State News

Colleen Pizzo worked as a custodian for the Lindenwold Board of Education in Camden County, New Jersey.  She went out of work beginning June 19, 2012 for depression.  She filed the formal FMLA request on June 26, 2012.  The Board approved the leave beginning June 19, 2012.  While she was out, Pizzo requested an extension of her FMLA leave until September 10, 2012.

The Board policy stated that an employee’s twelve-month FMLA cycle begins “after the request for leave.”  However, in actual practice, the Board used a method measuring FMLA forward from the date an employee actually began leave. In this case, the difference was about seven days between the date Pizzo left work and the date she requested FMLA leave. The Board advised Pizzo that her 12 weeks of FMLA leave would expire on September 10, 2012.  The Board also advised Pizzo that she used up all sick, vacation and personal leave time as of August 20, 2012.

Pizzo returned to work but continued to miss work sporadically due to her depression.  She missed five days of work in December 2012 and January 2013 combined.  She missed three days of work in February 2013.  The Board did not terminate Pizzo for these additional absences.  However, after Pizzo accumulated eight more absences in March 2013, the Board terminated her employment on March 28, 2013.  Before the termination occurred, Pizzo submitted a request for a “sick bank” for “work-related stress.” The Board denied her sick bank request (where employees donate their unused paid sick days to another employee) due to past abuse of attendance over the years. 

The circumstances regarding termination are important.  Pizzo called out sick on March 21, 2012 and told her supervisor that her doctor would fax a letter to the Board.  She did not say anything about what specific condition she had and did not say when she would return to work.  The supervisor said Pizzo told him she would be out indefinitely, but Pizzo denied this in her law suit.  The Board made the decision to terminate employment partly because Pizzo said she would be out indefinitely and partly because of excessive use of sick time. Prior to her termination, Pizzo had never been disciplined for her absences.  After termination occurred, the Board received a letter from Pizzo’s doctor stating that Pizzo requested leave for an indefinite period of time.

Pizzo sued alleging violations of the FMLA and NJLAD.  The Board filed a motion for summary judgment on all of Pizzo’s claims.  The federal court found that the Board’s FMLA policy was equivocal in stating on the one hand that FMLA begins after a request for leave but in practice starting FMLA at the beginning of leave.  However, the court felt summary judgment was appropriate for the Board because Pizzo failed to give sufficient notice to her employer that she was requesting leave under the FMLA in March 2013.  Merely calling out sick is not sufficient for FMLA notice. 

Nor is there any evidence that Defendant received other notice from Plaintiff in the days after March 21^st.  Plaintiff did not return to work after that day and she specifically testified that her physician never sent her employer a doctor’s note about her ailment.  Although Defendant eventually received a letter from Dr. Murphy excusing Plaintiff for her absence, the letter was dated March 28^th, the same day Plaintiff was fired, and was not received by Defendant until April 8^th.

The court held that calling out sick did not provide enough information to the Board that Pizzo was suffering from a serious medical illness. Nor did the phone call provide enough information to trigger the Board’s obligation to ask for additional information to determine if the absence was FMLA protected. Similarly, because the Board had no idea that Pizzo was invoking her FMLA rights, the court dismissed the claim for FMLA retaliation as well.

One other interesting aspect of this case pertained to the request of Pizzo for a sick bank. Pizzo argued that the failure of the Board to consider this request violated the New Jersey Law Against Discrimination.  Failure to make reasonable accommodation constitutes a potential violation of the law.  The court denied the Board’s request for summary judgment on this claim because the court believed that a reasonable jury could find that the Board failed to accommodate Pizzo when it denied her request for a sick bank, where other employees donate their unused paid sick time.   The court noted that the request for a sick bank was made on March 12, 2013, a mere 16 days before her termination.  Pizzo never heard back from the Board and never had a chance to even discuss her request with the Board prior to her termination.  This issue was therefore permitted to go to a jury.

This case is important for employers for a number of reasons.  First, it is aNew Jersey federal court case that deals with key provisions of the FMLA, particularly the quality of notice that must be given by employees for an employer to know that absences from work are FMLA protected.  Second, it is one of the few published FMLA cases pertaining to school boards.  Third, it deals with issues pertaining to measuring the FMLA period and problems when there is inconsistency between a written policy and the actual implementation of the policy.  In this case, Pizzo was arguing she was entitled to more FMLA time because technically her request for leave was not transmitted until a week after she went out of work.  Finally, the case also deals extensively with the requirements on employers to engage in an interactive dialogue when dealing with reasonable accommodation requests. 

