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.
In Halferty v. Flextronics America, LLC, No. 13–16–00379–CV, 2018 WL 897979 (Tex. App.—Corpus Christi Feb. 15, 2018), the Corpus Christi Court of Appeals held that Flextronics, as the general contractor, did not “provide” workers’ compensation insurance coverage to its subcontractors for purposes of section 406.123(a) of the Act merely by requiring a subcontractor to obtain workers’ compensation insurance coverage; and therefore, it was not entitled to claim the exclusive remedy defense in response to a suit filed against it by a subcontractor’s employee.
Flextronics contracted with Titan Datacom, Inc. to install data cabling at a Flextronics Facility. In the agreement, Titan agreed to provide workers’ compensation insurance coverage for the project. Titan contracted with another company, Outsource, to assist in the data cabling. Both Titan and Outsource had workers’ compensation coverage for their employees.
As bad luck will have it, an Outsource employee, Patrick Halferty, sustained a work injury when he was accidentally knocked off a ladder by a Flextronics employee.
Mr. Halferty obtained workers’ compensation benefits from Outsource’s insurance carrier. He also sued Flextronics for his injuries. Flextronics filed a summary judgment motion arguing that Mr. Halferty’s suit was barred by the Act’s exclusive remedy defense because, as the general contractor, it was Mr. Halferty’s employer pursuant to section 406.123(a) of the Act.
The court held that to be entitled to the exclusive remedy defense, section 406.123(a) required Flextronics to do something more than “simply passing the onus of obtaining coverage to the subcontractor.” The court suggested the “more than” might include providing for an alternate insurance plan in which Flextronics would provide coverage in the event that is subcontractors failed to obtain insurance. Or, the “more than” might include enforcement mechanisms built into its contract with subcontractors “—such as withholding payment, or deducting insurance premium costs—that would trigger in the event that the subcontractors failed to provide coverage to its employees.”
James Loughlin, Stone Loughlin & Swanson, LLP.
Effective April 1, 2018, insurance carriers must begin using the following revised plain language notices:
• PLN-3a (Notice of Maximum Medical Improvement and No Permanent Impairment)
• PLN-3b Notice of Maximum Medical Improvement and Permanent Impairment)
• PLN-3c (Notice of Maximum Medical Improvement and Estimated Permanent Impairment)
The Division also amended the PLN-3b to allow the carrier to indicate that it disagrees with the doctor’s impairment rating, the carrier’s reasonable IR assessment, and that the payment is based on the carrier’s reasonable assessment.
A new study released March 6, 2018, compared the effectiveness of opioids to over-the-counter medications and found that opioids were “not better at improving pain that interfered with activities such as walking, work and sleep over 12 months for patients chronic back pain or hip or knee osteoarthritis pain compared to non-opioid medications.” The study can be found here:https://jamanetwork.com/journals/jama/article-abstract/2673971?redirect=true. This latest study is sure to add more fuel to the debate about the use of opioids to treat injured workers and raise more questions about the continued prescribing patterns of some doctors.
There is a big party planned in Dallas on April 25th benefitting Kids’ Chance of Texas. The Firm is a founding sponsor of Kids’ Chance and of the event and invites you to join the party. Commissioner Brannon will be there, as will our first scholarship recipient, Christi Campbell. Music, drinks, appetizers and a silent auction are planned. Tickets are only $30 per person! If you want to attend, send an email tojstone@slsaustin.com or visit the Kids’ Chance website atwww.kidschanceoftexas.org. This is your opportunity to support this wonderful charity. Together, we are working to ensure that as many kids as possible who have had a parent catastrophically injured or killed on the job in Texas can continue their educations after high school.
For more information about the BigGive fundraiser, please check out the website at:http://www.kidschanceoftexas.org/bigive/
Tom Kieselbach of CWK Law presented the 2018 Class of Fellows at the College of Workers’ Compensation Lawyers Induction dinner in Nashville, Tennessee on March 3, 2018. Fifty lawyers and judges from twenty-two states were inducted into the College. The College was created in 2007 with assistance from the American Bar Association. Individuals are selected for their excellence in the field and ethics.
