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.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
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
Medical Ctr., Inc. v. Hernandez, (11/21/2012)
Employees Traveling Long Distance to a Work Site May Not Be Entitled to Workers' Compensation Benefits under the "Continuous Employment" Doctrine
Hernandez and Alvarez-Hilario were employed by Atlanta Drywall, LLC, which was a subcontractor for Rightway Drywall, Inc. Near the beginning of January 2010, the two employees began working on a church construction project in Columbus, Georgia. Hernandez and Alvarez-Hilario lived in Savannah and would make the four-hour drive to Columbus early on Monday mornings, work ten-hour days through the week, and then on Saturdays drive back to Savannah to spend the weekends at home. They were paid only for the hours they actually worked on the job site, and were not paid for travel time. While they were in Columbus for the work week, Rightway arranged and paid for their lodging at a local motel, and would later recoup those expenses from Atlanta Drywall.
On the morning of Monday, February 8, 2010, Hernandez and Alvarez-Hilario left their homes in Savannah to drive to work in Columbus. They were passengers in a personal truck driven by a co-worker. When they were approximately five minutes away from the job site, they were involved in an accident and the truck overturned. Alvarez-Hilario died as a result of the accident and Hernandez was hospitalized for weeks with serious injuries.
In general, accidents or injuries occurring while employees are traveling to and from work do not arise out of and in the course of employment. In this case, Hernandez and Alvarez-Hilario were not yet engaged in their employment at the time of the accident. Rather, they were traveling to the work site when the accident occurred. The Administrative Law Judge ("ALJ") found the injuries sustained while traveling to work did not arise out of or in the course of their employment, and denied benefits.
On appeal, employees argued their injuries should nevertheless be held compensable under the continuous employment doctrine. Under prior cases, any continuous employment coverage would have existed only when they were back in the general proximity of the place where they were employed and "at a time they were employed to be in that general proximity." Although Hernandez and Alvarez-Hilario were arguably in the general proximity of the construction site at the time of the accident, it was undisputed they had not yet arrived at the site and had not yet resumed performing the duties of their employment.
The court distinguished earlier cases which found injuries to be compensable under the continuous employment doctrine. The court noted those cases involved employees who, unlike Hernandez and Alvarez-Hilario, were already in the midst of their employment duties for the pertinent time period.
At the time of the accident, Hernandez and Alvarez-Hilario were not engaged in any construction work. The hazards they encountered on the roadway were in no way occasioned by their jobs as construction workers, and since there was no causal connection between their employment and the accident their injuries did not arise out of [their] employment.
MISSOURI WORKERS’ COMPENSATION
CASE LAW UPDATE
OCTOBER 2012 – DECEMBER 2012
When Employer Files a Late Answer, the Alleged Rate in the Claim is Deemed Admitted
T.H. v. Sonic Drive In of High Ridge, Case No. ED98507 (Mo. App. 2012)
FACTS: The claimant alleged psychiatric injuries she sustained as a result of being sexually assaulted at work by a co-worker. The ALJ found the claimant sustained 45% PPD of the body referable to PTSD and depressive disorder caused by the work injury. The ALJ used a maximum rate of $376.55, as that is what the claimant's attorney listed on the Claim for Compensation, and since the employer did not timely file an Answer, everything was deemed admitted.
The Commission affirmed the Award of PPD benefits to the claimant. However, it modified the ALJ's Award with respect to the rate. The Commission noted that the allegation that she had an average weekly wage of "max rate" was a legal conclusion not a factual allegation, and therefore, the employer did not admit that the claimant had a "max rate" by filing an untimely Answer. The Commission also found that since the claimant failed to meet her burden of proving her average weekly wage, the applicable rate of compensation for the Award was the minimum rate of $40.00 per week.
HOLDING: The claimant appealed the ALJ's finding that the applicable rate of compensation for the Award of PPD benefits was $40.00 per week. The Court noted that an employer's untimely answer results in the admission of factual allegations in a claimant's Claim for Compensation. However, allegations in a Claim for Compensation which are legal conclusions are not deemed admitted by the employer's untimely answer. The Court concluded that wage rate is a question of fact and since the employer failed to file a timely answer, the "max" wage rate as alleged in the Claim was a factual allegation deemed admitted by the employer. Therefore, the claimant was entitled an Award of PPD benefits at the maximum rate of compensation.
Injury Compensable when Claimant Fell Down Stairs Carrying Helmet and Wearing
Work Boots
Pope v. Gateway to the West Harley Davidson, Case No. ED98108 (Mo. App. 2012)
FACTS: The claimant sustained a right ankle fracture and dislocation when he fell down the stairs. The claimant's job duties included inspecting motorcycles, washing and test driving motorcycles and performing routine motorcycle maintenance. At the end of the day, he was asked to drive motorcycles from the sales lot into showrooms for overnight storage. After moving the last motorcycle, he went to check with his supervisor in the service department, which was located down a staircase, to insure that everything was completed before he clocked out. He was walking down the stairs wearing his work boots and carrying his motorcycle helmet when he lost his footing and fell. An ALJ found that the claimant did not meet his burden of showing his injury arose out of and in the course of his employment. The Commission reversed the decision of the ALJ. The employer/insurer argued that the claimant was not injured in the course and scope of his employment, because he was equally exposed to the risk that caused his injury in his normal, non-employment life.
HOLDING: The Court agreed with the Commission finding that the claim was compensable. The Court had to consider whether the claimant was injuredbecause he was at work as opposed to being injured merely whilehe was at work. The Court found that the claimant's injury had a causal connection to his work activity, because he had just finished moving a motorcycle and he was going to check with his supervisor, which required him to descend the staircase, at which time he was wearing his work boots and carrying his work-required motorcycle helmet. He had his helmet with him because of the work activity he had performed just prior to descending the stairs.
