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.
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On September 20, 2013, the Alabama Court of Civil Appeals released its opinion in the case of Malone v. Steelcase, Inc., dealing with the applicability of § 25-5-57(c)(3) of The Alabama Workers’ Compensation Act. § 25-5-57(c)(3), known as the set-off statute, provides that an employer is allowed a set-off against compensation benefits owed to an injured employee when the employer continues the salary of the employee during the period in which benefits are owed. Malone suffered an injury to her lower back occurring in and arising out of her employment with Steelcase, but she was able to return to her job earning wages equal to those she was earning prior to the injury. The trial court awarded permanent partial disability benefits for a 25% disability to Malone’s body as a whole, in the amount of $81.54 per week. However, the trial court also awarded Steelcase an offset in the amount of $67.30 per week for wages Steelcase paid to Malone after she was placed at maximum medical improvement, pursuant to § 25-5-57(c)(3). Malone appealed, and the Court of Appeals reversed the trial court’s decision.
Malone argued that § 25-5-57(a)(3)i, which is often referred to as the "return to work statute" was controlling, and that under that statute, her compensation for her injury was to be based on her physical disability rating, without consideration for loss of earnings capacity. Malone argued that under that statute, Steelcase was not entitled to a set-off, because § 25-5-57(c)(3) did not apply to her situation. In reaching its decision, the Court of Appeals stated that it agreed with Malone, because when two statutes conflict, the "more specific" statute is controlling, and § 25-5-57(a)(3)i is the more specific statute. The Court further stated that § 25-5-57(a)(3)i would be rendered meaningless under the interpretation of the set-off statute advocated by Steelcase. The Court of Appeals noted that benefits awarded in cases where the return to work statute applies, like scheduled benefits, should be awarded regardless of whether an employee is receiving full wages.
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MY TWO CENTS:
The Court of Appeals’ analysis begs the question: So exactly when does the set-off statute apply? The Court of Appeals’ ruling is interesting in that it found that § 25-5-57(a)(3)i would be rendered meaningless if the employer was allowed an offset against an award for wages paid in situations where the employee is earning wages equal to her pre-injury wage. The decision further implies that the set-off statute does not apply in scheduled member injury cases either, for the same reason. The only other statute that applies to permanent partial disability awards is § 25-5-57(a)(3)g, which provides that an employee’s compensation for injury is equal to 66 2/3% of the difference between her average weekly earnings at the time of the injury and the average weekly earnings she is able to earn in her partially disabled condition. It certainly seems that if the legislature intended that the set-off statute only apply to awards made under § 25-5-57(a)(3)g that the statute would clearly and unambiguously state as much. However, the answer is contained in the statutory language concerning the employer continuing the salary of the employee. It appears that the Court of Appeals’ interpreted it to mean when the employer continues thefull salary of the employee. In other words, when the employer is paying the employee herfull wages for either performing less work, or for performing a less demanding job, the employer is entitled to a set-off, but when the employee is performing her regular job for her regular wages, the employer is not entitled to a set-off.
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ABOUT THE AUTHOR
This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.
Employers cannot always make accommodations to persons with disabilities, and the obligation only arises if the employee can show that he or she is qualified to perform the essential functions of the job with or without accommodation.
In the case of Atkins v. Eric Holder, Attorney General, 2013 U.S. App. LEXIS 12340 (4th Cir. 2013), the plaintiff was a Correctional Counselor for the Federal Bureau of Prisons. He suffered from a disability due to polyarthropathy of the right knee and degenerative disc disease. As a result of his medical conditions, he had significant restrictions limiting the amount of time he could walk or stand. In fact, he utilized two metal canes and stated that sometimes he was afraid for his safety in working. His doctors indicated that his restrictions were permanent in nature.
The Bureau of Prisons terminated Atkins’s employment because it concluded that there was no way for him to safely perform his job. Atkins sued and argued that he was discriminated against on the basis of his disability. The federal district court and the Fourth Circuit Court of Appeals rejected his law suit. It laid out the requirements for Atkins to prove his case: “(1) that he has a disability; (2) that he is otherwise qualified for the employment or benefit in question; and (3) that he was excluded from the employment or benefit due to discrimination solely on the basis of the disability.”
The Court ruled in favor of the Federal Bureau of Prisons on the ground that Atkins could not show he was otherwise qualified:
There is no dispute that Atkins was disabled at the time of his termination. However, we conclude that the district court did not err when it held that Atkins was not otherwise qualified for his position. Only persons who are ‘qualified’ for the position in question may state a claim for disability discrimination.
The Court went on to explain that the plaintiff has to show that he can perform the essential functions of the employment position that he holds or desires. 42U.S.C. § 12111(8) (2006). See also 29 C.F.R. § 1630.(m) (2012). It further held:
At the time of his termination, Atkins was under several medical restrictions that significantly curtailed the time he was allowed to walk or stand. Prior to being barred from the institution, Atkins was assisted by two metal canes with forearm braces and stated that he was afraid for his safety. Because the correctional counselor position was a law enforcement position that required Atkins to physically restrain and control inmates, and no accommodation could be made to alleviate his restrictions, we conclude that Atkins did not make a prima facie claim for disability discrimination.
The case is helpful in showing the burden that a plaintiff bears in a disability discrimination suit. What made the defense easier than many other disability discrimination cases is the very physical nature of plaintiff’s job, namely having to potentially physically restrain and control inmates. An employer does not have to create a light duty job or remove essential job functions as an accommodation, and there was simply no way for the plaintiff in this case to do his job under the circumstances.
