State News

On June 21, 2013, the Alabama Court of Civil Appeals released its decision in the case ofSamuel Roblero v. Cox Pools of the Southeast, Inc. In that case, the Court of Appeals upheld the trial court’s ruling that uninsured motorist settlement proceeds that Roblero received after a work related motor vehicle accident were subject to the employer’s subrogation rights. The facts of the case before the court were that on May 10, 2010, the employee, Samuel Roblero, had been involved in a motor vehicle accident occurring in and arising out of his employment with Cox Pools. The driver of the other vehicle involved in the accident was at fault, but he was uninsured. The vehicle Roblero was driving was owned by Cox Pools, and the employer had a policy of uninsured motorist insurance covering that vehicle with policy limits of $3,000,000. Cox Pools had paid Roblero over $20,000.00 in TTD benefits and had expended more than $47,000.00 for Roblero’s medical treatment. Roblero settled his claim for uninsured motorist benefits with the UM carrier for $30,000.00. Then, Roblero filed a Complaint seeking workers’ compensation benefits from Cox Pools, alleging that he had suffered a permanent disability as a result of the accident. Cox Pools then filed a Motion for Summary Judgment seeking dismissal of Roblero’s workers’ compensation claim on the basis that he was estopped from recovering workers’ compensation benefits because it would result in an impermissible "double recovery" for the same injury. Cox Pools also asserted subrogation rights to the $30,000.00 that Roblero had received in uninsured motorist insurance benefits. The trial Court conducted a hearing on Cox Pools’ Motion for Summary Judgment and ruled that Cox Pools had a right to subrogate against the $30,000.00 Roblero received from the uninsured motorist settlement. Additionally, the trial court dismissed Roblero’s workers’ compensation claim because it found that Cox Pools was not allowed the opportunity to participate in the settlement with the uninsured motorist insurer.

Roblero appealed, but he failed to assert that the trial Court erred in determining that the uninsured motorist insurance settlement was subject to Cox Pools subrogation rights. Instead, he argued that the court "improperly grouped" the credit for compensation benefits with the subrogation allowed against medical expenses, and that the court improperly dismissed his claim for workers’ compensation benefits. In its decision, the Court of Appeals noted that § 25-5-11 of The Alabama Workers’ Compensation Act clearly allows an injured employee to maintain a third party action and an action for workers’ compensation benefits at the same time, and that dismissal of Roblero’s claim was therefore improper. The Court of Appeals reversed the portion of the trial Court’s order dismissing Roblero’s workers’ compensation claim, but upheld the portion of the judgment determining that the uninsured motorist benefits were subject to Cox Pools’ subrogation rights since Roblero failed to argue that issue on appeal.

My Two Cents:

The trial court’s ruling on Cox Pools’ subrogation rights would have most likely been reversed as well if Roblero had argued that issue on appeal. The Court noted the case ofBunkley v. Bunkley Air Conditioning, Inc., 688 So.2d 827 (Ala. Civ. App. 1996) was controlling on the issue, and that case held that uninsured motorist benefits were not subject to an employer’s subrogation rights. The Court of Appeals went to great lengths to point out that Roblero failed to make this argument on appeal, thus waiving that argument.

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ABOUT THE AUTHOR

The article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson 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 August 17, 2006, Danny K. Allred was injured in a motor vehicle accident while working for Exceptional Landscapes Inc., which was not self-insured and did not have workers’ compensation insurance at the time. Allred filed a From 18 and a Form 33. At a mediated settlement conference in February 2007, the parties could not reach an agreement as to the workers’ compensation claim and instead, attempted to reach an agreement regarding the liability claim, purportedly based upon the assumption that Allred would withdraw his workers’ compensation claim. An agreement was reached in which Exceptional Landscapes agreed to pay Allred $26,000.00, but made no mention of medical bills. Payment was made and Allred never withdrew his workers’ compensation claim and the claim went to hearing.