The employer/insurer argued that the claimant was a motorcycle enthusiast who wore the same boots and helmet when operating a motorcycle outside of his employment, and therefore, he was equally exposed to the risk of injury in his normal, non-employment life. The Court was not persuaded. The Court did note a similarity between the claimant's work activities and his non-employment life, however, the record did not contain evidence to support a finding that the claimant was equally exposed to the risk of walking down stairs while carrying a work-required helmet outside of work. The Court also noted there was no evidence that the claimant's boots contributed to or caused him to fall, and although he testified he often wore his boots outside of work, the record lacked any evidence that the claimant fell because of his boots. Therefore, the Court concluded that the claimant's injury arose out of and in the course of his employment, and he was entitled to benefits.
Claimant Must Prove Work Injury was Prevailing Factor in Causing Medical
Condition and Disability
Ronald Armstrong v. Tetra Pak and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD31971 (Mo. App. 2012)
FACTS: The claimant was at work feeding cardboard into the processing machine at which time he was not suffering any pain in his shoulder or any part of his right upper extremity. He then began working on a "rush order" which required him to stack cardboard higher than usual, which was above the head and shoulder. He reached for the cardboard and felt a sharp deep pain in his right shoulder. The following day he reported the incident to his supervisor. He was seen by Dr. Cooper and Dr. Lehman, who both believed that the claimant's shoulder condition was pre-existing and he did not sustain an acute injury to his right shoulder. Therefore, the lifting incident was not the prevailing factor in causing his right shoulder problems. Dr. Woiteshek, the claimant's physician, did note that the work incident was the prevailing factor in causing the claimant's shoulder condition. However, Dr. Cooper and Dr. Lehman were found to be more credible. The ALJ found that the claimant failed to satisfy his burden of proving he sustained a compensable accident and that the alleged accident was the prevailing factor in causing his right shoulder problems. The Commission affirmed the ALJ's decision, however, opined that the claimant did prove that he sustained an injury to his right shoulder in an accident at work. However, the more credible evidence showed that the claimant's shoulder complaints were predominantly degenerative in nature and not primarily due to his work accident. Therefore, since the claimant did not prove that his work injury was the prevailing factor in causingboth his medical condition and any disability, they affirmed the ALJ's decision to deny benefits.
HOLDING: The claimant argued that the Commission correctly found that he sustained a work injury, but erred in finding that his shoulder complaints were predominantly degenerative in nature and not primarily due to the work injury. The claimant argued that this finding was erroneous because once an accident has been sustained, the employer is responsible for all injuries and disabilities that flow from this accident. The Court found no merit in this argument. The Court noted that based on Statute, a claimant is not entitled to compensation unless he proves that he suffered an accident or work related injury, and the accident was the prevailing factor in causing both the resulting medical condition and disability. The Court found the Commission correctly used the legal standard in determining that the claimant did not sustain a compensable injury because the accident was not the prevailing factor in causing both his resulting medical condition and disability.
Hearing Loss Found Not Compensable
Burt Kersey v. Autry Morlan, Inc., Case No.: SD31883 (Mo. App. 2013)
FACTS: The claimant was an auto mechanic and was investigating the cause of an alternator noise in a customer's engine. To do so, he applied a stethoscope to the alternator and something popped causing a very loud noise, at which time the claimant noted he was deafened and immediately reported this to his employer. The claimant was prescribed hearing aids and continued to follow-up with doctors until 2010, which was paid for by the employer/insurer. The ALJ found the claimant failed to meet his burden of proof that his work accident was the prevailing factor in causing his hearing loss and tinnitus. The Commission affirmed the opinion of the ALJ.
HOLDING: The Court noted that compensability of job related hearing loss is governed by Statute and Regulation. The Court noted that if traumatic hearing loss does not meet the minimum prescribed threshold pursuant to Statute and Regulation then the work accident cannot be the prevailing factor in causing either a compensable injury or any level of compensable hearing loss. The Court noted that Dr. Mikulec, the employer's expert, was the only expert who evaluated the claimant's hearing loss pursuant to the requirements of the Statute and Regulation. The doctor determined that the claimant's hearing loss did not meet the minimum threshold for compensability and it was found that the doctor's opinion was credible.
With respect to tinnitus, the Court noted that Dr. Guidos, the claimant's expert simply provided a rating of 15% of the body and did not provide a causation opinion. The Court noted that Dr. Mikulec opined that the cause of the claimant's tinnitus was unknown and, therefore, the claimant failed to meet his burden of proof that there was a direct causal link between his tinnitus and his job. Therefore, the Commission's Award was affirmed.
After Award, Employer Only Has to Provide Medications Necessary to Cure and Relieve
Effects of Work Injury
Lynda Noel v. ABB Combustion Engineering and National Union Fire Insurance Co., Case No. ED98446 (Mo. App. 2012)
FACTS: The claimant sustained a work-related back injury in 1997 and was awarded compensation and future treatment benefits. The employer was providing treatment with Dr. Granberg for pain management, and Dr. Robinson for depression and psychiatric disorders. At some point in 2007 the employer attempted to change the claimant's treating physicians, and she objected. Therefore, at that time the employer continued providing treatment through Drs. Robinson and Granberg. However, in April 2011, the employer sent the claimant to Dr. Jarvis, who concluded that both doctors had lost their perspective ways, and he recommended several changes to the claimant's medication. Therefore, the employer denied many of the claimant's prescription medications. The claimant filed a motion with the Commission asking it to prevent such a change in medications arguing it would endanger her life, health or recovery. (Editor's note: The employer is only required to provide treatment, ie. medications, that are necessary to cure and relieve the effects of her work injury. If there is reasonable ground to believe that the life, health or recovery of claimant is endangered the Commission may order a change in that treatment.)
The Commission ordered a hearing and after reviewing the transcript, concluded the claimant failed to meet her burden of showing that all of the medications she was taking were necessary to cure and relieve the effects of her work injury. Therefore, the Commission did not even address the claimant's argument that a change in those medications would endanger her life, health or recovery. The claimant appealed the decision arguing the Commission erred in finding that she failed to show that her medications were related to her work injury.
