State News

NC Risk Handling Hint -‘Arising Out Of’ and ‘In the Course Of’; Material Aggravation; Attorney’s Fees

Cynthia Mintz worked as a customercare representative for Verizon Wireless. She worked on the second floor of the building that Verizon occupied. Verizon did not own the building. Other businesses also occupied the building, however, all of the businesses provided services to Verizon’s employees and the general public did not have access to the building without permission. During Mintz’s required unpaid lunch breaks, she walked the hallways of the first floor where the cafeteria was located for exercise. During one of these walks, Mintz slipped on a piece of ice and fell on her knee as she was returning to her cubicle.

Mintz had a history of prior knee issues, including surgery. After the fall, she was diagnosed with a knee contusion. She continued treating for her knee condition with steroid injections and prescription medications.

Mintz’s treating physician testified that her fall at work materially aggravated the arthritis in Mintz’s knee. The Deputy Commissioner concluded that Mintz suffered a compensable injury and awarded benefits. The Full Commission affirmed and awarded attorney’s fees pursuant to N.C.G.S. § 97-88.

On November 20, 2012, inMintz v. Verizon Wireless, the Court of Appeals first considered whether the Full Commission erred in concluding that Mintz suffered a compensable injury by accident when she fell while walking for exercise at work during a required, unpaid lunch break. The Court concluded that there was no error and explained that “arising out of” means the accident occurred because of a condition or risk created by the job. According to the Court, the evidence that members of the public were generally not allowed in the building, supported the Commission’s finding that Mintz’s injury was incidental to her employment.

The Court also analyzed “in the course of,” noting that it relates to the time, place and circumstances under which the accident occurred. The “course of employment” begins a reasonable time before work and continues until a reasonable time after work ends. This time includes time during the day for rest and refreshment. Although Defendants argued that this element was not met because Mintz was on an unpaid lunch break, she was required to take the hour long break. With regard to the issue of “place,” although Defendants argued that Verizon did not own, control or maintain the building, the Court concluded that the evidence that all of the other businesses in the building provided services strictly to Verizon employees supported the conclusion that the accident occurred in an area subject to Verizon’s control.  With regard to the “circumstances” element, the Court noted that it is met when an employee is engaging in an authorized activity which furthers the employer’s business. Rest and exercise furthered Mintz’s business by making her a more pleasant customer care representative, similar to cases which recognize the “personal comfort doctrine.”

In addition, the Court also considered the Commission’s findings that Mintz’s fall materially aggravated the preexisting arthritis in her knee. The Court rejected Defendants’ argument that the treating physician’s opinions were merely assumptions and reiterated that the Full Commission is the sole judge of credibility of witnesses and the weight of testimony. Mintz’s physician testified that his opinion that the fall materially aggravated her pre-existing condition was irrespective of prior flare-ups of Mintz’s knee condition.

Finally, the Court upheld the Commission’s award of attorney’s fees pursuant to N.C.G.S. § 97-88, rejecting Defendants’ argument that the imposition of attorney’s fees was premature because attorney’s fees would not be allowed if theCourt of Appeals reversed the Full Commission.

Risk Handling Hint: Although a unique fact scenario, Mintz establishes that the “personal comfort doctrine” will be extended even in circumstances where an employer does not own or maintain the business premises. Risk managers should be aware of the possibility of liability in such circumstances even though an employee is technically “off the clock.”Mintz is receiving national attention in the worker’s compensation arena and may generate additional claims under similar fact scenarios.

The SD Department recently issued a ruling that the employee bars responsibility for making sure medical bills were sent to the correct entity. 

South Dakota has a three year statute of limitations from the last payment of benefits on an accepted claim (subject to an exception for a change in condition).  The claimant was treating with a chiropractor who was billing the claimant's health carrier instead of workers' compensation.  Claimant sought payment of those bills and the Department held the bills were barred since it had been more than three years since the insurer paid any benefits on the claim. 

