State News

Dear Clients:

             We are continuing to monitor the Corona Virus (COVID-19) outbreak, and we want to take a moment to reach out and let you know that we are handling this developing situation at ConnorsO’Dell, as responsibly as possible, noting that our main priority is to insure the health and safety of our staff and our clients.

             Safety being our top priority, we are implementing the following:

 ·         We are taking every precaution possible, to include conducting extra cleanings of our offices, and frequently touched surfaces.

·         We have implemented screening measures to insure the safety of our staff and clients, and we have postponed most in-person appointments, and, to the extent available, are engaging in remote consultations and appointments.

·         We have instructed our staff that if they are not feeling well or are still recovering from illness, we have asked them to self-isolate, for the protection of all.

·         As of 3/16/20, we will also be working remotely for safety.

In reliance upon CDC recommendations, we suggest the following:

 ·         Wash your hands often with soap and water for at least 20 seconds.

·         Always cover your mouth when coughing and sneezing.

·         Maintain social distancing of 3 feet or more between yourself and other persons.

·         Avoid touching your eyes, nose and mouth with unwashed hands.

·         Clean and disinfect frequently used surfaces.

·         Get medical attention early if you have a fever, cough, or difficulty breathing.

·         Mild symptoms should seek medical care and stay home until recovered, if possible.

Please reference the CDC website for the latest updates about the Corona Virus (COVID-19).

We remain vigilant in representing the interests of our clients in this challenging situation facing our communities.

Justin Wild, a licensed funeral director, was diagnosed in 2015 with cancer and was prescribed marijuana under the New Jersey Compassionate Use Medical Marijuana Act.

In May 2016 Wild was working a funeral when his vehicle was struck by another vehicle that ran a stop sign.  Wild advised a treating doctor at the hospital that he had a license to possess medical marijuana.  The doctor concluded it was clear that Wild was not under the influence of marijuana and therefore he would not need to be tested to return to work.

Wild returned to work, but several days later Wild was told that the company was unable to “handle” his marijuana use and that he was “being terminated because they found drugs in your system.” The company wrote Wild a letter stating that he had been terminated not because of his drug use but because he failed to disclose his use of medication that might adversely affect his ability to perform job duties. Plaintiff’s mother later heard a rumor going around that Wild was fired because he was “a drug addict.”

Wild sued his employer, Carriage Funeral Holdings, Inc., alleging that his employer discriminated against him based on disability due to his use of medical marijuana off site.  His employer tried to stop the law suit in its tracks by moving to dismiss the case for failure to state a claim upon which relief can be granted.  The employer argued that the Compassionate Use Act does not contain employment –related protections, relying on language in the Compassionate Use Act that states, “nothing in this Act shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace.”

Wild countered that this language does not mean that the LAD may not impose its own obligations on the employer.  Wild said he was not seeking an accommodation to use marijuana in the workplace, only an accommodation that would allow his continued use of medical marijuana off-site and off work hours.

Wild lost at trial but obtained a reversal in the Appellate Division.  On March 10, 2020, the New Jersey Supreme Court affirmed the decision of the Appellate Division, allowing Wild to proceed with his case. The Court held that there is no conflict between the Law Against Discrimination and the Compassionate Use Act. It said, “The Compassionate Use Act does have an impact on plaintiff’s existing employment rights.  In a case such as this, in which plaintiff alleges that the Compassionate Use Act authorized his use of medical marijuana outside the workplace, the Act’s provisions may be harmonized with the law governing LAD disability discrimination claims.”

This is the first case in which the New Jersey Supreme Court has addressed the right of an individual who uses medical marijuana to pursue employment litigation for termination of employment due to use of medication outside the workplace. While this case did not arise out of workers’ compensation, the case is instructive to practitioners because there are many injured workers using medical marijuana in New Jersey.  This is one of the first decisions on the state’s Compassionate Use Medical Marijuana Act.