HOLDING: The Court noted that the Commission looked to the doctors' opinions and the claimant's testimony with respect to what medication she needed as a result of her work injury. With respect to the claimant's pain management, at the hearing she testified that Dr. Granberg had been treating her for the past eleven years for chronic pain which was related to her 1997 work-related injury, and the employer did not dispute this. The Court found the claimant met her burden of proving that the need for pain management flows from the work injury. Therefore, the Commission erred in failing to make a decision with respect to the claimant's argument that changing her medications would endanger her life, health or recovery. This aspect of this case was reversed and remanded to the Commission to make this determination.
With respect to the claimant's psychiatric medications, the Court noted that the Commission believed Dr. Jarvis over Dr. Robinson, the claimant's treating physician, and therefore, found that the claimant failed to meet her burden of proving that these medications were related to her work injury. Therefore, essentially, the employer did not have to provide them.
An Occupational Disease Triggers SIF Liability
Treasurer of the State of Missouri - Custodian of the SIF v. Gloria Stiers, Case No. WD75101 (Mo. App. 2012)
FACTS: The claimant settled her occupational disease claim against the employer for 32% of the right arm and 30% of the left arm and went to a hearing against the SIF for PTD benefits. She alleged multiple pre-existing disabilities. The ALJ found that the claimant was permanently and totally disabled as a result of a combination of her pre-existing disabilities and her subsequent occupational disease. The SIF appealed arguing that the ALJ did not have the authority to hear the case because the Workers' Compensation Statute and case law do not allow for the adjudication of occupational disease claims through Workers' Compensation. The Commission affirmed the Award of the ALJ and noted that an occupational disease qualifies as a compensable injury for purposes of triggering SIF liability. The SIF appealed, arguing that an occupational disease is not a compensable injury for the purpose of triggering SIF liability.
HOLDING: The Court looked directly to the plain language of the Statute that states that a "compensable injury" triggers SIF liability. The part of the Statute dealing with an occupational disease notes that "an injury by occupational disease is compensable," and therefore, an injury by occupational disease triggers SIF liability. Therefore, the decision of the ALJ was affirmed.
Claimant Has To Prove Permanent Disability to Receive Compensation
In Kyle Hunter v. Sachs Electric, Injury No. 08-112333, the ALJ denied the claimant's claim for PPD benefits, concluding that while the claimant sustained acute synovitis from striking his knee at work, he "did not materially change the structural soundness of his knee or cause any additional chondral injury to the knee." The claimant argued on appeal that it is inconsistent to find that his injury caused synovitis but did not cause an acute change to the structure of the knee. The claimant meticulously analyzed the definitions of "synovitis," "membrane," and "inflammation," before arguing that it is impossible to have acute synovitis to the knee without an acute change to the structure of the knee. The Commission noted that the claimant focused on proving that his injury caused an acute change to the structure of the knee, however, noted that his primary focus should have been on proving that the incident was the prevailing factor in causing his permanent disability. Dr. Milne, the employer's expert, opined that the claimant had 6% PPD of the left knee which was pre-existing. The Commission noted the ALJ thoroughly reviewed the evidence and concluded that Dr. Milne's opinion was more credible than Dr. Volarich's, the claimant's expert. Therefore, the ALJ's decision was fully supported by competent and substantial evidence, and therefore, was affirmed.
Employer Not Prejudiced By Lack of Notice
In Leotha Faulkner v. Aramark Educational Services, Inc., Injury No. 10-026257, the claimant sustained an injury to her right knee after she fell at work, and the ALJ denied the claimant's claim for TTD and PPD because he found that she failed to provide the employer with proper, timely notice. Also, she failed to prove the employer was not prejudiced as a result of her failure to provide that notice. The claimant admitted that she did not provide proper, timely notice. However, she argued that the employer was not prejudiced by her failure to do so. The employer argued that it was prejudiced because it was unable to timely investigate the accident to determine causation and address safety issues.
The Commission found that the employer pointed out the potential for prejudice, but did not point toactual prejudice as a result of the claimant's untimely notice. The Commission noted that, for instance, if another individual was injured at the same location that the claimant was injured, and the employer could have prevented that injury had the claimant provided proper notice, the employer would be prejudiced. The Commission also noted that the employer stipulated to the fact that the claimant sustained 20% PPD of the right knee and did not claim any possible safety violation. Furthermore, if the employer believed that causation and safety issues were in question, it should not have stipulated to those issues at the hearing. Also the claimant did not seek reimbursement for her past medical expenses nor future medical treatment. Therefore, the employer was not prejudiced by its inability to timely investigate the accident or direct and provide medical treatment.
Claimant's Injury Sustained in Stairwell of Building Housing Employer's Business Not
Compensable
In Pamela Appt v. Fireman's Fund Insurance Company, Injury No. 09-004637, the claimant slipped and fell on stairs located inside the building which housed the employer's leased office space. The relevant facts in this case were that the employer is one of multiple tenants in a large office building containing shared entryways and stairways. The employer's office was located on the second floor. The claimant was on her way to work when she entered the building, walked up the stairwell to the second floor, and slipped and fell on top of the stairs as she was opening a door. The claimant testified that she believed she fell inside the open door at the top of the stairs. The ALJ found that her injuries arose out of and in the course of her employment. The employer appealed, alleging that the claimant's injuries did not arise out of and in the course of employment because there was no evidence that the employer owned or controlled the stairs where the claimant fell.
The Commission noted that the evidence was clear that the employer did not own the building where the accident occurred, and therefore, the issue was whether the employer exercised sufficient "power" and "influence" over the area at the top of the stairs so as to constitute control. The Commission further noted that the record was devoid of any evidence or testimony regarding whether the employer controlled this area in which the claimant fell. Therefore, because the claimant failed to prove that the employer controlled the area where the accident occurred, she failed to meet her burden in proving that the injury occurred in the course of the employment, and therefore, the Commission denied her claim.