On September 9, 2013, the Alabama Court of Civil Appeals released its opinion inSouthernCare, Inc v. Margaret Cowart wherein it reaffirmed that a mere possibility does not establish medical causation. Although it affirmed the trial court’s finding of medical causation, it reversed the permanent and total disability award and remanded it for the trial court to determine the level of disability.
The facts before the Court involved a preexisting back injury and then 4 separate accidents injuring the lower back over a 3 year period with SouthernCare, Inc. Prior to a 2004 fall on the job, Cowart had a preexisting back injury but she had been working without restriction. After the 2004 fall and injury, Cowart had periods of disability but returned to full duty. She then had 2 incidents in 2005 and 2 in 2007 where she felt pain in the same region and of the same nature as she did after the 2004 fall. After the 2007 injury was determined not to be work related by the employer, Cowart returned to work but testified that she worked in constant pain. Cowart suffered another accident on the job injuring the same area of the back but testified that the pain was even more excruciating this time.
Cowart was seen by several different doctors and all the medical records indicated that the tests were unremarkable and that Cowart’s symptoms were degenerative or related to fibromamyalgia and not work related. After the June 2007 injury Cowart was treat by Dr. James White. Dr. White opined that without further testing he could not say if stenosis was causing the symptoms or if there was a herniated disk below the stenosis. Dr. White also testified that without further testing he could not say if the injury was work related. He did testify that the back pain could be due to fibromyalgia but the fact that Cowart did not have radiating pain prior to the first fall in 2004 indicated that fibromyalgia was not causing the current symptoms.
The trial court considered the medical records, Dr. White’s testimony and heard the plaintiff’s testimony in a compensability hearing and found the injury compensable and ordered the tests requested by Dr. White. The trial court later held a disability hearing with the only testimony being the employer’s vocational expert, which resulted in a permanent and total disability award. The employer then appealed the compensability decision and the permanent and total disability award.
The Court of Civil Appeals reviewed the testimony but did not re-weigh the evidence as it related to the decision on medical causation and permanent and total disability. The Court noted that the applicable standard for medical causation set forth by the Alabama Supreme Court was the evidence must establish more than a mere possibility that the injury was caused by the work place accident.Ex parte Southern Energy Homes, 873 So. 2d 1116, 1121-22 (Ala. 2003). The court also stated the "expert medical testimony is not always required to establish medical causation; however, an employee’s testimony, while not always insufficient alone to establish medical causation, cannot establish medical causation when ‘the evidence as a whole weighs heavily against finding the [employee’s] testimony alone to be substantial evidence of medical causation.’"Id at 1122. In the instant case the Court of Appeals noted that the only record that specifically said the injury was not related was from a doctor that reviewed the wrong MRI after the first 2007 incident. In addition, Cowart’s doctors stated that her symptoms were related to degenerative problem and/or fibromylgia. The Court then turned to the only detailed opinion on the subject of medical causation, Dr. White’s deposition testimony. This testimony stated that without further testing he could not say if the symptoms were related to the falls at work or not but that it was not until after the fall that Cowart reported radiating pain. The Court of Appeals then turned to Cowart’s testimony to determine if, when viewed with all the evidence, it could provide substantial evidence as to medical causation. Cowart’s testimony was that prior to the 2004 fall her fibromylgia had seldom caused her to miss work. She also testified that after the first fall she had returned to work at full duty with several subsequent incidents causing severe pain in the same region of her back. Cowart further testified that after the first incident in 2007 she returned to work but was in constant pain. The Court of Appeals pointed out that the trial court may infer medical causation from circumstantial evidence that indicates the employee was working normally before the incident, but afterwards the symptoms appeared and continued. Based on this, the Court of Appeals found that substantial evidence was present for the trial court to find medical causation.
The Court of Appeals did find that there was not sufficient evidence to support the permanent and total disability award. They pointed to Cowart’s testimony that she had been able to perform her duties despite her pain, her testimony that she desired to return to work and the employers vocational expert stating she had transferable skills and no loss of earnings capacity. Based on this, the Court of Appeals found there was not sufficient evidence to support a permanent and total disability award and the trial court should review the evidence again to determine the level of disability.
Of Note:
It has long been the position of the Alabama Appellate Courts that they are not to re-weigh the evidence in a workers’ compensation appeal. However, Judge Moore, in his concurring opinion, stated that when the legislature eliminated the certiorari review of workers’ compensation case in 1992 and created the substantial evidence standard, the standard of review for an appeal also changed. Judge Moore stated that the prior standard of review applicable to certiorari review only required support by any evidence, not substantial evidence. Therefore, by changing to the substantial evidence standard the legislature intended to change the standard of review and allow the Court of Appeals to re-weigh the evidence. Judge Moore also asserted that, under the current ruling by the Alabama Supreme Court, the Court of Appeals cannot re-weigh the evidence and must leave the trial court’s ruling alone if there is any evidence that supports the trial court’s ruling, which is the same as the certiorari review pre 1992 amendment. With the legislature creating the substantial evidence standard, Judge Moore opined that the Court of Appeals should be allowed to re-weigh the evidence to establish if there is substantial evidence and not just any evidence to support the decision.
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.
By
Jeffrey D. Snyder, Esquire and Kevin L. Connors, Esquire
On the Achilles heel of the Pennsylvania Supreme Court’s recent Opinion in theCity of Pittsburgh UPMC v. WCAB, a Decision that discussed the burden of proof in voluntary withdrawals from the workforce cases, the Commonwealth Court has now rendered an Opinion on that same issue inFitchett v. WCAB, decided on April 8, 2013.
Fitchett involved a 2001 injury.
The Claimant was working as a Teacher’s Instruction Aide, and was injured in a student attack.
