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Walesca Benvenutti worked for Scholastic Bus Company as a school bus driver.  She drove children to school in the morning and then drove them home in the afternoon.  She was required to clean the bus interior and inspect the seatbelts after each run.  The testimony of both petitioner and her employer was that there was no specific time that she had to clean the bus.  The employer confirmed that she was permitted to clean the bus off-premises and was paid additional money to clean the bus interior.

On June 9, 2010, petitioner parked the bus in front of her house after her morning run.  Before she exited the bus, she said she swept the bus and inspected the seat belts.  She testified that she tripped over a piece of rubber mat and fell while exiting the bus, sustaining injuries.  The respondent denied the claim because petitioner had prepared a handwritten statement three days after the incident occurred in which she never mentioned that she was cleaning the bus before she fell.

Petitioner testified at trial that when she wrote the handwritten statement, she was principally concerned about informing her employer that she had fallen and broken her ankle.  She said it did not occur to her at the time to inform her employer that she had just cleaned the bus.

The Judge of Compensation reviewed the testimony of the various witnesses and noted that two of the employer’s witnesses admitted that petitioner was permitted to sweep the bus at home. The judge also noted that it was a job requirement that petitioner clean the bus between runs during the day.  The judge found petitioner’s testimony to be credible and ruled in favor of compensability.

 The Appellate Division affirmed and stated, “The definition of ‘employment’ under the statute is multi-faceted, and includes situations in which the employee is physically away from the employer’s premises but nevertheless is ‘engaged in the direct performance of duties assigned or directed by the employer.’” N.J.S.A. 34:15-36.

The Court said that “Courts must bear in mind that ‘the language of the [Act] must be liberally construed in favor of employees.’”Cannuscio v. Claridge Hotel, 319 N.J. Super. 342, 349 (App. Div. 1999).  The Court ruled that as long as the employee is engaged in the direct performance of assigned duties, it does not make a difference whether the duties are performed on or off the work premises.  The case can be found at Benvenutti v. Scholastic Bus Company, A-3732-11T1 (App. Div. April 4, 2013). 

Many employers utilize post-offer medical examinations as part of their hiring process to screen out potential employees who cannot perform the essential functions of the job with or without reasonable accommodation.  Sometimes, however, the value of a post-offer medical examination does not come to light until long after hiring.

            In Reilly v. Lehigh Valley Hospital, 27 AD Cases 1189 (3d Cir. 2013), the plaintiff, Robert Reilly, was hired in August 2006 as a part-time Security Officer for LVH.  He received a conditional offer of employment in August 2006 and signed a six-page employee health information form.  The final two questions on the form asked, “Have you ever been recognized as or diagnosed with alcoholism or drug addiction?  Have you ever been or are you now being treated for alcoholism or drug addiction?  . . . If so, specify type of treatment.”

            Reilly responded in the negative to both questions.  He did not answer a follow-up question that requested the type of treatment he received.  A handwritten note beneath the questions read:  “denies drug/alcohol addiction.”

            On April 4, 2008, Reilly finished his work shift at LVH and was admitted to the Emergency Room to receive treatment for a work-related eye injury. Reilly disclosed to the treating physician that he had a history of narcotics use and was a recovering drug addict.  Following that visit, the ER sent a report to the LVH Employee Health Services Department, which in turn notified the LVH Human Resources Department that Reilly had not been candid on his post-offer employment form in 2006.

            On May 2, 2008, LVH terminated Reilly’s employment advising him that the hospital considered his failure to disclose his addiction and alcoholism as dishonesty.  Reilly then sued in the Court of Common Pleas of Lehigh County, Pennsylvania.  He alleged his firing was disability-based discrimination.

