State News

By Attorneys Alison Stewart, Nick Cooling and Law Clerk Jordan Gehlhaar

The Iowa Court of Appeals recently ruled on several workers’ compensation matters.

In Pesicka v. Snap-On Logistics Company, the Claimant and Employer reached a settlement agreement following a foot injury. The parties agreed there was a thirteen percent permanent partial disability (PPD) to the right leg. After settlement, the Claimant underwent eight additional surgeries related to the work injury, including amputation of all toes on his right foot. Claimant Pesicka filed a petition for review-reopening, seeking a benefit increase and asserting the condition of his right leg had worsened. The Claimant also asserted that compensation should be based on loss of each scheduled toe (forty weeks for loss of the great toe, plus fifteen weeks for each additional toe), rather than the leg. See Iowa Code § 85.34(2) (2017). However, the court held the Claimant was bound by his prior agreement within the settlement and hearing report that the injury was to the leg. He was precluded from a separate award based upon the toes, because it would prejudice the employer who did not have adequate notice to dispute the newly asserted impairment. Additionally, injuries to the toe, foot, and knee can be considered or included in the assessment of permanency to the leg. In a review-reopening proceeding, the “situs” or location of the injury will be that which was the subject of the underlying action or defined in the approved settlement.

The Court of Appeals interpreted Iowa Code section 85.21 concerning liability disputes between multiple carriers or employers inAmerican Home Assurance v. Liberty Mutual Fire Insurance Company. The issue in this case was whether there is an indefinite time for which an insurer can claim reimbursement for benefits paid. The Commissioner had determined a consent order must be obtained prior to the arbitration hearing, whereas the district court found the plain language and purpose of the statute provided no time constraint. The Court of Appeals found the Commissioner’s interpretation was not erroneous and contested cases against another insurance carrier or employer must be commenced within three years from the last benefit payment. In this case, more than five years had passed before the insurance company realized it did not provide coverage on the date of injury. The reimbursement action would have been precluded had the Claimant not filed a review-reopening petition. It is best to review dates of coverage and determine liability for each date of injury or loss as soon as possible, so all parties have early notice of reimbursement claims and an opportunity to address liability.

Peddicord Wharton attorneys Tim Wegman and Joe Barron won on appeal in Smith v. TPI Iowa, LLC. The Claimant asserted a cumulative injury to the rotator cuff, which the employer denied. The Defendant employer produced opinions from two credible doctors that the shoulder injury was not caused by employment. The Claimant did not meet her burden of establishing the injury arose out of employment (causation). One opinion was produced by the Claimant, which opined that impairment resulted from a shoulder injury, but not that a shoulder injury arose from employment. “The critical component that [was] missed [was] an opinion that the Claimant’s alleged repetitive activities caused the shoulder injury.”

The court affirmed denial of alternate medical care in Dotts v. City of Des Moines. The employer had the authority to choose the medical care, given the injury was accepted as compensable. In considering the petition for alternate care, the Agency considered the Claimant’s testimony, communications between counsel, medical records, and statements made at the hearing. The Claimant did not meet the burden of proving the authorized care was unreasonable and alternate care was necessary. A back injury was found non-compensable inCufurovic v. Tyson Foods, Inc. Although differing expert opinions were provided regarding the work-related nature of the injury, the opinions that the back injury was personal were found to be more credible because they were factually accurate as to work history and duties. Commissioners’ and credibility determinations are given considerable weight on appeal.

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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

One of the most misunderstood rules in workers’ compensation is the so-called “special mission” exception to the premises rule, which is New Jersey’s successor to the better known “going-and-coming rule.”  The New Jersey premises rule says that one is at work when he or she arrives at the work premises.  The main exception to that rule is the special mission exception.  Confusion abounds on this exception because few read the actual letter of the law.  Many think that the special mission applies when an employee has to drive somewhere out of the ordinary or work hours that are unusual.  That may not be true at all.

Here is what the statute actually says: “…When the employee is required by the employer to beaway from the employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer.”  This language comes from NJSA 34:15-36.

Consider some common scenarios:

1. An employee works for a large food distributor reporting every day to a satellite office in Cherry Hill, N.J., but once a year the employee must report to the employer’s headquarters in Jersey City for an annual review.  The employee is injured returning from Jersey City to his home in a car accident.  Special mission?
2. An employee is approved for an educational seminar in Los Angeles, gets to the hotel, takes a warm, hot bath in the evening and slips and falls on the hotel bathroom floor, fracturing her femur. Special mission?
3. The maintenance superintendent for a large rental complex is summoned at nine p.m. to come back to work immediately because there is a power outage in the employer’s building where the superintendent works 9-5.  Special mission?
4. The head of HR leaves work at four p.m. on Friday afternoon but gets a phone call during her drive home and is told to come to work for a special meeting on Saturday at nine a.m.  Special mission?
5. A defense lawyer leaves his home on Monday morning and travels to Paterson workers’ compensation court, where the attorney drives every three weeks to handle a regular list.  On the way she is involved in a serious car accident.  Special mission?

