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.
New WV Law Regarding Payment of Attorney’s Fees in Workers’ Comp Litigation
West Virginia Update – May 30, 2013
By: Dill Battle and Karin Weingart
This past legislative session, the West Virginia Legislature passed H.B. No. 3069, which will be effective as of July 12, 2013.
Prior to the enactment of H.B. 3069, there were only two means by which a claimant’s lawyer could recover a fee. The first is under West Virginia Code §23-5-16 which essentially permits 20% of any indemnity benefits awarded or 20% of the total value of a final settlement – each with certain limitations. The second was under West Virginia Code §23-2C-21(c) which provides for an award of attorney fees for an unreasonable denial of compensability, TTD, or authorization for medical benefits. The determination is made by the Office of Judges if the responsible party cannot demonstrate that there was reasonable evidence or legal basis to support the denial at the time the decision was made.
With the enactment of H.B. No. 3069, West Virginia Code §23-5-16 has a new subsection (c) which provides for an award of attorney’s feesand costs to be paid by the private carrier or self-insured employer where a claimant successfully litigates a denial of medical benefits before an arbitrator, mediator, the Office of Judges, Board of Review or court. Within 30 days of the final decision granting the benefits, the claimant’s lawyer must file a petition for fees before the body which made the decision.
The fees must be reasonable, and there are limits to the fees that can be awarded: $125/hour, not to exceed $500 per litigated issue or $2500 per claim.
This new Code provision will not require any immediate action or change in practices by any responsible party. The potential for an award of attorney’sfees and costs may suggest that each request for medical services be reviewed more closely in order to prevent the denial of a requested service that is likely to be reversed on protest or appeal. In cases where you have a difficult time obtaining the medical records needed to evaluate any request, best practices might dictate that you consider issuing an “under investigation” letter before outright denying the request. When a provider is not cooperative in disclosing necessary information to assist an adjuster in making a decision, the regulations allow issuance of a letter advising the claimant that you have received the request from the treating physician for certain treatment, but despite numerous requests for treatment records and treatment plan, no response has been received. Ultimately any final decision denying treatment must be protestable and in compliance with the statute and regulations.
Office Max, Inc. v. Academy, Ltd. - Released May 17, 2013
This case stems from a workers’ compensation case involving an employee of Office Max. The employee claimed that in 2002 and 2005 she injured her knees and shoulders, respectively, while working in the line and scope of her employment with Office Max. On three occasions, June 2008, March 2010 and July 2010 the employee sought orders compelling Office Max to provide medical treatment, which were granted. Office Max responded to the second motion arguing that the employee suffered a new injury, or aggravation of a preexisting injury, to her knees and shoulders while working for her new employer, Academy, Ltd. Pursuant to the Last Injurious Exposure Rule, Office Max argued that Academy was responsible for the medical treatment and any disability benefits related to the current treatment and injury. Office Max brought Academy into the action and Academy responded with a motion for summary judgment. Academy argued that the employee suffered a recurrence of the injuries she originally incurred while employed by Office Max. At the same time the employee filed a fourth motion to compel Office Max to provide further surgery on the left knee. The trial court granted the Motion for Summary Judgment and the Motion to Compel.
Under the Last Injurious Exposure Rule liability falls on the employer or carrier covering the risk at the time of the most recent injury with a casual connection to the disability. In order to determine this, the court must decide if the second injury is a new injury, an aggravation of a prior injury, or a recurrence of an old injury. If deemed a recurrence, then the first employer/carrier is responsible. However, if the second injury is a new injury or aggravation of the first injury, the second employer/carrier is responsible. A recurrence is found to have occurred when the second injury does not even slightly contribute to the disability. This is supported when the employee suffers injury, followed by a period of work with continued symptoms and then suffers a second event causing a second period of disability. An aggravation is deemed to have occurred when the second injury contributed independently to the final disability.