Multiple Petitions were litigated, including a Termination Petition, a Review Benefit Offset Petition, and a Penalty Petition.
Obviously, the employer, the PhiladelphiaSchool District, was litigating the Termination and Review Petitions, and the Claimant was retaliating with a Penalty Petition.
Oddly enough, there were no pleadings, nor amendments to pleadings, under which the employer had alleged that it was seeking a suspension of indemnity compensation benefits, based on the Claimant’s voluntary withdrawal from the workforce.
That issue was, however, nevertheless the subject of testimony in the course of the claim being litigated before the WCJ.
The Claimant began receiving Pension benefits in April of 2002, and then began receiving Social Security Retirement benefits in October of 2004. After the work injury, the Claimant never sought any other work as the Claimant agreed that she was collecting “retirement” with her testifying that “but for” her work injuries, she would have continued working.
Questioned as to whether she had retired, she responded “at this point”, … “yes”, although she clarified her testimony, by indicating that she had left the workforce because of her work injuries.
She testified that she would still be working, if she was able to do so.
The WCJ found that the Claimant had retired, and voluntarily withdrawn herself from the workforce. On credibility issues, the WCJ commented that the Claimant’s testimony “sounds good”, but “on close inspection falls apart”.
Moreover, the WCJ found that the surgery that the Claimant had undergone was unrelated to the work injury, that the Claimant had not searched for employment of any sort, while the Claimant was contending that she took a Pension benefit, as well as, Social Security Retirement benefits due to financial hardship, but that at the time she applied for the Pension benefits, she was receiving workers’ compensation benefits.
The Workers’ Compensation Appeal Board affirmed the WCJ’s Decision.
Before the Commonwealth Court, the Claimant argued that the WCJ had erred in deciding the issue of voluntary retirement, claiming that the employer never requested a suspension of benefits on the basis of retirement, and that there had never been any amendments to the pending Petition seeking that form of relief.
Brushing aside the Claimant’s arguments, the Commonwealth Court held that the issues before the WCJ and WCAB included issues related to the employer’s entitlement to an offset for Pension and Social Security Retirement benefits, such that the presence of those offset issues should have put the Claimant on general notice that her wage loss benefits could be suspended, based on a voluntary withdrawal from the workforce, under the “totality of the circumstances”, a legal nexus that the Pennsylvania Supreme Court had utilized in the City of Pittsburgh UPMC Decision, a recently issued decision.
No less true, the Commonwealth Court held that the issue of the Claimant’s voluntary retirement had been fully litigated before the WCJ, and that issue had been preserved for the WCAB.
Holding that the employer need not prove the availability of suitable work, when the employer establishes, under a totality of the circumstances, that a Claimant has voluntarily retired from the workforce, theFitchett Court also considered that a voluntary retirement from the workforce can be presumed from the acceptance of a Retirement Pension, a holding seemingly in some conflict with the Pennsylvania Supreme Court’s Decision inCity of Pittsburgh UPMC.
If we are to remove the notice issue from the Fitchett Decision, as the Claimant had argued that she did not have “notice” of the potential suspension of her workers’ compensation benefits based on a voluntary withdrawal from the workforce analysis, the Commonwealth Court appears to be following the Opinion rendered by the Supreme Court in theCity of Pittsburgh UPMC, with two key caveats.
The first, is that the Fitchett Court appears to be of the view, in stark contrast to theCity of Pittsburgh UPMC holding, that the receipt of a Retirement Pension benefit results in a rebuttable presumption of a voluntary withdrawal from the workforce.
Secondarily, the Fitchett Court is indicating that the issue of a voluntary withdrawal from the workforce is a matter of credibility for the WCJ to decide, making it a question of fact, rather than a pure question of law, or even a mixed question of fact and law.
What remains as the clear directive is that when an employer seeks to establish a voluntary withdrawal from the workforce, it remains the employer’s burden of proof to establish that a Claimant has done so under a “totality of the circumstances”, as is the holding of the Supreme Court in the City of Pittsburgh UPMC.
Practical Tips
Get it in writing!
Sustain your burden!
Make it real!
Make the Claimant look incredible!
ConnorsLaw LLP
Trust us, we just get it! It is trust well spent!
Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.
With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.
By Jeffrey D. Snyder, Esquire and Kevin L. Connors, Esquire
The Pennsylvania Supreme Court’s recent Decision in Bowman v. Sunoco, Inc., decided on April 25, 2013, validates an agreement that an employee had entered into, when initially hired by her employer, Allied Barton, under which the employee agreed that he/she would not bring a third-party claim or action against Allied Barton’s customers, in the event of a work injury which might otherwise have triggered consideration of third-party liability, predicated in a tort-based negligence action for personal injuries.
Thus, we are talkin to you!
Bowman involved a private security guard employed by Allied Barton Security Services, who had signed a workers’ compensation disclaimer, under which she had waived her right to sue Allied’s clients for damages related to any injuries that would otherwise be covered under the Pennsylvania Workers’ Compensation Act.
The disclaimer stated:
“I understand that state workers’ compensation statutes cover work-related injuries that may be sustained by me. If I am injured on the job, I understand that I am required to notify my manager immediately. The manager will inform me of my state’s workers’ compensation law as it pertains to seeking medical treatment. This is to assure that reasonable medical treatment for an injury will be paid for by Allied workers’ compensation insurance.
As a result, and in consideration of Allied Security offering me employment, I hereby waive and forever release any and all rights that I may have to:
- Make a claim, or
- Commence a lawsuit, or
- &nnbsp; Recover damages for losses
from or against any customer (and the employees of any customer) of Allied Security to which I may be assigned, arising from or related to injuries which are covered under the workers’ compensation statues”.
