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Just because an employer accepts an injury to a body member as part of an award does not mean that all future treatment to that body member will be found work related.  That is the rule in Daniel v. United Airlines, No. A-1252-14, 2016 N.J. Super. Unpub. LEXIS 1816 (App. Div. August 2, 2016).

Petitioner, Ancelot Daniel, injured his neck and shoulder in November 2006 which led to a settlement of 22.5% for the neck. The award was increased to 30% credit 22.5% in 2010 for the neck along with a sprain and strain with labral tear of the right shoulder.  Petitioner then filed a second reopener seeking surgery to the shoulder for the alleged labral tear. Petitioner next filed a motion for medical and temporary disability benefits leading to testimony by petitioner and two experts.

Petitioner, age 59 at the time of trial, described his job, which was quite physical.  He loaded and unloaded passengers’ bags at a conveyor belt where the bags are stored in the airplane.  He would go inside the aircraft, get on his knees, pick up bags and put them on a belt. He said his shoulder kept getting more painful as time went on.  He also experienced numbness and tingling, which had not existed at the settlement of the first reopener in 2010.  He said that he could no longer throw bags using his right hand and took over-the-counter medication daily.  He kept working because no doctor recommended that he stop working.

Dr. Theodora Maio testified for petitioner that petitioner’s pain was more severe and persistent than the last time she saw petitioner.  He had numbness radiating down the arm into his fingers. She agreed with Dr. Jaffe, petitioner’s treating surgeon, that shoulder surgery was necessary.  Dr. Maio thought petitioner had a tear of the labrum and related it to the original 2006 accident.  On cross examination she admitted that without an EMG she could not say whether the tingling and numbness were coming from petitioner’s neck or shoulder. She further admitted that shoulder surgery would not be indicated for the numbness and tingling.

The key to respondent’s case was the fact that United’s expert, Dr. Arthur Canario, performed an x-ray showing that petitioner had bursitis in the shoulder.  When asked about bursitis, Dr. Maio conceded that petitioner might have bursitis, but she did not back off her opinion that he also had a tear.  Dr. Canario testified that petitioner’s range of motion in the right shoulder was the same as in the left.  He said that the shoulder MRI showed only a possible tear, but he maintained that all petitioner really had was a sprain of the shoulder and bursitis.  His clinical examination found no evidence of a labral tear, notwithstanding the MRI showing a possible tear. Dr. Canario confirmed the bursitis diagnosis with x-rays done in his office, showing “a calcific bursitis.”  He said that injections would be a first step but that bursitis generally happens spontaneously and idiopathically.  There was no known cause in this case, and the bursitis was not related to the 2006 work injury.

The Judge of Compensation denied petitioner’s motion for medical and temporary disability benefits.  The judge found that petitioner’s likely diagnosis was bursitis, not a tear, and that the bursitis was not work related.  The judge also noted that the numbness and tingling were not from the shoulder, and more likely from the neck.  It was significant that petitioner’s expert never saw the x-ray films done by Dr. Canario as it put Dr. Maio at a major disadvantage.

On appeal petitioner argued that the judge should have disregarded Dr. Canario’s opinion because he did not make a comparison between petitioner’s complaints in 2010 versus 2014.  The Appellate Division rejected this argument because Dr. Canario was not testifying about whether there was an increase in disability, but only whether the need for surgery was work related.  The court said those are two different issues.  “That said, we point out the issue before us does not involve a determination on petitioner’s application for modification of the OAS; rather, the issue before us involves the denial of petitioner’s motion for medical and temporary benefits.  Significantly, the motion was limited to petitioner’s attempt to obtain medical treatment for his right shoulder; it was not a claim for modification of the previous OAS based on increased incapacity caused by the compensable injuries to both his shoulder and cervical spine.”

This decision is a useful one for practitioners.  The result could have been vastly different had petitioner brought in the actual surgeon who was treating the petitioner’s shoulder. The opinion of a treating doctor is given more weight than that of an examining doctor.  Without the opinion of the treating doctor, the Judge of Compensation was left with an opinion from an IME physician who never saw the x-rays which revealed bursitis.