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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 concept of legal causation is fundamental to master in handling claims. If there is no legal causation, the claim should be dismissed.  The claimant must prove an accident which arises from the employment.  There must be a work connection.  When a case poses a serious issue of legal causation, the most common mistake is to send the injured worker immediately to the doctor for an opinion on causation. 

Let me explain this further.  Let’s say your case involves an employee whose allegation is that she got up from a chair and felt sudden low back pain, or was walking down the corridor to speak with her supervisor when she felt knee pain, or she put on her coat to leave for home and felt sharp pain in her shoulder.  These are examples of normal and routine activities that happen at work (and everywhere else in life) that manage to find their way into workers’ compensation files.  What is it that all these scenarios have in common?  The answer is the absence of legal causation.

The natural impulse of an adjuster or defense lawyer is to get a medical opinion when a claim is filed.  That is how we are trained.  That impulse must be resisted when there is no legal causation.  Why?  Because the doctor is going to advise you in the first instance that rising from the chair caused low back pain, in the second instance that walking down the corridor led to pain from some defect in the knee, and in the third instance that putting on the coat may have caused a tear in a weak shoulder.  That is medical causation, not legal causation.  Opposing counsel will argue:  “Why hasn’t this case been accepted?  The doctor says the condition is causally related, right?”  A deep hole has been dug, and the defense dug it.

After a certain amount of backtracking on why the doctor’s opinion really doesn’t matter, the defense must eventually argue that there is no legal causation.  Secondarily, the defense must concede that the medical opinion was unnecessary as it clearly placed the defense in an awkward position in court.  In essence, the defense must contend that there was no accident that arose from the employment.  Not everything that happens at work arises from work.

Sometimes it helps to look at issues like this from a different vantage point.  Imagine sitting comfortably in your chair on a Sunday afternoon watching a football game.  At a commercial break, you get up to get a snack and suddenly feel sharp pain in your back as you come to a standing position.  You begin a course of treatment for a severe sprain.  Would you argue that home caused your back injury?  Of course not.  People would laugh at such a suggestion because this could have happened anywhere, arising from a chair in church, at a movie or on a bus.  It just so happened that it occurred at home during the Sunday ritual of watching a football game, but home was not the proximate cause of any injury.  In workers’ compensation there must be a true work connection between the activity performed and the injury experienced.  Mere coincidence does not substitute for causation. In contrast, a chair that breaks while one sits in it certainly would meet the test of an accident.

Claims that lack legal causation happen every day in every state and often become the subject of extensive medical, temporary disability and permanency payments.  Some routine activity that we all engage in, like bending to tie one’s shoes, causes pain and leads to treatment, but often the activity is not work connected to begin with.  A doctor is consulted and gives an opinion on medical causation, and everyone forgets about the legal causation requirement.  The claim gains momentum and the costs mount. 

Common sense tells us that if an employee turns to look out the window at work or turns to speak with a colleague and feels a spasm in her neck, this is not a workers’ compensation accident.  The neck may need treatment nonetheless.  Medically speaking, the action of turning one’s neck can occasionally lead to pain but legally speaking, there is no accident arising from work by just turning to look at a person or a thing.  So when you encounter a case like this, the best advice is to stop, analyze the facts, and try not to snatch defeat from the jaws of victory, as the old saying goes.

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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. 

Infectious diseases such as COVID-19 can be compensable in Minnesota as either a personal injury or occupational disease in certain situations. CWK attorneyWhitney Teel did a deep dive into the issue during the H1N1 outbreak in 2009, and the caselaw is applicable to the current COVID-19 outbreak.

The quick answer is that it is possible for COVID-19 to be a compensable workers’ compensation injury in Minnesota, but as always, the burden of proof is on the Employee. With infectious diseases, such as polio, influenza, tuberculosis, or COVID-19, proving point of contraction is critical.  Employers are encouraged to let their workers’ compensation insurer know if an employee tests positive for COVID-19. 

