NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
A Houston area practitioner, Dr. Rezik Saqer, has been charged with operating illegal pill mills. Dr.
Saqer runs two pain management clinics in the Houston area. One of Dr. Saqer’s patients was
charged with intoxication manslaughter for a fatal crash that killed a family of four in Montgomery
County, Texas. An investigation into the crash, where oxycodone and valium were found, led
investigators to Dr. Saqer.
When searching Dr. Saqer’s clinic, Integra Medical Clinic, they found illegal quantities of opiates.
Investigators also found evidence that he would pre-sign prescriptions and treatment notes, allowing
his patients to be seen by unlicensed individuals. Dr. Saqer’s license to practice medicine has been
suspended due to this continued practice, on the basis that it poses a risk to public welfare.
The Division is accepting comment through November 9th on proposed Rule changes to Labor Code
Section 408.103 from the 84th legislature. Now, to be eligible for the higher (75%) rate of TIBs
during the first 26 weeks, a worker’s wages must be below $10.00 per hour instead of the current
$8.50. The proposed changes to Rules 129.3 and 129.11 implement this statutory change. The
amended rules will apply to injuries on or after September 1, 2015.
In a ruling that many might find counterintuitive, a New Jersey court has ruled that an adult dancer
is an employee of the establishment where she danced, and not an independent contractor, for
purposes of workers’ compensation. The court found that the establishment had the right to exercise
control over the injured worker. Despite the fact that the injured worker was free to set her own
schedule and worked solely for tips, she “was not free to come and go as she pleased” once her shift
began, and she “was required to perform both pole and couch dances.”
A controversial deal between the Travis County District Attorney’s Office and Texas Mutual
Insurance Company has been suspended. Going back to at least 2000, Texas Mutual has paid the
DA’s office to prosecute “crimes committed against the company,” such as fraud. Under the
arrangement, investigators directly employed by Texas Mutual gather information and provide a
referral to the DA. The controversy surrounds the fact that only crimes committed against Texas
Mutual, and not all insurers, are being pursued. In 2014, payments from Texas Mutual to the DA’s
office totaled $430,000.
The Wisconsin Worker’s Compensation Advisory Council was created to advise the Department and Legislature on policy matters concerning the development and administration of Wisconsin’s worker’s compensation system. The Advisory Council is comprised of an equal number of voting members from labor and management, along with non-voting representatives from the insurance industry, a representative from the Department and liaisons from the medical community. In 2014, for the first time in the history of the Advisory Council, the agreed-upon bill that it submitted to the Legislature did not pass.
On July 12, 2015, Governor Walker enacted the 2015 Budget Bill which included the transfer of 18 worker’s compensation administrative law judges from the Department of Workforce Development to the Department of Administration. This was the first change to the worker’s compensation field that has occurred without the Advisory Council’s input. Since that time there have been many rumors regarding the intent of various groups to circumvent the Advisory Council and introduce bills directly to the Legislature that would significantly change the landscape of Wisconsin’s worker’s compensation system.
The Advisory Council recently met last Wednesday, October 21, 2015, and authored a draft bill that has been negotiated and agreed upon by both labor and management to be introduced in the 2015-2016 session. Per notes taken at the most recent meeting, below are some of the main items that are set to be listed in the final agreed-upon bill that is scheduled to be drafted and submitted to the Legislature later this year. As you will see, the changes proposed appear to favor employers and insurance carriers.
In addition to the Advisory Council’s agreed-upon bill, Representatives Spiros (R-Marshfield) and Knodl (R-Germantown) and Senator Stroebel (R-Saukville) circulated a reform proposal last week which includes many provisions that are even more employer-friendly than those in the agreed-upon bill. Highlighted below are some of the most significant changes included in this recent bill:
This bill is set to be introduced to the Legislature jointly by Rep. Spiros and Sen. Stroebel on October 29, 2015, to be voted on yet this year.
At this time, it is yet to be seen whether either bill will be adopted by the Legislature in its entirety or in part.
Please feel free to contact Chelsie Springstead by email atcspringstead@lindner-marsack.com, or any member of the Lindner & Marsack Worker’s Compensation Defense Practice with any questions.
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ABOUT THE AUTHOR
Chelsie Springstead is an attorney at Lindner & Marsack, S.C., a law firm located in Milwaukee, Wisconsin that is dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases, along with all facets of labor, employment and employee benefits law. The firm is a member of The National Workers’ Compensation Defense Network (NWCDN), which is a national network of reputable law firms organized to provide employers and insurers access to quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Wisconsin workers’ compensation issues in general, please feel free to contact the author atcspringstead@lindner-marsack.com, or (414) 273-3910.