Claim Found Not Compensable Because Claimant Found Not Credible Due to Her
Inconsistent Testimony
In Jackie Porter v. RPCS, Inc., Injury No. 09-052591, the claimant's co-workers found her on the floor in a vestibule outside the employee bathroom complaining that she had fallen. She sustained a hip injury requiring surgery, and also an aggravation of some pre-existing back problems. The ALJ found the claimant did not provide credible testimony regarding the circumstances of her fall. The Commission agreed and further noted that the testimony the claimant provided at the hearing with respect to the moments before the event (the last thing she remembers was washing her hands), contradicts her deposition testimony (the last thing she remembers was locking the bathroom door). The Commission further noted that no one saw the claimant fall.
The Commission found that the claimant did meet her burden for proving accident, however, she did not meet her burden of proving that her injuries arose out of and in the course of her employment. It was noted that the claimant attempted to advance numerous theories in an attempt to overcome the evidentiary problem, but each simply only invited the Commission to speculate that something dangerous about the employer's bathroom or the vestibule outside itmay have caused the claimant to fall. The Commission concluded that they simply did not know what risk or hazard caused the claimant to fall, and therefore, the Commission affirmed the ALJ's opinion denying benefits.
Doctor's Opinion Found Not Credible Because He Did Not Distinguish Between Disability
From the Work Injury and Claimant's Pre-existing Disability
In Aaron Dye v. Lafayette County,Injury No.10-095853, the claimant injured his left knee at work while subduing an unruly inmate. He had a prior injury to his left knee on December 28, 2009. An ALJ found that as a result of this work injury, he sustained 22.5% PPD to the left knee. The Commission noted that Dr. Wise, the employer's expert, provided a rating of 5% PPD from the work injury. Dr. Stuckmeyer, the claimant's expert, provided a 40% PPD rating based on a combination of the claimant's prior injury and the work injury. He did not attribute a specific portion to the work injury. The Commission noted that the ALJ did not even acknowledge the dissimilarity between the two doctors' ratings before simply splitting the difference. The Commission noted that in light of the claimant's two injuries, an expert opinion attributing a specific percentage of disability to the work injury was necessary for the ALJ to arrive at a decision on this issue. Since Dr. Stuckmeyer did not attribute a specific percentage to the work injury, the Commission did not give his opinion any weight and found that Dr. Wise's rating of 5% PPD was credible and awarded the claimant the same.
Claim Denied Because Claimant Alleged Two Injury Dates and Multiple Versions of the
Injury
In Hiba Sadic v. SEMCO Plastics Company, Inc., Injury No. 06-042666, the ALJ found that the claimant failed to prove an accident that caused her right shoulder injury. The ALJ noted that the Claim for Compensation alleged an accident date of "on or about 4/4/06" with no specific description of the event. It was noted the claimant was originally from Bosnia and there were language and translation issues. The Commission did take this into account, however, noted that there were at least 5 different versions of how the claimant was injured and two alleged dates of injury. She reported multiple different histories of injury to different providers which were: removing excess plastic with a knife; heavy lifting; pushing boxes; being hit by a robotic machine; and finally, pulling on a lever on a machine. The ALJ found that even though the claimant testified regarding a traumatic event or unusual strain, she did not have a specific date of injury, reporting two different dates of injury, and there were several versions of the injury. Therefore, the claimant failed to establish a compensable accident and the claim was denied. The Commission affirmed the decision of the ALJ.
Claimant Can Receive PPD Benefits Even if Found To Be PTD as the Result of a Prior
Injury
In Ricky Cantrell v. L. Krupp Construction, Inc., Injury No. 07-040226, the claimant was diagnosed with bilateral carpal tunnel syndrome in May 2007 which resulted from his job duties. Dr. Pruett treated the claimant and provided a rating of 10% of each wrist. The claimant also had a prior claim with an injury date of October 18, 2006, and was awarded PTD benefits as a result of that injury. The ALJ denied PPD benefits because he was diagnosed with a carpal tunnel condition in May 2007, at which time he was already permanently and totally disabled for conditions unrelated to that carpal tunnel syndrome. The Commission reversed the ALJ's denial of benefits. The Commission noted that the ALJ ruled that PPD benefits are only payable if an injured worker suffers an actual loss of or reduction in earning capacity. The Commission noted that the Statute states PPD shall be allowed for loss by severance, total loss of use or loss of use of one or more parts of the body. Under the plain reading of the Statute, the employer shall pay PPD benefits for impairment to the function of the body. It was noted that while loss of function will often lead to some actual impairment or incapacity, there are times that it will not. The Commission further noted that an actual impairment of earning capacity is not a prerequisite to recovery of PPD benefits. Therefore, the claimant was entitled to PPD benefits for his carpal tunnel syndrome.
Claimant Has 30 Days From the Date a Diagnostician Connects the Condition to Work to
Report to the Employer
In Sheryl Berend v. Fasco Industries Inc., Injury No. 05-142895,the ALJ denied the claimant's left shoulder repetitive motion and bilateral upper extremity repetitive motion claims for lack of notice because the claimant did not provide notice to the employer within 30 days. The Commission noted that the claimant has to report an injury resulting from an accident within 30 days. However, in the context of an injury resulting from an occupational disease, the triggering event is the "diagnosis of the condition." The Courts have defined this to be when a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure. The Commission found that none of the claimant's treating physicians identified a causal connection between the claimant's work and her bilateral upper extremity problems. The Commission further found that on November 17, 2008, Dr. Volarich was the first diagnostician to make the causal connection between the claimant's underlying medical condition and her work-related activity or exposure. Therefore, this is when the 30 day notice period began to run. Since the claimant filed her claim on August 10, 2006, more than 2 years prior to the date Dr. Volarich issued his report, her claim was not barred.
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
JMJ Plumbing v. Cudihy, (11/30/2012)
The State Board's Denial of Workers' Compensation Based on Employee's Failure to Prove Compensable Injury Upheld on Appeal
Cudihy worked for JMJ as a plumber. On September 2, 2008, while performing a digging task on the job, Cudihy felt a sharp pain in his back that radiated to his leg. He took a break for a few minutes, then went back to work. Cudihy did not report the injury to his employer, and continued to perform his regular work duties.