To read Whitney's research article on this topic, click the link below:

 https://cwk-law.com/wp-content/uploads/2020/03/COVID-19-Research.pdf

Claimant proceeded to Board Hearing on the issue of initial compensability of a 1/12/18 injury and seeking payment of a then recommended left knee arthroscopic surgery. The Board found his claim compensable, and awarded the surgery, but did not rule on total and/or partial disability benefits, because Claimant did not request same. Claimant proceeded with surgery on 4/10/19, and filed a Petition seeking total disability and/or partial disability benefits from the 4/1/18 date of termination from employment and ongoing.

The Board found that Claimant did not meet his burden of proof on the Petition for total and/or partial disability, because he did not conduct a good faith job search following his termination from employment on 3/31/18. He was terminated for simply stopping showing up at work. He unilaterally stopped communicating with Employer. He did not respond to calls or letters sent by Employer. He abandoned his job. Claimant was capable of working with restrictions for nearly all of the ensuing two years with the exception of 4-6 weeks associated with his surgery yet testified to the Board that he made absolutely no job search during this time without any justifiable excuse. He did not even apply to any of the 9 positions that his own vocational rehabilitation specialist identified 4 months before the Board Hearing. The Board also noted that at 62 years old, claimant was at normal retirement age. Therefore, considering the totality of the circumstances, his withdraw from the workforce was due to personal reasons, rather than the work injury.

Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

Jeffrey Legg v. Shurline Construction, IAB Hrg. No. 1472667 (Mar. 2, 2020).

NWCDN Case Summaries

Claimant worked as a flagger at a constructions site. She reported that a truck hit her in the back of the leg and hit her sign, causing it to hit her in the head. She told different versions of the incident to her coworkers and supervisor and did not seek medical treatment for two weeks. Respondents denied the claim and a full contest hearing took place. The ALJ denied and dismissed the case based on a review of the medical records that revealed claimant did not have any ongoing pain complaints. Claimant appealed and the ICAP panel affirmed the ALJ. Claimant appealed again to the Court of Appeals. Claimant alleged that the respondent-employer “cherry picked” the evidence used in the claim and that the ALJ did not consider certain evidence that she presented. However, the evidence and testimony in the records supported the ALJ’s factual and legal findings. An ALJ does not have to address all evidence in the record in his or her order and has discretion to consider whatever evidence he or she chooses. 

Lisa Martinez v. ICAO, Anytime Labor Colorado, LLC, and XL Caitlin Insurance (Co. App. No. 19CA0560, November 14, 2019) *unpublished

Claimant was working the night laundry shift when he thought he heard a noise coming from the washing machine. He thought he saw a soda bottle in the washing machine and tried to reach into the machine during the spine cycle to grab the bottle. Claimant did not use the emergency or stop switch before reaching into the machine. When reaching into the machine, a sheet wrapped around his arm, flipped him and severed his arm at the elbow. Claimant admitted to smoking black tar heroin in the employee restroom before the incident. Respondent employer admitted the claim, but took a safety rule violation and reduced claimant’s benefits. Claimant challenged the safety rule violation, but the ALJ and ICAO Panel agreed with the safety rule violation and benefit reduction (50% against indemnity benefits). Claimant appealed again to the Court of Appeals and argued that the ALJ improperly limited his testimony about the plausible purpose for violating the safety rule. Claimant’s testimony about mechanical issues with the safety switch was not allowed because respondents successfully objected, arguing that claimant was not qualified to testify about mechanical issues. However, the Court of Appeals held that nothing precluded claimant from testify about his experience with the safety switch and that it did not work, which was a different issue than the mechanical issue with the switch. As a result, the ALJ did properly limit claimant from testifying regarding his reason for violating the safety rule.

