforce Development. Workers’ compensation has the responsibility of administering, regulating, and enforcing the workers’ compensation laws. Though the workers’ compensation commissioner’s office cannot represent the interests of any party, the agency provides information regarding the provisions of the Workers’ Compensation Law, the rights of the parties, and the procedures the parties can follow to resolve their disputes.
Cortese practices workers’ compensation law at Huber, Book, Cortese & Lanz, where he is a partner. He has been with the firm, formerly Jones, Hoffman & Huber, since 1981. He has been a partner since 1985. He received his Bachelor’s degree from Indiana University and earned his J.D. with honors from Drake Law School. He is a member of the Iowa State Bar Association, Polk County Bar Association, Iowa Association of Workers’ Compensation Attorneys, Iowa Defense Counsel Association, Defense Research Institute and a founding member of the American Academy of ADR Attorneys.
Cortese will assume the role of Commissioner effective February 16, 2015. His appointment is subject to Iowa Senate confirmation.
Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100. We’d be happy to help, whether it be a quick or a complex issue!
West Virginia Legislature May Put the "Deliberate" Back In Deliberate Intent Claims
by Alexander Macia, James S. Crockett, Jr., and David A. Bosak
January 23, 2015
House Bill 2011 was introduced in the West Virginia legislature by the new Republican majority on the first day of the legislative session. This same bill was introduced in the Senate as Senate Bill No. 11. The purpose of HB 2011/SB 11 is to impose narrower and more stringent requirements upon deliberate intent litigation, as well as overrule contrary case law from the West Virginia Supreme Court of Appeals.See McComas v. ACF Industries, LLC, Case No. 12-0548 (Oct. 17, 2013). TheMcComas case currently stands for the proposition that an employer may not use lack of actual knowledge as a defense to a deliberate intent action when the employer willfully ignores an unsafe working condition (or safety regulatory requirement) to prevent actual knowledge from occurring.
HB 2011/SB 11 narrows the scope of the regulatory bases for deliberate intent litigation by requiring that the statute, rule, regulation or standard be specifically applicable to the work and working condition involved and intended to address the specific hazards presented by the alleged specific unsafe working condition. To enforce this requirement, HB 2011/SB 11 also seeks to impose a requirement that a governmental agency confirm, in writing, the existence of all elements of deliberate intent pursuant to W. Va. Code § 23-4-2(ii).
HB 2011/SB 11 also seeks to eliminate from deliberate intent litigation the concept of “actual knowledge” being presumed via “constructive knowledge” imposed on the employer (as provided for in McComas), instead requiring that actual knowledge beproven by the employee. By strictly requiring the employee to prove actual knowledge, HB 2011/SB 11 intends to eliminate employers being targeted by deliberate intent litigation simply because there were relevant safety regulations in place.
Nevertheless, HB 2011/SB 11 will face significant opposition from various interest groups, most predominantly the West Virginia Association for Justice (“WVAJ”). The WVAJ emphasizes that HB 2011/SB 11 would eliminate an employee’s ability to force employers to disclose certain information that may support a deliberate intent action, because the governmental agencies that are required to find all elements of a deliberate intent action lack the subpoena power necessary to discover all relevant facts. Opponents to HB 2011/SB 11 also note that workers’ compensation in West Virginia is generally insufficient to compensate an employee for a lifetime of lost wages.
While both HB 2011 and SB 11 were referred only to the Judiciary Committees in their respective chambers, neither bill has been taken up as of yet. The West Virginia Legislature adjourns on March 14, 2015, and all bills must complete the process by midnight on that day.
If you have any questions about this issue, or any other deliberate intent issue, please contact ourDeliberate Intent Practice Group. For more information, please contact:
Alexander Macia
304.340.3835
and
James S. Crockett, Jr.
304.340.3824
and
David A. Bosak
304.720.4091
Robin Williams was injured working for Ready Pack on May 18, 2006 and May 22, 2006. A settlement was approved for 10% of partial total for the left shoulder on August 11, 2008. Thereafter, Williams moved to Philadelphia and left the employment of Ready Pack.