 This decision is very well written and easy to follow.  Readers who are interested can request a copy from the undersigned. The cite isPizzo v. Lindenwold Bd. Of Educ., No. 1:13-cv-03633 (D. N.J. March 31, 2015).

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.  

Taylor Industries, Inc., a/k/a Hussmann Corp, and Indemnity Insurance Co. of North America v. Brent Lepley, Court of Appeals of Iowa, No. 15-0243

Claimant, Brent Lepley, sustained an injury on July 31, 2012, while working for the employer. The initial treatment was to Lepley’s left shoulder; however, several weeks later, Lepley began complaining of pain in his right shoulder as well. The employer denied liability for the right shoulder injury, and the matter proceeded to a workers’ compensation hearing. The deputy commissioner determined Lepley’s right shoulder condition was not work related. On intraagency appeal, another deputy commissioner, hearing the appeal by designation of the commissioner, reversed this decision, concluding Lepley carried his burden to prove his right shoulder injury was causally related to the work injury. Because Lepley was not at maximum medical improvement for either shoulder injury, the employer was ordered to pay for past and future treatment for both shoulders.

The employer filed a petition for judicial review with the district court, challenging the evidence supporting the finding of causation for the right shoulder injury. The district court upheld the agency’s decision under a substantial evidence review pursuant to Iowa Code section 17A.19(10)(f) (2011). The employer appealed.

The Court of Appeals affirms the district court’s judicial review decision finding that substantial evidence supports the agency’s finding of causation with respect to the right shoulder injury. The Court noted that the district court correctly analyzed both the applicable law on judicial review and the facts of this case.

Helen L. Lampman v. Chrystal Inc. and First Comp Insurance Co., Court of Appeals of Iowa, No. 14-1983

Claimant, Helen Lampman, began working for Regency Care Center in July 2008 as a certified medication aide and certified nursing assistant. On May 9, 2009, Claimant was lifting a resident into bed when the resident pulled Claimant down by her ponytail. Claimant went to the hospital the next day with complaints of pain in her lower back and going down her legs. Regency fired Claimant on May 11, 2009.

Claimant received extensive medical treatment following her injury from a number of doctors. On May 14, 2009, Dr. Prevo diagnosed Claimant with low back pain. Dr. Miller believed Claimant reached MMI on August 14, and opined that Claimant had “a permanent partial impairment of 1% to 2% of the lumbar back.” Dr. Jones performed an independent medical examination (IME) on October 16, 2009, which rated Claimant’s permanent impairment at five percent, and stated “this problem will continue into the indefinite future.”

In January 2010, Dr. McGuire, an orthopedic surgeon, examined the Claimant’s MRI, and noted the beginning of degenerative spondylolisthesis. Dr. McGuire prescribed Claimant a cane and a walker and agreed she had sustained a five percent permanent impairment. Dr. McGuire stated further that Claimant’s lifting incident on May 9, 2009, was a substantial and primary cause of her back pain. Dr. McGuire also noted he had “access to absolutely none of her treatment records.”

Dr. Ransdell treated Claimant for pain from July to December of 2010. Dr. Ransdell stated in his deposition that he did not believe a single traumatic event in 2009 could cause Claimant the level of continuing pain she complained of, but indicated lifting events could exacerbate an underlying condition. Dr. Ransdell did not have access to Claimant’s medical records other than those received from Dr. McGuire. Dr. Boarini examined Claimant on June 16, 2010 for an IME, and stated she “exhibits some obvious exaggerated pain behavior.” On November 9, 2011, Claimant underwent a functional capacity evaluation by Dr. Mark Blankespoor who found that she should be placed in the sedentary category of physical demand characteristics.

Claimant filed a petition alleging a cumulative injury to her back and legs with an injury date of May 9, 2009. On May 3, 2012, a deputy commissioner held an arbitration hearing. The deputy commissioner awarded Claimant permanent partial disability benefits based on a five percent industrial disability. Claimant filed an appeal to the commissioner who adopted as the final agency decision the portions of the arbitration decision challenged on appeal. The commissioner found Claimant’s testimony was not credible in regard to her level of pain.

Claimant sought judicial review on July 2, 2013. Claimant argued she sustained a permanent total disability, or at least seventy percent industrial disability due to the May 9, 2009 injury. The district court decided substantial evidence supported the agency’s award of five percent industrial disability. Claimant appealed.