Peter v. Paylor, v. Dee Zee Incorporated And Travelers Indemnity Company Of Ct., Court of Appeals of Iowa, No. 14-1570
On November 10, 2010, Claimant, Peter Paylor, suffered a work related injury to his lower back for which he sought medical care on November 12, 2010. Claimant’s employer, Dee Zee Incorporated, stipulated the injury caused temporary disability. Claimant underwent back surgery in April 2011. He claimed the surgery was causally related to the work injury and filed a claim for permanent disability benefits. The employer denied causation and denied Claimant sustained a permanent disability related to his work injury. The deputy commissioner found Claimant did not prove the April 2011 surgery and subsequent treatment were related to his work injury. The commissioner affirmed the decision. The district court affirmed the agency’s action.
On appeal, Claimant contends the agency’s finding that his surgery and subsequent treatment were unrelated to his work injury is not supported by substantial evidence. He contends, for the same reason, the agency’s decision is irrational, illogical, and wholly unjustifiable.
The Court of Appeals concludes the agency’s decision is supported by substantial evidence and is not irrational, illogical, or wholly unjustifiable. The Court notes that the agency carefully assessed the medical evidence as reflected in Claimant’s medical records and the opinions of different physicians. The agency credited some of the medical professionals’ opinions over others based on their respective training, experience, and area of practice and based on whether the opinions jibed with Claimant’s symptoms. The agency further took into account the quality of the opinion based on the medical history, or lack thereof, Claimant provided to the respective medical professional.
Medical causation presents a question of fact that is vested in the discretion of the workers’ compensation commission. While there may be evidence in the record contrary to the agency’s findings and conclusions, “[e]vidence is not insubstantial merely because it would have supported contrary inferences.” Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 499 (Iowa 2003). The question is not whether the evidence would support a different finding, the question is whether the evidence supports the finding actually made. Accordingly, the Court of Appeals affirms the district court’s decision on judicial review.
Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100. We’d be happy to help, whether it be a quick or a complex issue!
The Clayton County School District in Atlanta, Georgia employed Edith Hill as a bus driver. During the school year 2009-2010 Hill was assigned a non-air-conditioned bus for special needs students. The temperatures inside the bus rose above 100 degrees and Hill found she was experiencing serious difficulty in breathing. She filed an “Employee Request for Reasonable Accommodation” on August 11, 2009 stating that extreme heat impaired her ability to breathe.
Hill attached two doctors’ notes, one from a pulmonologist who said she had an airway-related physical impairment that limited her breathing abilities. If she were provided with an air-conditioned bus she could do the job, according to the pulmonologist.
On August 13, 2009, the School District placed Hill on unpaid leave while it considered her request. On August 28, 2009, the School District sent Hill a letter denying her request because all air-conditioned buses had already been assigned to other drivers. The letter did not mention that the District was in the process of obtaining more air-conditioned buses.
There was a dispute at trial whether the School District offered Hill one of these new air-conditioned buses. Hill said it never happened; several employees of the School District said that the offer was made. Hill remained out of work through 2009 and into early 2010. The School District terminated her employment on March 2, 2010. Hill then sued under the ADA for discrimination.
The District Court ruled in favor of the School District and dismissed Hill’s law suit, but the Eleventh Circuit Court of Appeals reversed in favor of Hill on the disability discrimination issue. The Court first noted that there was conflicting evidence on whether the School Board ever made an offer to Hill about using one of the new air-conditioned buses. None of the School Board’s witnesses actually recalled making the offer to Hill. The Court added:
Even assuming the School District did make such an offer, there is still a dispute as to whether making Hill wait two months was reasonable. In its motion for summary judgment, the School District argued that providing an air-conditioned bus any earlier would have constituted an undue hardship, but does not provide sufficient evidence of what the hardship would be. All the School District said was that it would have had to upset its seniority-sensitive bus-allocation process.
The Court reviewed prior case law where employers had made employees wait a few months before making an offer of reasonable accommodation. It said that in all of the prior cases, the employer paid the employee during the waiting period before a decision was made on the offer or allowed the employee to work during the waiting period. The Court said, “Here, by contrast, two months was more than enough time for the School District to overcome any administrative hurdles in providing Hill with an air-conditioned bus.”