On August 10, 2008, petitioner filed a reopener application alleging that her condition had worsened and seeking additional treatment. She failed to appear for an appointment with respondent’s expert on August 25, 2011. On September 2, 2011, she was murdered. Ready Pack was not aware of the petitioner’s demise and scheduled two more appointments.
On December 5, 2011, the Judge of Compensation was advised of the death of petitioner. The hearing on that date was adjourned till March 19, 2012. Because nothing was happening with respect to the case, respondent filed a motion to dismiss, which was granted on September 24, 2012.
In September 2013 counsel for Williams filed a motion to restore the case. That motion was heard on October 28, 2013. The Judge of Compensation denied the motion to restore with prejudice on the ground that petitioner failed to show good cause to reopen the case.
The issue in this case centered on the meaning of “good cause shown” under N.J.S.A. 34:15-54. The Judge of Compensation noted that all petitioner’s attorney had done in nearly 11 months was write two letters in an attempt to find petitioner’s representatives. The Judge noted that Williams left no surviving dependents, so the purpose of the workers’ compensation statute had been fulfilled.
The petitioner appealed and argued that good cause had been shown. The Appellate Division said the following:
The phrase ‘good cause’ has been interpreted as ‘a substantial reason that affords legal excuse for the default.’ . . . N.J.S.A. 34:15-54 ‘is intended to bring a compensation case to an end regardless of the merits in the event the claimant does not diligently prosecute his petition. ‘Good cause,’ therefore, is concerned not with the merits alone but as well with the excuse for the delay.
The Court added that the judge’s “concern regarding counsel’s failure to promptly address William’s lack of response and to attempt to keep the court informed is warranted.” Nonetheless, the Court reversed the Judge of Compensation stating,“It is tempting to affirm the JWC’s order because, other than her death, counsel does not identify another factor in her favor. Death is, however, a quite substantial factor. The JWC’s discretionary ruling obviously prejudiced the substantial rights of Williams’s estate and her beneficiaries.” The Court said that it would be inequitable to bar the door to Williams’ heirs if she was entitled to a recovery.
What this case shows is that the language of Section 54 requiring a case that has been dismissed to be reinstated within one year for “good cause shown” is a very low bar indeed. If a motion to reinstate is filed within one year from the dismissal date, the case will almost certainly be reinstated, no matter how weak the reasons for reinstatement. The case can be found atWilliams v. Ready Pack, A-1689-13T2 (App. Div. January 23, 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.
Wal-Mart Stores, Inc. and American Home Assurance Corp. AIG v. Larry Plummer, Court of Appeals of Iowa, No. 14-0417
The Claimant, Larry Plummer, alleges two separate injuries while working at Wal-Mart. The first injury occurred on January 21, 2010. The Claimant worked the third shift, which ended at 6 a.m. After he completed the shift, he clocked out and spent approximately thirty minutes shopping. On his way out, he and a coworker assisted a customer. While providing the assistance, the Claimant slipped and fell. He completed an incident report designated for customers rather than employees. The Claimant sought workers’ compensation benefits for an injury to his back.
A deputy workers’ compensation commissioner concluded the injury did not arise out of and in the course of employment because, at the time he fell, the Claimant was no longer on the clock. On intra-agency appeal, the commissioner reversed the decision and ordered Wal-Mart to cover the medical expenses associated with the Claimant’s physician’s visit. Wal-Mart petitioned for judicial review. The district court affirmed the agency decision and this appeal followed.
The Court of Appeals found that the commissioner’s determination that the “in the course of” requirement was satisfied was not irrational, illogical, or wholly unjustifiable, even though there was a lapse of time between the Claimant’s completion of his shift and the fall. The Court noted that the Iowa Supreme Court has stated, “[w]hat constitutes a reasonable amount of time depends ‘not only on the length of time involved but also on the circumstances occasioning the interval and the nature of the employee’s activity.’” Bailey v. Batchelder, 576 N.W.2d 334, 340 (Iowa 1998) (citingCarter v. Volunteer Apparel, Inc., 833 S.W.2d 492, 494 (Tenn. 1992)). The lapse of time between the Claimant’s completion of his shift and the fall was only thirty minutes, and the Claimant had essentially acted as an employee when he stopped to assist the customer.