The Department reasoned that only claimant could have corrected this situation as claimant would have received EOBs and presumably had co-payments or paid on a deductible.  Therefore, the employer and insurer were entitled to partial summary judgment on all claims barred by the three year limitation period. This decision is subject to appeal.

If you have questions, please contact Charlie Larson atcalarson@bgpw.com or 605-336-2424.  Thanks.

http://www.gardnerlaw.net/News.html

The Nebraska Supreme Court held that illegal aliens are covered under the Nebraska Workers' Compensation Act.  An award of permanent total disability is not precluded by a claimant's illegal status, even if they choose to stay in the US illegally.  A prior case held that vocational rehabilitation could not be awarded to a claimant who was not authorized to work in the US yet intended to stay. However, the Court distinguished indemnity from vocational rehabilitation benefits, noting that there is no statutory priority that must be satisfied regarding ability to return to work as a predicate to an award of indemnity, as there is for vocational rehabilitation. The Court also reasoned that denying indemnity to illegal aliens would give an unfair advantage to employers who broke the law by employing the injured worker, because they would not have to pay indemnity.  Finally, the Court upheld the finding that claimant's right foot injury (with CRPS) caused injury to his back, and thus he sustained a body as a whole injury. The Court noted that older cases on the issue hinted that there must be some extraordinary circumstance for such a finding. However the recent trend is to allow a finding of injury to the body when the effects of the member injury extend beyond the member itself, if expert opinion supports the claim.

Moyera v. Quality Pork International, 284 Neb. 963 (2013).

The South Dakota Supreme Court has recently, and repeatedly, rejected what it calls the "temporal sequence" opinion.  This opinion was accepted for years and all it contained was a statement from the treating doctor that the problems were work related because the problems did not start until after the injury.

The court recognized that just because symptoms start at work doesn't mean the underlying cause was work related.  This has been a huge help in defending causation claims in South Dakota and helps with settling claims as it forces claimant attorneys to actually work up a file.

Please let me know if you have any questions.  Charlie Larson - calarson@bgpw.com or 605-731-0228

Kelly Queen, plaintiff, worked as a police dispatcher for the City of Bridgeton.  On October 16, 2006, she experienced a racing heartbeat and left work. Her family doctor referred her to a cardiologist.  He diagnosed her with a mitral valve prolapse condition which may have been responsible for tachycardia and dyspnea. She also underwent a cardiovascular stress test. 

Plaintiff returned to her family doctor on November 6, 2006. The doctor recommended no return to work until January 2007. She saw he doctor again on January 4, 2007 and January 25, 2007, and she was cleared to return to work on February 18, 2007. She never had any similar heart racing during her absence. She was able to return to work and continue in her job.

During her absence, plaintiff exhausted her 10 sick days as well as her FMLA leave. She therefore requested access to the City’s donated leave program referred to as “sick bank.” That policy was negotiated under a collective bargaining agreement in 2003.

The purpose of the sick bank policy was to allow City employees to donate earned sick time and/or vacation time to another City employee who was suffering from a catastrophic health condition or injury expected to require a prolonged absence from work. The policy provided that the employee seeking access to the sick bank must contact his or her department head, who in turn must require medical documentation concerning the nature, severity and duration of the medical emergency.

Plaintiff submitted notes from her doctor but not actual medical records. The City therefore denied the request finding the condition did not meet the test of a catastrophic event. Plaintiff filed a grievance, which was settled as follows:

The parties agree to settle the above grievance based upon permitting the grievant to invoke the procedures of Article 7 of the [CBA] without interference relative to donated medical leave if the employee’s treating physician documents a catastrophic health condition or injury as specified in the [CBA].

Plaintiff was given a second chance to provide medical documentation showing a catastrophic health condition but failed to do so. Instead, she sued alleging disability discrimination under the New Jersey Law Against Discrimination. She argued that the City failed to make reasonable accommodation to her by not approving her sick bank request. 