What this means is that Hill has an opportunity to present her case before a jury. The lesson in a case like this is that employers must act promptly when it comes to requests for reasonable accommodation. In this case it was hard for the School Board to argue that Hill had no right to the accommodation request. Hill had in years past driven an air-conditioned bus. The case also shows the importance of making a written offer of accommodation. Throughout the hearing process the parties fought over the issue of whether an offer of accommodation had been made, even though this could have easily been resolved by documenting this in a written offer letter. The case can be found atHill v. Clayton Sch. Dist., No.13-14951, (11th Cir. 2015).
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
In part one we examined the law surrounding New Jersey occupational disease claims and trends in our state (see last week’s blog). In this segment, we will explore strategies and tactics employers can take to win occupational disease claims.
Winning workers’ compensation claims depends more than any other factor on obtaining past medical history. Experience teaches us that the vast majority of claimants who file back, neck, shoulder, leg, respiratory, and stress claims have had symptoms and treatment in the past, but often this information does not emerge and is not discovered until too late. This is particularly true in New Jersey where depositions are not permitted except in rare cases on motion, and where interrogatories are only allowed in occupational disease claims – and the questions are pre-printed and often irrelevant. The single greatest reason that workers’ compensation benefits are overpaid is the failure to discover prior medical history. In occupational disease claims, an employer will overpay virtually every case if the employer does not know what the employee does outside work and has done in the past and does not have an accurate picture of the employee’s health before the claim was filed.
It is imperative for the employer to identify the prior family doctor and get his or her records going back as far as possible. That is true for all occupational orthopedic claims, respiratory claims, carpal tunnel claims and stress claims. As mentioned last week, the employer defeated the carpal tunnel claim inHuntoon only because respondent’s counsel insisted on obtaining prior family doctor records, which led directly to the statute of limitations defense.
Consider for a moment what the adjuster and defense attorney are looking for:
In respiratory claims, the family doctor records may contain the past smoking history, references to chronic cough or history of allergies.
In carpal tunnel cases, the family doctor records may reveal diagnoses of conditions which are known to cause carpal tunnel syndrome: hypertension or diabetes, for example.
In occupational orthopedic claims, the family doctor records may contain information about arthritic pain, joint pain related to weight gain, pain from over-exercising at the gym or in jogging, and treatment due to car accidents and slips and falls generally.
In cancer cases, the family doctor records often refer to family history of cancer.
In addition to obtaining prior family doctor records, the adjuster and defense counsel should be writing to claimant’s counsel or filing supplemental interrogatories asking about the following:
In respiratory claims: the name and address of allergists the claimant has seen in the past, plus skin testing results;
In occupational hand claims, the name and address of rheumatologists and surgeons who have seen the claimant in the past;
In occupational orthopedic claims, the name and address of any chiropractor whom the claimant may have seen in the past as well as location of any MRIs, EMGs or other objective studies.
In occupational stress cases, the name and address of all prior psychologists, mental health counselors and psychiatrists.
Most defense lawyers around the country believe that there is no level playing field for employers when it comes to workers’ compensation. As far as discovery goes, New Jersey’s system is seriously tilted against employers. While New Jersey has employer control of medical care, that fact is not of any consolation in an occupational disease claim because almost 100% of occupational disease claims are denied at the outset. There are seldom any authorized treating records available. So adjusters and defense counsel have to be creative in conducting informal discovery. Since the standard pre-printed form interrogatories do not focus on what employers need to know, adjusters and defense counsel must explore prior medical history informally, seek information about second jobs, prior and present hobbies, martial arts, sports and recreational activities, and inquire about hobbies like woodworking or crocheting in repetitive stress claims. When the claimant’s counsel will not cooperate, defense counsel should file a motion for supplemental interrogatories.
The tactics that help employers win occupational disease claims vary depending on the nature of the allegations. Respiratory claims are particularly frustrating for employers because often they are brought like class actions with dozens of claimants filing petitions at once, almost none of whom have ever treated before for breathing-related complaints! New Jersey has always had its share of plant closing cases, and these cases typically involve respiratory claims. The good news is that employers can win the vast majority of these cases at trial. The reason employers have the edge is that respiratory claims are unique in having objective data to support the defense. Pulmonary function studies provide scientific information on lung function, and the tests are repeated to reveal if the claimant is not making a genuine effort to exhale or inhale. No matter what the claimant says of a subjective nature (short of breath, trouble sleeping, or coughing), pulmonary function studies provide reliable objective evidence which satisfies the standards ofN.J.S.A. 34:15-36.