In regards to the shoulders, prior to starting employment with Academy in 2007, the employee suffered from tendinitis in both shoulder that lead to a diagnoses of a rotator cuff tear in the right shoulder. This lead to surgery in January 2007 and a determination that the plaintiff suffered from a 8% impairment rating in October 2007. In November of 2008, over one year after starting her job with Academy, the employee reported increased symptoms in her right shoulder which was ultimately determined to be another rotator cuff tear requiring surgery. After that surgery it was determined that the employee had a 9% impairment. The authorized treating physician testified that this would certainly be an aggravation. The Alabama Court of Civil Appeals found that the doctor’s testimony, coupled with the increased impairment would amount to substantial evidence supporting a finding that the employee suffered an aggravation and that Academy was responsible for the medical bills and indemnity benefits.
As to the knee, the evidence showed that, prior to her employment with Academy, the employee had no significant abnormalities. However, after her employment with Academy an MRI revealed a medial meniscal tear. The employee also testified that during her employment with Academy her job duties aggravated her knee condition. Given the new damage and the employee’s testimony, the Court of Civil Appeals again found that there was substantial evidence supporting a finding that the employee suffered an aggravation and Academy was responsible for the medical bills and indemnity benefits.
The Court of Civil Appeals found that the trial court erred in granting the motion for summary judgment in favor of Academy noting that the trial court must decide which employer is responsible given that the facts support that the employee suffered a compensable injury.
The Court of Civil Appeals also found that the order compelling Office Max to pay for medical treatment was premature and reversed it as well.
Of note the Presiding Judge, J. Thomas and Judge P.J. Thompson, wrote specially to highlight the problem created by these situations and called for a legislative amendment to address the issue.
My Two Cents
: Depending on the facts and circumstances of a particular case, it may be advisable to consider paying for medical treatment pending a judicial determination of responsibility so that you do not lose control of the medical treatment (SeeFlour Enterprises, Inc v. Lawshe blog posting, February 6, 2009). In the event that the judge eventually agrees that the other employer is responsible, then full reimbursement will also likely be ordered. However, if you are not successful, then you will have maintained control of the medical treatment.
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ABOUT THE AUTHOR
The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.
Holden 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 atjholden@fishnelson.com or 205-332-1428.
There are very few cases in workers’ compensation where a party asks a judge to recuse himself or herself. One recent case,Executrix of the Estate of Rosemarie Bellino v. County of Hudson, A-0275-11T4, (App. Div. April 30, 2013) provides guidance on the legal standard.
Rosemarie Beillino worked as a sheriff’s officer for the County of Hudson and filed five workers’ compensation claims. The case was tried over eight non-consecutive days between September 16, 2009 to March 16, 2011. The Judge of Compensation heard several witnesses including the petitioner, two other sheriff’s officers, the county payroll supervisor, Dr. Arthur Tiger, Dr. Malcolm Hermele, Dr. William Kritzberg, Dr. Arthur Rothman and Dr. Arthur Canario.
Ultimately, the judge dismissed three of the five cases and found for the petitioner on an elbow claim and carpal tunnel claim. The judge did not find that petitioner was totally and permanently disabled. The petitioner died prior to the argument before the Appellate Division.
Following the testimony in the case but before any decision, petitioner’s attorney asked to speak to the judge, who advised that she did not want to have any ex-parte discussions. Therefore, counsel for petitioner left a note for the judge along with some case law. That led the judge to contact both parties during which conversation petitioner’s attorney advised that she felt the judge had crossed the line in the case and had become more of an advocate than a trier of fact. The judge directed that counsel file a motion for recusal.
In the motion for recusal, counsel argued that there was bias in part because the judge asked numerous questions of petitioner comprising 12 pages in the transcript. In addition, counsel pointed to the judge’s “expressed incredulity to the petitioner’s statements that . . . she had been regularly required by her job to work beyond the 4:30 p.m. normal workday end.” Further, counsel noted that the judge relied upon her personal trial experience at one point and “prevented petitioner from placing a description on the record of the process delineating her manner of interaction with prisoners/participants and the physical movements that would have been involved.” The judge also noted at one point that she was aware of the arraignment process in Hudson County and did not need clarification. Lastly, counsel felt it was inappropriate for the judge to allow inquiries into the income and the nature of petitioner’s spouse’s retirement.