After work, Cudihy went to "Physician's Immediate Med" for treatment. He told the treating physician he had developed back pain over the weekend and experienced pain while digging that morning. He was diagnosed with muscle spasms and prescribed muscle relaxers. He sought further treatment in January 2009 and was diagnosed with low back pain. He went to a chiropractor in March 2009, where he was diagnosed with muscle spasms. In May and June 2009, he saw an orthopedist, who diagnosed him with possible disk herniation. On June 3, 2009, the orthopedist recommended that Cudihy be placed on light duty work and that he might need surgery.
On June 25, 2009, Cudihy first reported the injury to JMJ, which placed him on light duty work full-time. Cudihy continued to work at JMJ on light duty until August 2009, when he was terminated for reasons unrelated to his injury.
Cudihy subsequently applied for workers' compensation benefits, alleging a June 25, 2009 injury date. JMJ controverted the claim but, after a hearing, an ALJ awarded Cudihy disability income and medical benefits. The ALJ found, among other things, that Cudihy had sustained a work-related injury to his back on September 2, 2008 and, citing the "new accident" theory (regarding a gradual worsening of condition) found that he had sustained a work-related injury on June 25, 2009.
The State Board vacated the ALJ's award and denied Cudihy's claim. The Board found the preponderance of the evidence did not support the ALJ's finding that Cudihy had sustained a new accident on June 25, 2009 related to his work. The Board found Cudihy had not established or reported the occurrence of an initial work injury, making the theory of a fictional new injury (on June 25, 2009) inapplicable; and, no disability manifested on the designated new accident date of June 25, 2009, inasmuch as that date did not represent the date Cudihy's condition had worsened as a result of his work activities to the point he could no longer perform his job. The Board noted Cudihy had continued working beyond that date (June 25) and he had acknowledged that he was capable of working as a plumber at the time he was terminated. The Board also found that no September 2, 2008 injury was compensable because: (a) Cudihy did not establish that he sustained a work injury on September 2, 2008; and (b) Cudihy did not give adequate notice of a work injury to JMJ.
The Board found he failed to show he sustained a new accident on June 25, 2009. The Board cited, among other things, evidence that: Cudihy had injured his back during the weekend preceding September 2, 2008; when seeking medical treatment on September 2, 2008, he did not indicate that he was injured on the job, even when specifically asked. He admitted he had not sustained any injury on June 25, 2009. He did not become unable to work on June 25, 2009, as he continued working until August 12, 2009, when he was fired for unrelated reasons. By his own admission, at the time of his termination he was physically capable of continuing to perform his job. He worked as a plumber after his termination, and his work activity did not worsen his condition. There was also evidence Cudihy suffered no injury on the job after September 2, 2008, that his symptoms were the same on September 2, 2008 as they were at the time of the administrative hearing, and that all of his pain was attributable to the September 2, 2008 accident.
For accidental injury to be compensable under the Workers' Compensation Act, the injury must … occur in the course of the employment … [and] arise out of the employment. Whether an injury arose out of and in the course of employment is an issue of fact.
The Appellate Court noted the Board's findings, when supported by any evidence, are conclusive and binding. Because some evidence supported the Board's findings that Cudihy had failed to prove that he was injured on the job and that he continued to perform his job duties until he was forced to stop work due to a gradual worsening of his condition, defeated his workers' compensation claim. The Board's Decision was upheld on appeal.
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
Carr v. FedEx Ground Package Sys., Inc., (10/02/2012)
Statutory Employer Entitled to Workers' Compensation Immunity Following Settlement of Case Between Employee and Immediate Employer
On July 2, 2007, Lester Carr was seriously injured in a fight with a FedEx employee at a FedEx facility. At the time, Lester Carr was at the facility pursuant to his work as a truck driver for J. Wigg Trucking, Inc., a sole proprietorship owned by Jethro Wiggins ("Wiggins") that had a contract to provide trucking services to FedEx.
In a separate proceeding, Charlene Carr obtained workers' compensation benefits on Lester Carr's behalf from Wiggins. Charlene Carr then filed the instant personal injury action against FedEx, alleging negligent hiring, supervision and retention, as well as failure to maintain safe premises. The trial court granted summary judgment to FedEx on the ground that FedEx was a statutory employer immune from liability under the exclusive remedy provision of the Workers' Compensation Act.
O.C.G.A. § 34-9-8(a) provides that "[a] principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer." O.C.G.A. § 34-9-8(a) applies only where the principal has contracted to perform certain work for another and has subcontracted some or all of that work.
On appeal, Charlene Carr contended that genuine issues of material fact existed as to whether Lester Carr's injuries were compensable under workers' compensation as arising out of and in the course of his employment. The court noted it is undisputed that Lester Carr obtained workers' compensation benefits for those injuries under a settlement with his immediate employer, Wiggins. Because Lester Carr settled his workers' compensation claim, his representative cannot avoid summary judgment by arguing a genuine issue of material fact existed regarding the compensability of his injuries.
Since FedEx was Lester Carr's statutory employer at the time of the injury, it was entitled to workers' compensation immunity following settlement of his case.
703206-1
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
Smith, et al. v. Ellis (09/10/2012)
A co-employee may be sued in tort even after the claimant settles his Workers' Compensation claim if the co-employee was acting outside employment when he injured the claimant.
The Supreme Court of Georgia held that:
(1) a "no liability" settlement barred employee from bringing an action for the same injury against an employee of the same employer;
(2) the phrase "employee of the same employer" means a person who is acting as an employee rather than as a third party to the employment relationship at the time of the injury in question; and
(3) fact question regarding whether co-worker was acting in the scope of employment precluded summary judgment in favor of co-worker.
In February, 2009, Smith and Ellis were both employed by The Knight Group, a company that builds and sells new houses. Smith was assigned to work at the Westcott Place subdivision in Dawsonville, and Ellis was assigned to the Red Hawk Ridge subdivision in Cartersville.