On March 30, 2012, the Full Commission entered an Opinion and Award finding that the Commission had jurisdiction over the matter and that the settlement agreement did not comply with the requirements of N.C. Gen. Stat. § 97-17 inasmuch as it was not ‘fair and just.’ The Commission also found two shareholders and Exceptional Landscape’s secretary jointly and severally liable for the indemnity and medical compensation due in this case. Defendants appealed.

On May 21, 2013, in Allred v. Exceptional Landscapes, Inc.,the Court of Appeals first addressed the issue of jurisdiction and found that the Commission had jurisdiction over the claim even though the settlement agreement pertained to Allred’s liability claim. The Court noted that in order to invoke jurisdiction, an employee must either file a claim for compensation or submit a settlement for approval and by filing the Form 18 and Form 33 with the Commission for the August 2006 injury, Allred had invoked the Commission’s jurisdiction and the Commission retained continuing jurisdiction of all proceedings there initiated.

The Court also concluded that the Commission did not err in concluding that the settlement agreement was not "fair and just" as required by N.C. Gen. Stat.
§ 97-17. N.C. Gen. Stat. § 97-17 mandates that medical expenses be addressed in the settlement agreement. The parties’ settlement agreement did not make any provision for payment of Allred’s medical expenses, nor did it provide adequate indemnity compensation given Allred’s physical and vocational limitations at the time of the settlement.

As for the award of attorney’s fees under N.C. Gen. Stat. §97-88, the Court held that the Commission did err because none of the Defendants were ‘insurers’ as used in the statute and as such, no ‘insurer’ appealed the decision to trigger an award of sanctions. The Court also found that the Commission erred in piercing the corporate veil as to Exceptional Landscape’s treasurer since she was not a shareholder of the corporation. As treasurer, Defendant J. Wright did not exercise control over the business or maintain complete domination of policy, finances, and business practices, nor did she exercise such control over Exceptional Landscapes, Inc., that the corporate entity had no separate existence.

Risk Handling Hint: Employers are strongly advised to ensure that they are maintaining proper and adequate workers’ compensation coverage while conducting business in North Carolina. The Industrial Commission will not tolerate business owners that neglect their responsibilities. The Allred case is also a reminder to employers and risk managers to ensure that all terms of claim resolution are addressed in a mediated settlement agreement, especially payment of medical expenses. The Industrial Commission will scrutinize settlement agreements for the consideration paid to the employee and to ensure that the issue of payment of medical expenses is adequately addressed.

UPDATE ON PENNSYLVANIA FACEBOOK DECISION

By Kevin L. Connors, Esquire

The Rule that has been emerging in Pennsylvania, related to discovery of Facebook postings by Plaintiffs in personal injury cases, or, for that matter, Claimants in workers’ compensation matters, is that the courts are generally granting limited discovery requests, with the threshold question being the extent to which the postings by Plaintiffs or Claimants are “public”, as opposed to being private, on social media pages.

Anyone familiar with Facebook, or social media, for that matter, is then familiar with there being some distinction, in social media websites, between allowing public access to postings, as opposed to the postee limiting access, through privacy settings that are generally available to anyone subscribing to social media.

Recently, a civil case being litigated in the Lancaster County Court of Common Pleas resulted in the trial judge, the Honorable James Cullen, ordering that a “neutral forensic computer expert” be hired, to view a Plaintiff’s private Facebook page, during a seventeen day window, the same being relevant as the Defendant was claiming that the Plaintiff, who alleged personal injuries as a result of the Defendant’s alleged negligence, had been photographed playing in the snow during that seventeen day period.

The case is Perrone v. Lancaster Regional Medical Center.

The trial judge further directed the parties to agree on the selection of a neutral expert, to be identified within seven days of the Court’s May 3, 2013 Order.

The trial judge further ordered that all discovery related to the Facebook issues be completed within sixty (60) days.

Under the trial judge’s discovery Order, the expert was to retain the Plaintiff’s Facebook user name and password, and to download the contents of the Plaintiff’s Facebook to a hard drive, with the time period from January 27, 2010 through February 13, 2010 being isolated.