            During his deposition, Reilly admitted that he was a recovering alcoholic and narcotics addict.  He was still attending Alcoholics Anonymous (AA) sessions and Narcotics Anonymous (NA) sessions.  He further admitted that he had attended 40 hours of programs at a drug and alcohol treatment facility (Livengren) as a consequence of a conviction for driving under the influence in 1995. He did not consider his time in the program to be treatment because it was mandated by the court and he experienced no change in his substance abuse behavior resulting from the program.

            The District Court granted summary judgment to LVH, dismissing Reilly’s law suit, and the Third Circuit Court of Appeals affirmed.  It said, “Reilly’s belief that he answered the pertinent inquiries truthfully is not the determinative factor.  The question is whether the decision maker at LVH could regard Reilly’s responses as dishonest.  The answer to that question is resoundingly, “yes.”  The court noted that Reilly admitted in his deposition that he received 40 hours of drug and alcohol addiction treatment and that he still attended AA and NA meetings.

Given this undisputed evidence, Reilly’s bare assertion that he completed the Employment Form truthfully because he believed the purpose of the treatment at Livengrin (the program) was to resolve his DUI charge, not treat his addictions, is insufficient ‘to permit a factfinder either to disbelieve LVH’s articulated reasons, or to conclude that discrimination on account of disability was the real reason’ for Reilly’s termination.

The court therefore affirmed the dismissal of Reilly’s suit.  The court did not decide the issue of whether it was improper for LVH to disclose Reilly’s medical records to the Human Resources Department after his visit to the ER because Reilly failed to raise that in the trial below.

It is important to note that the termination in this case was for dishonesty on the post-offer medical examination form.  The court did not question that Reilly was protected under the Americans with Disabilities Act from discrimination on the basis of alcoholism or drug addiction.  The issue was simply whether the employer had a right to terminate an employee who had misrepresented the truth in the post-offer process, and that answer to that question was affirmative.

In Valdez v. Brent McGill and Mueller Supply Company, Inc., 2012 U.S. App. LEXIS 2783 (10^th Cir. 2012), the court considered whether a request for telecommuting and additional leave was a reasonable accommodation.

            Doyle Brown worked as a warehouse supervisor for Mueller Supply Company.  He supervised Mueller’s warehouse, including all shipping and receiving.  He advised his own supervisor, McGill, that he had cancer and would need surgery in April 2005.  Even though the company employed too few people at the work site to trigger FMLA, the company nevertheless offered Brown FMLA leave.  Brown returned to work following his surgery in May 2005.

            In January 2006, Mueller approved intermittent FMLA leave for recurrent health-related absences.  One year later, on January 24, 2007, Brown presented a note from his doctor indicating that he had serious health conditions and would need to be out of work until February 8, 2007. 

            On February 7, 2007, Mueller sent Brown a letter stating that he had exhausted his 12 weeks of FMLA leave.  On the same date Brown presented a new note stating that he would need three more weeks of leave until March 1, 2007.  Mueller then terminated Brown on February 8, 2007 for poor work performance and excessive absences.  Brown offered to come to work against doctors’ orders but the company refused. Brown then sued under the ADA and argued that the company failed to make reasonable accommodations.

            At some point Brown passed away and his personal representative, Valdez, proceeded on the case.  She argued that Brown could have performed the essential job functions had the company offered him the opportunity to work from home.  The court noted that Brown had conceded in his deposition that physical attendance in the workplace was required.  He maintained that he could use technology to perform many of the essential functions of the job, but he conceded that at home he could not perform quarterly or random inventory counts, could not interact with customers in the warehouse, and could not effectively supervise his staff.  Not being in the warehouse would make it hard to know whether his employees had completed job tasks.  Based on these statements, the court concluded that working from home was not a reasonable accommodation.

            Next, Valdez argued that additional leave would have been a reasonable accommodation.  The court said, “A leave of absence may be a reasonable accommodation as long as the employee’s request states the expected duration of the impairment.”  The court said, “Here, the record shows it was uncertain if or when Brown would sufficiently recover from his impairments to be able to return to work.”  The court added, “In light of his diagnosis with colon cancer, his frequent absences, and his inability to return to work according to the earlier physician’s note, it was uncertain he would be able to return to work on March 1, 2007.” Further, no doctor said that his conditions would be resolved by March 1, 2007.