The Judge of Compensation denied the motion noting in part that the motion was filed 21 months after petitioner had testified. The Appellate Division affirmed. The Court first observed that judges must “refrain . . . from sitting in any causes where their objectivity and impartiality may fairly be brought into question. In other words, judges must avoid acting in a biased way or in a manner that may be perceived as partial.”State v. McCabe, 201 N.J. 34, 42-43, (2010). The Court further observed that when a party argues that a judge is biased, “the moving party must prepare the case ‘on paper or by calling witnesses.’Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990). Judges of Compensation are governed by rules of conduct,N.J.A.C. 12:235-10.1 to 10.23, modeled after the Code of Judicial Conduct.
The Court distinguished two unreported cases because there was no evidence of impatience or irritability in the record and no evidence that the judge took over all questioning. The Court weighed the total number of pages of petitioner’s testimony (110) against the 12 pages of the judge’s questioning and concluded that this was not significant. “We are satisfied neither the length of questioning nor nature of the judge’s questioning rises to the level of the judge becoming an advocate, dominating questioning and calling witnesses.”
As to counsel’s concern about the judge’s demeanor, tone and facial expressions during a conference call prior to the recusal motion, the Court said “. . . she failed to produce affidavits or certifications to support her allegations of the judge’s demonstrated bias.”
AARP and Arch Insurance Co. v. Donald Whitacre, Court of Appeals of Iowa, No. 3-082 / 12-1519
The claimant worked part time as a janitor for the AARP. One day while on coffee break with his supervisor, Pat Faught, the Claimant began to choke. He stood up to get a drink of water, stumbled, and hit the corner of Faught’s desk and the corner of the office wall. He landed head first on the floor. The Claimant sustained injuries to the head and face; and had to undergo surgery to remove a blood clot in his brain.
The Claimant petitioned for workers’ compensation benefits and following arbitration hearing, it was concluded his injury arose out of his employment and he was awarded medical expenses and weekly benefits. On appeal to the district court, the Court determined that the agency had erred in finding the injury arose out of the Claimant’s employment with AARP.
On appeal the Court stated that the arising out of test requires proof that a causal connection exists between the conditions of the employment and the injury. The Court went on saying “generally injuries resulting from risks personal to the claimant are not compensable. However, where the employment contributes to the risk or aggravates the injury an exception may arise.
The Court recognized that the parties agreed the Claimant’s fall was caused by a personal condition. However the Claimant contended the condition’s of Claimant’s employment aggravated the injury sustained by the Claimant. It had been concluded by the agency that the design and construction of the office, namely that it was small, had hard concrete walls and floor, significantly contributed to the Claimant’s injury.
The Court’s analysis focused on the distinction between a dangerous employment condition that increases the risk of injury and an employment condition that aggravates the effects of an idiopathic fall. The Court noted that the distinction was a fine one. The Court indicated that the key is that, with idiopathic falls, which “begin with an origin which is admittedly personal,” there must be “some affirmative employment contribution to offset the prima facie showing of personal origin.”
The Court then applied this standard to the facts of the case and indicated that as the deputy concluded the fall took place in a small office, and the Claimant hit the corner of the desk, then the wall and then the floor, that the office conditions did aggravate the effects of the Claimant’s idiopathic fall. Thus, the decision of the Agency was affirmed.
Estate of John Herman v. Overhead Door Company of Des Moines, Inc. and Columbia Insurance Group, Court of Appeals of Iowa No. 3-110 / 12-0892
The Claimant passed away during the appeal of his workers’ compensation claim and his estate was substituted in his place. The Claimant worked for the Defendant employer from August 1994 until an alleged work injury in January of 2009.
The claimant spent the majority of his time in the shop area at work, which he testified was unheated at the time of his injury and the heaters had been broken for a couple of years. He testified that he had told his bosses about the heaters not working. Due to the temperature of the shop, the Claimant wore long underwear, jeans, a hooded sweatshirt, work coat, thermal socks, boots and gloves.
The Claimant’s job duties included throwing away scrap material and emptying trash cans, requiring him to walk outside to the dumpster multiple times a day. The Claimant first noticed his injury on January 21, 2009. On that day, he estimated the temperature in the warehouse where he was working to be in the teens. The ground outside was also covered with five inches of previous snow accumulation. Defendant employer’s owner testified that the snow had been cleared where the Claimant was required to walk and that it was not his job to clear snow.