Falling on either snow or ice while providing security at a Sunoco refinery, the employee filed a workers’ compensation benefits claim, and then received workers’ compensation benefits pursuant to the Pennsylvania Workers’ Compensation Act.
She then filed a negligence lawsuit against Sunoco, under which she alleged that Sunoco had been negligent in failing to maintain and inspect its premises, resulting in the employee sustaining her work-related injuries.
In the course of discovery being conducted in the personal injury lawsuit, the employee’s disclaimer, entered into at her hiring by Allied Barton, was produced through discovery, evidencing the employee’s waiver of her right to file a personal injury claim against Allied Barton’s clients or customers, as well as evidencing her receipt of workers’ compensation benefits, with Sunoco filing a Motion for Judgment on the Pleadings, in support of which Sunoco argued that the employee’s negligence claim had to be barred by the employee’s voluntary disclaimer and waiver.
The employee argued that the disclaimer was void, claiming that it was contrary to public policy.
Specifically, the employee argued that the disclaimer violated the public policy considerations embedded in Section 204(a) of the Workers’ Compensation Act. Her argument was framed around the disclaimer allegedly improperly waiving a cause of action that had not yet accrued.
Section 204(a) of the WCA sets forth:
“No agreement, composition, or release of damages made before the date of any injury shall be valid or shall bar the claim for damages resulting therefrom; and any such agreement is declared to be against the public policy of this Commonwealth.”
At the trial court level, the disclaimer was not found to have violated the public policies articulated in Section 204(a), with the trial court granting Sunoco’s Motion for Judgment on the Pleadings.
The employee appealed the trial court Judgment to the Superior Court, with the Superior Court also agreeing that the disclaimer was not violative of public policy, reasoning that the employee had waived only her right to sue third-party customers for injury covered by workers’ compensation laws, and that the waiver/disclaimer was not an attempt to deprive her of rights under the Workers’ Compensation Act, nor was it intended to shield Allied from liability or to deprive the employee of compensation for any work-related harm or injuries.
Finding that the third-party release was not contrary to public policy, the Superior Court agreed with the trial court, affirming the Judgment against the employee and in favor of Sunoco.
The Supreme Court granted allocator to determine:
“Did the Superior Court, in a decision of first impression of state-wide substantial significance, disregard the public policy of the Commonwealth of Pennsylvania and the plain meaning of the Pennsylvania Workers’ Compensation Act when it decided that a third-party release in the form of a ‘Workers’ Comp Disclaimer’, signed in consideration for employment or receipt of compensation benefits, which further required the waiver and eternal release of any and all rights to make a claim, commence a lawsuit, or recover damages or losses not void against public policy when the language of the disclaimer openly conflicts with the language of Section 204(a) of the Pennsylvania Workers’ Compensation Act, which expressly renders such agreements as void against public policy?”
Before the Supreme Court, the employee argued that the disclaimer that she had signed, the same being a condition of her employment and initial hire, violated the first sentence of Section 204(a) of the Pennsylvania Workers’ Compensation Act, as that sentence reads:
“No agreement, composition, release of damages made before the date of any injury shall be valid or shall bar a claim for damages resulting therefrom; and any such agreements declared to be against public policy of this Commonwealth.”
Arguing that the sentence was plain and unambiguous, the employee asked the Supreme Court to invalidate the disclaimer that she had clearly consented to when hired. A second basis for invalidation was asserted by the employee, as she contended that the disclaimer clearly contravene the subrogation clause of Section 319 of the Pennsylvania Workers’ Compensation Act, claiming that it was absurd for an employer to forego an opportunity to recoup expenses spent on an injured worker, effectively arguing that the negation of subrogation resulted in economic harm to her employer, Allied.
Sunoco responded by arguing that Section 204(a) only applied to an employer’s attempts to limit its own liability for workers’ compensation benefits and claims, and that it had no application whatsoever to releases that might involve third parties, ones not governed by the well-muscled reach of the Pennsylvania Workers’ Compensation Act.
Further arguing that the employee had never argued that the disclaimer was a contract of adhesion, or that it resulted from mistake, duress, fraud, or that it was either ambiguous or unsupported by consideration, Sunoco sought validation of the disclaimer, as waiver of any claim by the employee against it for a fall of personal injuries.
Dissecting Section 204(a) of the Pennsylvania Workers’ Compensation Act, the Supreme Court, in a majority opinion authored by Justice Eakin, held that only the first sentence of Section 204(a) deals with public policy issues, as the remaining sentences primarily discuss various sources and funds that an employee might receive, that might impact on the employee’s receipt and entitlement to workers’ compensation benefits.
Initially conceding that the first sentence in Section 204(a) was not free from ambiguity, the Supreme Court then examined the inter-relationship between Article II of the Act, in which Section 204 is one of five Sections as that Article related to the Pennsylvania Workers’ Compensation Act as a whole, as Article II is entitled “Damages by Action and Law”. As had been observed by the Supreme Court in its 1999 DecisionFonner v. Shandon, Inc. fundamental premise of the Pennsylvania Workers’ Compensation Act is that the relations between the employee and the employer under the Act are essentially contractual in nature, as the employee embraced the right of exclusive remedy, and the employer embraced the right of statutory immunity, establishing a duality of purpose inuring to the benefit of both parties.
Interpreting legislative history, the Supreme Court determined that the legislature had originally intended that the provisions of Section 204(a) would only apply to agreements between an employer and employee that might bar an employee’s right to make a claim against their employer, and not, by extension, to bar claims against third parties.
