State News

On August 9, 2013, the Alabama Court of Civil Appeals released its decision inDevero v. North American Bus Industries, in which it upheld summary judgment in favor of North American Bus Industries (NABI) for various tort claims Devero alleged arose out of his employment with NABI.

In February of 2005, Devero and seven other employees of NABI filed a lawsuit in the Circuit Court of Calhoun County, Alabama against NABI and two other defendants, PPG Industries and E.I. DuPont de Nemours, asserting claims of fraud, negligence, wantonness, failure to warn, civil conspiracy, and infliction of emotional distress stemming from alleged exposure to hazardous chemicals in the workplace at NABI. In January of 2006, the trial court entered an Order stating that all of the plaintiff’s claims against NABI were governed by the exclusivity provisions of the Alabama Workers’ Compensation Act. The trial court ordered Devero to restructure his Complaint to state claims under the Act. Devero then filed a new Complaint for workers’ compensation benefits, asserting that he had been exposed to toxic chemicals, deadly solvents, and spray paint particles that had damaged his internal organs and caused him to develop peneumoconiosis. NABI filed an Answer denying all of Devero’s allegations and then moved for summary judgment, asserting that there was no evidence that Devero had been exposed to any toxic substances at work, and that there was no evidence to indicate that Devero suffered from any illness or occupational disease related to his employment. In support of its Motion for Summary Judgment, NABI submitted Devero’s deposition testimony, the medical records of Devero’s personal physician, and hospital records pertaining to Devero’s treatment for his alleged peneumoconiosis.

After consideration of all the evidence, the trial Court granted NABI’s Motion for Summary Judgment, finding that Devero had not presented any evidence of legal or medical causation for his alleged injuries and/or occupational disease. However, the trial Court’s Order did not contain specific findings of fact and conclusions of law addressing whether Devero was suffering from an injury or disease that occurred in and arose out of his employment with NABI.

Devero appealed. On appeal, the Court of Civil Appeals held that an Order granting a Motion for Summary Judgment in a workers’ compensation case need not contain findings of fact and conclusions of law, thus overturning a prior case ofFarris v. St. Vincent’s Hospital, 624 So. 2d 183 (Ala. Civ. App. 1993). Devero also continued that the trial Court erred in failing to allow him to proceed with his tort claims, which he alleged were outside the scope of the Alabama Workers’ Compensation Act. However, the Court of Appeals held that although Devero’s claims against NABI involved allegations of intentional or reckless conduct, those claims dealt with workplace conditions "within the bounds of an employer’s proper role", and therefore, those claims were precluded by the exclusivity provisions of the Alabama Workers’ Compensation Act.

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ABOUT THE AUTHOR

The article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atcdrummond@fishnelson.com or (205) 332-3414.

The case of Young v. Wackenhut Corporation, 2013 U.S. Dist. LEXIS 14414 (D. N.J. Feb. 1, 2013) demonstrates the importance of providing required FMLA notice to eligible employees.

            Jacqueline Young, a Payroll Specialist, advised her employer, The Wackenhut Corporation (hereinafter “TWC”), of her interest in maternity and FMLA leave in November 2008 when she first found out that she was pregnant.  On April 30, 2009, she sent the HR Director an email regarding her “maternity and FMLA leave.”  She supplied the HR Director with leave of absence forms and a doctor’s note putting her out of work.  She went out on maternity leave on June 12, 2009. 

            TWC did not provide any notices as required under the FMLA.  This turned out to be the key fact in the case.  Specifically, the company did not provide the FMLA Eligibility Notice, the Rights and Responsibility Notice, and the Designation Notice.  Instead after months of leave, company representatives called Young on November 30, 2009 and told her that her leave had expired and that she needed to return to work.  This was the first time that TWC reached Young, although Young had called and emailed the company before this date.  The company also told Young that it would need a return-to-work note from her doctor.  On December 1, 2009, the company terminated Young’s employment for failing to provide a return-to-work note and for exhausting her FMLA leave.

            Young sued under the FMLA and argued that the company violated her rights under the FMLA because she was never informed that she had to return to work by November 19, 2009, nor provide a doctor’s note.  The District Court first noted that the company failed to provide Young with “individualized notice” as required by the FMLA. It rejected the company’s argument that an employer’s inclusion of a summary of an employee’s rights in an employee manual constitutes “sufficient notice.” Even though all employees had access to an employee handbook both online and at the HR office, the court held 29 C.F.R. 825.300 specifically requires compliance with the Eligibility Notice, Rights and Responsibility Notice and Designation Notice. The employer is also required to advise on designation whether it will require a return-to-work note.