At least once a week this practitioner gets a call from an employer or adjuster asking whether New Jersey has a defense to accidents where the employee is found to be heavily intoxicated or under the influence of illegal substances. The response is always the same: yes, there is technically a defense, but unfortunately the way the statute is written, it is almost impossible for an employer to prevail.
New Jersey is one of a few states in which the employer must prove that intoxication or the use of controlled dangerous substances is the sole cause of the injury. It is not enough for an employer to prove that intoxication is the main cause or a substantial cause: it must be the sole proximate cause. If any other factor is involved, the employer loses. In most states employers win if they can prove intoxication was a substantial or contributing cause. How weak is the New Jersey defense? There is really only one published case in the last 50 years in which an employer has won on the intoxication defense in New Jersey!
If the employee can show that some other factor besides intoxication contributed in some way to the injury – like bad weather, a slippery floor, exhaustion from working too hard – the employer’s defense fails. Frankly, it is almost impossible to exclude all other causes. That point was driven home by the New Jersey Supreme Court in Tlumac v. High Bridge Stone, 187 N.J. 567 (2006). At the end of the opinion the Supreme Court expressed its own frustration with the regrettable language contained in the New Jersey statute.
In Tlumac the employee’s wife admitted that her husband usually drank 10 beers every weekend. On the day of the accident, petitioner arose at 2:15 a.m. to begin his drive. He drove 30 miles south on Route 31 with 77,000 pounds of Belgian block in his truck and then blacked out. His tractor-trailer traveled 180 feet off the road, jumped the curb and traveled 66 feet on the shoulder, hit the guardrail and rubbed against it for 247 feet, struck a parked truck and then struck a utility pole. The officer on the scene noticed an odor of alcohol, and petitioner admitted to drinking the night before. An expert for the employer extrapolated that petitioner’s blood alcohol level was between .10 and .18 at the time of the accident, well above the legal limit.
The employer denied the claim based on intoxication being the sole cause of the accident. The Judge of Compensation, Appellate Division and the Supreme Court all ruled against the employer and in favor of the petitioner on compensability because the employer could not prove the sole cause defense. Other factors may have played a role in the accident, such as petitioner’s exhaustion from working too many hours in the days prior to the accident. He had worked over 200 hours in the prior two week period of time. He also testified to exhaustion from repairing the roof of his home the night before the accident. Justice Wallace, who wrote the decision, conceded that the New Jersey statute “may no longer comport with current policies at deterring the dangers of drinking and driving. Nevertheless, any change in that interpretation must come from the Legislature.”
Twelve years after the Tlumac decision, nothing has been done by the Legislature to address the situation that Justice Coleman addressed, namely deterring the dangers of drinking and driving. As hard as it is for employers to win on an intoxication defense, it is even harder for employers to win when illegal drugs are found in the employee’s system because it is scientifically impossible for an employer to pinpoint exactly when the illegal substances were used. Many drugs, like marijuana, remain in the system for days, if not weeks.
One must wonder what the social policy was that the Legislature was trying to promote many decades ago when the sole cause language was written into law. A cynic might conclude that the purpose was to sanction the practice of employees coming to work somewhat inebriated. The truth is that intoxicated employees not only risk injury to themselves but may also imperil the lives of others. Yet as of 2018 heavily intoxicated employees who are injured at work or those under the influence of illegal substances remain eligible for workers’ compensation, even if the use of alcohol or drugs was the major cause of the accident. The reason is that the major cause is not the same as the sole cause.
A change in the law to “substantial cause” instead of “sole cause” would benefit all New Jersey residents and would send the correct message that employees must keep alcohol and illegal substances out of the workplace. The present statute was written at a time when the two martini lunch was perhaps considered socially appropriate. But those days should be long gone.
-----------------
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.
The concept of reconstructing wages for permanency awards pertains to part-time workers with serious injuries. For example, consider an employee who works 20 hours per week earning $10 per hour. The employee has a serious injury that prevents the employee from earning the same amount of money or prevents the employee from working full-time in the future. The wage is $200 per week giving rise to a permanency rate of $140 per week. Assume that the award is 50% permanent partial disability payable over 300 weeks. Unreconstructed the award would amount to $42,000. (300 times $140). If the Judge were to reconstruct the wage to $400 per week (40 hours times $10 per week in a customary work week), the rate would be $280 per week with the award being $84,000. (300 weeks times $280). That reconstructed award to a 40-hour work week would be double the unreconstructed award.