Claimant first contends the agency’s decision to award five percent industrial disability is factually flawed and not supported by substantial evidence. The Court of Appeals notes that it is not in a position to second-guess the commissioner’s credibility findings or to reweigh the expert evidence received by the agency. The commissioner decided any permanent restrictions on Claimant’s work activity were not due to her May 2009 back injury. In reaching that decision, the commissioner rejected the opinions of those doctors who believed the work injury resulted in permanent restrictions because Claimant provided them with an “incorrect history” of her back pain. Because the record contains substantial evidence to support the commissioner’s factual findings, the Court will not disturb the determination of five percent industrial disability.

Claimant next argues the agency decision is the product of reasoning so illogical as to require reversal under section 17A.19(10)(i). The Court of Appeals, like the district court, concludes the commissioner’s determination was not illogical or irrational. The commissioner explained why he determined Claimant’s industrial disability was only five percent. Specifically, the commissioner reasoned Claimant was not credible regarding her back pain related to the work injury and to the extent that she provided inaccurate information to her doctors, the commissioner discounted their opinions that she suffered permanent restrictions caused by the back injury at Regency.

Claimant also claims the commissioner’s finding of only five percent industrial disability was an abuse of discretion requiring reversal under section 17A.19(10)(n). The Court of Appeals reaches the same decision as the district court: the commissioner exercised the agency’s considerable discretion within tenable grounds and to a reasonable extent.

The Court of Appeals thus affirms the decision of the district court.

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!

A recent workers’ compensation blog post warns, “As global warming increases, and changing
weather patterns become more pronounced, workers’ compensation insurance systems will be
stressed to limits never before imagined.” According to the post, extreme temperatures and
significant storms are already causing increased levels of occupational injuries and illnesses. So far,
there has been no word from the Division on how it intends to address global warming.

One by product of the crackdown on pain pill abuse is increased urine drug testing. Many treatment
guidelines, the ODG included, recommend urine drug testing. Some doctors and labs have
capitalized on this opportunity, turning urine drug testing into a new profit center. Many system
participants have witnessed a significant increase in the frequency of drug testing, the number of
drugs for which patients are tested, and the use of qualitative drug testing which tests for the amount
of a drug as opposed to qualitative testing which just determines the presence or absence of a drug.
Five thousand dollar urine drug testing bills are not uncommon with some bills exceeding $9,000.
Now one system participant is fighting back by having every urine drug test retrospectively
reviewed for medical necessity. This resulted in savings of $493,372.97 in one quarter alone. The
reason is because in many cases the prescribing doctor was not following the ODG either because
the doctor was testing too often, testing too many drug classes, or doing quantitative testing with no
evidence of necessity. The ODG states that quantitative urine drug testing is not recommended
without evidence of necessity.

In Denham v. Texas Mutual Ins. Co., the deceased employee tested positive for marijuana. 2015 WL
4389286 (Tex. App.–Amarillo, July 15, 2015). The carrier denied the claim based on intoxication.
The Appeals Panel upheld the denial and the employee’s beneficiary filed suit for judicial review.
In the trial court, the carrier filed a no-evidence motion for summary judgment contending that the
beneficiary had failed to present any evidence that the employee was not intoxicated. The
beneficiary responded with an affidavit from a doctor challenging the validity of the positive test
results. The court held that such evidence does not rebut the presumption of intoxication.
According to the court, the rebuttable presumption of intoxication was raised by the positive drug
test results regardless of whether the results were founded on medically and toxicologically sound
theory. Once the presumption of intoxication was raised, evidence was required that the deceased
employee was not intoxicated, such as an affidavit from his passenger that he had the normal use
of his mental and physical faculties. No such evidence was provided. Therefore, the court of
appeals upheld the trial court’s judgment in favor of the carrier.

Beginning October 1, 2015, the Texas workers’ compensation system will transition from the use
of ICD-9 codes to the ICD-10 codes. Physicians must begin using ICD-10 codes to record diagnoses
and inpatient procedures for services provided on or after that date.
The Division has created a new training video on the transition to ICD-10 codes. The video is
available on the TDI website at http://www.tdi.texas.gov/wc/hcprovider/icd10.html. The video
reminds system participants to prepare in advance for the transition.
One still unanswered question for carriers is how they should process bills submitted with ICD-9
codes for dates of service after October 1, 2015. On the one hand, if they return the bills, that could
be a potential violation. On the other hand, if they process the bill and electronically report the ICD-
9 codes, that could also be a potential violation. Another question is what carriers should do with
bills submitted with ICD-10 codes for dates of service before October 1, 2015. ICT has asked the
Division for clarification. Hopefully, the Division will provide guidance soon so that system
participants can prepare in advance for the transition.