           The City proved that prior recipients of the sick bank had high risk pregnancy that required complete bed rest, Guillain-Barre Syndrome, breast cancer, a stabbing injury and esophageal cancer, and prostate cancer. One woman had been denied sick bank access who had been recuperating from pregnancy and had high blood pressure. Two men had been denied sick bank access who suffered from a back condition and from a heart condition. The Court contrasted this case with other suits alleging discrimination based on disability.

Unlike the typical claim, wherein an employee seeks an accommodation that would facilitate her return to work, maintain her employment, or remedy her condition, plaintiff here demands just the opposite, namely a monetary benefit that would permit her continued absence from work, and which defendants have no recognized legal duty to provide. Indeed, plaintiff never established that she was able to work with or without any accommodation.

As to the sick bank itself, the Court held there was no “blanket mandate” that an employer provide donated sick leave as a matter of right to anyone with a disability.  The Court said that plaintiff failed to show that the City acted arbitrarily in restricting access to the sick bank to those who have catastrophic injuries. In the end, the Court said that plaintiff simply did not qualify for the sick bank. 

           This case can be found at Queen v. City of Bridgeton, 2012N.J. Super. Unpub. LEXIS 2425 (App. Div. October 29, 2012).

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

New Jersey is a state with relatively few retaliation law suits arising from workers’ compensation. For that reason, the decision in Peralta v. Joule Staffing Services, Inc., A-1004-11T3, A-1005-11T3 (App. Div. January 3, 2013) is drawing attention from practitioners.

           Ronald Peralta, a native of Peru, worked as a forklift operator for Joule Staffing Services from 2003 to 2007 at 12 different work sites.   On December 5, 2007, he was in a forklift accident at a warehouse owned by a co-defendant Customized Distribution Services, Inc. (hereinafter CDS). After the accident, one CDS supervisor requested that Peralta fill out an incident report. That did not occur, plaintiff alleged, because another supervisor said he would take care of this detail.

           The failure to fill out an incident report and the failure to undergo post-accident drug testing became an issue. Plaintiff alleged he had back pain after the work injury and missed his next shift for that reason. CDS claimed that plaintiff did not even say anything about being injured. The next day the Operations Manager at CDS advised his assistant to inform Joule not to send Peralta to their site any longer because he failed to comply with post-accident procedures following his accident, including drug testing.

           Joule’s Safety Transportation Manager also filled out an incident report on December 7, 2007 stating that Peralta was in an accident but had not been injured; nor did he fill out the post-accident report or submit to drug testing. Peralta  was thereafter suspended by Joule. The Branch Manager also advised Peralta to set up a meeting with the Safety Transportation Manager. At that meeting Peralta asked the Branch Manager if he could make a claim and was told to do it through the Safety Manager, who was not able to make the first meeting. 

           Peralta tried a second time to meet with the Safety Manager. When that failed he sought counsel, who contacted Joule on January 7, 2008 requesting treatment. On January 17, 2008, Peralta filed a workers’ compensation claim and was treated or examined by five doctors. Eventually he received $5,000 in a workers’ compensation award. 

           Peralta was medically cleared to return to work commencing January 24, 2008. However, he never received any further work assignments from Joule. Thereafter he sued in civil court contending that he was terminated in retaliation for filing a workers’ compensation claim. He also alleged a violation of the New Jersey Law Against Discrimination. Joule countered that it did not terminate Peralta’s employment. Rather, he received no more assignments because of a downturn in the economy.