After work on January 21, 2009, the Claimant noticed blisters on his right foot and toes. The next day at work, he noticed his foot was wet and discovered that his blisters had broken open. The low temperature that day was twenty degrees and the high was forty seven. The Claimant further testified that he did not engage in any outdoor activities outside of work from January 21st to the 23rd.
When the Claimant arrived to work on the 23rd, he showed his foot to his supervisor, who sent the Claimant to the emergency room. It was determined that the Claimant had frostbite and a secondary infection on his right foot. The Claimant was treated by Dr. Lester Yen, who attempted to repair the damage to the Claimant’s foot with a skin graft on March 6, 2009. A second attempt at a graft was attempted in May 2009.
The Claimant’s right big toe eventually become infected and he was referred to a bone specialist. He was eventually seen by Dr. Colin Pehde who performed a partial amputation of the Claimant’s right great toe on July 22, 2009. As a result of the amputation, the Claimant developed ulcerations on his second and third toes. A tenotmy was performed to address the Claimant’s persistent pain. On January 11, 2010, it was noticed that the Claimant had an infection in the area where the tenotomy was performed, and he was hospitalized until February 2, 2010.
The Claimant sought workers’ compensation benefits for his right foot injury. Both treating physicians offered opinions that the Claimant’s injury was caused or aggravated by work. At the arbitration hearing, it was determined that the Claimant had not met his burden of proof that the injury was related to his work. The decision was affirmed by both the commissioner and the district court.
The Court of Appeals took up the case and noted that issues of medical causation are questions of fact which will only be reversed if not supported by substantial evidence. The Court went on to state that medical causation is essentially within the domain of expert testimony. Additionally, if the Commissioner rejects uncontroverted expert testimony, he must state why he has done so with sufficient specificity.
The Court noted that this case was an instance where uncontroverted expert medical opinions in support of causation were presented. The Court noted that the commissioner made no determinations of credibility but merely adopted the findings of the deputy, who in the eyes of the Court, “inexplicably stated the doctors were not helpful in determining whether the frostbite occurred at work”. The Court also found that the Claimant’s medical histories supplied on his alleged day of injury supported a finding of causation. After a review of the totality of the record, the Court determined that the commissioner’s outright rejection of the doctors’ uncontroverted medical opinions is not supported by substantial evidence.
The Court then turned its attention to whether the injury arose out of and in the course of the Claimant’s employment. The Court noted that “the injury must not have coincidentally occurred while at work, but must in some way be caused by or related to the working environment or the conditions of [the] employment.”
The Court found that the medical record and climatological evidence demonstrated that the Claimant’s “injury coincided as to time, place, and circumstances, and occurred within the period of the employment, while Herman was fulfilling work duties or engaged in something incidental thereto, thereby satisfying the “in the course of” element.” As such, the Court found that the commissioner’s finding that the Claimant’s injury did not arise out of or in the course of employment was based upon an irrational, illogical, or wholly unjustifiable application of law to fact and must be reversed.
The Court reversed the district court’s decision upholding the agency denial of workers’ compensation benefits to the Claimant and remanded to the district court for remand to the commissioner for a determination of benefits.
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!
When principal contract is insured but carrier defaults, subcontractor liable
Jose Clemente Hernandez Gonzalez had worked for Worrell Construction as a carpenter and then crew leader for about ten years. On March 24, 2009, he rode home from a job site as a passenger in Defendant Worrell’s vehicle. Defendant Lamm was the general contractor for the project and Defendant Worrell was the sub-contractor. On the way home, another employee drove Defendant Worrell’s vehicle off the road and into a tree. As a result of the accident, Gonzalez was rendered a quadriplegic. Defendant Worrell was insured by Cincinnati Insurance Co., and Defendant Lamm was insured by Builders Mutual.