The Division recently issued a memo “reminding” insurance carriers and treating doctors that
medical records must be provided to designated doctors no later than three business days prior to
the exam. The memo also includes a “reminder” that the failure to do so is an administrative
violation. The Division has established a new email address DD’s can use to ask for help from the
Division in obtaining records, presumably when the records are not timely received:
DDRecords@tdi.texas.gov. Therefore, carriers and treating doctors who do not get the records to
the DD timely should not be surprised if they receive a violation notice.

On June 26, 2015, the U.S. Supreme Court held that the Fourteenth Amendment requires a State to
license a marriage between two people of the same sex and to recognize a marriage between two
people of the same sex when their marriage was lawfully licensed and performed out-of-State.
Obergefell v. Hodges, __ U.S. __ (No. 14-556, June 26, 2015).
The surviving spouse is entitled to receive death benefits under the Workers’ Compensation Act.
The surviving spouse must provide a marriage license or satisfactory evidence of common-law
marriage. Section 2.401 of the Texas Family Code limits the definition of a common law marriage
to a relationship between a man and a woman.
However, Texas courts will likely hold that this statute was modified by the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the Constitution of the United States as
interpreted by the Supreme Court in Obergefell. Therefore, expect to see same-sex surviving
spouses seeking death benefits in the not too distant future.

For further inquiries, please contact F&P Principal, Bert Randall, at (410) 230-3622 or by email at arandall@fandpnet.com.

I.                    New Maryland Benefit Rates

 Effective January 1, 2015, the following are the maximum benefit rates for Maryland disability benefits:

 State Average Weekly Wage – $1,005.00 (which represents the cap on temporary total disability, permanent total disability, and vocational rehabilitation benefits)

 Permanent Disability Under 75 Weeks – $168/week

 Permanent Disability Between 75-249 Weeks – $335/week

 Permanent Disability for 250 or More Weeks – $754/week

II.                  Regulatory Changes Effective July 20, 2015

Beginning July 20, 2015, two COMAR amendments impacting Maryland Workers’ Compensation Commission procedures became effective, one regarding judicial review and the other regarding legal representation and fees in dependency cases.

1. Judicial Review Procedures

The first of the amendments will alter COMAR 14.09.11.01-.05, which address judicial review procedures. The stated purpose of the action is to comply with new Md. Rule 7-206 and 7-206.1,^[1] and to update the language to accord with Labor and Employment Article, § 9-742, Md. Code Ann. The most substantial changes to the regulation concern documents required upon appeal of Commission and court decisions. The amendment requires that parties appealing a circuit court or appellate court disposition shall notify the Commission using a Cover Sheet for Action on Claims on Appeal, accompanied by a copy of the notice of appeal or petition for writ of certiorari. For circuit court proceedings, parties submitting a Cover Sheet for Action on Claims on Appeal to notify the Commission of a circuit court disposition no longer need to provide a copy of docket entries.

Additionally, COMAR 14.09.11.05 states that if the Commission exercises its continuing jurisdiction under Labor and Employment Article, §9-742, Md. Code Ann., to pass a supplemental order deciding an issue, the first petitioner/appellant shall file within 5 days of entry of the supplemental order: (1) a copy of the supplemental order with the court in which appeal is pending, and (2) a written certification with the Commission that the first petitioner/appellant has filed the copy of the supplemental order with the circuit or appellate court. The regulation now mandates that the written certification contain a description of the supplemental order filed and the date and manner of the filing. Lastly, petitioner/appellant must file the written request for any transcript required for inclusion in the record when the written certification is filed with the Commission.

The text of the amended judicial review procedures regulation can be found at: http://www.dsd.state.md.us/MDR/4209/Assembled.htm#_Toc417898860

1. Legal Representation and Fees

The second of the amendments modifies COMAR 14.09.04.03. The purpose of this amendment is to address an ambiguity in the Schedule regarding fees for the representation of the dependents of deceased workers.