            Valdez also argued that the company failed to engage in the very important interactive process to determine whether there was a potential reasonable accommodation.  The court rejected this argument as well.  “Accordingly, an employer is not required to engage an employee in a futile interactive process where, as we have concluded was the case here, no reasonable accommodation was possible.”

            In short, the ADA case was dismissed.  The opinion is interesting because employers are generally advised to engage in the interactive process.  But here the court held that the interactive process would have been of no utility since all of the requests for accommodation were simply not reasonable.

John Lance, a police officer for the City of Camden, New Jersey, was injured on May 10, 2004 in a work-related motor vehicle accident.  He received medical and temporary disability benefits in workers’ compensation.  However, he alleged that his workers’ compensation benefits were improperly terminated in October 2005. 

            On June 12, 2004, about a month later, Lance was directed to appear at police headquarters for a drug test.  He appeared and was given documents pertaining to the drug test.  He stated that he was unable to understand the documents and requested assistance.  When told he had to sign the documents, he refused and the test session was terminated.  The City then served disciplinary charges against Lance seeking his termination for failure to undergo the City’s drug test.

            The City conducted hearings on the disciplinary charges in November 2005 and January 2006. Lance claimed that he was not able to defend himself at the hearing because of cognitive impairments which were exacerbated by his inability to obtain medical treatment after the termination of his workers’ compensation benefits. 

            On January 23, 2006, the hearing officer issued a report recommending termination of Lance’s employment.  The City proceeded to discharge Lance. Around the same time, hearings continued in the Division of Workers’ Compensation, and Lance prevailed in his claim for continued temporary and medical benefits.  Ultimately, the City paid $189,892 in temporary disability benefits and $65,220 in medical benefits. Plaintiff also received an accidental disability pension, which would pay him two thirds of his salary free of federal taxes, and free of state taxes until age 65.            

Following his termination, Lance sued and claimed that the City violated his right against unreasonable searches and seizures by making him submit to a drug test.  He further claimed that the City retaliated against him for successfully obtaining workers’ compensation benefits and retaliated against him by delaying payment of his temporary disability benefits.  The trial court dismissed all of plaintiff’s claims and Lance appealed.

The Appellate Court rejected plaintiff’s employment discrimination claim:

While plaintiff alleged that he did not understand ‘what was going on’ when he appeared for the test, he provided no affidavit or certification supporting that allegation.  A police officer who unjustifiably refuses to comply with an order requiring that he undergo a drug test cannot be said to be performing his job in a manner that met the employer’s reasonable expectations.  Plaintiff provided no evidence showing that his refusal to submit to the test was medically justified.

As for the claim for retaliation due to the filing of a workers’ compensation claim, the Court acknowledged that there is a cause of action in New Jersey for retaliatory discharge for seeking workers’ compensation benefits.  In this case Lance contended that the City unlawfully retaliated against him for seeking workers’ compensation benefits by delaying payment of his temporary disability benefits. “The trial court correctly ruled that this claim should be pursued in the compensation case pending before the Division of Workers’ Compensation, in which plaintiff was seeking additional disability benefits.”

            Regarding plaintiff’s charge that he was wrongfully terminated for successfully obtaining workers’ compensation benefits, the court said that Lance failed to offer any proof on this count.  “Plaintiff presented no evidence from which a fact-finder could conclude that the City ordered the test or discharged plaintiff because he obtained workers’ compensation benefits.”

            This case can be found at Lance v. City of Camden, A-3157-11T3 (App. Div. April 18, 2013).