All of these scenarios have one thing in common: they are unusual assignments for the employee either to locations where the employee does not normally work or during hours when the employee does not normally work.  But only two of these scenarios would meet the test of a special mission.  If you guessed numbers two and five, you are correct. 

In number two, the employee is at a location away from the employer’s premise on an approved seminar when the slip and fall occurs.  The employee’s presence in the hotel room is expected and necessary to complete the work assignment.  In number five, the defense lawyer is required by the employer to drive to a location away from the employer’s place of employment to perform court duties.  The accident happens on the way to court.

But examples 1, 3 and 4 would not constitute a special mission.  But why not?  Number one is easy because the employee is reporting to the employer’s work site in Jersey City. It doesn’t matter that this is not where the employee normally works:  The rule says it must be “away from the employer’s place of employment.”  This is the company’s headquarters!  

The same outcome applies for numbers three and four. Although the employees in numbers three and four may consider their assignments to be out of the ordinary and rather taxing (driving to work late at night or having to work on a Saturday), the test is not whether there is a deviation from the ordinary work schedule.  The test is whether the employee is required by the employer to be away from the employer’s place of employment.  They were both reporting to their normal work site.  So for numbers 1, 3, and 4, the normal premises rule applies.

The second part of the special mission exception is easier to understand.  When an accident occurs away from the employer’s place of employment, the employee must be engaged in the direct performance of work duties for the accident to be compensable.   So in the first example, if the employee at the seminar in Los Angeles is a baseball fan and decides to travel by herself to Chavez Ravine one night to watch the Dodgers play the Giants and falls in the stadium, that injury would not be covered because the game has nothing to do with the distant work assignment.   What would be covered on a distant assignment or at a seminar? Courts have found that injuries getting meals at a hotel or walking to one’s hotel room would certainly be covered.   Taking clients out to a different hotel for dinner or to a sporting event while at a seminar would certainly be covered.  That makes sense, but not everything one does on an approved trip is covered, just as not everything that one does in the normal work environment is covered. For example, the fitness-obsessed employee who jumps rope during breaks and falls will not win a workers’ compensation case even if the injury occurs on premises.

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John H. Geaney, Esq., is a Shareholder and Co-Chair 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. 

Written by: Tracey Jones and Lindsay Underwood

The North Carolina Industrial Commission recently issued decisions in the first round of extended benefits cases, in which claimants are arguing entitlement to temporary total disability benefits past the 500-week cap on benefits. The cases have only been heard at the Deputy Commissioner level but provide insight into how this issue may be treated in the near future while we await inevitable appeals to the Full Commission and Court of Appeals. To obtain benefits beyond the 500-week cap, the claimant must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. The claimant is only eligible to request a hearing on this issue after 425 weeks have passed from the first date of disability. In the cases that have been decided so far, the decisions are split. What precedent is this setting for North Carolina and what can we learn from comparable jurisdictions who have analyzed similar statutory caps?

North Carolina: Statutory Language

N.C.G.S § 97-29(d) outlines the physical and mental requirements for showing an entitlement to extended benefits. As stated above, to obtain benefits beyond the 500-week cap, the claimant must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. It should be noted that there are certain claims which allow for automatic permanent and total disability benefits (i.e., catastrophic cases where a claimant loses two or more limbs). These claimants are entitled to lifetime benefits without findings concerning work ability or wage-earning capacity. Three other categories of claims create a rebuttable presumption of permanent and total disability benefits: (1) spinal injuries involving severe paralysis of both arms, both legs, or the trunk; (2) severe brain or closed-head injuries evidenced by severe and permanent motor or communication disturbances; and (3) second- or third-degree burns to 33% or more of the total body surface. Under these three categories of claims, if the employer can prove that the claimant is capable of suitable employment, then permanent and total disability would not be due and payable.