Benjamin Heien v. ICAO, DW Crossland, and Liberty Mutual Insurance (Co. App. No. 18CA2398, December 12, 2019) *unpublished

Claimant felt a sudden and sharp pain on his left arm and thought he was bitten by a bug. However, no bug was found after the alleged bite. A Notice of Contest was filed by the employer. Claimant was seen by an infectious disease specialist and tested positive for Epstein-Barr virus (EBV), an infectious disease, but the specialist was skeptical the EBV caused by the alleged insect bite. Claimant never received an official work-related diagnosis. The ALJ found the Claimant had not established a causal connection between his symptoms and his job. Claimant appealed and the ICAO panel affirmed the ALJ Order. Claimant appealed again to the Court of Appeals on four grounds: that the ALJ was not credible; the Order from the ALJ was inaccurate due to typographical errors; that he was not notified of the reason for the Notice of Contest that his workers’ rights and human rights had been violated. The Court of Appeals affirmed the Order again. The court found the evidence in the record substantially supported the ALJs decision. Further, the typographical errors were harmless, the employer is not required to provide a specific reason for a Notice of Contest and the claim that the ALJ was not credible was not sufficient to warrant setting aside the order. No evidence was presented regarding claimant’s allegations that his human and workers’ rights were violated.

James A. “Butch” Smith v. ICAO, City of Ouray and CIRSA (Co. App. No. 19CA0267, October 24, 2019) *unpublished

Summaries completed by Craig Campos, Esq. from the Fort Collins, CO office of Ritsema & Lyon.

On February 26 the Texas Supreme Court heard oral argument to determine whether the parents and sister of Fabian Escobedo, a truck driver who died from a rollover accident on the job, may sue the Employer. The Employer argued that recovery of benefits under the Texas Workers’ Compensation Act is the exclusive remedy for Mr. Escobedo and that the parents and sister could not bring a wrongful death action under the gross negligence exception in the Act because that exception authorizes actions only by a surviving spouse or heirs of the body of the deceased. The parents and sister pointed out that the supreme court has previously held that the Act does not bar a deceased’s cause of action forintentional injuries which survive to the estate under the Texas Survival Statute. Accordingly, at issue is whether Mr. Escobedo suffered personal injury prior to deathdue to the Employer’s intentional acts or omissions.

To support their claim, the parents and sister pointed to evidence in the record that (1) oil fields in West Texas and South Texas were booming and the Employer could not keep up with the demand for drivers, (2) drivers were required to work unsafe amounts of overtime, (3) the Employer required drivers to work illegal amounts of time, (4) the Employer required drivers to falsify their driver logs to cover up the illegal hours, and (5) a terminal manager warned a supervisor that a driver would be killed because of the unreasonable driving hours and the supervisor said “we will cross that bridge when we come to it.” 

The supreme court has previously held that the intentional failure to furnish a safe workplace does not rise to the level of intentional injury, except when the employer believes his conduct issubstantially certain to cause injury. Thus, in the present case, the task for the supreme court is to decide whether the evidence could support a finding that the trucking company believed its conduct was substantially certain to cause injury to Mr. Escobedo. If so, the parents and sister will be allowed to sue. 

The Corpus Christi court of appeals concluded that the evidence in this case could support such a finding. The supreme court’s decision is expected later this year.  MO-VAC Service Co. v. Primitivo Escobedo, et al. 
 

The Division of Workers’ Compensation has initiated a review of the “utility and sufficiency” of the standard form interrogatories for contested case hearings. The form interrogatories are sets of questions, prescribed by DWC, that parties may serve in discovery prior to a CCH. There are two sets of form interrogatories, which are Claimant’s Interrogatories to Carrier andCarrier’s Interrogatories to Claimant. They each contain 11 standard questions prescribed by DWC and allow the party to draft 5 additional questions.

The current interrogatories were adopted in 1991 and they are now widely viewed as inadequate. The DWC is requesting comments and suggestions from stakeholders regarding revisions, and it will hold a stakeholder meeting to discuss possible changes on March 31, 2020 at the DWC Metro building in Austin. 
 

