State News

Effective February 1, 2016, Fentanyl Transdermal Patches, MS-Contin, Levorphanol
(Levo-Dromoran), and Morphine ER/Naltrexone (Embeda) will change status from "Y" to "N" drugs
in the ODG's Appendix A. Accordingly, beginning February 1, 2016, prescriptions for these drugs
will require preauthorization. The Division is encouraging system participants to discuss and
coordinate the ongoing course of treatment of claimants who are currently being prescribed these
drugs.

The Division announced it will host two education conferences in 2016: one in Austin and one in
Dallas. The Austin conference will be September 19 and 20 at the Crowne Plaza Austin Hotel, and
the Dallas conference will be October 24 and 25 at the Renaissance Dallas-Richardson Hotel. The
conferences will be geared to health care providers, medical office staff, employers, employee
organizations, carriers, and third party administrators, and will feature general and breakout sessions
on a variety of topics and issues in the Texas workers' compensation system. Conference registration
will be available beginning Spring 2016.

Air Evac EMS, Inc., a provider of emergency air ambulance services, has filed suit in the U.S.
District Court for the Western District of Texas seeking declaratory and injunctive relief. Air Evac
seeks a declaration that the Airline Deregulation Act (ADA) preempts Texas Labor Code Sections
401.001–401.026, and related regulations (which establish a fee schedule and fee guidelines for
reimbursement for air ambulance services to workers' compensation claimants) as applied to
federally-regulated air carriers. Air Evac also seeks to permanently enjoin the Division from
enforcing any provision of the Texas Labor Code (and accompanying reimbursement rules) that cap
the price for Air Evac's services. Alternatively, Air Evac is requesting that the Court declare Texas
Labor Code §§ 415.021, 415.0215, 413.042, and any other section, rule, or regulation that
establishes or limits the price or rate charged, inapplicable to air ambulance providers, and to
permanently enjoin the Division from enforcing these statutes and regulations against air ambulance
providers.
Air Evac claims that the ADA preempts the above provisions because "the ADA requires that it is
the free market, not administrators or courts, that sets an air carrier's prices." The complaint alleges
that the Division establishes and enforces a fee schedule and fee guidelines under state law and
regulations that limit the amount that air ambulance providers can receive for emergency
transportation of injured workers, and that this reimbursement rate is "well below Air Evac's billed
charges, and the usual and customary fare it charges for its services." Air Evac alleges that the ADA
expressly preempts any state law or regulation that purports to restrict or economically regulate the
prices or services of air carriers within the United States, citing 49 U.S.C. § 41713(b)(1).
The complaint alleges that in 2015, Air Evac provided air ambulance services to several workers'
compensation patients, and has been paid only a "small fraction" of its billed charges because of the
Texas Labor Code's reimbursement scheme.

There is talk of a push by the Division to scrutinize DD analysis letters that "exceed the intent of
Rule 127.10(a)(2)." Rule 127.10(a)(2) allows treating doctors and insurance carriers to send the
designated doctor an "analysis of the injured employee's medical condition, functional abilities, and
return-to-work opportunities." The Rule states that the analysis "may include supporting
information such as videotaped activities of the injured employee, as well as marked copies of
medical records," and the analysis "may only cover the injured employee's medical condition,
functional abilities, and return-to-work opportunities as provided in Labor Code §408.0041." (Labor
Code §408.0041 states that the treating doctor and the carrier may send the DD an "analysis of the
injured employee's medical condition, functional abilities, and return-to-work opportunities.") If
the carrier sends an analysis, a copy must be sent to the treating doctor, the claimant, and the
claimant's representative, if any. (Likewise, if a treating doctor sends an analysis, a copy must be
sent to the above parties, as well as the carrier.)
There is no indication as to what language, exactly, the Division interprets as "exceeding the intent"
of Rule 127.10(a)(2). We suspect, however, they may be looking at letters that advocate strongly
for a particular position, cite one-sided legal authority, and/or give instruction to the DD on how he
or she is supposed to opine. Word on the street is that the Division is already looking at samples of
letters it deems possible violators.More to come, surely. To that end, we recommend carriers (or vendors who send letters on their
behalf) review their DD analysis letters to ensure they are not running afoul of the intent of Rule
127.10(a)(2).