On February 12, Ellis called Smith to arrange a meeting so that he could borrow one of Smith's tools for his personal use. Ellis also wanted to shoot some new guns he had purchased. The next morning, the two men met at a house that Smith was finishing in Westcott Place. Ellis made one phone call regarding a problem with the house and then followed Smith through a couple more houses for which Smith was responsible before they went to lunch around 11:00 a.m. Smith and Ellis returned to the subdivision at 1:00 p.m., where Smith continued to work. Ellis had no work to do and left that part of the property to avoid being seen by one of his supervisors, since he was not supposed to be at Westcott Place. Later, Ellis began firing his new rifle while Smith organized his work tools next to his truck. The rifle jammed three times. Ellis successfully cleared the first two rounds, but he accidentally shot Smith in the right thigh when he tried to clear the third round. The bullet went through Smith's right leg and into his left leg, causing serious injury.
The Knight Group fired both men shortly after the shooting. Smith filed a workers' compensation claim against the employer, alleging his injury was compensable because it arose out of and in the course of his employment. The Knight Group ultimately agreed to pay Smith $6,000 in exchange for his stipulation that he had not sustained a compensable injury. Pursuant to O.C.G.A. § 34-9-15(b), the "no liability" settlement was submitted to and approved by the Workers' Compensation Board, which issued an award denying the employer's liability on June 4, 2009.
Nine months later, Smith sued Ellis for negligence, and Smith's wife sued for loss of consortium. The Supreme Court recognized that if the victim is a co-employee, the Workers' Compensation Act may protect employees who commit torts of all varieties in the course of their employment. The question in this case was whether the Act protects an employee tort-feasor when the tort Is committed outside the course of the tort-feasor's employment.
The answer to that question was a factual matter, so the trial court's judgment granting summary judgment to Ellis was reversed, and the case remanded to the Court of Appeals with directions that it be remanded to the trial court for further proceedings.
681014-1
MISPLACED PRIVACY
By Kevin L. Connors, Esquire
“No matter where you go, there you are!”
If the above quotation, mouthed by the character of Buckaroo Banzai, played without lips by Peter Weller, later infamous as the RoboCop character, when Buckaroo, playing with his rock band, the Hong Kong Cavaliers, tried to talk Penny Pretty, played by Ellen Barkin, out of committing suicide, as the band was playing at a bar in Grover’s Mill, New Jersey, also infamous as the Martian landing site in Orson Wells’ radio broadcast in 1937, in the classic, and yes, it should be watched at least once a year, movie, The Adventures of Buckaroo Banzai Across the 8th Dimension.
If that “no matter…” sounds vaguely familiar, it is and will always remain, incisively existential in perhaps an all too obvious paradoxical universe of Berkleyan idealism, posited by the English philosopher, George Berkley, credited with the development of the philosophy of subjective idealism, also sometimes referred to as empirical idealism, which point will soon prove all too true for you the reader, as Berkley asked “if a tree falls in the forest, and no one is there, does it make a sound”?
Now, if you are Dirty Harry, you would ask “Well, did it feel lucky”?
So what, if anything, do the above ramblings have to do with litigation, a question perhaps best answered by Jack Sparrow’s character in Pirates of the Caribbean, who quixotically confessed “It’s nice to be here, it’s nice to be anywhere”.
And, of course, it might well depend upon the presidential precedent of “it depends upon what the meaning of the word is, is?”
Yes, there is a point.
At what point is anything private, or can legally be expected to support a claim of privacy, when posting stuff about yourself, in whatever medium or format, on the internet, seemingly the most public medium in the history of human civilization, where you have no control over what happens to whatever you post after it is posted, to include what others who have been exposed to your posting might do with it, with or without your permission.
And if you think that whomever or whatever you have shared this personal information or data with, should stop to consider what they should or should not do with it, after they have been exposed, then you are, quite simply, both clueless and naive.
One might precede the other, although the more relevant thought might be, what were you thinking if at all, when you posted that thought you thought so brilliant?
And yes, we are finally at our point of departure, which is the always fascinating battles, in the context of discovery, motions and arguments, over what is, or is not, discoverable, with the flashpoints being relevance and expectations of privacy.
And into that conundrum, with those against whom social media and discovery requests are made, claiming “expectations of privacy”, and with those seeking social media discovery, contending that there can be no “expectation of privacy” in a medium so universally visible and accessible.
Having previously reported on several Facebookian Court rulings in the past, the newest rulings, by Courts in Pennsylvania, and in other jurisdictions, continue to cement the requirements both for seeking and disclosing social media discovery.
Recent Pennsylvania Rulings
Two recent Pennsylvania rulings are of interest.
The rulings areMazzarella v. Mount Airy Casino Resort,a case decided in the Monroe County Court of Common Pleas, andSimms v. Lewis,decided in the Indiana County Court of Common Pleas.
Mazzarella v. Mount Airy Casino Resort
Mazzarellais a ruling issued on November 7, 2012.
It involved a premises liability slip, and fall case, with the Trial Court Judge deciding, correctly we think, that the Plaintiffs expectation of privacy in her social media activity was “misplaced”, as the Trial Judge, the Honorable David Williamson, ruled that “those who elect to use social media, and place things on the internet for viewing, sharing and use with others, waive an expectation of privacy”.
So ruling, Judge Williamson held that the Defendant’s social media discovery request was not a violation of privacy, with the Plaintiff being ordered to answer the Defendant’s discovery request.
The discovery request in question sought disclosure of the Plaintiff’s social media user name and password, with there being no time limitation imposed upon the Defendant for access, as general prior Court rulings on this issue in other jurisdictions, have imposed a time limitation on the requesting parties’ access to the disclosing parties’ social media.
Simms v. Lewis
Simms is a ruling decided by the Honorable Thomas Bianco in the Indiana Court of Common Pleas.
Simms involved the Plaintiff’s personal injury lawsuit, following a motor vehicle accident, with the Plaintiff claiming that her injuries were both serious and permanent.