The second alleged injury occurred on July 17, 2010 when the Claimant was attempting to remove a broken pad on a floor-scrubber and felt a pop in his back and sudden pain in his left and right legs. Wal-Mart contends the commissioner failed to consider the deputy commissioner’s findings that the Claimant and his expert witness were not credible. The Court of Appeals found that the commissioner’s findings were supported by substantial evidence. The commissioner had acknowledged the credibility issues but rejected the deputy commissioner’s “overly negative” view of the Claimant and instead adopted the opinion of the Claimant’s expert because of the expert’s knowledge of the Claimant’s prior medical history.
Wal-Mart also contends that the Court should reverse the award of sanctions against Wal-Mart and its counsel because the Claimant failed to preserve this issue for appeal and because the commissioner's ruling violates Iowa law and Agency precedent. Wal-Mart raised an error preservation concern based on the Claimant’s failure to raise the sanctions issue before the deputy commissioner. The Court of Appeals found that the commissioner has authority to impose sanctions whether or not a deputy commissioner has previously ruled on the issue. The commissioner had concluded Wal-Mart failed to comply with the deputy commissioner’s order for treatment and evaluation. The Court of Appeals found that the commissioner did not abuse its discretion in imposing sanctions on Wal-Mart and its counsel.
Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100. We’d be happy to help, whether it be a quick or a complex issue!
Do not forget to submit your 2015 Membership Application. Applications must be postmarked by February 27th in order to attend the Spring Conference at no charge. If you want to pay your membership fee via credit card, simply indicate that fact on the application and you will be contacted by the AWCO treasurer. See our 1/6/15 blog post (below) for more information on how to join.
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About the Author
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 atmfish@fishnelson.com or by calling him directly at 205-332-1448.
1. NEW - Kansas Workers Compensation Claim Triage.
► What Is Kansas Work Comp Claim Triage?
• Kansas work comp claim triage is a new proactive approach for employers, carriers and TPAs in Kansas to act immediately upon receipt of notice of a work injury to utilize 2011 Kansas reform laws more effectively and to identify “red flag” claims for enhanced attention and action.• There are actions Kansas employers, carriers and TPAs can proactively take to utilize and apply 2011 reform law provisions which are not available in other states. Kansas employers need to know about these proactive actions available to them and they need a place to go for a road map of how to proactively benefit from these new law opportunities.
► Where Can I Get Claim Triage Help In Kansas?
• On your PC, tablet or smart phone, go to www.wctriage.com
• Contact Kim Martens at martens@hitefanning.com for the access code password
• Use the access code password to gain access to the KS WC Claim Triage Web App
2. 2/1/2015 Start to the 2015 Kansas Legislative Session.
► Anticipated Changes: There is only one substantive workers compensation change currently rumored that the 2015 Kansas legislature might consider. There is concern particularly among claimant bar members that the new 1/1/2015 rule that all new injuries by accident and repetitive trauma, and occupational disease claims are now rated and governed by theAmerican Medical Association, Guides to the Evaluation of Permanent Impairment,Sixth Ed. (previously Fourth Ed. controlled) will significantly lower injured worker impairment ratings and present difficulty for impaired and disabled workers to overcome the work disability thresholds of “greater than 7.5%” and “at least 10%” in cases where there is a preexisting impairment.&nbsnbsp; Stay tuned for more information on this as the 2015 session progresses because anything is possible.
3. Final Results of the 2014 Kansas Legislative Session.
► Lowered Proof Threshold For Certain Public Safety Personnel: The traditional “heart amendment” in Kansas eliminated the recovery of workers compensation benefits by workers afflicted with a work related coronary or coronary artery disease or cerebrovascular disease to only situations where the work necessary to precipitate the disability was more than the employees’ usual work in the course of the employee’s regular employment.