The case also underscores that a motion for surgery on a reopener may involve different issues than simply an application on a reopener to obtain a higher award.   In this case, petitioner apparently thought he lost the right to proceed for a modification of his award when he lost the motion.  “We note there appears to be some confusion among the parties as to whether the denial of petitioner’s motion for medical and temporary benefits somehow disposes of his application under N.J.S.A. 34:15-27 for the modification of a previous OAS.  Absent considerations not apparent from the record before us, we fail to discern how that could be so.”  The court clearly suggested that petitioner still had the right to proceed with a request for modification of his prior award, even though he lost the motion for treatment.

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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. 

Josephine Lucciola appealed from an order denying her request to vacate a February 23, 2012 order establishing her social security offset.  She contended that the order contained the wrong offset calculation and that she was being shorted tens of thousands of dollars by her employer, Home Depot.  There was no dispute that Lucciola had been found totally and permanently disabled as a result of her eye injuries sustained in an accident in 2000.  She received an award in 2006 of total and permanent disability at $308.55 per week based on an average weekly wage of $440.79 per week.

When the total award was entered, the parties considered the fact that Lucciola also received social security disability benefits. The order said that Lucciola would have to reimburse Home Depot for any workers’ compensation benefits she received “in excess of the statutory offset rate during the period of time Petitioner has received Social Security Disability benefits.” For reasons unknown, the Social Security offset rate was not calculated for several years.  Home Depot withheld a portion of payments pending receipt of Social Security information and calculation of the offset.

Lucciola filed a motion in 2012 to enforce the terms of the order since her employer had been withholding part of her award.  The Judge of Compensation then entered an order setting petitioner’s offset rate at $125.43.  That meant that she would not receive $308.55 per week but would receive $125.43 per week.  The order also referred to petitioner’s average current monthly earnings (ACE) at $855.20.  It noted that her initial social security entitlement was $310.  Petitioner sought a penalty for Home Depot’s delay in making payments.

Sometime thereafter petitioner challenged the offset calculations.  She contended that there should be no offset at all, saying that the offset only applies to Second Injury Fund cases.  On that point she was incorrect.  She also argued that her prior lawyer had agreed to entry of the February 2012 order without her consent.

Following argument, the Judge of Compensation found that the $125.43 offset rate was correctly determined.  Petitioner appealed pro se and argued among other things that the offset calculation was incorrect.  The Appellate Division agreed with petitioner that the order setting the offset rate at $125.43 was incorrect.  First it noted that 42 U.S.C.A. 424a(a) states:  “If the total monthly benefits (i.e. the sum of the Social Security and workers’ compensation benefit) exceed eighty percent of the individual’s average current monthly earnings (ACE), then her Social Security benefit is to be reduced to the point where the combined monthly benefit does not exceed eighty percent of her average monthly earnings.”  The court also cited to Wood v. Jackson TP., 383 N.J. Super. 250, 254 (App. Div. 2006).

Importantly, the Act exempts certain states like New Jersey that adopted laws that require a reduction in workers’ compensation benefits to account for the Social Security benefits.  42 U.S.C.A. 424a(d).  New Jersey is such a state where employers can reduce in certain situations the workers’ compensation benefit rate under N.J.S.A.34:15-95.5.  Instead of the Social Security Administration taking the offset, New Jersey employers get the offset in certain circumstances pertaining to total and permanent disability.  The Second Injury Fund need not be involved.  The New Jersey statute says:

Such compensation benefits shall be reduced by an amount equal to the [Social Security disability benefit}, not to exceed the amount of the reduction established pursuant to 42 U.S.C. 424a.  However, such reduction shall not apply when the combined [workers’ compensation benefit and Social Security disability benefit] is less than the total benefits to which the Federal reduction would apply, pursuant to 42 U.S.C. 424a.

The Court explained the main mistake that was made in this case. “As noted above, the weekly Social Security benefit may be subtracted from the weekly 80%-ACE only if the weekly 80%-ACE is greater than the initial workers’ compensation award.  In this case, the weekly 80%-ACE, which is $157.88 (not $196.82, as respondent asserts), is less than the $308.55 initial workers’ compensation award. Therefore, the effective workers’ compensation award should be calculated by subtracting the weekly Social Security benefit ($71.58) from the initial award ($308.55).  The result is a weekly benefit of $236.97.”

Another mistake that respondent’s counsel made in this case was arguing that the $855.20 figure was the 80% ACE.  The actual 80% ACE was $684.16 (80% of $855.20 equals $684.16), which is why the Court said above that the 80% ACE was $157.88, not $196.82.