Stripping away legislative ambiguities and contractual aversion, the Supreme Court held that the disclaimer and waiver entered into by the employee did not prevent the employee from receiving full and just compensation for her work-related injuries, and that its effective negation of Allied’s potential right of subrogation, was a business decision that only affected Allied, and that it was not a deprivation of the employee’s rights.
Another argument advanced by the employee was that the disclaimer/waiver contemplated actions that could only occur in the future, with the Court holding that the disclaimer was a condition of employment, under which the parties, both the employee and employer, and that it certainly contemplated that it would affect future causes of action, as the disclaimer dictated how claims for work injuries would be handled in the future.
Holding that the employee was never forced to sign the disclaimer, and that the disclaimer did not prevent her from receiving workers’ compensation benefits for her work-related injuries, the Supreme Court held that the disclaimer/waiver was merely a guarantee to Allied’s customers that they would not be held legally responsible or liable for injuries sustained by Allied’s employees.
Justice Eakin’s Opinion was joined in by Justices Castille, Saylor, Todd, and McCaffery.
A concurring Opinion was issued by Justice Saylor, with Justice McCaffery joining in that concurring Opinion.
The concurring Opinion posed a “modest reservation”, in the course of invoking the concept of a “double recovery”, and the public policy reasons behind subrogation, with Justice Saylor confessing to some circumspection as to whether an injured employee is ever able to fully recover in tort, where the recovery is diminished by compromise, settlement, litigation costs, and subrogation.
Justice Baer dissented, predicating the dissent on the first sentence of Section 204(a) of the Act being “clear and unambiguous”, resulting in Justice Baer concluding that the disclaimer/waiver at issue clearly was prohibited by the plain language of that sentence.
Practical Tips:
Does the Bowman Decision place employers who do not secure the Bowman-type disclaimer/waivers at a competitive disadvantage to employers who do not secure such a disclaimer or waiver?
Will these types of disclaimers raise questions as to the adequacy of consideration, a question that might arise, if someone already employed is asked to execute such a disclaimer/waiver, in the wake ofBowman?
Is it possible to argue that continued retention of employment is, in fact, adequate consideration for aBowman-type disclaimer/waiver?
What if an employee refuses to sign the disclaimer/waiver?
No less true, what if an employee is terminated for refusing to sign the disclaimer/waiver?
And where do we begin to analyze the definition of either a “customer or client” under the disclaimer/waiver?
Given what is at stake by application of the Bowman rule, additional litigation is clearly forecast in the future with this novel issue.
ConnorsLaw LLP
Trust us, we just get it!
It is trust well spent!
Defending liability-based lawsuits throughout Pennsylvania, on behalf of insurance carriers, third-party administrators, and self-insured businesses and corporations, our 100+ years of cumulative experience defending our clients against negligence and occurrence-based liabilities, empowers our Casualty Practice Trial Group attorneys to be entrusted to create the factual and legal leverage to expeditiously resolve lawsuits and claims, in the course of limiting/reducing/extinguishing our clients’ potential liabilities under Pennsylvania’s common law, trial practices, and rules of civil procedure.
With every member of our trial practice group being AV-rated, our partnership with the Pennsylvania Defense Institute and the Counsel on Litigation Management magnifies the lens through which our professional expertise imperiously demands that we remain dynamic and exacting advocates for our clients, the same being businesses, corporations, insurance carriers, seeking our trial and litigation acumen, to navigate the frustrating and liability-intensive minefield pervasive throughout Pennsylvania trial practice and procedure.
Questions concerning tort and/or contract liability that might arise in the context of casualty claims can be directed to Kevin L. Connors atkconnors@connorslawllp.com (Phone: 610-524-2100 Ext. 112).
By: Lisa A. Miller, Esquire
The Court affirmed the Decision of the Appeal Board which denied the Claimant’s Fatal Claim Petition because the death did not occur within 300 weeks of the date of the original work-injury as required by Section 301 (c)(1) of the Workers’ Compensation Act.
Pursuant to an NCP, the Employer recognized that the Claimant/Decedent sustained an injury in the course of her employment described as a “lumbar strain/sprain” on October 15, 2003. The Claimant/Decedent underwent two spine surgeries. On June 28, 2006, the WCJ granted the Claimant’s Review Petitions in accordance with the parties’ stipulation that the description of the work injury be amended to “lumbar strain/sprain and lumbar disc disruption L4-5, resulting in total disc arthroplasty at L4-5 level.”
On June 8, 2011, the Claimant filed a Fatal Claim Petition alleging that on June 13, 2010, the Claimant/Decedent died as a result of mixed drug toxicity from medications prescribed by her treating physician. Employer filed a timely Answer denying the allegations and asserting that the Petition must be dismissed because the Claimant/Decedent’s death did not occur within 300 weeks of her work injury (October 15, 2003) pursuant to Section 301 (c) of the Act.
The WCJ denied the Fatal Claim Petition holding that the Claimant/Decedent died more than 300 weeks after the date of her injury. As such, the WCJ held that the Fatal Claim Petition was barred under Section 301 (c) of the Act.
Claimant appealed and argued to the Board that Claimant/Decedent’s death arose from an additional “injury” that was accepted pursuant to the WCJ’s 2006 decision, the Claimant/Decedent’s death was within the 300 week time limitation.
The Board held that the 300-week period of Section 301 (c) applies to the Claimant/Decedent because she sustained a work-injury as opposed to an occupational disease. The Board citedShoemaker v. WCAB (Jenmar Corporation), 604 A.2d 1145 (Pa. Cmwlth. 1992), noting that “even in the case of an apparently consequential injury, arising subsequent to the date of the recognized injury, the 300-week period between a decedent’s work injury and death will be calculated beginning with the date of the original work injury.”