It is certainly not for lack of trying that plaintiffs remain largely unsuccessful in opening the door to intentional harm claims in New Jersey.  The door has remained closed in the past 10 years on intentional harm claims and all but locked, including the most recent challenge in Fendt v. Adam L. Abrahams, et. al., A-2333-11T1 (App. Div. April 9, 2013). 

            Michael Fendt worked in various capacities for Jeffrey Valvano, who operated JV Paving as a sole proprietorship.  He would fix equipment, drive machinery, and direct traffic around construction sites.  On May 19, 2008, Fendt was working as a “flagger,” stopping traffic on a busy county road so that Valvano could move a backhoe in and out of a driveway.  He stood in the center of the road with only a hand-held stop sign.  The company had fluorescent jackets, warning signs, cones, and flags available, but Fendt was not provided with any of this warning devices.  Valvano did not direct Fendt to utilize the warning devices.

            On the date in question, Fendt was doing his work, holding a stop sign, when the defendant Adam Abrahams drove into Fendt, causing serious injuries.  Abrahams said that he had taken his eye off the road to look at his radio.  He later stated that if there had been warning cones in the road, he would have driven more slowly.  The police issued various citations to the company for not having proper construction warning signs and not complying with signage requirements.

            Fendt sued the driver of the car, its owner and his own employer.  His expert opined that the employer “knowingly exposed (Fendt) to a risk that was substantially or virtually certain to result in harm.”  The expert cited the failure to comply with the Manual on Uniform Traffic Control Devices, failure to provide reflective safety vests, failure to comply with OSHA regulations, failure to have a written safety program, failure to adequately train employees in safety procedures, and failure to enforce safety policies to protect workers from harm.

            The trial court dismissed the case, and the Appellate Division affirmed.  The court said that “intentional harm” encompassed more than a subjective intention to injure.  Mere knowledge and appreciation of a risk of harm to the employee does not equate to intent.  New Jersey courts have followed the rule in Millison v. E.I. Du Pont de Nemours & Co., 101N.J. 161 (1985), namely that there must be a showing of “substantial certainty.” First, the employee must knowingly expose the employee to a substantial certainly of injury.  Second, the resulting injury must not be a “fact of life of industrial employment.”

            The court also cited the recent Supreme Court decision in Van Dunk v. Reckson Associates Realty Corp,. 210N.J. 449 (2012) where plaintiff’s suit for intentional harm failed even though the workplace accident produced an OSHA citation for a “willful” violation of OSHA safety rules.  The Court said that even a finding of a willful violation under OSHA does not alone suffice to prove whether the employer committed an intentional wrong. 

The Appellate Division found that this case had some parallels to Van Dunk, given the OSHA citations, fines,  and failure to use safety devices. It citedVan Dunk and a string of cases where plaintiff made out strong cases for intentional harm 10 years ago.   “Similar toVan Dunk, while the facts here amount to negligence, perhaps even gross negligence, they do not approach the facts in cases such asMillison, Laidlow, Mull, and Crippen.  In those cases, the employer was responsible for an affirmative act that made the workplace significantly less safe for its employees. The record contains no such affirmative act by the employer here.”

On April 8, 2004, Katherine Williams, a customer service representative for Bank of America, injured her back, arm and neck when a chair was pulled out from under her. Williams sought medical treatment, particularly for headaches and neck pain, and continued to work for Bank of America until she was laid off in 2008. In the Fall of 2009, her neurologist determined that she was unable to work in any capacity due to cervical disc disease and intractable post-traumatic headaches. At a subsequent hearing before the Deputy Commissioner, Williams was awarded temporary total disability benefits and ongoing medical treatment.