The Division announced early this month that it is maintaining the four-region split of Field Offices
(North, Coastal, South, and West) and the respective Team Leads over each (Cheryl Dean, Ken
Huchton, Carol Fougerat, and now Teresa Hartley, replacing Don Woods). In an interesting twist,
however, it was announced that the Team Leads will supervise not only the Hearing Officers in their
regions, but the BROs as well. The former BRO team leads will now be acting as "liaisons" between
the BROs and the new Team Leads.
Jennifer Hopens and Allen Craddock will serve as regional Managers over the North/West and
South/East halves of the state, respectively.

In an extension of the principle established in Cunningham v. Atlantic States Cast Iron Pipe Co., 386N.J. Super. 423 (App. Div. 2006), the Appellate Division ruled on January 22, 2016 that an employee who was fired while on light duty was not entitled to temporary disability benefits because the firing was not related to his injury.   

The case, entitled Katzenstein v. Dollar General, A-1141-13T3 (App. Div. January 22, 2016) arose from a compensable accident on August 22, 2012 when Mr. Katzenstein, a store manager, injured his knee, requiring authorized treatment.  On September 19, 2012, Dollar General returned Katzenstein to light duty work.  On September 28, 2012, Dollar General terminated Katzenstein for leaving several employees in the store without supervision while he went to the bank to deposit the previous day’s earnings.

Following his termination, petitioner Katzenstein filed for unemployment benefits; however, he was denied benefits because he was terminated for misconduct.  On October 17, 2012, Dr. Basch, the authorized treating doctor, opined that petitioner could not work due to his knee injury.  Katzenstein continued to treat with Dr. Basch, who maintained the light duty restriction with no lifting over 25 pounds. 

Katzenstein filed a motion for medical and temporary disability benefits in the Division of Workers’ Compensation. He relied on Dr. Basch’s opinion that he could not work at all because he needed knee surgery. 

On February 28, 2013, a consent order was entered providing that the parties agreed without prejudice that petitioner would receive temporary disability benefits from November 14, 2012 to February 14, 2013.  When the three months ended, Katzenstein filed a motion to enforce the order and to obtain ongoing temporary disability benefits. 

In his motion, Katzenstein misstated the reason he did not get unemployment.  He asserted that he lost his unemployment claim because “was unable to engage in employment due to the injury to my right knee.” He did not mention that he had been denied benefits because he had been fired for misconduct.  The Judge of Compensation focused on this misrepresentation and the fact that Katzenstein’s injury was not the reason he left his job. Rather, he was fired for misconduct.  The Judge noted petitioner was lacking in candor and also noted that there was no evidence that petitioner had any prospect of new employment.  Petitioner then filed an appeal.

One week before the Judge of Compensation issued his decision, the Board of Review overturned the denial of unemployment benefits on the basis that petitioner’s conduct was reasonable and not an act of misconduct.  

The Appellate Division applied the rule in Cunningham and said that the two cases were similar because the petitioner inCunningham was injured on the job, returned to work, but was subsequently terminated and found not entitled to continuing temporary disability benefits while recovering from surgery.   In this case petitioner was injured on the job, placed on light duty, and then fired for a violation of company policy.  The court said that the burden was on petitioner to prove that he would have worked.  The Court said, “In determining that Katzenstein was not credible, the judge found he was neither offered employment after he was terminated nor declined employment due to his work-related disability.”  The Court wrote:

Here, the judge of compensation properly applied Cunningham.  The judge assessed whether Katzenstein, after being terminated, had a promise or prospect of employment that he had to forego due to his disability.  In determining that Katzenstein was not credible, the judge found he was neither offered employment after he was terminated nor declined employment due to his work-related disability.