As a reminder, the New Jersey rate chart that all practitioners have at their desks cannot be used for low wage employees. The front of the rate chart is for high wage earners (those subject to maximum rates due to high wages). If one were to pay based on a 2017 rate chart, the award would be 300 weeks or $179,400. That would be an overpayment of $137,400!
Remember also that the minimum for temporary disability benefits is much higher than the minimum for permanency benefits ($35). In 2017 the minimum rate was $239 for temporary disability benefits but the minimum for permanent partial disability benefits was $35 per week. That minimum rate has been $35 per week for many decades.
So when should a judge reconstruct an employee’s wages? The rule comes from Katsoris v. South Jersey Pub. Co., 131 N.J. 535 (1993). The Supreme Court said, “The critical inquiry is whether petitioner has demonstrated that her injuries, while disabling her from engaging in part-time employment, have disabled or will disable her with respect to her earning capacity in contemporary or future part-time employment.”
Let’s consider a few scenarios:
What happened to Ms. Katsoris? She had a part-time job delivering newspapers, which was the work that caused her serious injury. She was no longer able to do that part-time physical job on account of the work injury. However, she was able to return to her full-time secretarial job. The Appellate Division stated that the wage should be reconstructed, but the Supreme Court reversed and said it should not be reconstructed because petitioner did not prove an impairment of full-time earning capacity since she was able to resume her full-time secretarial job. So the focus must always be on whether there is a material impact on contemporary or future earning capacity.
Here’s the last point to remember about wage reconstruction. One does not always reconstruct to 40 hours per week. That is most common but it could be more or less hours, depending on what is a normal work week. The Supreme Court makes clear in the Katsoris case that the judge should determine the customary number of hours and the customary number of days constituting an ordinary work week before reconstructing. So if the normal work week is 50 hours per week, then the multiplier should be 50 instead of 40.
-----------------
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.
Written by: Elizabeth Ligon
The Court of Appeals recently released two decisions that analyzed issues relating to disability – specifically, the burden of proving futility – post-Wilkes v. City of Greenville. In Adame v. Aerotek, an unpublished decision, Plaintiff sustained a low back injury in June 2013. After receiving conservative treatment with multiple doctors, Plaintiff was ultimately released with permanent work restrictions of no lifting over 40 pounds, with frequent lifting and carrying of objects weighing up to 25 pounds. Plaintiff sought ongoing temporary total disability benefits, but the Industrial Commission found he was not entitled to indemnity benefits or vocational assistance because Plaintiff failed to meet his burden of proving disability. Plaintiff appealed to the North Carolina Court of Appeals.
On appeal, the Court of Appeals noted Wilkes clarified which party had the burden of proving disability. Once a plaintiff meets the burden of establishing disability, the burden then shifts to defendants to show that suitable jobs are available, and that the plaintiff was capable of obtaining a suitable job, considering both his or her physical and vocational limitations. The Court reiterated that a plaintiff is not required to produce expert testimony in order to prove futility. While the Court acknowledged that Plaintiff had the initial burden of proving disability, the Court also referred to the burden as a “burden of production.” (emphasis added)
In Adame, the plaintiff was a 55-year-old man from Mexico who attended “something like high school” in Mexico until the age of 12. The Court of Appeals specifically concluded that Plaintiff met his “burden of production of evidence of futility” by presenting evidence of his age, lack of education, lack of vocational training, limited fluency in written English, and lifting restrictions. Therefore, the burden shifted to Defendant to show that suitable jobs were available to Plaintiff, and that Plaintiff was capable of obtaining a suitable job in light of his physical and vocational limitations. Defendant relied on the testimony of a vocational expert who had prepared labor market surveys in order to meet their burden. However, Defendant’s vocational expert had very limited knowledge of Plaintiff’s education and qualifications, and the Court found Plaintiff could not meet the minimum qualifications of most of the jobs that were identified as suitable. Therefore, Defendant had not met its burden, and the Industrial Commission erred in relying on the vocational expert’s testimony. Also the case was remanded for the Commission to determine whether Plaintiff’s incapacity to earn was caused by his work injury, the third prong of Hilliard.