The trial judge ordered that the cost of the expert’s fees to be borne by the Defendants.

This case appears to be the first case decided in Pennsylvania, in which a Pennsylvania judge has ordered the hiring of a neutral expert to view a parties’ Facebook postings and information.

In ordering the retention of a neutral expert, the trial court did not provide any specific reasoning.

As we are quickly becoming aware, trial courts throughout Pennsylvania are adopting the predominant standard, utilized in the course of granting or denying access to a parties’ private Facebook postings, with the threshold being the extent to which Facebook, or other social media,  postings are revealed publicly, with the public postings intimating that more private postings might be more relevant to the disputed issues in individual cases, vis-a-vis, whether the social media postee is what they claim to be, in court proceedings, etc., as opposed to their often embellished social media images, potentially representing greater activity than has or will be disclosed in the court proceedings in question.

To date, there have been a number of Pennsylvania trial court rulings, dealing with social media and Facebook issues, to include decisions in the following cases: 

·         Brogan v. Rosenn (Lackawanna County);

·         Hoy v. Holmes (Schuylkill County);

·         Simms v. Lewis (Indiana County);

·         Offenback v. L.M. Bowman (U.S.D.C.-Middle District);

·         Largent v. Reed (Franklin County);

·         McMillen v. Hummingbird Speedway (Jefferson County);

·         Mazzarella v. Mount Airy Casino Resort (Monroe County);

·         Gallagher v. Urbanovich (Montgomery County);

·         Zimmerman v. Weis Markets (Northumberland County);

·         Trail v. Lesko (Allegheny County);

·         Piccolo v. Paterson (Bucks County);

·         Arcq v. Fields (Franklin County);

·         Kalinowski v. Kirschenheiter (Luzerne County);

·         Martin v. Allstate (Philadelphia County);

·         Perrone v. Lancaster Regional (Lancaster County).

In general, the courts appear to be making the following rulings pertaining to social media:

·         There is no constitutional right to privacy, nor is there any privilege, that prohibits discovery of a parties’ social media activity;

·         Material found on the public portions of someone’s social media site is discoverable; and,

·         Material that is located on someone’s private page of a social media profile is discoverable, but only after a showing of a factual predicate, suggesting that allowing discovery of the private profile will lead to relevant information, and if there is no factual predicate established, discovery of private social media pages will not be allowed.

The cases that have allowed discovery include:

·         Offenback;

·         Largent;

·         Simms;

·         McMillen;

·         Perrone;

·         Mazzarella;

·         Gallagher; and,

·         Zimmerman.

When discovery was allowed, limitations were placed on the discovery that was permitted.

Discovery was not allowed, or was limited, in the following cases:

·         Trail;

·         Piccolo;

·         Arcq;

·         Simms (granted in part, denied in part);

·         Brogan;

·         Kalinowski;

·         Martin; and,

·         Hoy.

Social media issues will continue to excite, inflame, and educate litigators, as the lines between being public and private, continue to be blurred in our social unconscious, thanks to Carl Jung, the caveat to this is that no one is permitted to “friend” a litigant for the purpose of “discovery”.

Kevin L. Connors can be reached at:  kconnors@connorslawllp.com

     In a piece of special legislation, Governor Christopher Christie signed into law Senate, No. 1469 on June 13, 2013.  The bill pertains to dependency benefits for surviving spouses of certain fire and police personnel who die in the line of duty.

    Under current law in New Jersey, surviving spouses are entitled to dependency benefits of 70% of wages but such benefits end on remarriage.  In the event that remarriage occurs during the first 450 week period, the spouse is entitled to receive the remainder of the compensation which would have been due the spouse had the spouse not remarried, or 100 times the amount of weekly compensation paid immediately preceding the remarriage, whichever is the lesser.