Defendants appealed to the Full Commission on November 15, 2011 and on December 8, 2011, the transcript of the hearing was transmitted electronically to the parties by the Industrial Commission. After receiving no further filings from Defendants, Williams filed a Motion to dismiss Defendants’ appeal on January 16, 2012 for failure to timely file a Form 44 Application for Review and a brief. On January 24, 2012, Defendants responded to Plaintiff’s Motion and also filed their Form 44 and brief. The Full Commission denied Williams’ Motion to Dismiss the appeal, but sanctioned Defendants by waiving their opportunity for oral argument. The Full Commission subsequently entered an Opinion and Award affirming the Deputy Commissioner’s decision with minor modifications. Both parties appealed.

On April 2, 2013, in Williams v. Bank of America, the Court of Appeals held that the Full Commission did not err in allowing Defendants’ appeal to go forward despite their failure to strictly comply with the time limitations set for filing a Form 44 and brief in Industrial Commission Rule 701. The Court noted that although Industrial Commission Rule 801, which allows the Commission to waive its rules in the interest of justice, does not allow the Commission to waive total noncompliance with Rule 701, in this instance, the Commission’s decision to waive strict compliance with Rule 701 was not abuse of discretion.

The Court next addressed the Full Commission’s conclusion that Williams’ headaches were causally related to her work injury and that she was disabled as a result. The Court rejected Defendants’ contention that the opinion of Williams’ treating neurologist, that her headaches were causally related to her work accident, was speculative and that he failed to rule out other potential causes of the headaches. The Court noted that the neurologist’s affidavit and deposition testimony established that he did consider other possible causes of Williams’ headaches and, ultimately, testified to a reasonable degree of medical certainty that her work related injury caused her headaches, which was sufficient to support the Commission’s determination.

Defendants also contended that Williams failed to meet her burden of proving an ongoing disability, particularly when she was able to continue working after her accident for more than four years, an assertion the Court rejected. It noted that Williams’ testimony regarding the debilitating effect of her post-traumatic headaches was sufficient, in itself, to establish her disability. However, Williams also offered the testimony of her neurologist that her post-traumatic headaches prevented her from being a "reliable employee" due to the fact that she could not maintain "consistent performance." In addition, her vocational expert testified that it would be futile for Williams to seek employment because he did not believe she could maintain it. As a result, the Court upheld the Full Commission’s determination that Plaintiff’s headaches were related to her on-the-job injury and that she continued to be disabled as a result.

Williams is another reminder that the Full Commission may rely on an injured worker’s own testimony regarding their incapacity for work and that such testimony, by itself, can be sufficient to meet the injured worker’s burden of proof.

Reps. Dave Reichert (R-WA) and Mike Thompson (D-CA) introduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act (H.R. 1982) into the House of Representatives May 15, 2013.

The bill establishes clear and consistent standards for the administrative process which provides for reasonable protection of the injured worker and Medicare. Supporters indicate that it will benefit injured workers, employers and insurers by creating certainty as well as allowing the settlement process to move forward without the delays that parties are currently presented with.

The legislation is supported by the American Insurance Association, the American Bar Association, the National Council of Self-Insurers, Property Casualty, Insurers Association of America, UWC- Strategic Services and the Workers Injury Law and Advocacy Group (WILG).

The bill will likely be referred to the Ways & Means Committee for consideration.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is 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.

Charles Coffey v. Mid Seven Transportation Company and Great West Casualty Company, Supreme Court of Iowa No. 11-1106

 The claimant, Charles Coffey, worked for the Defendant employer, Mid Seven Transportation Company, as an over the road trucker. On February 8, 1994, the Claimant fell on an icy parking lot while working in Missouri. His left leg and foot were then run over by an eighteen wheel tractor-trailer. He sustained a medial malleolar fracture and suffered from compartment syndrome in the leg.

The Claimant was motivated to begin working again, but was unable to return to full time employment. He was placed at maximum medical improvement in August 1994 following several surgeries. The Claimant also suffers from post polio syndrome which causes whole body fatigue, weakness, pain and cramping in the legs, pelvis and lower back.