What this means is that Home Depot was underpaying petitioner $111.54 per week for approximately 10 years.  The Appellate Division remanded the case to enter the correct offset rate and require respondent to pay petitioner the amount owed.  The Court also remanded for the Judge of Compensation to determine whether petitioner is entitled to a 25% penalty.

This case shows how complex calculating offsets can be when a claimant gets total and permanent disability in workers’ compensation and Social Security Disability benefits.  There is an offset worksheet available online.  Employers may contact the undersigned for the form.  The case may be found at Lucciola v. Home Depot, A-3055-14T2, (App. Div. July 22, 2016).

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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. 

On July 5, 2016, the DWC’s Deputy Commissioner for Hearings and Appeals Panel Director issued a joint memorandum reminding system participants of the prohibition against improper contact with Division staff or management for the purpose of influencing the outcome of a decision while the case is still pending.  Citing 28 Texas Administrative Code 142.3(a), the memo reminds parties that direct or indirect communications with the Hearing Officer on any facts, issues, law, or rules pertaining to an active dispute are verboten until the decision has been issued and appeals remedies have been exhausted.  Although the memo omits specific instances of such infractions, the need for the reminder presumably arose by way of some attorneys seeking to alter Hearing Officer decisions through contact with DWC managers or the members of the Appeals Panel instead of through the appeals process itself. 

Beginning in June, Commissioner Brannan authorized contested case hearings to be held in the Metro Center Building, a.k.a., “Austin Central,” on a temporary basis.  Despite its population, Austin has but one official Hearing Officer.  The current field office lacks the space needed to accommodate a second hearing room and, by extension, a second Hearing Officer.  Due to a recent surge in the number of claims, hearings were often unavoidably set in excess of the statutorily-mandated 60-day deadline for want of space on the docket.  Hence, the Division decided to schedule CCH’s with attorney-represented claimants in the Tippy Foster Room in the Metro Center Building on Mondays and ombudsman-assisted claimants on Wednesdays.  The Division’s two traveling Hearing Officers, both of whom are based in Metro, will preside.  This secondary docket is set to last only through September, but if the number of Austin-based workers’ comp claims continues unabated, the temporary solution may become permanent.

San Antonio Hearing Officer David Northup has announced his retirement from the Division of Workers’ Compensation.  A decades-long employee of the Division, Judge Northup served as a Judge Advocate General in the United States Army and as a member of the Division’s Appeals Panel before becoming a Hearing Officer.  His retirement is effective August 13, 2016.  We wish him only the best in his future endeavors.

On July 27, 2016, the DWC released its updated list of health care providers in the workers’ comp system whose practice has been restricted, who have been removed from the designated doctor list, or who incurred some other form of disciplinary action.  The list of disciplinary actions and enforcement orders signifies what appears to be a welcome trend in combating unnecessary functional capacity evaluations, which have emerged recently as something of a ruse for extending disability and MMI dates.  Among the noteworthy admonished:

·         Ray Altamirano, M.D., of San Antonio was fined $1,000.00 and removed from the Texas workers’ compensation system as a health care provider for two years for providing improper, unreasonable, or unnecessary medical care, for failing to keep adequate medical records, and for failing to document aberrant drug test results.

·         Tuan Anh Trinh, D.O., of Dallas was fined $4,800.00 for improperly ordering a functional capacity evaluation that was not reasonable or medically necessary. 

·         Scott Neuberger, D.C., of Houston was fined $5,600.00 for failing to document or incorporate results of a functional capacity evaluation in medical records and for failing to document any reasonable medical necessity requiring said FCE. 

·         James Galbraith, M.D., of Dallas was fined $4,800.00 for improperly ordering functional capacity evaluations that were not reasonable or necessary. 

·         Stephen Esses, M.D., of Houston, was fined $35,000.00 for failure to maintain efficient utilization of health care and ordering tests that were improper, unreasonable, or unnecessary. 

For questions, contact Jane Stone at Stone Loughlin & Swanson, LLP.   

A contractor hired a sub-contractor to perform work at one of its refineries.  The contract between them established that the sub-contractor would acquire insurance coverage and a waiver of the insurer’s subrogation rights.  It also contained an indemnity provision in which each agreed to indemnify the other for injuries arising out of its own negligence.  