In cases involving claims of dependency where compensability is not contested, but theextent of dependency (partial or total, or the identity of a dependent, or both) is contested, the new rule clarifies that the Commission may approve a total attorney’s fee for attorneys representing all dependents:

(i)                  In an amount not exceeding five times the State average weekly wage in a case of partial dependency under Lab. & Empl. Art. §9-682, Md. Code Ann.; or

(ii)                In an amount not exceeding 12 times the State average weekly wage in a case of total dependency under Lab. & Empl. Art., §9-681 or 9-683.3, Md. Code Ann.

In cases involving a claim of dependency where neither compensability nor dependency is contested and a record is being made solely to determine to whom payments of compensation shall be made, the Commission may approve an attorney’s fee in an amount not exceeding two times the State average weekly wage.

Lastly, in a case involving a claim of dependency where compensability and dependency are contested, the Commission may approve an attorney’s fee (1) in an amount calculated under 14.09.04.03 §B(3)(a) in a case involving a claim of partial dependency under Lab. & Empl. Art. §9-682 or 9-683.3,^[2] or (2) in an amount calculated under 14.09.04.03 §B(4)(a), in a case of total dependency under Lab. & Empl. Art. §9-681.^[3]

No substantive provisions of COMAR 14.09.04.03 were deleted upon amendment; the new regulation simply serves as clarification as to proper attorney’s fees in cases involving claims of dependency.

The text of the legal representation and fees amendment can be found at:

http://www.dsd.state.md.us/MDR/4207/Assembled.htm

III.                Recent Cases in Workers’ Compensation

a.       The requirement of cross-appeal for Circuit Court to revisit issues decided by Commission against non-appealing party depends on whether re-visiting the issue would require the Court to reverse or affirm the Commission’s decision.

                                                              i.      Uninsured Employers’ Fund, et. al. v. Ronald White, 219 Md. App. 410, 100 A.3d 1275 (2014)

1.       In the case of Uninsured Employers’ Fund, et al. v. White, the Court of Special Appeals discussed the necessity of a cross-petition in certain instances involving appeals of administrative decisions to a circuit court.

2.       The case emphasizes the caution claimant’s attorneys must exhibit in deciding whether or not to file cross-petitions. Where claimants fail to file a timely cross-petition where a circuit court is revisiting an issue previously decided by the Commission against the non-appealing party, and if the reconsideration of the issue might lead to a reversed or vacated decision, a party will lose their opportunity to challenge the Commission’s decisions.

b.      Claimant attorneys are only entitled to a fee on a “final award” by the Commission after all appeals have been exhausted.

                                                              i.      Brunson v. Univ. of Md. Med. Sys. Corp., 221 Md. App. 583, 110 A.3d 713 (2015)

1.       The Court of Special Appeals discussed the right to attorney’s fees when (1) an initial award of temporary total disability (“TTD”) benefits is rescinded; and (2) a subsequent permanency award results in no compensation payable given the credit created by payment of TTD benefits, later rescinded.

2.       This case shows that a claimant’s attorney who loses his case on appeal may be unable to recover attorney’s fees because attorney’s fees, generally provided within the claimant’s award of compensation and/or benefits, will be unavailable where no award is given. The Code of Maryland Regulations 14.09.04.03(C)(1) provides: “Absent exceptional circumstances, the Commission may not approve an attorney’s fee in a case in which it is determined that the claimant is not entitled to any compensation or benefits.”

c.       Workers’ Compensation Commission does not have the authority to order the UEF to reimburse IWIF for benefits paid when there is another source of compensation.

                                                              i.      Injured Workers' Ins. Fund v. Uninsured Employers' Fund, 221 Md. App. 322, 108 A.3d 609 (2015)

1.       The Court of Special Appeals of Maryland considered whether the Workers’ Compensation Commission has the authority to order the Uninsured Employers’ Fund (“Fund”) to reimburse the Injured Workers’ Insurance Fund for benefits paid to a Claimant. In the instant case, because Chen was found to be an insured employer, the Fund was not required to pay benefits. The statute does not require the Fund to reimburse an insurer where its insured is a jointly and severally liable employer. Therefore, the Court held the Commission exceeded its authority when it ordered the Fund to reimburse IWIF for benefits paid.

2.       This case shows the importance of defining who is and is not an “employer” and its impact on the Fund’s need to reimburse insurers. The Fund is available for the sole purpose of funding compensation where there is no other source of compensation for claimants. Thus, where multiple employers and the Fund are jointly and severally liable, the Fund is not responsible for paying a claimant’s award.

d.      The SIF assessment on permanency awards is based on the total amount of a permanent disability awardbefore offsets are applied.