The Board also rejected Claimant’s argument that the reason for distinguishing between a work-injury and occupational disease does not apply to this matter because the Claimant/Decedent had an “additional insidious injury.” The Board explained that the Commonwealth court has concluded that when the condition arose from a work-injury as opposed to an occupational disease that the death must occur within 300 weeks of the original work-injury, without exception under Section 301 (c).
Citing Shoemaker, the Commonwealth Court affirmed the Board, noting that the Commonwealth Court has consistently held, without exception, that Section 301 (c) (1) denies benefits where more than 300 weeks has elapsed between the commencement of the compensable injury and the injury related death.
By: Lisa A. Miller, Esquire
The Court reversed the Order of the Appeal Board, which reversed the order of the WCJ suspending the Claimant’s benefits.
On June 11, 1996, the Claimant sustained an injury to his right knee in the course and scope of his employment as a first class body mechanic. The Claimant was working under permanent, light duty restrictions earning an average weekly wage of $825.91. SEPTA accepted the Claimant’s injury and disability through a TNCP, but issued a Notice of Compensation Denial (NCD) on July 17, 1996. Claimant filed a Claim Petition in August 1996, and a Penalty Petition in June 1997 alleging an unreasonable contest.
The Claimant returned to his pre-injury light duty work shortly after the June 11, 1996 accident. On July 7, 1996, the Claimant was involved in a non-work related car accident. In that non-work related motor vehicle accident he sustained injuries to his left knee, low back and left hand. The Claimant went out of work for the motor vehicle accident on July 12, 1996. Claimant underwent surgery for the right knee injury that he sustained at work in January 1997, and returned to his pre-injury light duty position in April 1997.
On December 27, 1998, the Claimant was struck by a vehicle and suffered injuries to his left knee, low back, left hand and left shoulder in a non-work related incident. The Claimant stopped working again, and began receiving sickness and accident benefits. Claimant unsuccessfully attempted to return to work during the week of December 26, 1998, but has not returned to work since then.
On June 6, 2000, following hearings on the Claim Petition the WCJ issued an order granting the Claimant’s Penalty and Claim Petitions. The Judge awarded total disability benefits for the period in which Claimant was disabled from the June 11, 1996 work injury, and not otherwise compensated up until the date of his Decision and indefinitely thereafter.
On August 28, 2006, the Employer filed a modification and/or suspension petition alleging that as of April 12, 2006, the Claimant failed to respond in good faith to jobs referred to him that were within his physical and vocational capacities. During the course of the litigation, on January 30, 2007, the Employer filed a second modification/suspension petition alleging that the Claimant was able to return to work as of November 9, 2005, but for his December 1998 non-work related injuries.
Employer presented Dr. Bernstein, who opined that the Claimant’s work-related right knee injury had sufficiently recovered such that the Claimant was capable of performing sedentary work as of November 9, 2005, and that the only cause of the Claimant’s continuing disability was the non-work related December 1998 accident.
Employer also presented the testimony of a vocational expert, Michael Smychynsky who conducted a vocational evaluation of the Claimant. Mr. Smychynsky testified that he located four open and available positions that would have provided Claimant with wages up to $400.00 per week. According to Mr. Smychynsky’s testimony, the Claimant went to each of the interviews, but only put his name and telephone number on the applications, and at the conclusion of two of the interviews, began “swearing” and “threatening” people.
Claimant presented the testimony of Dr. Greene, his treating physician. Dr. Greene testified that Claimant was not capable of returning to work due to his work-related right knee condition. However, Dr. Greene acknowledged that he had not reviewed Claimant’s treatment records from four previous surgical procedures on the Claimant’s right knee or any records in connection with the Claimant’s December 1990 accident.
The Claimant also presented the testimony of Donald Jennings, a licensed psychologist and certified vocational expert, who testified that Claimant’s limited reading, writing and spelling abilities accounted for his minimal responses on the employment application. However, on cross-examination, Mr. Jennings acknowledged that the only reason the Claimant stopped working for employer was the December 1998, non-work related accident.
The WCJ found Dr. Bernstein’s testimony more credible than the testimony of Dr. Greene, and concluded that employer met its burden of proving that Claimant’s work related injury had resolved to the point where he could perform sedentary work, but for his non-work related injuries, which rendered him incapable of all possible work activities. The WCJ determined that employer notified Claimant of his release to sedentary work and referred four open and available positions to the Claimant which were within his vocational and physical capabilities which would have paid $400.00 per week, but the Claimant failed to pursue the positions in good faith. As such, the WCJ granted the modification petition and reduced Claimant’s benefits for the period of April 12, 2006 to January 26, 2007. In addition, the WCJ found that the Claimant’s non-work related injuries rendered him incapable of all possible work activity, and suspended the Claimant’s benefits as of January 26, 2007.
The Claimant appealed, and the Board affirmed the WCJs decision to modify Claimant’s benefits. The Board agreed with the Claimant that the Judge erred in suspending Claimant’s benefits because employer failed to establish the availability of a job equal to or greater than Claimant’s pre-injury average weekly wage of $825.91.
On appeal to the Commonwealth Court, SEPTA argued that it was not required to demonstrate job availability given that Claimant’s non-work related injuries are totally disabling. The Court agreed and noted that a suspension of benefits is governed by Section 413 of the Act. The Commonwealth Court affirmed the decision of the Supreme Court inSchneider, Inc. v. WCAB (Bey), 560 Pa. 608, 747 A.2d 845 (2000), in which the Supreme Court held that an employer was not required to show job availability where the Claimant was totally disabled by non-work related conditions. InSchneider, the Claimant suffered a work-related injury to his head and neck. While he was receiving temporary total disability benefits, the Claimant was involved in a non-work related incident and suffered severe brain damage and paralysis, leaving him permanently unable to work in any capacity. The Court considered the Claimant’s serious non-work related injuries prevented him from returning to work and the court concluded that it would be unreasonable to require the employer to present evidence of job availability. The Court explained that requiring the employer to “show that a sedentary or light-duty position is available to the Claimant would be an exercise in futility by virtue of the Claimant’s physical condition, and we can see no valid point in requiring such a show.”