This case is an important one.  It is the first Appellate Division case dealing with the right of the employer to terminate temporary disability benefits following job termination after an employee has been placed on light duty. The case does not discuss the rule in Harbatuk, which is that an employer can terminate temporary disability benefits to someone who turns down light duty.  This employee accepted light duty and presumably thought his temporary disability benefits would continue until he could either return to work full duty or until maximal medical improvement.  The Katzensteincase now applies the Cunningham rule to situations where someone is fired while on light duty for reasons unrelated to the work injury.  Petitioner was not able to show that he was fired because of his injury or that he had prospects of employment which he was unable to perform because of his injury. 

-----------------

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. 

Penelope Bertolotti worked for Autozone, Inc. as a Divisional Human Resources Generalist.  She was hired in early 2012 and sought a leave of absence due to personal illness on October 15, 2012.  She returned to work on October 29, 2012 only to request another leave of absence commencing on November 5, 2012.  At first her doctor put her out of work until December 3, 2012, but in subsequent notes he kept her out of work until February 1, 2012.  Her doctor noted that she would need surgery for her condition, which was gastroparesis, an incurable disease that affected Bertolotti’s ability to digest foods and liquids.  She wore a pacemaker to assist in digestion.  Bertolotti ended up having surgery on January 3, 2013.

In a letter dated December 12, 2012, AutoZone advised Bertolotti that the company intended to replace her as Regional HR Manager but would attempt to place her in another position at such time as she might return to work. 

Bertolotti did not return to work on February 1, 2013.  Her physician indicated that he anticipated her new return-to-work date as March 28, 2013.  The doctor added certain permanent restrictions such as no exposure to theft detectors, power stations and no excessive or repetitive bending, twisting or stretching.  Plaintiff later contacted her supervisor to ask what position she would be offered when she could return to work.  She said she needed to know what the job would be to determine if she could perform it.  Her supervisor responded that he would not engage in discussions about accommodations until such time as Bertolotti was ready to return to work.

The next note that Bertolotti produced was on April 1, 2013, which added some other permanent restrictions which would remain in effect until May 24, 2013, but the doctor still did not provide a return-to-work date. 

On April 11, 2013 AutoZone wrote to Bertolotti to advise that the company hired someone to replace her as the Regional HR Manager, adding that when she could return to work, the company would engage in the interactive process with her. 

On May 24, 2013, Bertolotti’s doctor prepared another note stating that she could return to work without any restrictions effective August 21, 2013.  Bertolotti later sued under the New Jersey Law Against Discrimination.  After completion of discovery, AutoZone moved for summary judgment.

Plaintiff argued that there was direct evidence of discrimination by virtue of the December 12, 2012 letter from the company. That letter noted that plaintiff was not eligible for FMLA (having worked less than a year) and that she would be replaced as Regional HR Manager.  AutoZone countered that plaintiff was not qualified to perform the essential job functions because she had never been released to return to work.

The key document in the case was the December 12, 2012 letter.  Plaintiff argued that this letter proved disability discrimination. AutoZone argued that the letter did not really matter because the company did not actually terminate her position in December 2012 but waited until April 2013.  The Court disagreed:  “However, the crucial question is not how long it actually took Plaintiff to recover, or how long it took Defendants to hire a new employee, but what Defendants knew and expected of Plaintiff’s condition at the time they decided to remove her from the position of Regional HR Manager.” Plaintiff’s supervisor testified that the decision was made in December 2012 to replace her because of the uncertainty of her medical condition.  This decision was made at a time when the company expected plaintiff to be able to return to work by February 1, 2013.

The Court acknowledged a key principle of New Jersey law, namely that an employer is not required to provide a disabled employee an indefinite leave of absence if such a request would pose an undue hardship on the employer.  “Here, however, Plaintiff was not seeking an indefinite leave of absence at the time Defendants decided to remove her as Regional HR Manager.  She had an anticipated return date of February 1, 2013.  At that time, Defendants had no reason to believe that Plaintiff would not be returning on February 1, 2013 as planned.”