           The trial court granted summary judgment to Joule and Peralta appealed. First, the Appellate Division held that retaliation claims in workers’ compensation should be analyzed under the “burden shifting” approach ofMcDonnell Douglas Corporation v. Green, 411 U.S. 792, 93S. Ct. 1817, (1973).  The Court said that Peralta must prove that he made a claim for workers’ compensation benefits and was discharged in retaliation for making that claim. The Court said that under McDonnell Douglas, once Peralta establishes a prima facie case, there is a presumption of retaliation. The burden then shifts to the employer to rebut the presumption by offering a legitimate reason for its treatment of the employee. The Court said, “Although the reported cases under the WCA (Workers’ Compensation Act) do not specifically refer to theMcDonnell Douglas burden-shifting framework, the logical underpinnings of the WCA’s antidiscrimination provisions make it sensible to apply such an evidential framework to WCA-based retaliation claims.” 

           Using this approach, Peralta argued he made out a prima facie case because he was injured, filed a compensation claim, and thereafter never got any more work assignments. That shifted the evidentiary burden to Joule.  The Court ruled that Joule successfully rebutted Peralta’s proofs by showing that it had a legitimate, non-discriminatory reason for not sending Peralta more assignments. The company reduced its business during the recession years and eventually closed the Passaic, New Jersey office where Peralta had worked. 

In addition, the mere fact that plaintiff failed to receive more work assignments after his injury at CDS and the filing of his compensation claim does not furnish a sufficient basis to infer that unlawful discrimination or retaliation occurred. Temporal proximity alone is generally insufficient to support an inference of a causal connection as part of a prima facie case of discrimination, unless the timing at issue is ‘unusually suggestive.’

The Court said that Peralta had not been able to rebut the legitimate reason offered by Joule for not sending Peralta back to CDS or giving him further assignments. Therefore, the Court affirmed the dismissal of Peralta’s case.

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

Daniel Cordiero owned Danny’s Construction Company, which did masonry and concrete work. The company employed eight or nine employees.  Cordeiro purchased an investment property in Asbury Park, New Jersey. He listed Danny’s as the repair and renovation general contractor on the construction permits. As general contractor, Danny’s hired plumbing and electrical subcontractors and paid the going rate for their work.

            On June 17, 2010, Cordeiro drove two of his employees to a jobsite where they were supposed to perform concrete work. Due to jobsite conditions, the work they intended to perform could not be done. Cordeiro then decided to drive the two workers to the Asbury home where he and one of his co-workers climbed the roof to install a skylight. While doing cutting work, Cordeiro fell through the roof onto the concrete floor below. He suffered paraplegia from a spinal cord injury as well as multiple fractures and respiratory failure. The parties agreed that he was totally and permanently disabled from the fall.

            The insurance company, Sentinel, denied the claim and asserted that Cordeiro’s injuries resulted from his personal activities in his own home. The company also produced an underwriter who identified herself as an employee of The Hartford. She said that the workers’ compensation insurance policy only covered the installation of concrete slabs for residential homes. However, there was no specific policy language confirming such a policy limitation. 

            The Judge of Compensation ruled for petitioner and Sentinel appealed. In a fairly brief opinion, the Court affirmed the award of 100% permanent total disability to petitioner. The Court conceded that Danny’s employees generally performed concrete and masonry work, noting that some of the renovation work done on Cordeiro’s property was beyond the usual scope of work performed by Danny’s. In this case, Danny’s employees did pour the concrete floor in the room where Cordeiro was injured. 

            The reasoning of the Court was that Cordeiro should be covered under workers’ compensation because, as an employee of the company, he was performing a task assigned by the employer. The Court noted that “[t]he language of the [Act] must be liberally construed in favor of employees,” citingCannuscio v. Claridge Hotel, 319 N.J. Super. 342, 249 (App. Div. 1999). The holding in this case is not surprising because there are few if any published cases in New Jersey where the defense has been accepted that the activity that the company engaged far exceeded the specific terms of the application of insurance. The Court rejected the argument that petitioner’s claim should be barred because Danny’s employees only worked more than three feet above ground level doing concrete work. 

            This case can be found at Cordeiro v. Danny’s Construction, A-2714-11T3 (App. Div. December 13, 2012).