            TWC argued that even if it had not complied with FMLA notices, plaintiff could not prove any real prejudice to her.  The company maintained that Young took more than her allowed 12 weeks of leave and should not be able to advance an FMLA claim.  Young countered that had she gotten the appropriate notices up front, she would have known her expected return-to-work date and she could have avoided termination.  The court said, “TWC’s argument ignores the fact that the November 30, 2009 telephone call between Plaintiff and Winter Lemon and Doris Wallace was the first time Plaintiff was formally told by TWC that her FMLA leave time had been exhausted.” 

            The Court relied on prior New Jersey case law, particularly Conoshenti v. Public Serv. Elec. & Gas Co., 365F.3d 135, 143 (3d Cir. 2004) for the proposition that an employee has a right to make an informed decision about structuring leave time and planning recovery so as to preserve job protection. 

            This case is consistent with recent FMLA amendments which allow employers to retroactively designate FMLA time, but only where such designation does not prejudice the rights of the employee.  In this case, the employer’s failure to provide individualized notice created the initial problem; the subsequent attempt by the employer to retroactively designate time off on maternity leave failed since the employee had a strong argument that had she received notice promptly, she could have structured her leave so as to return to work by November 19, 2009.  Most importantly, the case underscores why it is so crucial for employers to utilize appropriate FMLA notice forms.  Having an FMLA policy in an employee manual and online is wise but it cannot substitute for specific notice requirements.

A number of carriers were fined recently for failing to accurately submit medical bill and payment data. One carrier was fined $15,000 for this violation.  The submission of medical bill and payment data is governed by a complex set of regulations which includes the Labor Code, Division rules 134.800 - 134.808, the IAIABC EDI Implementation Guide, the Texas EDI Medical Data Element Requirement Table, the Texas EDI Medical Data Element Edits Table, and the Texas EDI Medical Difference Table. 

James Madison could have been describing the laws governing the submission of medical bill and payment data when he wrote the following:

It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what is will be tomorrow.

James Madison, Federalist no. 62, February 27, 1788.

Given the complicated reporting standards and the lack of harm to any system participants from these alleged violations, the Division should consider taking a more collaborative approach with carriers rather than treating potential violations as an opportunity to collect a fine.

SB1322 takes effect September 1, 2013 allowing informal networks for durable medical equipment and home health care. The Act was previously amended in 2011 to allow informal networks for pharmaceutical services. Within 30 days after an informal network is established, it must report certain information to the Division including the name and contact information for the network and a list of the carriers and entities with whom it contracts. At least quarterly, notice must also be given to each contracted health care provider of all carriers given access by the network to the provider’s discounted rates. The notice can be provided in an electronic format or through an Internet website link if certain requirements are met.

Effective September 3, 2013, Kerry Sullivan will join the Division as Deputy Commissioner for Hearings, replacing Dan Barry, Acting Deputy Commissioner for Hearings, who will return to his role as head of the Appeals Panel. Some of you may know Mr. Sullivan from his many years as an administrative law judge at the State Office of Administrative Hearings (SOAH). SOAH proceedings tend to be more formal than DWC proceedings. The rules of evidence apply at SOAH and there are also detailed procedural rules which tend to be consistently and uniformly applied, resulting in fewer surprises for the parties. Mr. Sullivan was well respected as a judge by those who appeared before him and will hopefully be a positive influence on the Division.

The trial court was presented with two theories of recovery: a specific incident or repetitive trauma.  Presenting both theories is permissible under Nebraska law.  The Court found that the trial judge only expressly addressed the specific incident claim, and it remanded the case for a reasoned decision pursuant to Rule 11, which required a specific finding on claimant’s alternate theory of recovery that repetitive trauma caused her injury.

This case should serve as a reminder for related companies to be careful how they structure their operations if they want to avoid liability for the company that is not considered the employer of the injured worker.  The deceased employee's wife sued his employer, Delta Steel, and its parent company, Reliance, for negligence in connection with his death. Delta Steel argued that the exclusive remedy defense barred the wife's ordinary negligence claims. The wife challenged the applicability of the exclusive remedy defense by disputing that Delta Steel had workers' compensation coverage even though she was receiving death benefits. Not surprisingly, the Fort Worth Court of Appeals held that the wife was estopped from denying that her husband's employer had workers' compensation coverage when she was receiving death benefits. However, the court of appeals held that the wife could maintain her ordinary negligence claim against Reliance, the parent company.  Reliance did not assert the exclusive remedy defense because it was not the deceased employee's employer. Instead, it argued that it did not owe a duty to the deceased employee and therefore, it could not be negligent since a legal duty is one of the elements of a negligence claim. The court disagreed that Reliance owed no duty to the deceased employee. It held that while parent corporations generally have no duty to control their subsidiaries, Reliance voluntarily undertook a duty to keep Delta Steel’s employees safe. The court held this duty arose because "Reliance generally controlled aspects of Delta Steel’s safety policies, specifically controlled policies concerning the inspection of cranes, had the authority to audit Delta Steel’s Fort Worth plant and to require Delta Steel to correct safety issues discovered upon an audit; audited Delta Steel’s other plants; had the authority to require Delta Steel to take a malfunctioning crane out of service; and required Delta Steel to mail monthly reports on accidents and investigations to Reliance." 