The sub-contractor did obtain work comp coverage before two of its employees were severely injured on the job.  They received work comp benefits and then filed suit, eventually settling with the contractor.  There was no dispute that it was the negligence of the contractor that led to the accident. 

Because the Carrier would not acknowledge waiver of subrogation, it was named as a third party defendant.  The Carrier argued that the waiver of subrogation applied only to liabilities assumed by the subcontractor, not the contractor.

The contractor sought to convince the court that only the waiver provision, and not the underlying contract, controlled.  However, since the insurance policy references the contract, the court determined that the contract must also be considered. 

Because the subcontractor was required to indemnify the contractor only for thesub-contractor’s own negligence, it had not assumed liability for the contractor’snegligence, and was therefore not contractually obligated to induce the Carrier to waive subrogation against the contractor.  The court concluded that the Carrier had not waived its subrogation rights. The Insurance Company of the State of Pennsylvania v. Kevin Roberts and Exxon Mobil Corporation,– S.W.3d –, No. 01-15-00453-CV, 2016 (Tex. App.– Houston July 14, 2016).

Another case dealing with subrogation came out of the same Court on July 26.  The injured worker, an employee of a contractor, was fatally electrocuted while using an electric transfer pump on an oil rig owned by the operator.  Workers’ compensation coverage was supplied through the contractor, and death benefits were paid to the decedent’s family, who thereafter brought a wrongful death suit.  The Carrier intervened to establish its subrogation rights. 

The contract between the operator and the contractor established that the operator would obtain waivers of its insurers’ subrogation rights against the operator.  The contract also included two indemnity provisions.  In one, the contractor agreed to release and indemnify the operator from liability for claims arising out of the death of a contractor employee.  However, in another, the contractor would not be liable for any loss or damage resulting from the use of materials furnished by the operator, and the operator would indemnify the contractor from any such liability. 

The Carrier argued that the defective electric transfer pump was rightfully classified as a “material” furnished by the operator and therefore permitted subrogation against the operator under the second indemnity provision.  Plaintiffs argued that the pump was not a “material,” but rather “equipment,” which would not activate the second indemnity provision, and no subrogation rights would follow.

The court agreed with the Carrier that, although undefined in the contract, the term “materials” is used throughout the contract interchangeably with other terms such as “equipment.”  Without a distinction between the two terms, the court determined the contractor had not assumed liability for damage caused by the transfer pump provided by the operator, and was therefore not contractually obligated to cause its insurer to waive its subrogation rights. New Hampshire Insurance Company v. Mora, – S.W.3d –, No. 01-15-00406-CV, 2016 (Tex. App.– Houston July 26, 2016).  For questions, contact Jane Stone at Stone Loughlin & Swanson, LLP.  

From Robert Wilson, President & CEO of WorkersCompensation.com, comes word that the final report has been released from the 2016 Workers’ Compensation Summit held in Dallas on May 11 & 12, 2016.  SLS partner Jane Stone was among those in attendance as a representative of the National Workers’ Compensation Defense Network. With the goals of increased efficiency, lower costs, and greater fairness to workers and employers, the report identifies and prioritizes the “imperative issues” affecting workers’ compensation systems nationally.  Three problem areas emerged as most important following a survey of participants. First, benefit adequacy.  Some states currently face constitutional challenges to their work comp systems after significantly reducing benefits.  Next, regulatory complexity, which raises overall costs via increased litigation.  Finally, delayed treatment while a claim that will eventually be compensable is investigated and appealed. 

On the problem of delayed treatment, Paul Sighinolfi, Chairman of the Maine Workers’ Compensation Board, apprised attendees of Maine’s legislative solution, which mandates that treatment for those covered by general health or disability policies cannot be denied merely because a workers’ compensation claim has been filed.  Rather than delay treatment while investigating the claim and determining whether it is a compensable work comp injury, which might only serve to worsen the underlying condition and add to medical costs, treatment proceeds first under one’s own health insurance or disability policy, and liability & reimbursement issues are addressed later in subrogation.   For questions, contact Jane Stone at Stone Loughlin & Swanson, LLP.   

Common law marriage will be abolished in the state of Alabama effective January 1, 2017. Act 2016-306, provides that the only common law marriages that Alabama law will continue to recognize are those entered into prior to January 1, 2017. This will have an obvious effect on the eligibility of surviving spouse death benefits in worker’s compensation cases.