                                                              i.      Employer/Insurers should be aware that the 6.5% assessment payable to the SIF is based on the total amount of the permanent disability award prior to offsets.

                                                             ii.      NOTE: The Employer/Insurers in this case may petition the Court of Appeals for Certiorari and thus the issue should be closely monitored.

e.      Court of Appeals affirms the Commission’s right to combine awards for scheduled and unscheduled members for compensation tier purposes.

                                                               i.      Montgomery County v. Robinson No. 67, September Term 2010; and Board of Ed. ofMontgomery County v. Anderson No. 68, September Term 2010

1.       The court ultimately decided that the Workers’ Compensation Act’s remedial nature must be construed liberally in favor of an injured worker, and that combining awards for scheduled and unscheduled members serves such purpose. The court stated that nothing in LE § 9-628 and LE § 9-629 prohibits combining awards for scheduled members with awards for “other cases,” and a failure to allow such combination would lead to “strange, unfair and… illogical results.” Further, the court reasoned that the language within the second-tier benefits provision is broad and does not use the terms, “scheduled” and “unscheduled.” Thus, the court held the Commission may combine compensation awards to determine which of the three compensation tiers is appropriate.

f.        Entitlement to Temporary Total Disability benefits is still a medical question.

                                                               i.      Phuonglan Ngo v. CVS, Inc., et al., Court of Special Appeals, September 25, 2013

1.       In Phuonglan Ngo, the issue was whether a Claimant who has reached maximum medical improvement can receive temporary total disability benefits under the Maryland Workers’ Compensation Act.

2.       The Court found that temporary disability refers to a physical state and that employment potential does not fall into this category. The Court further opined that a Claimant does not need to be placed into suitable employment, but rather must be so limited in quality, dependability, or quantity, that a reasonably stable market for a Claimant does not exist.

g.       Clarifying reimbursement of the workers’ compensation lien/offset in a third party case.

                                                              i.      David Ross v. John Agurs and Progressive Casualty Insurance Company, No. 978, September Term 2012 (decided September 9, 2013)

1.       This case clarifies what amounts are included in a workers’ compensation offset by an uninsured/underinsured (“UM/UIM”) motorist carrier. It reaffirms that court costs and attorney’s fees should not be included in the amount the claimant “received” under a workers’ compensation case.

For further inquiries regarding Maryland law contact Mr. Randall at (410) 230-3622 or at arandall@fandpnet.com.

Imperial Aluminum-Scottsboro, LLC v. Taylor

Released July 24, 2015

The employee filed suit against the employer asserting a workers’ compensation claim, retaliatory discharge and the tort of outrage. Upon the case being filed the employer filed a Rule 21 Motion to Sever the workers’ compensation claim from the retaliatory discharge claim and outrage claim. This included a request that a new case number be assigned to the discharge and outrage claims. However, the trial court entered an order under Rule 42(b) bifurcating the issues and calling for separate trials only. A new case number was ever issued. The discharge and outrage claims were tried before a jury prior to the workers’ compensation case being heard. The outrage case was dismissed but the jury awarded compensatory and punitive damages to the employee based on the discharge claim.

The employer appealed the jury verdict awarding the employee compensatory and punitive damages as a result of his retaliatory discharge claim. The Alabama Court of Civil Appeals ruled that the retaliatory discharge verdict was not a final order and could not be appealed because the Court had not ruled on the workers’ compensation claim that was still pending under the same case number.

My Two Cents

Based on this ruling, we must assume that the opposite would apply and a ruling in a workers’ compensation case would not be final and appealable while related tort claims are still pending. This creates an issue for employers and employees in cases where the employer or employee wants to appeal an adverse verdict in a workers’ compensation case that also had a related tort claim still pending under the same case number. In cases were the employer is ordered to pay benefits, would the employer have to go ahead and pay the worker’s compensation benefits ordered despite it’s desire to appeal the decision or would the pending tort claim stay the workers’ compensation order and prevent the employee from recovering until the tort claim was decided and the deadline to appeal had run. In cases where the employee wanted to appeal and adverse verdict they would not be able to have their appeal on the workers’ compensation case heard until the tort claims were decided. In cases where this may present an issue, it may be advisable for the parties to request a Rule 21 Severance with a new case number instead of Rule 42(b) Separate Trial order where the tort and workers’ compensation claims remain under the same case number.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, 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. 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.