The matter was initially heard by Deputy Commissioner Adrian Phillips, who found Defendants Worrell/Cincinnati and Defendants Lamm/Builders Mutual jointly and severally liable to Gonzalez for his injury. Both Defendants filed separate Motions for Reconsideration: Cincinnati on the basis that it had cancelled its policy with Worrell and Lamm/Builders Mutual seeking to have the Deputy modify the award, both of which were denied. Defendants appealed to the Full Commission who affirmed the Deputy Commissioner’s award but held that Defendant Lamm/Builders Mutual would only be liable for disability benefits if Defendant Cincinnati defaulted in payments. Defendant Cincinnati appealed to the Court of Appeals, and Defendant Lamm/Builders Mutual filed a cross-appeal.
On June 19, 2012 in Gonzalez v. Worrell et al., the Court of Appeals concluded that the Commission did not err in finding Defendant Cincinnati jointly and severally liable to Gonzalez. The Commission relied on N.C.G.S. §§ 58-36-105(b) and 58-36-110(b) and found Cincinnati’s policy was still in effect at the time of the accident. Cincinnati was unable to produce a "green card" or other proof of service of the cancellation notice. Despite the testimony of a postal worker that the cancellation had been delivered, the Court noted that Cincinnati could only establish that the cancellation process had started but not that it was completed. There was also evidence that Worrell continued to pay premiums and that Cincinnati had failed to provide a non-renewal notice. As a result, the policy was in effect on the date of the accident and Cincinnati was jointly liable to Gonzalez for his injury.
The Court also found that the Commission did not err in finding Defendants Lamm/Builders Mutual liable because of their failure to obtain a certificate of insurance. Defendants Lamm and Builders Mutual became liable to the same extent as the subcontractor under N.C.G.S. § 97-19 by failing to obtain the certificate of insurance for the project that resulted in Gonzalez’s injury. The Court further held that Defendants Lamm/Builders Mutual liability in the event that Cincinnati defaulted on its payments was not against legislative intent or public policy.
On December 12, 2012, the Supreme Court allowed Defendant Cincinnati Insurance Co.’s petition for discretionary review. On April 12, 2013, the Supreme Court affirmed the Court of Appeals but since only six Justices participated in the decision and the panel was equally divided, the decision of the Court of Appeals was left undisturbed and without precedential value.
Walesca Benvenutti worked for Scholastic Bus Company as a school bus driver. She drove children to school in the morning and then drove them home in the afternoon. She was required to clean the bus interior and inspect the seatbelts after each run. The testimony of both petitioner and her employer was that there was no specific time that she had to clean the bus. The employer confirmed that she was permitted to clean the bus off-premises and was paid additional money to clean the bus interior.
On June 9, 2010, petitioner parked the bus in front of her house after her morning run. Before she exited the bus, she said she swept the bus and inspected the seat belts. She testified that she tripped over a piece of rubber mat and fell while exiting the bus, sustaining injuries. The respondent denied the claim because petitioner had prepared a handwritten statement three days after the incident occurred in which she never mentioned that she was cleaning the bus before she fell.
Petitioner testified at trial that when she wrote the handwritten statement, she was principally concerned about informing her employer that she had fallen and broken her ankle. She said it did not occur to her at the time to inform her employer that she had just cleaned the bus.
The Judge of Compensation reviewed the testimony of the various witnesses and noted that two of the employer’s witnesses admitted that petitioner was permitted to sweep the bus at home. The judge also noted that it was a job requirement that petitioner clean the bus between runs during the day. The judge found petitioner’s testimony to be credible and ruled in favor of compensability.
The Appellate Division affirmed and stated, “The definition of ‘employment’ under the statute is multi-faceted, and includes situations in which the employee is physically away from the employer’s premises but nevertheless is ‘engaged in the direct performance of duties assigned or directed by the employer.’” N.J.S.A. 34:15-36.
The Court said that “Courts must bear in mind that ‘the language of the [Act] must be liberally construed in favor of employees.’”Cannuscio v. Claridge Hotel, 319 N.J. Super. 342, 349 (App. Div. 1999). The Court ruled that as long as the employee is engaged in the direct performance of assigned duties, it does not make a difference whether the duties are performed on or off the work premises. The case can be found at Benvenutti v. Scholastic Bus Company, A-3732-11T1 (App. Div. April 4, 2013).