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This blog submission was prepared by Karen Cleveland, 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 Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.

On July 22, 2016, the Alabama Court of Civil Appeals released its opinion in City of Birmingham v. Thomas, in which it addressed whether the City of Birmingham improperly reduced Thomas’ employer-provided disability benefits due to his prior workers’ compensation settlement. Thomas had filed a workers’ compensation claim while working for the City, and the parties reached a settlement in October 2013. The terms of the settlement provided that the city would pay Thomas $225,000 in exchange for a release of all claims against the City, except future medical benefits arising under The Alabama Workers’ Compensation Act. The settlement was court approved on December 12, 2013. Then on December 20, 2013, Thomas applied for "Extraordinary Disability Benefits" through the City’s Retirement and Relief Pension Board. In his application, Thomas acknowledged "I am aware that if I am granted an Extraordinary Disability Pension (job related disability), there will be a set-off with any workers’ compensation benefits that I receive". Thomas also signed a document labeled "Notice to Applicants Applying for Extraordinary Disability Pension", which provided that any Extraordinary Disability Benefits awarded by the Board would be offset, dollar for dollar, by the amount of any workers’ compensation benefit, as provided in the City of Birmingham Retirement and Relief System Pension law. The notice also informed Thomas that the City of Birmingham Retirement and Relief System was a separate entity from the City of Birmingham.

In September 2015, Thomas filed a Motion to Enforce Settlement Agreement, in which he asserted that the city had unilaterally decided to reduce his pension benefits, contrary to the workers’ compensation settlement agreement. His argument was essentially that the city improperly set off his Extraordinary Disability Benefits by the amount of his workers’ compensation settlement. The City responded to that motion, asserting that it had made all payments agreed upon in the workers’ compensation settlement; that the Board was a separate entity from the City; and that the Board had informed Thomas that his Extraordinary Disability Benefits would be offset by the workers’ compensation payments. The trial court entered an order finding that since there was no mention of the sett-off in the workers’ compensation settlement agreement and/or order, the City had waived, or was estopped from asserting, any right to a set-off. The order further directed the City to pay all Extraordinary Disability Benefits that had accrued, and to make monthly payments thereafter. The City obtained a stay of the trial court’s judgment and appealed. The Court of Appeals held that the city was not estopped from asserting its right to a set-off. It also held that since the city was separate entity from the board, the city could not have waived any right the board might have to a set-off. Finally, the Court rejected the argument that the board was merely an instrumentality of the city, and that the trial court therefore did not have jurisdiction over the Board in the workers’ compensation case. The Court of Appeals remanded the case back to the trial court with instructions that it deny Thomas’ Motion to Enforce.

My Two Cents:

The outcome of this case could have been much different if it were not for the fact that the City and the Board were two separate and distinct entities. In situations where an employer offers other disability benefits through a plan outside of the Workers’ Compensation Act, it is wise to address what, if any, effects any workers’ compensation settlement may have on eligibility for such benefits.

About the Author

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

On July 22, 2016, the Alabama Court of Civil Appeals released its opinion in Smith v Brett/Robinson Construction Company, Inc. and again found that evidence which only establishes a mere possibility that the injuries are related to the work accident is not sufficient to prove medical causation.