The Court was also critical of AutoZone for not engaging in the interactive process in a timely manner.  The Court noted that in 2006 the New Jersey Administrative Code was amended to remove language that exempted employers from engaging in the interactive process only when disabled employees were “presently” able to perform their job duties.  It said, “The interactive process requires employers to make a good faith effort to seek accommodations.”

Once Plaintiff requested an accommodation, Defendants were required to do more than tell Plaintiff that she could not return to work without a release.  While defendants argue that they needed to know a date certain for recovery and a medical release before engaging in the interactive process, at least one court in this district has rejected a similar argument. . . . ‘[t]he law does not require that the employer know that an accommodation is possible before making reasonable efforts to identify an accommodation.  Instead, the law requires an interactive process, the purpose of which is to search out accommodations that might suffice, not to explore those obvious to the employer before the process even occurs.’

For New Jersey employers, this case is a warning shot on the issue of the need for employers to engage in the interactive dialogue once an employee requests accommodations and not to wait until the employee proves he or she can return to work.  The problem with the defense in this case centered on the December 12, 2012 letter which the Court noted came only after three weeks from the commencement of plaintiff’s leave of absence.  The Court clearly thought that the company may have jumped the gun so soon after the leave began, allowing a jury to decide whether the company indeed acted in a discriminatory manner. 

This case reaffirms the rule that a request for an indefinite leave of absence is almost always unreasonable.  But what is a reasonable period of time?  There is no hard and fast rule but clearly, this Court is saying that three weeks did not seem reasonable in the context of these facts.  The Court felt that it was problematic for AutoZoner to make a decision to terminate an employee three weeks after commencement of leave,full knowing that the employee at that time expected to return to work in a couple of months.  One suspects that the outcome of this case would have been different if the employer had waited until April to advise that it was removing plaintiff from her position.  By that point in time, plaintiff still had not obtained a return to work date, and the company would have had a stronger argument.   The Court also questioned the company’s position that the HR position was so critical  that it had to replace plaintiff in December 2012.   If that were true, why did the company wait another four months to hire the replacement and how did the company manage for that four month period?  These questions clearly bothered the Court and raised questions for the jury to eventually address regarding the intent of the December 12, 2012 letter.

            This case can be found at Bertolotti v. AutoZone, Inc., 32 AD Cases 435 (D. N.J. September 22, 2015).  

-----------------

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 Monday, January 11, 2016, Governor Chris Christy issued vetoes of two bills long supported by the petitioners’ bar in New Jersey and strongly opposed by employers and carriers. 

S-374/A-3403 involved legislation sponsored by attorneys for injured workers to increase their legal fees.  This particular legislation was aimed at voluntary offers that employers have been making for many decades under the law.  N.J.S.A. 34:15-64 provides that if an employer makes a voluntary offer of permanency within 26 weeks of the date of maximal medical improvement or return to work, whichever date is later, the employer pays no counsel fees on the amount offered, and neither does the injured worker.  This provision is an inducement to employers to make offers of permanency long before the case settles.  The voluntary offers put money quickly in the hands of injured workers and save counsel fees for both parties. 

Claimants’ attorneys sought to eliminate the benefit to the employer and employee of not paying counsel fees on the amount offered.  The bill was pushed hard by attorneys for injured workers solely to augment their legal fees even though this would have meant that injured workers would pay more as well as employers.  For example, if an employer offered $5,000 early in the case within a few weeks of maximal medical improvement, the proposed bill would allow the claimant’s attorney to obtain a fee of $1,000 on the $5,000 offer.  That $1,000 fee would be paid $400 by the injured worker and $600 by the employer.  Current law provides that the claimant’s attorney gets no fee on the $1,000 early offer.  But current law does permit the claimant’s attorney to obtain a fee on any benefits paid to claimants at the end of the case in excess of the amount of the early offer.