That compensability limitation for all Kansas workers was lessened effective July 1 2014 for firefighters and law enforcement officers where the injury can be identified and was caused by a specific event and the coronary or cerebrovascular injury occurred within 24 hours of a specific event, and the specific event was the prevailing factor cause of the injury.
4. Final Results of the 2013 Kansas Legislative Session.
In SB 187, the 2013 Kansas legislature accomplished passage of some additional improvements to the Kansas workers compensation statutes for employers, on top of the previously favorable 2011 reform laws:
► Nominating Committee: Changes the makeup of the nominating committee for administrative law judges and the appeals board member positionsfrom two entities (Kansas Chamber and AFL-CIO) to seven (KSIA, Kansas Chamber, National Federation of Independent Business, AFL-CIO, a public employee rep, the Society for Human Resource Management, and a designee of the Secretary of Labor). Recommendations require a 2/3 majority of this newly comprised nominating committee. The amendments also increase the pay of administrative law judges to a level equal to 85% of a state district court judge.
► AMA Guides Sixth Edition: Changes the requirement of use of AMA Guides 4th Edition to AMA Guides6th Edition for dates of injury on and after January 1, 2015. That means that for all injuries occurringprior to January 1, 2015 the AMA Guides 4th Edition is still applicable. Obviously this will require a ramp up educational period for everyone in the process, particularly the doctors; hence the law allows an educational period which mandates now that the change will not occur until on an after January 1, 2015.
► Timely Notice Of Injury By Accident And Repetitive Trauma Requirement Shortened: The 2011 pro-employer amendments changes the timely notice requirement to 30 days from the date of accident or repetitive trauma or within 20 days of the last date worked in the event the employee no longer works for the employer. That 30 day/20 day rule has now been changed to a 20 day/10 day rule. The new shorted timely notice requirement is effective for date of injury claims occurring on or after April 25, 2013.
► Technical Change To The Procedure To Appeal An ALJ Refusal To Recuse Himself/ Herself: A common sense change was made in the procedure to appeal an ALJ’s refusal to recuse themselves.
► Statute Of Limitation Tolling Provision Applicable To Employers Who Fail To File Accident Reports Was Removed: The provision tolling any time limitation where the employer failed to file an accident report with the Division of Workers Compensation after being given notice of a work injury, was removed.
5. New Law Case Update.
Kansas’ 2011 pro-employer reform laws continue to play out favorably for employers in 2013, 20114 and 2015 with multiple favorable Appeals Board decisions received enforcing the reform law provisions. Previous Kansas news updates included summaries of employer favorable Appeals Board decisions inShepard v. Big Lakes Development Center, Inc. Docket No. 1,058,184, (April 2012prevailing factor cause defense) andPrice v. Robert Todd Baker d/b/a Sunshine Lawn & Tree Service, Docket No. 1,058,417 (February, 2012reckless violation of a safety rule defense). A brief sampling of additional more recent Appeals Board decisions favorably enforcing the Kansas reform laws include for employers include the following cases:
► Reduce Awards And Settlements With New Preexisting Impairment Offset Rule: InMark Jackson v. Amsted Rail Co. Inc., Docket #1,058,952 (September, 2013), the Appeals Board affirmed the Administrative Law Judge in applying the new preexisting impairment offset which had the effect of reducing the worker’s functional award from $24,292.35 to $2,430.90. Action Alert: It is critical in every claim being considered for settlement now, that the employer, carrier and/or TPA have defense counsel research and analyze claimant’s prior award history, as numerous claims are now being overpaid because of a failure to proactively apply this new law provision.
► Simple Aggravations Of Preexisting Conditions No Longer Compensable Work Injuries: InCraig v. U.S.D. 465, Docket No. 1,059,210 (August, 2012) the Appeals Board denied compensation for a simple work aggravation of a preexisting degenerative condition when a maintenance and custodian worker heard a pop in his shoulder and felt sharp pain in his left wrist. The Appeals Board found that the work activity may have caused his preexisting degenerative condition to become symptomatic, but that no longer qualifies as a compensable work accidental injury.