The Employer argued that Schneider applies to this matter. The Claimant’s injuries are not as severe as the injuries inSchneider, but the evidence supported the WCJ’s finding that the Claimant’s non-work related injuries rendered him incapable of all possible work activities. Like the Claimant inSchneider, the Claimant was involved in a non-work related accident that left him totally disabled.
Significantly, in this case, Claimant had successfully returned to his pre-injury position 20 months earlier. Thus, the records amply support the WCJ’s conclusion that the Claimant’s work injury had resolved where he could perform sedentary work, but for his non-work related injuries. Under the circumstances, where Claimant’s non-work injuries rendered him incapable of all possible work activity, we believe that it would be unreasonable to require employer to present evidence of available jobs.
Two years away from the one-hundredth anniversary of the enactment of the Pennsylvania Workers’ Compensation Act, Governor Thomas Corbett has proposed several reforms to the Pennsylvania Workers’ Compensation Act, including provisions that would reform the following:
As is clear, the proposed reforms primarily deal with six areas:
REFORMS PROPOSED BY THE PENNSYLVANIA CHAMBER OF
BUSINESS AND INDUSTRY
In addition, reforms have also been proposed by the Workers’ Compensation Executive Committee of the Pennsylvania Chamber of Business and Industry. The Chamber has indicated that it plans to make reform of workers’ compensation procedures and policies a priority in 2013. The Chamber is supported by an Employer base, with 75% of Pennsylvania Employers supporting workers’ compensation reform.
The proposed reforms are supported by the Chambers’ 2012 Economic Survey, with Pennsylvania Employers indicating that the Pennsylvania workers’ compensation system should be improved through legislative reforms, specifically directed at the medical costs associated with workers’ compensation claims, as Employers were reporting a workers’ compensation insurance premium increase, with only one percent of Pennsylvania Employers noting a decrease in workers’ compensation insurance premiums, with 34% responding that there had been no change in their workers’ compensation costs, and 52% indicating premium rate increases for workers’ compensation insurance.
The Pennsylvania Chamber is in support of reforms to improve efficiency, provide necessary updates to the Pennsylvania Workers’ Compensation Law, and to address deficiency that the Chamber has identified as being conducive to abuse.
Specifically, the Chamber had advocated for legislation (HB 808), introduced in the 2011-2012 session of the General Assembly, that would have extended the period during which an injured worker would be required to seek treatment through a Panel of medical providers established by the Employer, expanding the 90 day period currently required under the 1996 Reforms to the Pennsylvania Workers’ Compensation Act, most often referred to as Act 57, to a 180 day period, with the Chamber indicating that both Employers and Employees consistently reported that injured workers treating with Panel Providers were more satisfied with the quality of care and often returned to work faster, than injured Employees who treated with non-Panel Providers.
The legislative reforms currently proposed by Governor Corbett and the Pennsylvania Chamber of Business have very strong opposition from several lobbying groups, to include the trial lawyers and physician/medical provider groups, that oppose limitations on managed care, fee schedules, utilization review, and prescription reimbursements.
The proposed legislative reforms remain in committee, with no clear legislative directives as to enactment.
Opponents of the proposed reforms claim that proposals limit access to reasonable and necessary medical care, and otherwise conflict with the humanitarian and remedial public policies forming the legislative basis for workers’ compensation legislation.
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Of what significance is it when a claimant who has been treating with a cardiologist for decades files a pulmonary claim but never produces the cardiologist to testify? That was the key issue inDonato v. Jersey City Municipal Utilities Authority, A-5984-11T4 (App. Div. August 21, 2013).
John Donato worked for the JCMUA from 1961 to 1974 and again from 1986 to 1999. He worked both as a clerk and a vehicle maintenance supervisor supervising the maintenance of cars, trucks, dump trucks, and vacuum trucks. He was exposed to soot and whatever else workers brought back from the sewer plant as well as diesel fumes and dust. In addition, the property where petitioner worked had apparently been contaminated during the ownership of a prior owner with chromium and was now being monitored by the Department of Environmental Protection.
In 2004, petitioner was diagnosed with pulmonary disease. He produced an expert, Dr. Malcolm Hermele, who said petitioner had a 75% partial permanent disability for probable bronchitis, restrictive pulmonary disease, small airways disease and COPD. He said overall petitioner was totally disabled. He could not distinguish whether petitioner’s breathing problems were due to pulmonary or cardiac causes.
Petitioner had been treating with a cardiologist for 23 years. He himself testified that he thought his breathing difficulties were related to his heart condition. He admitted that he had never treated with a pulmonary doctor even though he noticed that his breathing problems were worsening since 1988.
Dr. William Kritzberg testified for respondent. He said that the pulmonary function testing he performed on petitioner did not reveal a mild obstruction in pulmonary capacity. He felt that petitioner’s pulmonary symptoms were due to heart surgery, drugs used for his heart, and his body weight. He also said that any chromium exposure would not affect pulmonary performance.
The Judge of Compensation noted that respondent’s expert was board certified in internal medicine but petitioner’s expert held no board certifications. She also said that she drew an adverse inference from the failure of petitioner to produce the certified copy of the records of the treating cardiologist, have Dr. Hermele review them, or produce the cardiologist to testify.