S-264/A-1347 involved a series of proposals targeted to benefit certain public safety workers.  One of the provisions of this bill would create a rebuttable presumption that any cancer must be presumed to be work related to a New Jersey firefighter, if that firefighter has seven years of service.  In other words, even if the firefighter developed skin cancer in his foot, the judge must presume that it is work related unless the employer can prove that it is not.  All internal cancers – colon, prostate, liver, bladder, etc – would be presumed to be work related. 

Another aspect of this bill provided that illness due to vaccines received in connection with an employee’s employment would be work related, if the vaccine pertained to potential bioterrorism or epidemics.  This proposal applied to all employees, not just public safety workers. 

The bill also covered public safety workers who get exposed to communicable disease, biological warfare or epidemic-related pathogen in the course of employment.  Such workers would be covered under workers’ compensation as far as medical treatment even if the worker does not have the disease.  Should the worker subsequently contract the disease there is a rebuttable presumption that the condition is work related. 

While the Governor rejected these two bills, he did pass one less significant bill which raised the amount that an evaluating physician can receive to $600 for an evaluating report.

----------------

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. 

Second Claim for Compensation Barred by Claim Preclusion

Johnson Controls, Inc. v. Trimmer, Case No. WD77948 (Mo. App. 2015)

FACTS: The claimant sustained a shoulder injury while working on a production line, which involved lifting batteries that weighed eighty-five pounds.  However, the claimant’s statements to his doctors were inconsistent as to causation, and the employer denied liability on that ground.

The claimant filed a Claim that alleged an injury sustained in a specific work accident.  At a Hearing, the ALJ was asked to determine whether or not the injury sustained was due to an accident or occupational disease arising out of and in the course of his employment.  The claim was denied, though the ALJ noted that the injury would have been compensable had the claimant alleged an occupational disease rather than an accident in his Claim.  The Commission confirmed the Award.  No further appeal was filed.

The claimant later filed a second Claim, alleging an injury to the same shoulder caused by occupational disease that manifested itself on the same day as the original Claim.  The employer argued that the second Claim was barred by claim preclusion, because it had already been adjudicated when the ALJ denied the claimant’s first Claim.  The ALJ issued a final Award allowing compensation, which the Commission adopted.  The employer appealed on the issue of claim preclusion.

HOLDING: The Court of Appeals held that the second Claim was barred on three grounds: (1) the claimant presented evidence of both an occupational disease and an accidental injury at the initial hearing and was denied on both theories; (2) the second Claim should have been brought in the first lawsuit but was not; and (3) the second Claim arose out of the same “operative facts” as his initial Claim because it involved the same injury, reported on the same day, and requiring the same treatment.  Therefore, the claimant’s second Claim was barred by claim preclusion and should have been dismissed by the Commission.

Claimant’s Appeal Denied When She Failed to Challenge Each of the Commission’s Reasons for Denying Her Claim

Knight v. Con-Agra Foods, Inc. and Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Case No. WD78591 (Mo. App. 2015)

FACTS: On January 13, 2009, the claimant sustained a concussion after she fell and hit her head at work.  The employer authorized her emergency room visit, but it made no other payments referable to the injury.  When her request for additional medical treatment was denied, the claimant sought unauthorized treatment, paid for by her personal health insurance through work. 

She filed a Claim for Compensation on August 21, 2013, which was denied by the Commission as untimely on two separate grounds.  First, there was no medical evidence showing that the medical treatment the claimant received in November 2011 was rendered on account of the work-related injury she sustained in 2009.  Second, payments made by the claimant’s health insurance through the employer do not constitute “payments under this chapter” and do not extend the statute of limitations.  Each ground was independently sufficient to deny her Claim. On appeal, the claimant challenged only one of these two grounds for dismissal by arguing that the Blue Cross/Blue Shield payments for her November 2011 medical care constituted payments “made under this chapter.”