6. Updated Kansas Division of Workers Compensation Web Page:
http://www.dol.ks.gov/WorkComp/Default.aspx
By Kim R. Martens of Hite, Fanning & Honeyman L.L.P. www.hitefanning.com
There has been a great deal of controversy about respondent’s lien rights in motor vehicle accident cases since the unreported ruling inDever v. New Jersey Mfrs. Ins. Co., No. A-3102-11T2 (App. Div. October 23, 2013). In one decision from last summer, an Atlantic City Superior Court Judge rejected the application of theDever rule in a similar set of facts.
The Atlantic City case, Colmyer v. Vicki S. Abline, Docket No. ATL-L-5766-1 (August 12, 2014), involved a car accident between plaintiff, Timothy Colmyer, and defendant, Vicki S. Abline. The Little Egg Harbor Municipal Utilities Authority, plaintiff’s employer, paid workers’ compensation benefits and asserted a lien in the amount of $31,768. The MUA intervened in the case to protect its lien rights underN.J.S.A. 34:15-40. The defendant argued that N.J.S.A. 39:6A-12 bars the introduction of evidence of amounts “collectible or paid” by Personal Injury Protection. Defendant further argued that it made no difference whether the medical expenses were paid through workers’ compensation or PIP or any other source: the statutory bar precludes evidence of such payments.
The MUA countered that there was a double recovery in this case to the extent of its medical payments and that it was entitled to reimbursement under the statutory formula. Superior Court Judge, Honorable Allen Littlefield, J.S.C., first examined the two statutes. The Judge also noted that both plaintiff and defendant relied upon the unpublished decision inDever, supra. Judge Littlefield wrote, “In Dever, the Appellate Division held that a plaintiff is statutorily precluded from recovering medical expenses from a tortfeasor where such expenses were paid by the plaintiff’s workers’ compensation carrier.”
Judge Littlefied next observed that Section 12 of Title 39 was adopted after Section 40 of the New Jersey Workers’ Compensation Act. He said that the legislature was fully aware of the provisions of Section 40 when it adopted Section 12. The logic is that the legislature could have abrogated respondent’s lien rights under Section 40 in adopting Section 12, but it did not.
Judge Littlefield further observed that “the Appellate Division decision inLefkin v. Venturini, 229 N.J. Super. 1 (App. Div. 1988) is still good law and should be followed by the Court.” The rule inLefkin is “that a plaintiff must pay the medical expense portion of a workers’ compensation lien out of his recovery from the tortfeasor defendant.” The Court inLefkin said:
Where only workers’ compensation benefits and PIP benefits are available, the primary burden is placed on workers’ compensation as a matter of legislative policy by way of the collateral source rule ofN.J.S.A. 39:6A-6. (citations omitted). And when only PIP benefits and tortfeasor liability are involved, the primary burden is placed as a matter of policy on the PIP carrier byN.J.S.A. 39:6A-12.
The court in Lefkin concluded that there is no bar against recovery of the medical expenses collected or collectible in workers’ compensation from the tortfeasor. The Court reasoned as follows:
This is so because PIP benefits are not available to an insured if workers’ compensation benefits are also available to him. Consequently, PIP benefits in that situation are neither collectible nor paid. Hence,N.J.S.A. 39:6A-12, which bars evidence in the third-party action only of ‘amounts collectible or paid’ under PIP coverage, is inapplicable, and there is no other impediment to the plaintiff-insured-employee recovering his medical expenses from the tortfeasor even though that recovery will ultimately be subject to the compensation lien.
Judge Littlefield concluded, “Because MUA is entitled to recover from Plaintiff’s recovery, it logically follows that evidence of Plaintiff’s medical expenses must be admissible at trial. If the medical bills were precluded, the compensation carrier would be unable to secure reimbursement from the Plaintiff pursuant to N.J.S.A. 34:15-40.”
There are now countless cases in New Jersey where plaintiffs who have both workers’ compensation recoveries and settlements in car accidents are refusing to reimburse medical expenses based on the theory advanced inDever. This decision is not the final word on this subject but it shows that at least one Superior Court has flatly rejected the recent ruling inDever.