Many employers utilize post-offer medical examinations as part of their hiring process to screen out potential employees who cannot perform the essential functions of the job with or without reasonable accommodation. Sometimes, however, the value of a post-offer medical examination does not come to light until long after hiring.
In Reilly v. Lehigh Valley Hospital, 27 AD Cases 1189 (3d Cir. 2013), the plaintiff, Robert Reilly, was hired in August 2006 as a part-time Security Officer for LVH. He received a conditional offer of employment in August 2006 and signed a six-page employee health information form. The final two questions on the form asked, “Have you ever been recognized as or diagnosed with alcoholism or drug addiction? Have you ever been or are you now being treated for alcoholism or drug addiction? . . . If so, specify type of treatment.”
Reilly responded in the negative to both questions. He did not answer a follow-up question that requested the type of treatment he received. A handwritten note beneath the questions read: “denies drug/alcohol addiction.”
On April 4, 2008, Reilly finished his work shift at LVH and was admitted to the Emergency Room to receive treatment for a work-related eye injury. Reilly disclosed to the treating physician that he had a history of narcotics use and was a recovering drug addict. Following that visit, the ER sent a report to the LVH Employee Health Services Department, which in turn notified the LVH Human Resources Department that Reilly had not been candid on his post-offer employment form in 2006.
On May 2, 2008, LVH terminated Reilly’s employment advising him that the hospital considered his failure to disclose his addiction and alcoholism as dishonesty. Reilly then sued in the Court of Common Pleas of Lehigh County, Pennsylvania. He alleged his firing was disability-based discrimination.
During his deposition, Reilly admitted that he was a recovering alcoholic and narcotics addict. He was still attending Alcoholics Anonymous (AA) sessions and Narcotics Anonymous (NA) sessions. He further admitted that he had attended 40 hours of programs at a drug and alcohol treatment facility (Livengren) as a consequence of a conviction for driving under the influence in 1995. He did not consider his time in the program to be treatment because it was mandated by the court and he experienced no change in his substance abuse behavior resulting from the program.
The District Court granted summary judgment to LVH, dismissing Reilly’s law suit, and the Third Circuit Court of Appeals affirmed. It said, “Reilly’s belief that he answered the pertinent inquiries truthfully is not the determinative factor. The question is whether the decision maker at LVH could regard Reilly’s responses as dishonest. The answer to that question is resoundingly, “yes.” The court noted that Reilly admitted in his deposition that he received 40 hours of drug and alcohol addiction treatment and that he still attended AA and NA meetings.
Given this undisputed evidence, Reilly’s bare assertion that he completed the Employment Form truthfully because he believed the purpose of the treatment at Livengrin (the program) was to resolve his DUI charge, not treat his addictions, is insufficient ‘to permit a factfinder either to disbelieve LVH’s articulated reasons, or to conclude that discrimination on account of disability was the real reason’ for Reilly’s termination.
The court therefore affirmed the dismissal of Reilly’s suit. The court did not decide the issue of whether it was improper for LVH to disclose Reilly’s medical records to the Human Resources Department after his visit to the ER because Reilly failed to raise that in the trial below.
It is important to note that the termination in this case was for dishonesty on the post-offer medical examination form. The court did not question that Reilly was protected under the Americans with Disabilities Act from discrimination on the basis of alcoholism or drug addiction. The issue was simply whether the employer had a right to terminate an employee who had misrepresented the truth in the post-offer process, and that answer to that question was affirmative.
In Valdez v. Brent McGill and Mueller Supply Company, Inc., 2012 U.S. App. LEXIS 2783 (10th Cir. 2012), the court considered whether a request for telecommuting and additional leave was a reasonable accommodation.
Doyle Brown worked as a warehouse supervisor for Mueller Supply Company. He supervised Mueller’s warehouse, including all shipping and receiving. He advised his own supervisor, McGill, that he had cancer and would need surgery in April 2005. Even though the company employed too few people at the work site to trigger FMLA, the company nevertheless offered Brown FMLA leave. Brown returned to work following his surgery in May 2005.