When an employer has to fight respiratory claims, whether in a mass filing following a plant closing or in an individual claim, the employer needs to retain board certified pulmonologists who do more than just spirometry. The employer needs lung function and diffusion capacity studies in addition to spirometry because all of this information provides scientific proof of lung function. In 90% of plant closing respiratory claims, the pulmonary function testing turns out to be normal. Where the tests are abnormal, there is often an allergy history or cigarette smoking history. A claimant can complain in testimony of shortness of breath but if the FVC and FEV1 parameters are normal, that fact will carry the day with the judge because this is objective evidence. Awards must be based on objective evidence of restriction of function underN.J.S.A. 34:15-36. Many cases have been decided in the past few years in favor of the employer on respiratory claims solely because the employer retained the better medical expert, who did spirometry, lung volume testing, and diffusion capacity testing.
Employers who must defend respiratory claims following plant closings should try to procure photos of the work environment, preferably video of the work environment, so that the defense expert and judge can see first-hand what the conditions really were like. Claimants in plant closing respiratory claims tend to say the same things: “the atmosphere was dirty and dusty at all times, and I coughed a lot.” But the photos and videos of the work premises can rebut these allegations.
One little known fact is that mild bronchitis is excluded from compensation inN.J.S.A. 34:15-36. Many cases come down to complaints of a cough for which the employee has never treated. Arguably, if this complaint is true, it is a condition of mild bronchitis, which is not compensable by law.
In any type of occupational disease claim, social media plays a major role because many claimants post information on Facebook or other sites that contradict their assertions in the workers’ compensation claim. Ex: employee in an occupational knee claim posts photos of recent 5k runs, or employee in occupational back claim posts photo of himself lifting 400 pounds at the gym. Defense law firms often win many traumatic and occupational disease claims simply by doing social media searches.
Insurance carriers and third party administrators have access to ISO reports, and employers should re-run ISO searches periodically during the life of the case. An ISO report will often lead to other accidents or claims which may independently explain the reason the claimant has certain symptoms. In the case ofJackson v. Township of Montclair, No. A-2212-11T2 (App. Div. July 5, 2012), the employee denied any prior knee problems only for the adjuster to discover that one year before the workers’ compensation accident, the employee had injured his knee in a car accident and had the very same diagnosis at that time. The employer eventually pressed successfully for a dismissal based on workers’ compensation fraud.
Collaboration among the employer team (department supervisor, HR, plant manager, claims professional, defense counsel, and others) will almost always lead to valuable information about the claimant. For this reason, employers who actively get involved in the defense of claims have uniformly better results than employers who simply refer the entire defense to the carrier/TPA and defense counsel. This point cannot be emphasized enough: no one knows more about the work conditions and the claimants than the management team.
When all the discovery has been completed, the choice of independent medical examiner is dispositive. The entire investigation, prior medical information, surveillance or videos of the job must go to the expert along with an explanation of the legal standard under N.J.S.A. 34: 15-31. Not enough time is spent on choosing the right medical expert. Factors to consider include whether the medical expert supports his opinion with scientific articles or just generalizes on causation, whether the medical expert testifies well in court, and whether the medical expert is known to ask detailed past medical history and past hobbies/recreational activities. Occupational disease claims depend on science because the standard is whether the occupational disease is produced by causes that are characteristic of or peculiar to the occupation. Hence, Dr. Kenneth Peacock will provide medical literature to support his opinion that a given activity – typing, for example – has not been shown to be linked to the development of carpal tunnel syndrome. That sort of testimony is powerful both in the Division of Workers Compensation and in the Appellate Division. The claimant’s doctor may say simply that typing caused the carpal tunnel syndrome condition, but if he or she cannot back that theory up with research or medical literature, the assertion is nothing more than a net opinion. So clients and counsel should dialogue the choice of defense expert, and in that connection, the cheapest expert is generally the worst choice.
To sum up, occupational disease cases can be won consistently by the employer, particularly occupational respiratory and stress cases. The case law is favorable in both areas of the law. Respiratory cases can often be won just because the employer retained the best pulmonary expert in the region who does the full range of pulmonary function testing. Stress cases can be won because every employee is under stress generally, and generic stress is not compensable. Further, stress caused by merited criticism is not compensable. Occupational orthopedic claims involving the joints or upper extremities are more challenging for employers, but they can be won with strong collaboration among the defense team and with exhaustive past medical discovery.