HOLDING: The Court of Appeals held that it had no choice but to affirm the Commission’s decision.  Even if the claimant successfully challenged one ground for dismissal, the other ground for dismissal would still stand, since it was not challenged on appeal.  Therefore, the Commission’s Award was affirmed.

Claimant Failed to Produce Sufficient Evidence of a “Synergistic Effect” to Trigger Second Injury Fund Liability.

Winingear v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Case No. WD78398 (Mo. App. 2015)

FACTS: The claimant sustained a work related injury to his neck in 2011 and was diagnosed with a neck strain.  He received treatment and settled with his employer for 4% PPD of the body, referable to the neck.  He then filed a Claim against the Second Injury Fund (SIF), complaining of stiffness and limited ROM in his neck as well as symptoms from prior injuries to his left shoulder, chest, and ribs that resulted from a work-related accident in 2010.  The claimant settled a Claim for his prior injuries for 20% PPD of the left shoulder and 3% PPD of the body, referable to the chest.

At a hearing for the 2011 injury, the claimant submitted Dr. Cohen’s report, which concluded that his pre-existing conditions combined with his primary injury to create a greater overall disability than their simple sum.  Dr. Cohen assigned a 15% load factor.

The ALJ found the claimant’s testimony and Dr. Cohen’s report unpersuasive and denied the Claim for failure to establish a “synergistic effect” between the primary injury and pre-existing conditions. Since the SIF is only liable for the amount attributable to the synergistic combination of disabilities, the claimant failed to establish SIF liability.  The Commission adopted the ALJ’s findings.

HOLDING: The Court of Appeals deferred to the Commission’s factual determination that the claimant’s testimony and Dr. Cohen’s report were not credible, holding that the Commission is free to reject even uncontradicted and unimpeached testimony if the Award shows that the Commission’s disbelief was the basis for the award. Since the Award was not against the overwhelming weight of the evidence, the Commission’s decision was affirmed.

Claim Against the Second Injury Fund Denied Because The Claimant Was PTD as a Result of the Last Injury Alone

Phillips v. S & H Transportation and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 08-010379

On February 13, 2008, the claimant, a truck driver, slipped and fell, sustaining an injury to his right shoulder which required 3 surgeries, the last being a right shoulder reverse total arthroplasty in 2010.  The claimant had pre-existing injuries, including a crush injury to his left knee in 1989 which was re-injured in a fall in 1994 and required a left knee arthroscopy, partial left medial meniscectomy, partial chondroplasty of the left patella and arthroscopy debridement of the left anterior cruciate ligament in 2011, after the primary injury.  The claimant also had a pre-existing cervical spine injury from 1996 that he testified gradually became worse after he stopped working and a pre-existing injury to his ribs from a motor vehicle accident in 1998.  After the primary injury, the claimant overcompensated with his left shoulder and received treatment for symptoms of pain and weakness from 2009 - 2013.

Dr. Yamaguchi placed the claimant at MMI in September 2010 with restrictions and rated the right shoulder at 70% PPD.  Dr. Poetz performed an IME in 2011 and testified that he would impose the same restrictions on the claimant for his primary injury alone, regardless of any pre-existing injuries or conditions.  Mr. England, the claimant’s expert, testified that the claimant was precluded from even sedentary employment due to his primary injury regardless of any pre-existing injuries.  Ms. Gonzalez performed a vocational evaluation on behalf of the employer and disagreed, testifying that the claimant was permanently and totally disabled due to a combination of all of the claimant’s medical conditions, including injury to his shoulder, knee, neck and chest.  She also testified that she primarily relied on the restrictions placed on the claimant by Dr. Poetz and Dr. Yamaguchi.  Based on this testimony, the ALJ found the claimant to be PTD from the last injury alone and imposed no liability on the Second Injury Fund.