In January 2006, Mueller approved intermittent FMLA leave for recurrent health-related absences. One year later, on January 24, 2007, Brown presented a note from his doctor indicating that he had serious health conditions and would need to be out of work until February 8, 2007.
On February 7, 2007, Mueller sent Brown a letter stating that he had exhausted his 12 weeks of FMLA leave. On the same date Brown presented a new note stating that he would need three more weeks of leave until March 1, 2007. Mueller then terminated Brown on February 8, 2007 for poor work performance and excessive absences. Brown offered to come to work against doctors’ orders but the company refused. Brown then sued under the ADA and argued that the company failed to make reasonable accommodations.
At some point Brown passed away and his personal representative, Valdez, proceeded on the case. She argued that Brown could have performed the essential job functions had the company offered him the opportunity to work from home. The court noted that Brown had conceded in his deposition that physical attendance in the workplace was required. He maintained that he could use technology to perform many of the essential functions of the job, but he conceded that at home he could not perform quarterly or random inventory counts, could not interact with customers in the warehouse, and could not effectively supervise his staff. Not being in the warehouse would make it hard to know whether his employees had completed job tasks. Based on these statements, the court concluded that working from home was not a reasonable accommodation.
Next, Valdez argued that additional leave would have been a reasonable accommodation. The court said, “A leave of absence may be a reasonable accommodation as long as the employee’s request states the expected duration of the impairment.” The court said, “Here, the record shows it was uncertain if or when Brown would sufficiently recover from his impairments to be able to return to work.” The court added, “In light of his diagnosis with colon cancer, his frequent absences, and his inability to return to work according to the earlier physician’s note, it was uncertain he would be able to return to work on March 1, 2007.” Further, no doctor said that his conditions would be resolved by March 1, 2007.
Valdez also argued that the company failed to engage in the very important interactive process to determine whether there was a potential reasonable accommodation. The court rejected this argument as well. “Accordingly, an employer is not required to engage an employee in a futile interactive process where, as we have concluded was the case here, no reasonable accommodation was possible.”
In short, the ADA case was dismissed. The opinion is interesting because employers are generally advised to engage in the interactive process. But here the court held that the interactive process would have been of no utility since all of the requests for accommodation were simply not reasonable.
John Lance, a police officer for the City of Camden, New Jersey, was injured on May 10, 2004 in a work-related motor vehicle accident. He received medical and temporary disability benefits in workers’ compensation. However, he alleged that his workers’ compensation benefits were improperly terminated in October 2005.
On June 12, 2004, about a month later, Lance was directed to appear at police headquarters for a drug test. He appeared and was given documents pertaining to the drug test. He stated that he was unable to understand the documents and requested assistance. When told he had to sign the documents, he refused and the test session was terminated. The City then served disciplinary charges against Lance seeking his termination for failure to undergo the City’s drug test.
The City conducted hearings on the disciplinary charges in November 2005 and January 2006. Lance claimed that he was not able to defend himself at the hearing because of cognitive impairments which were exacerbated by his inability to obtain medical treatment after the termination of his workers’ compensation benefits.
On January 23, 2006, the hearing officer issued a report recommending termination of Lance’s employment. The City proceeded to discharge Lance. Around the same time, hearings continued in the Division of Workers’ Compensation, and Lance prevailed in his claim for continued temporary and medical benefits. Ultimately, the City paid $189,892 in temporary disability benefits and $65,220 in medical benefits. Plaintiff also received an accidental disability pension, which would pay him two thirds of his salary free of federal taxes, and free of state taxes until age 65.
Following his termination, Lance sued and claimed that the City violated his right against unreasonable searches and seizures by making him submit to a drug test. He further claimed that the City retaliated against him for successfully obtaining workers’ compensation benefits and retaliated against him by delaying payment of his temporary disability benefits. The trial court dismissed all of plaintiff’s claims and Lance appealed.
The Appellate Court rejected plaintiff’s employment discrimination claim:
While plaintiff alleged that he did not understand ‘what was going on’ when he appeared for the test, he provided no affidavit or certification supporting that allegation. A police officer who unjustifiably refuses to comply with an order requiring that he undergo a drug test cannot be said to be performing his job in a manner that met the employer’s reasonable expectations. Plaintiff provided no evidence showing that his refusal to submit to the test was medically justified.