Said records would have reflected any complaints petitioner had concerning his breathing. It is quite simply implausible that petitioner has the conditions Dr. Hermele diagnosed and that petitioner’s treating cardiologist never referred petitioner to a pulmonologist for treatment (petitioner repeatedly testified that he never received any pulmonary treatment). Certainly, petitioner’s treating cardiologist of 23 years was in the best position to opine as to whether Donato’s symptoms were due to his severe heart condition or due to a pulmonary condition. That petitioner’s cardiologist never referred petitioner for pulmonary treatment or prescribed pulmonary medicine leads the court to conclude that petitioner’s complaints are not ‘due in a material degree’ to his occupational exposure at the JCMUA. He was sent to Dr. Hermele by his attorney for a permanency evaluation, not for treatment.
The Appellate Division agreed. It said,
Given petitioner’s more than two-decade history of heart disease, those records and the opinions of the treating cardiologist in relation to petitioner’s claim that his pulmonary condition was causally related to the workplace, rather than his heart disease, were highly relevant and probative. It was petitioner who bore the burden of presenting the requisite proofs to establish his claim. . . . Thus, the fact that petitioner’s treating cardiologist, as a witness, or his cardiologist’s treatment records may have been equally available to both parties did not preclude the judge from ‘making a negative inference from the fact that petitioner never produced a certified copy of the records from his treating cardiologist or had Dr. Hermele review said records as part of his evaluation.’
On a separate, but equally important issue, the Appellate Division disagreed with the petitioner’s argument that respondent violatedN.J.S.A. 34:15-64 by compensating Dr. Kritzberg far in excess of the statutory maximum of $400 for his evaluation and $400 for his trial testimony.
We construe the language of the statute as limiting the fees that may be charged by an evaluating or treating physician in order to maximize the recovery on behalf of an injured worker. Therefore, the limitation on chargeable fees is intended to protect petitioners. Moreover, even if we were to construe the statute as limiting fees chargeable by medical experts as applying to respondents’ experts, as well as petitioners’ experts, any violation should not result in the exclusion of the report on that basis alone. Petitioner presented absolutely no evidence before the compensation judge to support his contention that if there are no limitations placed upon fees charged by respondents’ experts, respondents will be able ‘to afford to bring a more qualified expert to court to offer opinions.’
This case is one that practitioners should turn to when trying occupational disease claims. The rules for discovery in the Division of Workers’ Compensation are somewhat lacking, and this case points out the importance of getting prior treating records, even if there is no particular rule that requires prior records to be produced. The outcome of this case turned on a complete failure of discovery in obtaining prior cardiology records and forwarding them to the experts.
September 5, 2013
Commission Keeps Claimant's Counsel and Recording Devices out of Employer's Medical Evaluationsby Merrilee Harrell
A recent decision of the Alaska Workers’ Compensation Appeals Commission concluded that claimant’s counsel may not attend and record an employer’s independent medical evaluation (EME) unless the examining physician consents. InASRC Energy Services, Inc. v. Kollman, AWCAC Decision No. 186 (August 21, 2013), the Commission reversed an interlocutory decision of the Alaska Workers’ Compensation Board that injured worker Jeffrey Kollman may record an EME and have a witness present despite the objection of the employer’s physicians. Kollman v. ASRC Energy Services, Inc., AWCB Decision No. 13-0076 (June 27, 2013). The Board had relied onLangfeldt-Haaland v. Saupe Enterprises, 768 P.2d 1144 (Alaska 1989), which held that a civil litigant had a right to record a court-ordered Rule 35 medical evaluation and have his attorney present during the evaluation. On appeal, the Commission noted that Civil Rule 35 is significantly different from AS 23.30.095(e) of the Alaska Workers’ Compensation Act. AS 23.30.095(e) states that “The employee shall... submit to an examination by a physician or surgeon of the employer’s choice...” which, the Commission noted, leaves the choice of EME physician exclusively with the employer. A Rule 35 medical evaluation, in contrast, may be ordered by a judge “only on motion for good cause shown and upon notice... to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”
The Commission also noted that Langfeldt-Haaland was a 3-2 decision that explicitly limited its holding to Civil Rule 35 medical evaluations. The majority had argued the importance of allowing counsel to “observe shortcomings and improprieties during the examination which could be the subject of inquiries on cross-examination at trial; and ... [to] object to questions posed to the plaintiff during the examination that concern privileged information.” The dissenting judges pointed out that “adopting such a rule could have a chilling effect on otherwise reputable physicians performing medical examinations.” The Commission found the dissent’s position more persuasive, and also took into account a survey of SIME physicians that showed a significant percentage of the physicians surveyed would decline to perform evaluations if they were required to allow the evaluation to be witnessed and recorded. Requiring EME evaluations to be witnessed and recorded would thus have a chilling effect on the employer’s choice of physician if the employer’s choice was limited by such a requirement.
The commission emphasized that the plain language of AS 23.30.095(e) gives the employer the exclusive choice of EME physician, noting that the statute “does not say that the choice of an EME physician is exclusively the employer’s, provided that the employer chooses a physician who would allow witnessing and recording of the EME.” The commission concluded that such a restriction would interfere with the employer’s choice of physician as contemplated by AS 23.30.095(e). Kollman has appealed the Commission’s ruling to the Alaska Supreme Court.
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========RWGB seeks to provide the latest information on workers' compensation law in Alaska. The information provided above is based upon the decision of the Alaska Workers' Compensation Appeals Commission and is subject to change on appeal. RWGB will issue an updated newsletter should the Alaska Supreme Court overrule the Commission's decision.
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