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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 October 16, 2015, The Alabama Court of Civil Appeals released its opinion inAnita Martin v. Austal USA, LLC. At the trial court level, the judge granted the employers motion for summary judgment based on the applicable statute of limitations. It being an occupational disease case, the two year statute of limitations in which to file a lawsuit would have started to run on (1) the date of last exposure or (2) the date of the last indemnity payment, whichever is later. It was undisputed by the parties that the date of last exposure was the last day worked and, using that date, the statute would have definitely expired. However, the employee received employer sponsored short term disability benefits while she was out of work. The employee argued that said benefits constituted indemnity payments that served to toll the statute of limitations. The employee cited to a case where the court held payment for injury days and full pay for less than full work constituted indemnity payments.
On appeal, the Court of Civil Appeals distinguished the case relied upon by the employee by noting that the employer in that case was aware that the employee was making a workers’ compensation claim. In the instant case, however, there was no evidence that the employer was aware that the employee was claiming a work related occupational disease at the time she was receiving her short term disability benefits. As a result, the Court affirmed the trial judge’s decision.
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About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish, Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him atmfish@fishnelson.com or by calling him directly at 205-332-1448.
On October 16, 2015, the Alabama Court of Civil Appeals released its opinion inJenkins v. American Transport, Inc., reversing the trial court’s order granting summary judgment in favor of American Transport, based on the trial court’s finding that American Transport was not Jenkins employer and that Jenkins’ injury was not subject to Alabama’s workers’ compensation laws.
Jenkins was a truck driver who leased his truck to American Transport. The parties entered into an agreement in Dothan, Alabama, which provided that Jenkins would use the truck to haul freight for American Transport throughout the United States. The agreement explicitly stated that Jenkins was an independent contractor and not an employee. The agreement provided that either party could terminate the relationship by giving thirty (30) days written notice, and that American Transport could terminate the agreement if Jenkins violated established service standards, any laws, any terms and/or conditions of the agreement, or transported any cargo for any company other than American Transport. The agreement further provided that American Transport would compensate Jenkins by paying him a percentage of the gross revenue of each load; that Jenkins was responsible for providing his own workers’ compensation insurance; that Jenkins assumed full responsibility for all loads; that Jenkins had the right to accept or reject loads offered to him by American Transport; and that American Transport had no right to control or attempt to control the manner or means by which Jenkins performed under the agreement.
Jenkins was later injured while hauling a load from Colorado to Minnesota. He sued American Transport for workers’ compensation benefits, and American Transport filed a Motion for Summary Judgment. In its Motion, American Transport asserted that it was not Jenkins employer, and that even if it were his employer, Alabama law would not apply because Jenkins’ employment was not principally localized in the state. The trial court granted American Transport’s Motion for Summary Judgment, and Jenkins appealed.
The Court of Appeals pointed out that Jenkins’ designation as an independent contractor alone was not determinative of whether he was entitled to workers’ compensation benefits. The Court of Appeals found sufficient evidence in the record to establish that American Transport retained a right to control, and even exercised the right to control, Jenkins’ work. Based on this, the Court found that there were genuine issues of material facts as to whether Jenkins was an employer or independent contractor, and that summary judgment was therefore improper. Additionally, the Court found that while Jenkins’ employment was not principally located in any state, there was sufficient evidence in the record to establish that if Jenkins was an employee, his contract for hire was made in Alabama.
Most notably however, the Court of Appeals pointed out that American Transport failed to argue that it could not be deemed Jenkins’ employer pursuant to §25-5-1(4). That section provides that "In no event shall a common carrier be deemed the employer of an owner/operator or a leased operator." The Court pointed out that if American Transport had asserted this defense, there may have been no need to determine whether American Transport retained a right of control over Jenkins, because American Transport would have been exempt from the provisions of the Alabama Workers’ Compensation Act.
MY TWO CENTS
Generally, when the putative employer retains a right to control the agencies and means of the work being performed, the parties will be subject to the Act. However, § 25-5-1(4) provides an absolute exemption for common carriers who employ leased owner-operators. The employee bears the burden of proof in workers’ compensation, and that burden even applies to establishing that he/she is an employee. However, since American Transport moved for summary judgment, it had the burden of proving that it was exempt pursuant to § 25-5-1(4).
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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 atcdrummond@fishnelson.com or (205) 332-3414.