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

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Dixie Roadbuilders, Inc. v. Sallet, (10/26/2012)

An Employer's Voluntary Payment of Benefits May Not Establish an Employer's Entitlement to Workers' Compensation Immunity

The deceased employee worked for an asphalt company and had gone to a convenience store associated with the asphalt company and used by employees.  The employee was killed during a shooting at the convenience store.  Mr. Sallet's adult children filed a wrongful death action against the employer. The employer sought dismissal because it had workers' compensation immunity.

The trial court found a factual question existed as to whether workers' compensation applied to the deceased employee's injuries and that plaintiffs could challenge the applicability of workers' compensation to those injuries, notwithstanding the employer's voluntary workers' compensation payment of the deceased employee's funeral expenses. 

The court found a genuine issue of material fact existed as to whether the deceased employee had left work for the day or was merely on a break when he went to the convenience store.  Further, a genuine issue of fact existed as to whether the deceased employee's trip to the store was a deviation from his employment and, therefore, a personal pursuit.

The court found a factual question existed as to whether workers' compensation applied to Mr. Sallet's injuries, and the plaintiffs could challenge the applicability of workers' compensation to those injuries, notwithstanding Dixie Roadbuilders' voluntary workers' compensation payment of Sallet's funeral expenses. 

After the shooting, Dixie Roadbuilders filed a claim with its workers' compensation insurance carrier.  In response to this claim, the carrier made a payment directly to the funeral home for Sallet's funeral expenses and a payment to the State Board of Workers' Compensation pursuant to O.C.G.A. § 34-9-265(f). The plaintiffs, however, neither sought workers' compensation benefits from Dixie Roadbuilders nor requested it file the claim with its insurance carrier. They did not know the funeral costs had been paid by Dixie Roadbuilders' carrier but believed those costs had been paid by a friend of Sallet.

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Arby's Rest. Group, Inc. v. McRae, Supreme Court of Georgia (11/05/2012)

Georgia Supreme Court Upholds an Employer's Right to Access a Workers' Compensation Claimant's Medical Records and to Discuss Case with Physician

The employee filed a claim and received workers' compensation benefits. The State Board granted the employer's motion to dismiss the employee's hearing request or for an order authorizing the treating physician to communicate with the employer's representative. The employee refused to sign the authorization and her hearing was cancelled.

The issue before the supreme court was whether O.C.G.A. § 34-9-207 required an employee who filed a claim under the Georgia Workers' Compensation Act, O.C.G.A. § 34-9-1et seq., to authorize her treating physician to engage in ex parte communications with her employer or an employer representative in exchange for receiving benefits for a compensable injury.  The supreme court concluded the trial court erroneously held that an employee was not required to authorize such communications. The employer could seek relevant protected health information informally by communicating orally with the employee's treating physician. 

Section 34-9-207, by its plain language authorized a treating physician to disclose not just tangible documents, but also information related to the examination, treatment, testing, or consultation concerning the employee. The supreme court further concluded that "information" under § 34-9-207 included oral communications. The supreme court also noted that § 34-9-207 did not require the physician agree to be interviewedex parte, but allowed the physician to have his own counsel or the employee or her counsel present.

Under Georgia law, an employer in a workers' compensation case is entitled to seek from any physician who has examined, treated, or tested the employee all information and records related to the examination, treatment, testing, or consultation concerning the employee. O.C.G.A. § 34-9-207(a).  The employee is deemed to have waived any privilege or confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident that the employee has had with any physician, including, but not limited to, communications with psychiatrists or psychologists. This waiver applies to the employee's medical history with respect to any condition or complaint reasonably related to the condition for which such employee claims compensation.

Any privilege the employee may have in protected medical records and information related to a workers' compensation claim is waived once the employee submits a claim for workers' compensation benefits, is receiving weekly income benefits or the employer has paid any medical expenses. The occurrence of any one of these triggering events waives the employee's privilege in confidential health information and the information may be released by a treating physician.