The Claimant had been found by physicians to be incapable of returning to work as a truck driver. He did work part time as a substitute school bus driver in 1996, 1997 and 1998, however the most he ever earned was $7,800 per year, and he eventually terminated that employment due to complications with his right shoulder. He also was awarded social security disability benefits starting in December 1997. He receives approximately $1,192 per month.

Prior to filing his workers’ compensation claim, the Claimant settled his third party claim for $275,000 on December 22, 1997. After attorneys fees and reimbursement to the employer/insurer, the Claimant pocketed $134,786.95. The Claimant instituted his workers’ compensation action in January of 1998 alleging injury to the back, leg and head as well as PPS. The employer admitted the work injury occurred on the date set forth in the petition.

Prior to arbitration, the employer had made workers’ compensation payments to the Claimant of $70,783.19 which included payment for healing period, permanent partial disability, medical expenses and mileage. Also before arbitration, the Claimant and his wife entered into another third party settlement for $100,000. His wife was allocated $60,000 of the settlement for loss of consortium. The Claimant received $24,634.14 after payment of legal fees.

At arbitration on September 5, 2002, the deputy found the Claimant was entitled to workers’ compensation benefits and that his injury caused his PPS, which resulted in a 75% industrial disability. However, it was found that the Claimant’s pulmonary, cardiac, vascular, thyroid problems, bladder cancer, spinal and shoulder issues were not work related.

The employer was ordered to pay 375 weeks of permanent partial disability benefitsat the benefit rate of $472.18 which had been being underpaid at the rate of $392.33. The employer was ordered to satisfy the underpayment by paying $79.85 per week. The employer was also ordered to pay certain disputed medical expenses, including the cost of travel for PPS care.

The decision of the deputy was affirmed on intra-agency appeal, as well as on appeal to the district court and court of appeals. Following the denial of further review, counsel for the employer wrote to the Claimant’s attorney stating that the Claimant’s third party recoveries covered the Claimant’s workers’ compensation claim, but asked whether the Claimant’s attorney claimed any further amounts were due on the award. The Claimant’s attorney responded indicating at lease one third of the amount awarded was due.

The employer’s attorney then responded that they had calculated the amount owed under the agency’s decision to be $154,719.26, however it appears this did not take into account mileage, medical payments or interested owed. It was stated that because the third party statements exceeded the calculated amount, the employer contended all they owed was a payment of the attorney fees for the claimant’s attorney in establishing their credit. This amount was deemed to be $51,573.09, which was paid to the Claimant and his attorney. Claimant’s attorney corresponded back indicating that he believed Claimant was owed more than the calculation done by the employer’s attorney.

The Claimant then filed a review reopening petition on April 2, 2008 seeking additional disability benefits, reimbursement for medical expenses and an order requiring the employer to pay the amount still due under the agency decision as well as a calculation of the credit to which they were owed. On hearing, the deputy found the claim for additional benefits was untimely under the statute of limitations. It was determined the date that the statute began to run was the date of the intra-agency appeal decision, March 23, 2004. The deputy however did award the payment of the medical expenses sought by Claimant, but the deputy did not determine the amount still due under the award, if any, or the amount of credit to which the employer was entitled. The deputy found the payment of $51,573.09 made by the employer was not intended as benefits but rather as a reimbursement of the Claimant’s attorneys in achieving third party settlements.

On intra agency appeal, the Commissioner upheld the finding that the claim for benefits was untimely. However, he reversed the finding that the employer should pay the medical expenses sought by the Claimant as he did not believe they were proved to be related to the work injury. He also affirmed the decision of the deputy that no order was need compelling the employer to make payment as the Claimant could seek a judgment. The decision was then appealed to and affirmed by the district court.

On appeal to the Supreme Court, the Court stated that in regards to the issue of the statute of limitations, such would be reviewed for errors at law as the legislature did not clearly vest the Workers’ Compensation Commissioner with the authority to interpret the statute. The issue as to whether the medical expenses were related to the Claimant’s work injury would be reviewed under the substantial evidence standard.