On appeal, the Commission agreed and affirmed the ALJ’s Award.  It found the testimony of the claimant, Dr. Poetz, Dr. Yamaguchi, and Mr. England credible and the testimony of Ms. Gonzalez not credible because she failed to adequately support her opinion.  Therefore, the employer must pay PTD benefits.

Where Claims are Filed and Settled, a Settlement Agreement Does Not Constitute a Second Claim That Extends the Statute of Limitations

Treasurer of the State of Missouri-Custodian of the Second Injury Fund v. Couch, Case No. WD78312 (Mo. App. 2015)

FACTS: The claimant was initially injured and filed a Claim for Compensation against both the employer and the Second Injury Fund (SIF) in 2010.  She was injured again in 2011 and filed a Claim against both the employer and the SIF in 2011and an Amended Claim in 2012.  Both Claims were settled with the employer and dismissed against the SIF in March 2013.  In December of 2013, the claimant filed a new Claim for both injuries against the SIF.

The SIF argued that the new Claim was time-barred because it was not filed within 2 years after either injury or within 1 year after filing a Claim against the employer.  The ALJ issued an Award to the claimant, finding that her Claim was not time-barred because her settlement with the employer in 2013 constituted a “claim” that pushed back the statute of limitations.  The Commission affirmed, and the employer appealed.

HOLDING: The Court of Appeals disagreed, holding that the Claim was not timely filed against the SIF and reversing the Commission’s Award.  Where claims are filed and then settled, a settlement agreement does not constitute a second claim that perpetually extends the statute of limitations.

The Statute of Limitation to File a Claim Was Extended to 3 Years When an Out-of-State Employer Failed to File a Report of Injury

Small v. Red Simpson, Inc., Case No. WD78289 (Mo. App. 2015)

FACTS: The claimant was a Missouri resident when he accepted a job offer by telephone from an out-of-state employer.  He moved to Texas and began working, but he sustained a work-related injury in 1995 and returned to Missouri.  The claimant filed a Claim for Compensation in Texas and received payments through June 2009.  He then filed a Missouri workers’ compensation claim against the employer in September 2009, which was denied by both the ALJ and Commission as time barred.

The issue on appeal was whether out-of-state employers are required to file a Report of Injury within 30 days so the statute of limitations is not extended from 2 to 3 years.  Interestingly, the answer would not have affected the outcome of this claim, as it was filed only months after the last payment was made on the Claim.

HOLDING: The Court of Appeals held that the claimant’s injury was covered by The Missouri Workers’ Compensation Law, because it was a contract for employment entered into in Missouri.  Therefore, payments made by the employer from 1995-2009 were payments made “under this chapter,” because they were required under The Missouri Workers’ Compensation Law. The Court did not limit the obligation to file a Report of Injury to in-state employers.  Since the employer failed to file a Report of Injury and continued to make payments through June 2009, the September 2009 claim was timely.  The Commission’s decision was reversed and remanded.

Claimant’s Notice of Appeal Was Not Timely Received by the Commission, because Mailed without Correct Postage

Marciante v. The Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED102994 (Mo. App. 2015)

FACTS: The Commission awarded PPD for work-related injuries the claimant sustained in 2009.  However, the claimant wanted to appeal denial of PTD benefits, and Notice of Appeal was due by May 1, 2015. The claimant mailed the Notice to the Commission on April 30, 2015, but it was returned undelivered because he placed inadequate postage on the envelope.  On May 14, 2015, the claimant placed the original envelope in a new envelope with correct postage and mailed it to the Commission.  This time it was received by the Commission.  However, since the envelope was postmarked May 14, 2015, the Commission concluded that the Notice was untimely and dismissed the appeal.

HOLDING: The Court of Appeals considered whether the Notice was timely filed under the circumstances, since the original envelope was mailed before the May 1, 2015 deadline.  It noted that a filing received after the deadline is only considered timely if it was mailed by the claimant within the filing period, endorsed by the U.S. Postal Service, and delivered to the Commission.  Mail is presumed delivered under Missouri law if it was placed in an envelope with sufficient postage, correctly addressed, and placed in the mail.  The Court concluded that since the envelope mailed on April 30, 2015 did not include sufficient postage, there was no statutory presumption of delivery.  The Notice was therefore untimely, and the appeal was dismissed.