The Division of Workers’ Compensation Appeals Panel has reversed an Administrative Law Judge’s finding that the worker was intoxicated when injured. The basis for the reversal is that the ALJ improperly concluded that a positive hair sample drug test created a presumption of intoxication.

The worker was injured when he fell from a scaffold. A hair sample collected from him three days after the accident tested positive for cocaine. The ALJ concluded that the positive test result created a rebuttable presumption under Labor Code section 401.013(c) that the worker was intoxicated and did not have the normal use of his mental or physical faculties at the time of his injury. The Appeals Panel disagreed. It noted that section 401.013(c) does not say that any drug test creates a presumption of intoxication. Instead, that section refers only to a blood test or urinalysis. Accordingly, the Appeals Panel held that testing of a hair sample three days after the accident may be sufficient to raise the question of intoxication but it does not create a presumption of intoxication under section 401.013(c). APD 192062, decided January 21, 2020. 

-  Copyright 2020,David Swanson, Stone Loughlin & Swanson, LLP

The February 21, 2020 edition of the Houston Chronicle featured the plight of Stephanie Albers, a 54-year-old flight attendant who suffered a neck injury on the job. The headline was gripping:
 

In crippling pain from on-the-job injury, Houston flight attendant finds getting help ‘impossible’

The accompanying story was a scathing indictment of the Texas workers’ compensation system and, more particularly, workers’ compensation insurance companies. The problem? It's grossly misleading.

Albers was injured when air turbulence threw her into the air and back to the floor, reportedly damaging nerves in her neck. She recounts an exhausting, two-year struggle to obtain necessary treatment which, she says, has been routinely and improperly denied by her comp carrier. According to her husband, Dwight Albers:
 

She’s in pain every single day, and they’re dragging their feet, doing this dog and pony show, all this administrative stuff  . . . In the meantime, she’s not getting any better.

According to the Chronicle, Albers’ experience is all too common:
 

In Texas  . . . injured employees who file claims through the [workers’ compensation] system enter an endless maze of denials and appeals that blocks their treatment, recovery, and return to work. For many, the process is so exhausting that they rue ever filing a workers’ compensation claim.

The Chronicle neglects to mention that preauthorization is not required for most pain medication or treatment and, therefore, the insurance company could not “block” treatment even if it wanted to do so. TheChronicle does not explain that, even where medication or treatment requires preauthorization, the decision to approve or deny it is fast-tracked and must be made within three days, nor does it mention that the preauthorization decision must be based on evidence-based treatment guidelines adopted by the TDI-DWC, not the whim of the carrier. TheChronicle does not explain that if the carrier denies preauthorization the worker is entitled to review by an independent review organization. TheChronicle does not acknowledge that insurance companies have a disincentive to block a worker’s recovery and return to work because to do so would increase their exposure for income benefits. And theChronicle cites no evidence whatsoever for its assertion that “for many, the process is so exhausting that they rue ever filing a workers’ compensation claim.”

It gets worse. According to theChronicle, an injured worker who has a dispute with her insurance carrier may as well just give up because changes in the law “have left a workers’ compensation system that makes . . . fighting against insurance companies effectively impossible.” Although the Chronicle acknowledges that the TDI-DWC provides a dispute resolution system to resolve benefits disputes, it dismisses that system as being rigged in favor of carriers:
 

But experts say the dispute resolution process is hopelessly stacked against workers, leaving them with only one real option: Don’t get hurt at work.

The Chronicle does not identify the so-called “experts” on whom it relied for that indictment of the dispute resolution system, nor does it cite to any statistics or other evidence to support it. TheChronicle also does not mention that injured workers are routinely represented by legal counsel at Benefit Review Conferences and Contested Case Hearings, and it neglects to note that ombudsmen from the Office of Injured Employee Counsel are available to assist injured workers at no charge in those proceedings.

We don’t have a subscription to theHouston Chronicle, but if we did we would cancel it.