The Court took up the issue of the statute of limitations and indicated that there was no disagreement between the parties that the review reopening petition must be filed within three years from the date of the last payment of weekly benefits. The employer argued that the statute began to run from the date the commissioner issued the arbitration award, whereas the Claimant challenged the argument on two grounds; 1) that the payment of $51,573.09 constituted payment of weekly benefits, and 2) the statute did not begin to run until the Court denied further review of the arbitration decision.

The Court determined that the commissioner did not determine whether any further benefits were owed under the award, and as such, it could not be determined by the court whether or not the credit of the third party settlements covered all the weekly benefits under the award. The Court held that the Commissioner must first decided whether any further benefits were owed, as the Claimant contended, before determining what the last date of payment of weekly benefits was. The Court then remanded the issue to the Commissioner for a determination whether benefits were still owed. And following the decision of that issue, the Commissioner must then determine whether the last installment of weekly benefits has been paid and on what date if that has occurred.

The Court went on to state that if it is determined that the employer paid all weekly benefits prior to the arbitration award via the credit afforded to it by the third party settlements, the date the statute began to run must still be determined. The Court rejected the Claimant’s argument that the payment of $51,573.09 was payment of weekly benefits. This was based on the logic that 1) the obligation to pay weekly benefits would have already been completely fulfilled prior to the payment, and 2) the Code makes clear that the payment of attorneys fees to the injured party’s attorney for amounts recovered in third party settlements is not considered payment of weekly benefits.

The Court then held that the statute is not tolled pending final appellate review of the arbitration award. Rather, in a situation where the obligation to pay benefits is satisfied before the entering of an arbitration award, the statute begins to run when the award is entered.

Finally, the Court took up the issue of the payment of medical expenses and determined that based upon the review of the record, substantial evidence supported the Commissioner’s finding that the Claimant had failed to prove by a preponderance of the evidence that the sought after medical expenses were related to the work injury. The Court then remanded the case as to the statute of limitations issue, but affirmed the finding in regards to payment of medical expenses.

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!

Brenda Hernandez f/k/a Brenda Flores v. Osceola Foods, Court of Appeals of Iowa, No. 3-269/12-1658

The Claimant was employed at Osceola Foods from January 2003 to April 2008. On May 7, 2004 she injured her back while at work. A settlement agreement was entered into by the parties on May 22, 2006. She was awarded permanent partial disability for a fifteen percent loss of earning capacity. At the time she had a permanent thirty pound lifting restriction.

She continued working for the employer for almost two years after the settlement, at which point, she was terminated dishonesty as she had improperly filled out an employment application for her husband and intentionally misrepresented his employment history. The next day, the Claimant went to a temp staffing agency and filled out an application for Farley’s and Sathers Candy Company, acknowledging she was able to perform all duties as set forth in the job description. This included lifting up to fifty pounds. She was hired through the agency and eventually hired permanently by Farley’s on September 15, 2008. On January 9, 2009, Farley’s learned of her lifting restriction and terminated the claimant’s employment for misrepresenting her ability to do the job.

Following this, she filed a review-reopening petition based upon an allegedly greater loss of earning capacity. The deputy commissioner found that the Claimant did have a change in actual earning but it was due to her dishonest conduct resulting in the loss of her job rather than the work injury. This finding was affirmed by both the commissioner and the district court. The Claimant then appealed to the Court of Appeals.

On appeal, the Court stated the correct standard of review was for errors at law, but also noted that if substantial evidence supported the factual findings of the commissioner these would be upheld. The Court went on to state that while the Claimant attempted to frame the issue as an error at law, the Court agreed with the district court that the “crux of her argument is whether she proved by a preponderance of the evidence there has been a compensable change in her economic circumstances.” The review was thus limited to whether the conclusion reached by the agency was supported substantial evidence.