In May of 2013 the employee tripped and fell on the job causing her to suffer an injury to her left knee. The employer sent her to Dr. Greg Terral who ordered an MRI and stated the employee possibly suffered from an meniscus tear. Surgery was ultimately scheduled and took place 6 months after the accident. The pre-operative diagnosis was osteoarthritis and suspected meniscal pathology. The post-operative diagnosis was grade 3 chondromalacia of the medial and patellofemoral compartment with unstable chondral tissue. Dr. Terral went on to note in the operative report that the plaintiff had intact meniscal tissue. After surgery the employee stated the pain was worse and ultimately selected Dr. Joseph McGowin from a panel of 4. Dr. McGowin opined that the employee’s symptoms were from arthritis which was pre-existing and that the employee had no evident tears in her knee. In November of 2013, Dr. McGowin stated that he did not think the accident caused the employee’s arthritis. He went on to state that the current symptoms may have been the result of the injury and an aggravation of the arthritis. The employee returned in January of 2014 when Dr. McGowin placed her at MMI with a 5% impairment rating to the left leg. The employee returned in November of 2014 and reported that she felt there was some shifting. Dr. McGowin stated again that he felt that her problems were arthritic in nature. However, an MRI was performed and the doctor noted that the MRI revealed a little intrasubstance degeneration of the medial meniscus, chondrol changes and a little edema of the cruciate ligaments. The employee returned in February of 2015 and the doctor noted that the employee said that she had turned and felt her knee pop about a week prior and had felt pain since. Dr. McGowin opined that she suffered a flare up of her arthritis (of note, at trial the plaintiff denied saying that she had a new accident). In March of 2015, another MRI was performed at which time the MRI referenced a meniscal tear. However, Dr. McGowin read the MRI and again stated that she suffered from intrasubstance degeneration of the medial meniscus and that he did not think there was tear. He also noted that she was suffering from IT band tendonitis. Dr. McGowin then stated that he did not believe she would benefit from surgery. The employee returned to Dr. McGowin in April 2015. Dr. McGowin indicated that there was an option of considering an arthritic arthroscopic exam to assure that there was no tear but there was only a limited likelihood that this would result in some symptom improvement. He recommended that she be evaluated by Dr. James Cockrell for an evaluation and consideration of surgery. During this period Dr. McGowin responded to a letter from the workers’ compensation carrier and stated that it was possible that the meniscal tear was, if there, a new injury given the change in the MRI. He then stated he thought that if there was a mensical tear, it would be unrelated to the original injury. The plaintiff was treated by Dr. Cockrell in November of 2015 and reported that she wanted surgery. The doctor stated that he only thought there was a possible tear and this could all be related to arthritis and the surgery would not be beneficial. As a result, the workers’ compensation carrier refused to pay for the surgery.

At the Trial Court level in Baldwin County, AL, testimony was presented by the plaintiff and her co-workers establishing that prior to the fall she was working full duty without knee problems and that after the accident, she had been unable to do the same. Upon hearing testimony and reviewing medical evidence, the Trial Court found that the employer was not responsible for the surgery. The Trial Court based its opinion on Dr. Terral performing surgery to repair the left knee, which noted no meniscus tear and then Dr. McGowin stating there was no meniscus tear and the employee’s problems were arthritic in nature and not work related. It further noted Dr. Cockrell’s opinion that there was a possibility of a tear but her problems could all be arthritic in nature and the Trial Court stated that Dr. Cockrell gave no opinion on medical causation in making this statement. The Trial Court’s ultimate findings were that the left knee pain, pursuant the medical evidence, was arthritic in nature, not accident related, and that there was no medical evidence supporting that she needed surgery. Therefore, they felt that the surgery was not reasonable and necessary as a result of the original injury.

On appeal the employee argued that her current problems are due to work related meniscus tear and/or the arthritis and that arthritis was caused or accelerated by the on the job accident. The employee support this by the fact that prior to the accident she did not have knee problems and that she had pain ever since. The employee cited Equity Group-Ala. Div. v Harris, 55 So. 3d 299, 311 (Ala. Civ. App. 2010). The Appellate Court pointed out that the employee’s position was correct that the Trail Court can infer medical causation based on someone’s ability to work prior to an accident and then their inability to work after the accident. However, the Court of Appeals state that this did not mean the Trial Court was required to ignore medical evidence indicating that the alleged symptoms were not work related. In the current case, the Alabama Court of Civil Appeals stated that the medical evidence only suggested a possibility of a torn meniscus, therefore, the Trial Court was within its discretion to conclude that there was not substantial evidence to support that the on the job accident resulted in a torn meniscus.

As it relates to the plaintiff’s assertion that the current problems are arthritic in nature and that the on the job accident caused or accelerated her arthritic condition, the Alabama Court of Civil Appeals stated that while it is true that no pre-existing condition is deemed to have existed for the purpose of awarding of workers’ compensation benefits if the employee could work before the accident and then is unable to work afterwards. However, again the Alabama Court of Civil Appeals stated that did not mean that the employee was not required to prove that the work accident actually caused the arthritis to manifest or to become aggravated. The Court of Civil Appeals pointed out that the employee relied on the fact that she was in no pain before and that there was one note from Dr. McGowin that the symptoms may have been the result of the injury and aggravation of the arthritis. The Court of Civil Appeals again stated that the mere possibility was not enough to establish medical causation, especially, when other evidence stated that the current problems were not work related.