    The new law treats a surviving spouse of  a deceased member of the State Police or member of a fire or police department or force differently than all other surviving spouses in New Jersey.  For example, under existing law a surviving spouse of an employee who earned $1,200 per week and died in 2013 in the course of employment would receive the maximum rate of $826 per week.  If the spouse remarried during the first 450 weeks, for example at week 300, the spouse would receive 100 times that rate or $82,600 as the final payment.  Benefits would then terminate on account of remarriage.

    The new legislation exempts surviving spouses of state police, fire fighters and police officers from the so-called “remarriage penalty.”  In the example above, the surviving spouse would continue to receive $826 per week for life whether or not she or he remarried.  Dependency benefits would only end at death of the surviving spouse for spouses of state police, police and fire fighters. 

   The law is not retroactive for those surviving spouses who already received a lump sum payment or remarried prior to the effective date of this legislation. 

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Georgia Workers' Compensation Law was amended by the Georgia Legislature, and the amendments take effect this year.  The bill was recently signed by Governor Deal.

House Bill 154 made the following changes:

            1.  Amendments to Section 34-9-200(a) O.C.G.A. provide that for all injuries sustained after June 30, 2013, employers will only have to provide medical benefits for a maximum of 400 weeks for all injuries which are not designated to be catastrophic.

            2.  Section 34-9-203(c) O.C.G.A. has been amended to require employer/carriers make mileage payments to claimants within 15 days of receipt of the mileage reimbursement request and documentation.

            3.  Lump sum payments will be based upon a present value calculation of 5% per annum, instead of 7%, pursuant to Section 34-9-222(a) O.C.G.A.

            4.  Section 34-9-240 O.C.G.A. was amended to address return-to-work issues.  An employee released to return to work has to try the job for at least 8 cumulative hours or one scheduled work day, whichever is greater.  If the employee does not perform the job for 15 days before stopping, weekly benefits have to start again and the employer has to prove the employee is not entitled to continue receiving indemnity benefits.  If the employee tries the job for less than 8 cumulative hours or one scheduled work day, or refuses to work, the employer may cease benefits and the burden shifts to the employee to prove he cannot perform the job to restart indemnity benefits. 

            5.  The maximum TTD rate was increased from $500 to $525 in Section 34-9-261 O.C.G.A., and the maximum TPD rate was increased from $334 to $350 in Section 34-9-262 O.C.G.A.

732177-1

Petitioner Valerie Pyles worked for respondent The Mentor Network as a therapist in the Somerset, N.J. office.   Her office was on the third floor of a four-story office building.  She generally took one of the building’s two elevators from the lobby to the third floor to get to her office. 

On the accident date, Pyles drove to the office, parked and entered the main lobby of the building.  She then stepped into one of the elevators.  While entering the elevator, her forward foot slid into the elevator, causing her to spin and fall, leading to neck, left wrist and low back injuries. 

The Mentor Network was one of 14 or 15 companies in the building with about 140 employees.  The company leased 18% of the building’s rentable space.  There were no designated parking areas for The Mentor Network’s employees, except for five or six parking spaces reserved for the leadership team.  The company did not maintain the parking lots since the lease placed that responsibility on the landlord. Further, the company did not tell employees how to enter the building or go to the third floor.

Under the terms of the lease, the landlord was responsible for maintaining the elevators.  Respondent was required to pay as additional rent a proportionate share of operational expenses, where were defined as “those expenses paid or incurred by the Landlord for maintaining, operating and repairing the building and property. . . “

Under N.J.S.A. 34:15-36, employment begins when the employee arrives at an area of employment under control of the employer.  Pyles argued in her claim petition that the elevator was under the respondent’s control.  The Honorable Arcides Cruz, Judge of Compensation, reviewed the terms of the lease and the case law and found that the case was not compensable because there was no proof that the employer controlled the elevator.  In fact, there were over a dozen other tenants in the building.  The Appellate Division affirmed the dismissal of the case.