In the second case, Neckles v. Harris Teeter, a published decision, Plaintiff was 68 years old at the time of hearing and was originally from Grenada. His prior employment history consisted of working as a meat cutter, which required lifting and moving up to 100 pounds on a regular basis. He sustained an injury to his back, right hip, and right extremities in 2009 while attempting to move a box of meat. In 2010, he underwent an FCE and demonstrated the ability to perform in the light physical demand category. In 2011, a vocational rehabilitation specialist opined that it would be “difficult” to place Plaintiff in the open job market on a full-time basis due to his work history, limited transferable skills, age, and lack of computer knowledge. No additional testing or analysis was completed.
In 2014, Defendants requested a hearing, contending Plaintiff was no longer disabled. The deputy commissioner awarded Plaintiff ongoing indemnity benefits on the grounds of futility. On appeal, the Full Commission reversed in part, concluding Plaintiff had failed to meet his burden of proving futility. The Court of Appeals reversed. Defendants appealed to the Supreme Court, who remanded the case to the Court of Appeals for reconsideration in light of Wilkes.
On remand, the Court of Appeals concluded that the Commission failed to make necessary findings regarding the effect of Plaintiff’s compensable injury on his ability to earn wages. The Court stated that if a plaintiff can show total incapacity for work, he is not required to also show that a job search would be futile. Here, Plaintiff offered evidence of numerous physical and vocational limitations, including his work history, limited transferrable skills, age, lack of computer knowledge, other chronic health problems, and communication barriers. The burden then shifted to Defendants to show that suitable jobs were available, and Plaintiff was capable of getting one, considering his limitations. The Court reversed and remanded, ordering the Commission “to take additional evidence if necessary and make specific findings addressing plaintiff’s wage-earning capacity, considering plaintiff’s compensable [injury] in the context of all of the pre-existing and co-existing conditions bearing upon his wage-earning capacity.”
RISK HANDLING HINT:
Taken together, it appears that the Court of Appeals wants the Commission to specifically address all pre-existing and co-existing conditions in their analysis of disability. What is unclear is whether the Court of Appeals is effectively transferring the burden of disproving disability to the defendants. Presumably, every plaintiff will have some level of pre-existing or co-existing conditions. The question also remains what level of such conditions is enough to satisfy plaintiff’s burden of production of evidence of futility, thereby transferring the burden of disproving disability to the defendants. Please contact any member of our Workers’ Compensation team with questions or to discuss these issues in more detail.
The Iowa Workers’ Compensation law underwent significant changes last legislative session (2017), going into effect for work-related injuries occurring after July 1, 2017. For a comprehensive summary, lookhere (for those changes to the Iowa Code) and here (for those changes to the Iowa Administrative Code). This update addresses one change in the effect of return to work on the industrial disability analysis. In that regard, the discussion below illustrates two main take-a-ways:
-- Functional impairment ratings will become more important in return-to-work situations.
-- Job descriptions and work restrictions will be scrutinized more in cases where an employer offers a claimant a return to work but the claimant denies the offer, arguing he/she is unable to perform job functions/duties under restrictions.
By way of background, in Iowa, an injury to a “whole person” – an injury that is not considered a scheduled-member injury per Iowa Code §85.34(a)–(t) (2017) – results in an “industrial disability.” Iowa Code §85.34(u) (2017). Thus, with an industrial disability claim, the determination of the injured worker’s permanent disability is the effect the whole-person injury has on employability, as determined by a number of factors – which are: functional disability (i.e., impairment rating), age, education, qualification, experience, and ability to engage in employment that claimant is fitted. Larson Mfg. Co., Inc., v. Thorson, 763 N.W.2d 842, 857 (Iowa 2009);see also Bearce v. FMC Corp., 465 N.W.2d 531, 535 (Iowa 1991).
Under the new law, if a claimant returns to work making the same or greater earnings, the claimant is not entitled to the industrial disability analysis; rather, the permanent partial disability award, if any, is determined by the functional impairment rating for the whole-person injury assigned by the doctor(s), as determined by the 5th Edition AMA Guides. Iowa Code §85.34(u) (2017).