The Court went on to find that the Claimant’s initial job loss was due to her dishonesty rather than any physical impairment. Her subsequent job loss at Farley’s was also found to be due to her dishonesty rather than any lifting restriction she had. She had apparently been told by Farley’s that if she had been honest about her restriction, she would not have been offered the job. The Court found however that the agency was correct in determining that any loss of access to the labor market she now has is no different than the loss of access she had when the agreement for settlement was approved. The Court ultimately found that no facts about the Claimant’s employability attributable to her injury have changed since her settlement. Substantial evidence supported the findings of the agency and the Court affirmed the decision.

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!

Mary Frances Powe sustained a compensable injury to her low back and left hip in 2001 for which she received weekly indemnity benefits and vocational rehabilitation provided by Defendants. In 2005, those benefits were suspended due to non-compliance with vocational rehabilitation, a decision which was affirmed by the Full Commission and Court of Appeals (Powe I). Defendants continued to provide vocational rehabilitation through February 22, 2008, when the vocational case manager terminated those services. Although Powe attended vocational meetings, she consistently failed to follow through on the case manager’s suggestions and recommendations.

At a hearing in 2009, the Deputy Commissioner determined that Powe continued to be non-compliant with vocational rehabilitation, but held that since Defendants had stopped offering vocational rehabilitation, Powe was entitled to reinstatement of her indemnity benefits. On appeal, the Full Commission concluded that Powe had not "fully complied" with vocational rehabilitation, but affirmed the Deputy Commissioner’s Order to reinstate Powe’s indemnity benefits as of the date vocational services ceased. Both parties appealed and the Court of Appeals remanded the case to the Full Commission for further findings regarding whether Powe was substantially compliant, and not significantly interfering with, the vocational case manager’s efforts to assist her in returning to suitable employment (Powe II). (See Risk Alert Vol. 13, No. 9, Oct. 2011) The Court also directed the Full Commission to address in more detail why vocational rehabilitation was not being provided.

On remand, the Full Commission found that Powe misrepresented her true physical capacity to the vocational case manager; her attendance at vocational meetings, alone, was insufficient to constitute substantial compliance with vocational rehabilitation; Powe failed to make a genuine effort to locate employment and comply with vocational rehabilitation; she interfered with her case manager’s efforts to assist her and willfully refused vocational rehabilitation through February 22, 2008; the cessation of vocational rehabilitation was not entirely the result of Powe’s failure to comply; Powe would have benefitted from continued vocational rehabilitation which Defendants should have provided; and Powe’s failure to comply with vocational rehabilitation ceased when those services stopped in February 2008. As a result, the Full Commission reinstated Powe’s indemnity benefits as of that date. Both parties appealed.

On April 2, 2013 in Powe v. Centerpoint Human Services (Powe III), the Court of Appeals affirmed in part the Full Commission’s decision and again remanded for further findings of fact on the issue of Powe’s disability. The Court noted that while the Commission is not required to make findings as to each fact presented by the evidence, it must make specific findings as to crucial facts on which the injured worker’s right to compensation depends. Because Powe’s disability affected her right to compensation, the Court held that the Commission was required to make specific findings as to both the existence and extent of her disability.

The Court also held the Full Commission did not err in reinstating Powe’s benefits as of February 22, 2008. It is well established in North Carolina that an appellate court is bound by the Full Commission’s findings of fact so long as there is any credible evidence to support them, even when the record contains evidence to the contrary and even though the Court disagrees with the Commission’s findings. Therefore, although the evidence Powe presented was minimal, at best, it was competent to support the Commission’s finding that vocational rehabilitation was ended prematurely and due, at least in part, to factors other than Powe’s noncompliance.

Risk Handling Hint:

Powe III cautions risk managers to carefully consider ending vocational rehabilitation efforts when the injured worker retains some wage earning capacity and the cessation of services is, even in part, for reasons other than the injured worker’s noncompliance.