After determining that the Plaintiff had a social media account with Facebook, My Yearbook, and MySpace, and that each of the accounts had been active after the Plaintiff was injured in the motor vehicle accident, the Defendant sought access to the Plaintiff’s social media accounts, filing a Motion to Compel when the Plaintiff refused to allow access.
In the Defendant’s Motion to Compel, the Defendant indicated that the front page of the Plaintiff’s MyYearbook account contained the Plaintiff stating “chillin with my girl tonight. We’re going to do some Zumba fitness: ) so excited!!! HTC:p,”.
Not surprisingly, the Defendant sought the Plaintiff’s user name and passwords for her social media accounts with Facebook, MyYearbook, and MySpace. Access to the accounts was sought in order to view private portions and pages on the site, with the Plaintiff impolitely declining to provide that information, resulting in the Defendant filing a Motion to Compel.
TheSimmsCourt began with the premise “as a general rule, discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.” George v. Schirra, 814 A. 2.d 202 (PA.Supr. 2002).
It also reflected on Pennsylvania Rule of Civil Procedure No. 4003.1.
However, the Court indicated that there were no Pennsylvania Appellate Court cases that addressed the issue of discovery requests for information concerning an individual’s social networking account.
While there were no Appellate rulings on that issue, there were a number of Trial Court rulings, with theSimmsCourt citing to the Zimmerman v. Weiss Markets Decision out of Northumberland County in May of 2011, where the Plaintiff had been ordered to provide login and password information for the Plaintiff’s Facebook account, although the Trial Court in Zimmerman specifically limited access to a threshold determination obtainable from access to the Plaintiff’s public page, requiring that the public pages indicate that private postings might contain relevant information.
Adopting theZimmerman threshold, theSimmsCourt ruled that the Defendant must first show that access to the Plaintiff’s social media account would lead to the discovery of relevant information, which the Defendants were able to sustain inSimms, but only as to the Plaintiff’s MyYearbook account.
TheSimms Court denied the Defendant’s request for disclosure of the Plaintiff’s social media account user name and password for the Plaintiff’s Facebook and MySpace accounts, as the Court indicated that the Defendant “has failed to articulate the factual predicate necessary to meet his burden” with regard to those accounts.
So, while an expectation of privacy might be “misplaced”, the right to seek disclosure of social media user information is not absolute, and may well require a requesting party to meet a threshold pre-requisite, proving that public postings implicate the potential relevance of private postings.
New York, New York
Hot off the presses, is the ruling of the United States District Court for Eastern District of New York in the Federal District Court case of Karissa Reid v. Ingerman Smith LLP, which involved the Plaintiff suing the Defendant for economic and non-economic damages arising from the Plaintiff’s alleged sexual harassment by an employee of the Defendant.
In the course of discovery being conducted, the Defendant sought information relating to the Plaintiff’s social media accounts.
The Federal District Court Judge granted that Motion in part, and denied the Motion in part.
Recognizing that the law regarding the scope of discovery of electronically-stored information (ESI) remained unsettled, the Court also indicated that there was no dispute that social media information may be a source of relevant information that is discoverable.
This is particularly true in cases involving claims of personal injury, where social media information may reflect a “Plaintiff’s emotional or mental state, their physical condition, activity level, employment, this litigation, and the injuries and damages claimed.”
The Court cited toSourdiff v. Texas Roadhouse Holdings, LLC a case decided by the United States District Court for the Northern District of New York, in 2011.
As an example, the Court indicated that Plaintiffs who had placed their emotional well-being at issue, in the course of asserting claims of sexual harassment or discrimination, had been subject to some Courts finding that “Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the contents’ posting.” Bass v. Miss Porter’s School, 2009 WL 3724968 (D. Conn. 2009).
Conversely, other Courts had observed that “the relevance of the content of a Plaintiff’s Facebook usage… is more in the eye of the beholder than subject to strict legal demarcations.” Bass.
Tripping the light fandango, whether electronically-stored and disseminated on the internet or not, “anything that a person says or does might in some theoretical sense be reflective of their emotional state.” Rozell v. Ross-Holst, 2006 WL 163143 (S.D.N.Y. 2006).
InReed, the Defendant claimed that the Plaintiff’s Facebook postings were relevant, as those postings contradicted the Plaintiff’s claims of mental anguish, allegedly resulting from her alleged sexual harassments, and subsequent termination of employment.
Not surprisingly, the Plaintiff argued that she should not be subject to broad discovery, to include the entirety of her social media accounts, potentially resulting in disclosure of private information.
Considering both arguments, for disclosure and in opposition to disclosure, the Court held in Reed that photographs and comments that the Plaintiff had posted on her publicly available Facebook pages provided probative evidence of her mental and emotional state, and the same could reveal the extent of activities in which she was engaged.
The Court also found that her private postings might likewise contain relevant information similarly reflective of her emotional state.
More germane, maybe to the point of this discourse, the Court further ruled that “even had the Plaintiff used privacy settings that allowed only her ‘friends’ on Facebook to see her postings, she had no justifiable expectations that her friends would keep her profile private”, citing toU.S. v. Meregildo, 2012 WL 3264501 (S.D.N.Y. 2012).
Moreover, the Courts founds that the wider the Plaintiff’s circle of friends might be, the more likely that her post would be viewed by someone that she never expected to view her post.
Although the Court declined to require full disclosure of all materials in the Plaintiff’s social media accounts, holding that not all postings might be relevant to her claims, the Court did order the Plaintiff to provide access to postings on her social media accounts that dealt with her social activities, where relevant to her claims of emotional distress and loss of enjoyment of life.
The Court also indicated that those postings might also provide information regarding potential witnesses with knowledge as to the Plaintiff’s social activity, as well as to the Plaintiff’s claims of emotional distress and loss of enjoyment of life.
So, in conclusion, it really does depend on what the meaning of the word is, is, aswell as no matter what your post, it might become relevant in discovery.