Iowa Code §85.34(u) provides in pertinent part:
If an employee who is eligible for compensation under this paragraph returns to work or is offered work for which the employee receives or would receive the same or greater salary, wages, or earnings than the employee received at the time of the injury, the employee shall be compensated based only upon the employee’s functional impairment resulting from the injury, and not in relation to the employee's earning capacity. Notwithstanding section 85.26, subsection 2, if an employee who is eligible for compensation under this paragraph returns to work with the same employer and is compensated based only upon the employee’s functional impairment resulting from the injury as provided in this paragraph and is terminated from employment by that employer, the award or agreement for settlement for benefits under this chapter shall be reviewed upon commencement of reopening proceedings by the employee for a determination of any reduction in the employee's earning capacity caused by the employee's permanent partial disability.
While it is yet to be determined how the Iowa Workers’ Compensation Commission and the courts will interpret this new law, we can use two recent Court of Appeals decisions (applying the old law) as case studies and compare how they would have been affected by the new law.
Norton v. Hy-Vee, Inc.
In Norton v. Hy-Vee, Inc., Vicky Norton, the Claimant, injured her neck and back on April 2, 2009, and suffered from mental health issues of anxiety and depression as a result of the injuries. The Deputy found that Norton sustained a 70% industrial disability. In assigning the industrial disability rating, the Deputy analyzed Norton’s motivation to work, her “unique skills that allow her to be an exceptional [employee],” and the fact that her work restriction – maximum of 6-hour work days – resulted in her working 25% less than before the injury. Norton argued she sustained a permanent total disability; Hy-Vee argued Norton sustained a 25% industrial disability. The Commissioner, in approving the Deputy’s conclusion of 70%, noted that Norton received very high marks from her supervisors, and she was working what was considered full-time in the local market (30 hours per week). Norton argued that the Commissioner erred in adjusting the industrial disability rating downward based on the fact that she returned to work. On this point, the Court of Appeals noted:
Based on the above law, we agree with Norton that an injured worker's performance of accommodated work, in and of itself, many [sic] not be used to reduce a worker's industrial disability rating. But the injured worker's performance of accommodated work can be considered in assessing the industrial disability rating if the work being performed is “transferrable to the competitive job market,” and “discloses that the worker has a discerned earning capacity.”Id. at *6 (citations omitted).
The case was being decided under the old law. That said, the new law explicitly instructs theadjustment of the industrial disability award if the claimant returned to work and earned the same or greater wage. Under the new law, evidence of Norton’s wage would have been admitted and discussed, and if it was the same or greater, then the functional impairment rating of Norton’s whole-person injury would have been admitted and discussed. Likely, the outcome would be the same under either the new or old law, as it is unlikely that Norton was earning the same or greater (considering the 25% decrease in work time). In any case, there is an additional evidentiary piece – the post-return-to-work wages – that must be analyzed, prior to undertaking the traditional industrial disability analysis.
Allen v. Tyson Fresh Meats, Inc.
In Allen v. Tyson Fresh Meats, Inc., the Claimant, Allen, was assigned a 12% body-as-a-whole impairment rating (which was the combination of injuries to two body parts – knee and spine). While Allen argued that his advanced age and history of working only manual labor supported a finding of industrial disability of greater than 12%, the Court disagreed, noting that “Allen had no loss of job or earnings due to his injury. In fact, he continued to work in the same job, for the same company, without having missed any days due to injury . . . .” p. 6. The Court noted: “While such a finding does not preclude Allen from an award of industrial disability, it cannot be overlooked in determining how much his injuries affect his employability.” Under the new law, this “employability” analysis is unnecessary, which is common place in pre-July 1, 2017, whole-person injury analysis. If this was a post-July 1, 2017, claim, Allen’s industrial disability would be 12%, the functional impairment rating. In short, the new law offers a level of certainty to this type of a claim: it effectively makes a whole-person injury to a claimant that returns to work earning the same or greater wages a scheduled-member, whole-person injury, leaving the permanent partial disability percentage to be determined by the functional impairment rating(s) assigned.
Even in return-to-work situations as discussed above, the traditional industrial disability analysis still applies in the event that the claimant receives an industrial disability award based on the new return-to-work provision but is later terminated – in such case, the earning-capacity analysis is appropriate upon a review-reopening proceeding.