ABOUT THE AUTHOR

This article was written by Joshua G. Holden, Esq., a member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in worker’s compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of the National Worker’s Compensation Defense Network (NWCDN). The NWCDN is a national network of reputable law firms organized to provide employers and insurers access to the highest quality of representation in workers’ compensation and related employer liability fields. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Mr. Holden by emailing him at jholden@fishnelson.com or calling him directly at 205-332-1428.

Workers’ compensation retaliation claims are rare birds in New Jersey, and the case ofRobinson v. Armadillo Automation, Inc. explains the standard for proving such cases.  Spencer Robinson worked as a valve technician from May 2005 until August 2011.  He alleged that when he was hired, he disclosed a prior low back condition, and he requested a stool to work while seated, a request which he said the company obliged.  The defendant disputed almost everything Robinson asserted, including that Robinson disclosed a prior condition.  The company asserted that in March 2011 it noticed Robinson was having problems standing and gave him a stool to use but not in 2005.

On April 29, 2011, Robinson felt pain in his neck while assembling a valve.  He said he reported the injury to the company vice president.  Robinson alleged that the VP refused to consider this an injury and would not take him to a doctor. So Robinson got treatment from two doctors on his own and presented a full release from his doctor effective May 12, 2011. Company records did show that the work injury was reported to the carrier.

Defendants denied ever refusing to take him to the hospital, saying the company approved plaintiff’s seeing the family doctor.  The company also maintained that when Robinson returned to work in June 2011, he was having great difficulty standing and working on incoming valve orders.  The President of the company asked Robinson to get an evaluation with his primary care doctor as to his fitness for duty.  The company claimed that Robinson never produced the family doctor clearance note.   The company also claimed that plaintiff’s production was dropping sharply.

For his part Robinson said that the company threatened for the first time to take away his stool when plaintiff tried to return to work after his work incident.    Plaintiff also argued that after his work injury, the company president and vice president complimented him on how hard-working he was.  He further averred that the company president and vice president spoke with him about retirement possibilities for the first time after his injury.  Plaintiff further claimed that he got a note from the family doctor which the company refused to honor because they wanted to speak with the doctor.  Robinson said he then signed a release permitting the company to speak directly to the family doctor, but that never happened. One fact that does not appear to be disputed in this case is that Robinson had not been written up during his employment until he failed to clock out in June 2011.  The company advised plaintiff that his production had fallen off and that the company was observing Robinson’s problems on the job.  The company also maintained that Robinson failed to clock out at lunch time six times.  For his part, Robinson said that the clock out rule was not strictly maintained and the clock was not even working well.  He admitted to not clocking out at lunch only one time.

Although virtually every statement in this case was disputed, one thing not in dispute was that the company did not give Robinson a raise on his anniversary date of May 28, 2011; he was suspended for five days on August 1, 2011; and then fired for declining productivity, failing to punch out at lunch, and failure to get a medical clearance note.

Robinson sued alleging that he was retaliated against due to filing a workers’ compensation claim.   The trial court granted the employer summary judgment but the Appellate Division reversed.  The Court adopted the McDonnell Douglas rule in a retaliation law suit requiring plaintiff to prove 1) membership in a protected class; 2) actual performance prior to termination; 3) termination from employment; and 4) the employer’s pursuit of someone to perform the same work after his termination. On the last point, plaintiff alleged that the company hired two people after he was terminated.

The employer gave non-discriminatory reasons for terminating Robinson, including poor performance, lack of productivity, failure to clock out and failure to get medical clearance.  Robinson in turn argued that these were all pretextual.  He argued that his production never dropped after he returned to work even though the company tried to take away his stool.  He pointed out that he had never been disciplined until after he filed the workers’ compensation claim.  He claimed he had gotten a note from his family physician and had not repeatedly failed to clock out at lunch.  His contention was that the company simply retaliated against him for filing a workers’ compensation claim.

Given the dispute in facts, the Court held that plaintiff had offered sufficient proofs to get to a jury.  “If plaintiff’s proofs are believed at trial, reasonable jurors can readily disbelieve defendants’ stated reasons for the adverse employment actions.” The case shows how problematic retaliation cases can be where the employer has no documentation or record of discipline before the work injury.  Further, the company could have easily gotten its own fitness-for-duty examination in this case rather than debate whether the family doctor would approve plaintiff’s return to work.  This was a small company with 30 employees and perhaps that explains why so little of what took place was documented in memoranda or letters, but clearly the absence of any documentation hurt the employer.