The party requesting a designated doctor examination is required to send a copy of the request to the other party. Be on the lookout if you don’t get a copy of the request. It could be a mere oversight or it could be intentional. The new form provides a number of opportunities for

shenanigans. Two of the biggest are injuries accepted as compensable by the carrier (box 37) and the description of the accident or incident that caused the claimed injury (box 42.C). If you don’t get a copy of the request, it may be because they don’t want you to see what they put on the form.

When you get a set notice for a DD exam, look to see if you have a copy of the request. If you don’t, you might have a basis to object to the exam but you have to be fast. You only have three business days to file a request for an expedited CCH in order to stay the exam. If you don’t get a

copy, contact your attorney who can help you obtain one and advise whether you should dispute the request.

The EEOC filed lawsuits this past May, claiming that employers had violated the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA) when they required applicants to submit to post-job-offer medical exams. Though GINA and ADA do not bear directly on workers’ compensation issues, they do affect post-job-offer medical examinations which are often important aspects of workers’ compensation claims.

In EEOC v. Fabricut, Inc. and EEOC v. Founders Pavilion, Inc., the employers allegedly required applicants to undergo medical examinations, which included questions about family medical histories. In both cases, the employers may have withdrawn job offers based on the applicants’ answers to these questions. In doing so, the EEOC claimed the employers violated GINA, which prohibits an employer from requesting, requiring or purchasing genetic information from applicants, including family medical histories.

Notably, the ADA and GINA do not prevent employers from requiring applicants to undergo any medical examinations, but they do limit the scope of such exams. Employers may require a medical examination that is designed to detect disabilities that would directly affect an applicant’s ability to perform the physical duties of a job. Based on the results of this type of limited medical exam, the applicant may be found physically incapable of safely performing the duties of the job, and unless a reasonable accommodation can be made, the employer may withdraw a job offer.

Practice Pointer:

Employers and their counselors should review post-offer medical examinations, if any, and make sure the exam is limited to gathering information that is relevant to the physical requirements of the job. If the post-offer exam asks about family medical history or conditions that would not affect an applicant’s ability to perform the job, then the exam may result in violations of the ADA and GINA. If testing is done by a private doctor or clinic, then employers should verify that prohibited information is not being requested on their behalf.

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About the Author

This blog post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

The Alabama Court of Civil Appeals recently affirmed a trial court’s determination of disability which was based on the employee’s subjective complaints of pain and her appearance of physical disability during trial. InStericycle, Inc. v. Sonja Patterson, the trial court assigned a 57% permanent partial disability rating for a back injury sustained while loading a truck. On appeal, Stericycle contended that the trial court’s medical-causation and disability determinations were not supported by substantial evidence.

The Court of Appeals first addressed the issue of medical causation, holding that the parties stipulated that medical causation was not an issue before the trial court. The Appeals Court found the technical wording and structure of the stipulations supported the notion that the parties agreed the employee’s injury was caused by the accident. Furthermore, defense counsel did not challenge the trial court’s Order which clearly stated the parties had stipulated that causation was not an issue. As a result, the Appeals Court found no error in the trial court’s interpretation of the stipulation.

The Appeals Court then addressed the trial court’s assignment of a 57% disability rating. The evidence presented at trial indicated the employee’s treating physicians and physical therapists believed she was displaying symptom magnifications, which they define as reports of pain that exceed the objective medical findings. The medical evidence and thorough diagnostic studies provided little explanation for the employee’s pain, and she was given a full work release, without limitations, and a 0% impairment rating.

However, the employee continued to report severe pain and physical disability. At trial, the court noted the employee walked with a significant limp and moved around the courtroom as though she was much older than 44, her actual age. The trial court found the employee’s subjective complaints to be credible in spite of the significant medical evidence that showed otherwise.

In affirming the trial court’s determination of disability, the Appeals Court recognized its duty to uphold a decision that is supported by consideration of the totality of evidence. Though it was in striking contrast to medical evidence, the Appeals Court held that the employee’s subjective reports of pain and physical presentation of disability were sufficient grounds to support the trial court’s determination of disability.

My Two Cents:

This decision is a testament to the power of perceived credibility in workers’ compensation cases. As evidenced in the opinion, a trial court’s confidence in well-informed scientific and medical evidence can be stifled by an employee with a convincing demeanor. As such, there is significant value in developing credibility, or lack thereof, in the eyes of a court.

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About the Author

This blog post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.