This decision is consistent with the New Jersey Workers’ Compensation Statute.  In effect, in multi-tenant buildings an employee is not “at work” until he or she arrives at the office where the employer performs its work.  Common areas like lobbies and elevators are not controlled by the employer; thus accidents in those areas are not covered.  A different outcome would apply if the employer owned the parking or maintained the parking lot or the building at issue.

This case can be found at Pyles v. The Mentor Network, A-4071-11T1 (App. Div. 2013).

Is there a statute of limitations in an occupational disease claim?  While some practitioners believe only traumatic claims have a statute of limitations, the case law is clear that there is a statute of limitations in such claims as outlined inEarl v. Johnson & Johnson, 158 N.J. 155 (1991).  Occupational disease claims can be defeated if not filed timely. The recent case ofLattoz v. New Jersey Turnpike Authority, A-4335-11T2 (App. Div. June 5, 2013) underscores this point.

            John Lattoz began working with the Authority in 1992 as a landscaper and later as a toll technician.  Around 2000 he began to have serious problems with his knees.  He had problems walking and standing.  He found that his knee pain increased during the four years as a toll technician. 

            Q.  So you knew you had pain in your knee in 2000; is that correct?

            A. Yes.

            Q. Did you think it was as a result of your work-related activity?

            A. In both knees.  In both knees.

            Q. Did you think it was as a result of your work-related activities?

            A. Yes.

            In 2004 Lattoz commenced working as a communication technician.  He would have to kneel for approximately two hours per day.  He had pain in his knees any time he would walk or stand.  He saw an orthopedic surgeon, Dr. Hurley, on May 23, 2005 for his knees.  The doctor noted that petitioner said he had pain with any type of prolonged standing or walking.  His problems started while playing football in high school, and in 1978 he had knee surgery to repair a torn meniscus.  Dr. Hurley diagnosed petitioner in 2005 with bilateral osteoarthritis of both knees.  He thought petitioner was too young for a knee replacement procedure. Petitioner was 46 years old at the time of the exam, and Dr. Hurley recommended waiting until age 50. 

            In April 2008, petitioner saw another orthopedic surgeon, Dr. Goldman, because his knees were getting worse.  Between 2005 and 2008, petitioner did not see any other physicians for his knees.  By 2008 he could not wait for his daily work shift to end on account of severe pain.  Dr. Goldman took x-rays and recommended bilateral total knee replacements. That surgery was performed on July 23, 2008, and the Authority paid for the surgery.  Petitioner returned to work in November 2008 and resumed full duty.  He filed this claim petition on November 11, 2008 asserting that occupational exposure from 1992 to 2008 and continuing caused his knee problems.

            Petitioner produced Dr. Arthur Tiger, an orthopedic surgeon, who testified that petitioner’s employment caused his need for bilateral knee replacements.  Dr. Tiger denied that the prior knee surgery was the primary cause of knee pain.  He did admit that petitioner’s prior employment installing carpet and engaging in tree cutting services were factors in the development of knee problems. 

            Dr. Carl Mercurio, a surgeon, testified for respondent and said that primary risk factors were petitioner’s obesity and prior knee injury.  Petitioner was six foot six inches tall weighing between 280 and 300 pounds.  He characterized the work exposures as those of everyday life. 

            The Judge of Compensation dismissed the case on the statute of limitations underN.J.S.A. 34:15-34.  He found that petitioner knew his condition more than two years before the filing date and thought it was work related.  Petitioner countered that he lacked statutory knowledge until his surgery in 2008.  The Appellate Division affirmed the dismissal of the case, noting that the statute requires the claimant to file within two years after the date the worker knew the nature of the condition and its relationship to work.  The Court said that knowledge of the nature of the disability means knowing enough about the condition to realize its extent and seriousness.

The records thus show that in May 2005, petitioner had the requisite amount of ‘knowledge of the nature of his disability’ that was ‘sufficient to bring home substantial realization of its extent and seriousness. . . Accordingly, the decision by the Judge of Compensation that petitioner had until May 23, 2007 to file his workers’ compensation claim pursuant toN.J.S.A. 34;15-34 was ‘supported by substantial credible evidence in the record’ and was not ‘arbitrary, capricious or unreasonable.’” (citations omitted).