This case can be found at Robinson v. Armadillo Automation, Inc., A05927-13T3(App. Div. July 20, 2016).

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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. 

In Pulejo v. Middlesex County Consumer Affairs, A-3133-14T4 (App. Div. July 14, 2016), the petitioner, an investigator for the County, alleged that he worked along side a chain smoker four to five hours per day, five days per week, from 1976 to 1997. Mr. Pulejo was diagnosed in 2000 with lung cancer and underwent a bilobectomy.  Mr. Pulejo did not file a workers’ compensation claim for years after his bilobectomy.  Before working for the County, Mr. Pulejo received an award of 10% permanent partial disability against Johnson and Johnson for chronic obstructive pulmonary disease (COPD).

In 2010, nine years after his lung cancer surgery, when petitioner was 84 years old, he ultimately filed an occupational disease claim petition in the Division of Workers’ Compensation alleging that his cancer had been caused by second hand smoke at work.  He said he himself had never smoked cigarettes, but he argued that the constant exposure to cigarette smoke caused his cancer to develop. In testimony at trial he admitted that he had engaged in conversations with his treating doctors about his cancer, and his oncologist had told him back in 2000 or 2001 that the likely cause of his cancer was cigarette smoke.  Petitioner also recalled telling his doctors at the time of his lung surgery that he had been exposed to second hand smoke at work.

The experts retained by the parties disagreed on the cause of petitioner’s lung cancer.  Petitioner’s expert said the cancer was work related due to second hand smoke, while respondent’s pulmonary doctor said there was no known cause.  Both parties submitted legal briefs without addressing the statute of limitations issue.  The trial judge, who is now the Chief Judge and Director of the Division, the Honorable Russell Wojtenko, asked for supplemental legal briefs addressing the occupational statute of limitations issue.  After receiving supplemental legal briefs, the judge dismissed the petitioner’s claim on the basis of N.J.S.A. 34:15-34.

This statute provides that “where a claimant knew the nature of the disability and its relation to the employment, all claims for compensation for compensable occupational disease except as herein provided shall be barred unless a petition is filed . . . within two years after the date on which the claimant first knew the nature of the disability and its relation to the employment.”

The Judge of Compensation rejected petitioner’s argument that he did not know his lung cancer was work related until he was examined by his expert, Dr. Hermele, in 2012.  That made no sense since the claim petition alleging work-related cancer had been filed in 2010 two years before petitioner saw Dr. Hermele. Additionally, petitioner had spoken with his doctors in 2000-2001 regarding the link between smoking and lung cancer.  The Judge held that petitioner should have filed his claim petition no later than January 2003, two years after portions of his lung had been removed.

The Appellate Division affirmed the decision of the Judge of Compensation. The Court rejected the argument of petitioner that the defense waived the statute of limitations defense by not raising it until well after trial.  This was  a pivotal aspect of the case and addressed a central question:  can an employer waive the statute of limitations? The answer is no.  The Appellate Division ruled that the statute of limitations is jurisdictional.  The word “jurisdictional” means that filing a claim on time relates to the power of the Division of Workers’ Compensation to hear the claim.   If a claim is not filed on time, the Court has no power to hear it.  Even if the defense wants to waive the statute, it does not matter:  the court cannot hear an untimely filed claim.

The Appellate Division also agreed with the Judge of Compensation that petitioner could not switch the nature of his claim petition at trial to argue for the first time that that his COPD condition had been worsened as a result of working for the County.  Counsel for petitioner argued that even if the cancer claim is barred, his client ought to receive an award for aggravation of the prior COPD condition.  The Court noted that this was a new argument and that “Dr. Hermele (petitioner’s expert) never quantified the proportion of lung disability attributable to the exacerbation of Pulejo’s pre-existing COPD.”

This case is important for New Jersey practitioners because it focuses on a little understood provision of the law, namely the time limits for filing occupational disease claims.  New Jersey really has a “discovery” rule for filing an occupational disease claim petition, and it is focused on the knowledge of the claimant as to the nature of his or her illness and relationship to work.

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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.