All three of the social media decisions reflected upon herein, clearly established a requesting parties’ right, dependent upon a threshold factual predicate, being that the parties subject to disclosure, and their public postings, suggests the availability of relevant information entitling the requesting party to seek disclosure of private postings, with there being a secondary predicate, being that the information being sought is “relevant” to the claims being asserted by the party to disclosure, as well as obviously relevant to the party seeking disclosure.
Kevin L. Connors can be reached at: kconnors@connorslawllp.com
Notice of Compensation Rate Changes:
The maximum compensation benefit rate for work-related injury and illness occurring during the periodbeginning November 1, 2012 and ending October 31, 2013,has changed to$771 per week for Temporary Total Disability (TTD), Permanent Total Disability (PTD), and Death.
The maximum compensation benefit rate for work-related injury and illness occurring during the periodbeginning August 27, 2010 and ending August 26, 2015,remains at$323 for Permanent Partial Disability (PPD)/Permanent Partial Impairment (PPI).
OVERVIEW OF OKLAHOMA WORKERS’ COMPENSATION
WHAT IS WORKERS’ COMPENSATION?
Workers’ compensation is an insurance program that provides compensation for disability, and medical and rehabilitation benefits, for employees injured on the job. In the case of accidental death of an employee, it includes benefits to the employee’s dependents. Under workers’ compensation, both workers and employers are protected. Each covered worker has a right to benefits for a compensation injury. In return, employers are protected from liability lawsuits outside the workers’ compensation system.
DEFINITIONS
“Compensable injury" means any injury or occupational illness, causing internal or external harm to the body, which arises out of and in the course of employment if such employment was the major cause of the specific injury or illness. An injury, other than cumulative trauma, is compensable only if it is caused by a specific incident and is identifiable by time, place and occurrence unless it is otherwise defined as compensable in this act. A compensable injury must be established by objective medical evidence. The employee has the burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There is no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment.
"Compensable injury" means a cardiovascular, coronary, pulmonary, respiratory, or cerebrovascular accident or myocardial infarction causing injury, illness, or death, only if, in relation to other factors contributing to the physical harm, a work-related activity is the major cause of the physical harm. Such injury shall not be deemed to be a compensable injury unless it is shown that the exertion of the work necessary to precipitate the disability or death was extraordinary and unusual in comparison to the usual work of the employee, or alternately, that some unusual incident occurred which is found to have been the major cause of the physical harm.
"Consequential injury" means injury or harm to a part of the body that is a direct result of the injury or medical treatment to the part of the body originally injured in the claim. The Court shall not make a finding of a consequential injury unless it is established by objective medical evidence that medical treatment for such part of the body is required.
"Cumulative trauma" means a compensable injury which is repetitive in nature and engaged in over a period of time, the major cause of which results from employment activities, and proved by objective medical evidence.
"Light duty" describes the status of an employee when a physician has declared the employee available for work with specific temporary physical restrictions.
"Maximum medical improvement" means that no further material improvement would reasonably be expected from medical treatment or the passage of time.
"Permanent partial impairment" means any anatomical abnormality or loss of use after maximum medical improvement has been achieved which can be evaluated by a physician. Any examining physician shall only evaluate impairment in accordance with the method prescribed in Section 33 of this act. All evaluations of permanent impairment must be supported by objective medical evidence.
"Permanent total disability" means incapacity, because of accidental injury or occupational disease, to earn wages in any employment for which the employee may become physically suited and reasonably fitted by education, training or experience, including vocational rehabilitation. Loss of both hands, or both feet, or both legs, or both eyes, or any two thereof, shall constitute permanent total disability.
"Temporary partial disability" describes the status of an injured worker who is under active medical care that is expected to improve his or her condition and who is unable to perform some of the normal activities of his or her work or is limited to a portion of his or her normal hours of employment.
OKLAHOMA WORKERS’
COMPENSATION COURT
L. Brad Taylor, Presiding Judge
Michael Clingman, Court Administrator
Joyce Sanders, Court Clerk
www.owcc.state.ok.us
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Oklahoma City Location |
Tulsa Location |
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1915 N. Stiles Avenue |
440 S. Houston, Suite 210 |
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Oklahoma City, OK 73105 |
Tulsa, OK 74127 |
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(405) 522-8600 |
(918) 581-2714 |
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(800) 522-8210 (In-State Toll Free) |
Useful websites:
Oklahoma Workers’ Compensation Court
Oklahoma Insurance Department
Oklahoma Department of Labor
Currently in South Dakota you cannot force a claimant to attend an IME unless the doctor conducting the IME is licensed in South Dakota. If the claimant volunteers to go to a non-SD licensed doctor, the IME is valid and can be used.
There is going to be some legislation proposed where the defense bar would be allowed to use non-SD licensed doctors in exchange for increasing the notice period from 3 days to 7 days. This seems like a good compromise as there are very few doctors licensed in SD who will do IMEs, and there are lots of exceptions to the notice provision. We will wait and see if this compromise gets passed. If it does, the new law would take effect on July 1, 2013.
If you have questions, please contact Charlie Larson at 605-336-2424 or calarson@bgpw.com
South Dakota had a recent SD Supreme Court case where the department and appellate court held for the employer and insurer on a medical issue. The case went up to our high court. The issue was whether the work injury remained a major contributing cause of the claimant's need for treatment.
The treating doctor testified on behalf of the employee. The insurer had a record review done by an orthopedic surgeon. The court reversed the department's ruling on causation for two very important reasons: 1. the court indicated a strong preference for the treating doctor; and 2. the court indicated it's disdain for record reviews.
Record reviews are helpful, but in order to have a fighting chance in SD, you must have the patient examined. The court discussed how the record review doctor never took a history and found that to be very important.
Record reviews are still a helpful tool as you do not need to disclose them if they are adverse. If you have a favorable record review and the case is litigated, you need to get an IME and have that doctor testify at hearing in order to have a chance at prevailing.
Please contact me if you have any questions. Charles Larson - (605) 336-2424 -calarson@bgpw.com