Rose Fonrose Louis worked at a Burger King restaurant in the Monmouth Mall in Eatontown, N.J.  On August 29, 2008, Louis was working in a walk-in freezer when an assistant manager, Hany Salib, followed her into the freezer and proceeded to touch her breast and buttocks through her clothes, kissing her neck, and attempting to insert his tongue into her mouth.  While she was in the freezer, Emad Ghaitey, the manager of the restaurant, opened the door, looked at both employees, and then left.  When the door had been briefly opened, Salib ceased touching Louis, but later in the same day, Salib again touched her and kissed her in the freezer.

Louis did not report either incident on the day the two incidents occurred.  However, the following day, Louis’s husband called to complain about how his wife had been treated.  Louis’s husband then came to the restaurant the following day to provide more details of the alleged assault. Burger King had a written policy prohibiting workplace harassment which all employees received.  Ghaitey followed the policy and reported the allegations to the district manager, who conducted an investigation.  Salib was suspended, then transferred to another store, and eventually terminated when he did not report to work.  Louis ceased her employment with Burger King two weeks after the alleged assault.

On September 10, 2008, Louis reported the two incidents to the local police, who arrested Salib and charged him with fourth-degree criminal sexual contact.  Salib pled guilty to a down-graded charge of violating an ordinance.

In March  2009, Louis brought a workers’ compensation claim against QQR, (the restaurant owner), alleging workplace injuries and sexual assault. That case was settled for $7,500 on a Section 20 basis.  Louis and her husband also brought a civil claim against Salib, Burger King Corporation, QQR, and Ghaitey.  The claims against Burger King were dismissed and the claims against Salib were settled and dismissed.

The remaining defendants, QQR and Ghaitey, moved for summary judgment, arguing that the civil suit was barred by the exclusive remedy provision of the workers’ compensation act. The trial judge dismissed the suits, and Louis and her husband appealed.  They relied on a 1988 federal case, Cremen v. Harrah’s Marina Hotel Casino, 680F. Supp. 150 (D.N.J. 1988) where the court held that the civil suit survived the workers’ compensation bar.  The Appellate Division in this case held that the facts inCremen were distinguishable.

In Cremen, the employee lodged a verbal complaint against a supervisor employee who sexually assaulted her. . . She was assured by a Harrah’s employee in charge of investigating such allegations that the supervisor would be promptly dealt with. . . Harrah’s failed, however, to address the matter and the harassment continued. . . . When Harrah’s moved for summary judgment arguing that the Act barred the employee’s common-law claims, the district court denied summary judgment because Harrah’s was put on notice and failed to take action.  . . As already pointed out, there are no facts showing that QQR or Ghaitey had any prior notice of Salib’s intentional actions, and when the complaint was brought to QQR’s attention, prompt action was taken and no further harassment occurred.

The Appellate Division held that this case was simply a matter of negligence.  It felt that Ghaitey acted negligently in that he should have asked what was going on when he walked in to the freezer.  To get past the workers ‘comp bar, Louis had to prove intentional conduct, but the court said that this sort of inaction cannot be equated with intentional harm.  The court also held that QQR engaged in no conduct that could be deemed to be intentional.  It acted consistent with its harassment policy once the claim was reported. Therefore, the workers’ compensation act barred the civil suit against both Ghaitey and QQR.

This case illustrates once again how strong New Jersey’s workers’ compensation bar remains.  It is exceedingly difficult for a plaintiff to prove intentional harm.  The case can be found atRose Fonrose Louis and Fritzner Louise v. Burger King Corporation, et. al., (A-1000-14T2, App. Div. December 4, 2015).

-----------------

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.