As for the claim for retaliation due to the filing of a workers’ compensation claim, the Court acknowledged that there is a cause of action in New Jersey for retaliatory discharge for seeking workers’ compensation benefits. In this case Lance contended that the City unlawfully retaliated against him for seeking workers’ compensation benefits by delaying payment of his temporary disability benefits. “The trial court correctly ruled that this claim should be pursued in the compensation case pending before the Division of Workers’ Compensation, in which plaintiff was seeking additional disability benefits.”
Regarding plaintiff’s charge that he was wrongfully terminated for successfully obtaining workers’ compensation benefits, the court said that Lance failed to offer any proof on this count. “Plaintiff presented no evidence from which a fact-finder could conclude that the City ordered the test or discharged plaintiff because he obtained workers’ compensation benefits.”
This case can be found at Lance v. City of Camden, A-3157-11T3 (App. Div. April 18, 2013).
It is certainly not for lack of trying that plaintiffs remain largely unsuccessful in opening the door to intentional harm claims in New Jersey. The door has remained closed in the past 10 years on intentional harm claims and all but locked, including the most recent challenge in Fendt v. Adam L. Abrahams, et. al., A-2333-11T1 (App. Div. April 9, 2013).
Michael Fendt worked in various capacities for Jeffrey Valvano, who operated JV Paving as a sole proprietorship. He would fix equipment, drive machinery, and direct traffic around construction sites. On May 19, 2008, Fendt was working as a “flagger,” stopping traffic on a busy county road so that Valvano could move a backhoe in and out of a driveway. He stood in the center of the road with only a hand-held stop sign. The company had fluorescent jackets, warning signs, cones, and flags available, but Fendt was not provided with any of this warning devices. Valvano did not direct Fendt to utilize the warning devices.
On the date in question, Fendt was doing his work, holding a stop sign, when the defendant Adam Abrahams drove into Fendt, causing serious injuries. Abrahams said that he had taken his eye off the road to look at his radio. He later stated that if there had been warning cones in the road, he would have driven more slowly. The police issued various citations to the company for not having proper construction warning signs and not complying with signage requirements.
Fendt sued the driver of the car, its owner and his own employer. His expert opined that the employer “knowingly exposed (Fendt) to a risk that was substantially or virtually certain to result in harm.” The expert cited the failure to comply with the Manual on Uniform Traffic Control Devices, failure to provide reflective safety vests, failure to comply with OSHA regulations, failure to have a written safety program, failure to adequately train employees in safety procedures, and failure to enforce safety policies to protect workers from harm.
The trial court dismissed the case, and the Appellate Division affirmed. The court said that “intentional harm” encompassed more than a subjective intention to injure. Mere knowledge and appreciation of a risk of harm to the employee does not equate to intent. New Jersey courts have followed the rule in Millison v. E.I. Du Pont de Nemours & Co., 101N.J. 161 (1985), namely that there must be a showing of “substantial certainty.” First, the employee must knowingly expose the employee to a substantial certainly of injury. Second, the resulting injury must not be a “fact of life of industrial employment.”
The court also cited the recent Supreme Court decision in Van Dunk v. Reckson Associates Realty Corp,. 210N.J. 449 (2012) where plaintiff’s suit for intentional harm failed even though the workplace accident produced an OSHA citation for a “willful” violation of OSHA safety rules. The Court said that even a finding of a willful violation under OSHA does not alone suffice to prove whether the employer committed an intentional wrong.
The Appellate Division found that this case had some parallels to Van Dunk, given the OSHA citations, fines, and failure to use safety devices. It citedVan Dunk and a string of cases where plaintiff made out strong cases for intentional harm 10 years ago. “Similar toVan Dunk, while the facts here amount to negligence, perhaps even gross negligence, they do not approach the facts in cases such asMillison, Laidlow, Mull, and Crippen. In those cases, the employer was responsible for an affirmative act that made the workplace significantly less safe for its employees. The record contains no such affirmative act by the employer here.”