Prepared by Thomas W. Atchison, Esq. and Jennifer R. Augustin, Esq.

A bill was signed by Gov. Dayton on May 16 that has changed the way workers' compensation claims have been handled for over three decades - it recognizes mental-mental injuries as compensable. The following is a summary of several significant workers' compensation changes. We recently issued a survey regarding claim compensability to workers' compensation claims adjusters and have included those survey results at the conclusion.

Mental-Mental Claims: The definition of occupational disease has been expanded to include mental impairment. A mental impairment is defined as a “diagnosis of post-traumatic stress disorder by a licensed psychiatrist or psychologist.” However, a mental impairment is not considered a disease if it results from a disciplinary action, work evaluation, job transfer, layoff, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer. Effective date: Applies to injuries occurring on or after October 1, 2013.

Attorney Fees: Attorney fees will now be paid on a straight 20% contingency fee. The 25/20 formula has been eliminated. Further, the maximum fee has been increased to $26,000.00 per injury and per case. Partial reimbursement of fees to the employee under Minn. Stat. § 176.081, Subdivision 7 shall only apply to contingent fees payable from the employee’s compensation benefits; subdivision 7 fees are not payable for resolution of a medical or rehabilitation dispute. Effective date: Applies to injuries occurring on or after October 1, 2013.

Compensation Rates: The maximum compensation rate will be 102% of statewide average weekly wage for the period ending December 31 of the preceding year. The current maximum compensation rate of $850 is eliminated, while the minimum compensation rate of $130 remains unchanged. Effective date: Applies to injuries occurring on or after October 1, 2013.

Cost of Living Adjustments: For injuries occurring on or after October 1, 2013, the adjustment shall not exceed 3% nor shall it be less than 0%. The initial adjustment is deferred until the third anniversary of the date of injury and the adjustment made at that time shall be for the last year only. Effective date: Injuries occurring on or after October 1, 2013.

Rehabilitation Services: Job placement services must not exceed 20 hours per month or 26 consecutive or intermittent weeks. At the point 13 weeks consecutive or intermittent weeks of job placement/development services have been provided, the QRC must consult with the parties and either file a plan amendment reflecting an agreement by the parties to extended job placement services for an additional 13 consecutive or intermittent weeks, or file a request for a Rehabilitation Conference. The commissioner or compensation judge may amend or modify the rehabilitation plan, but it may not order more than 26 total consecutive or intermittent weeks of job placement services. Effective date: Applies to injuries occurring on or after October 1, 2013.

Qualified Rehabilitation Consultant: A QRC must not provide medical, rehabilitation, or disability case management services related to an injury that is compensable under Chapter 176 when the services are part of the same claim, unless the case management services are part of an approved rehabilitation plan. Effective date: October 1, 2013, for all dates of injury.

Pain Contract: The commissioner shall adopt rules establishing standards and procedures for health care provider treatment. The rules shall include criteria for the long-term use of opioids or other scheduled medications to alleviate intractable pain and improve function, including the use of written contracts between the injured worker and the health care provider who prescribes the medication. Effective date: October 1, 2013, and applies to employees with all dates of injury who receive treatment after the rules are adopted.

Patient Advocate Pilot Program: The Commissioner shall implement a two-year patient advocate program for employees with back injuries who are considering back fusion surgery.

The Division of Workers’ Compensation’s Medical Unit has made changes to the Qualified Medical Evaluator (QME) panel request process as a result of Senate Bill 863. Emergency QME regulations introduce the following new requirements for QME panel requests:

Click here for more info.

On Jan. 1, six sets of emergency regulations that implement SB 863 became effective. Those regulations remain in effect until July 2, and then expire by operation of law unless the Division of Workers’ Compensation (DWC) files a certificate of compliance with the Office of Administrative Law (OAL) by 5 p.m. on July 1, or requests a readoption of the emergency regulations.
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