North Carolina: Deputy Commissioner Extended Benefits Decisions to Date

The first case, Milton Nobles v. North Carolina DHHS and CCMSI, was issued by Deputy Commissioner Robert Harris on January 25, 2021. The claimant in that case had no formal education outside of a high school diploma. He had work experience primarily as a health care technician. On June 26, 2011, the claimant was working for a hospital and sustained injuries while breaking up a fight, which ultimately resulted in headaches, PTSD, and depressive disorder. Dr. Thomas Gualtieri saw the claimant for a one-time neuropsychiatric evaluation in September 2011 and opined that claimant was malingering. He testified in line with the same at hearing. Claimant then began seeing Dr. Edwin Hoeper, a psychiatrist, on his own starting in May 2012. Claimant was still seeing him as of the date of the hearing. Dr. Hoeper provided testimony for claimant that his PTSD would never be cured and that his treatment could only improve his life slightly. Dr. Hoeper testified that claimant was permanently and totally disabled, and unemployable in any job. Dr. Manish Fozdar also conducted a one-time independent medical examination of claimant. Dr. Fozdar found claimant to be uncooperative and opined claimant was malingering. He opined any further mental health treatment was not related to his initial injury. Defendants also hired a rehabilitation professional, who produced a labor market survey and identified several positions she believed claimant could perform. The vocational expert never met with claimant. Deputy Commissioner Harris determined that claimant was entitled to extended benefits beyond the 500 weeks. The Deputy found that claimant had long-term chronic PTSD and chronic major depression and that he had satisfied the requirements under N.C. Gen. Stat. § 97-29(c), and had proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.” Dr. Hoeper’s testimony was given more weight than that of Dr. Fozdar, Dr. Gualtieri, or of the vocational rehabilitation professional. Thus, the claimant was entitled to extended benefits.

The next case, Mary Betts v. North Carolina Department of Health and Human Services and CCMSI, was issued on March 12, 2021, also by Deputy Commissioner Robert Harris. The claimant in that case graduated from high school and had CNA qualifications. She was a certified EMT, but her certifications had elapsed. The claimant worked as a health care technician and sustained her injury on August 12, 2011, while trying to restrain a combative patient. She sustained an injury to the ankle which resulted in multiple surgeries. The claimant had sedentary work restrictions, but the claimant’s treating physicians noted that even while performing sedentary work, she would still experience pain and swelling. Evidence showed that claimant remained involved with the Girls Scouts as a troop leader and summer camp director, volunteered with the PTA, cut her own grass, and did crafts. The vocational expert hired by claimant testified that claimant’s condition prevented her from being employable. The defendant also hired a vocational expert, who did not meet or speak with the claimant and did not contact any potential employers to discuss the claimant’s limitations. The Deputy Commissioner found the defendant’s vocational expert’s report to be too general and not tailored specifically to the claimant. Accordingly, the Deputy found that claimant had proven by the preponderance of the evidence in view of the entire record that she “has sustained a total loss of wage-earning capacity” because of this compensable long-term ankle condition. As such, claimant was entitled to extended compensation.

The third case, Michelle Brown v. NC Department of Public Instruction/Surry County Schools and Sedgwick, was issued on May 4, 2021, by Deputy Commissioner Jesse Tillman, III. The claimant was working as a teacher’s assistant at a high school on February 24, 2012, when she sustained an injury. The claimant worked for the county in multiple capacities in the past, including bus driver, substitute teacher, tennis coach, and band director, and had experience as a CNA, truck dispatcher, cashier, food preparation, a line worker, and phlebotomist. The claimant had permanent sedentary work restrictions. The claimant testified that she rode a motorcycle a few times during the summer, used a riding lawnmower, could walk one to two miles without issue, bowled twice a week, cared for multiple animals, and actively swam. A vocational expert provided a labor market survey that showed the availability of jobs within claimant’s work restrictions. The claimant presented no evidence that she continued to suffer a total loss of wage-earning capacity. The Deputy found that the claimant could at least work a part-time, sedentary job. The claimant’s claim for extended benefits was denied.

The last new case is Martin Strudivant v. North Carolina Department of Public Safety and CCMSI. The decision was issued by Deputy Commissioner Erin F. Taylor on May 5, 2021. The claimant sustained a compensable back injury on July 23, 2013. He was a high school graduate and had completed some post-graduate courses. He was certified to dive a forklift, had training in blueprint reading, and had CPR experience. The claimant had been on his church’s Board of Trustees since 2008. On the date of his injury, claimant was working transporting inmates. Four of the claimant’s physicians testified claimant could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Defendants’ vocational expert also testified that claimant had capacity for work. It was determined that claimant could not show a “total loss” of wage-earning capacity; thus, claimant could not show entitlement to compensation beyond the 500-week cap on benefits.

As you can see, the four decisions issued to date have been a 50-50 split on entitlement to extended benefits. The cases are also very fact specific. What is clear from the decisions where entitlement to extended benefits has been denied is that the testimony from medical providers and a vocational rehabilitation specialist are necessary to support a finding that a claimant has wage earning capacity. Defendants should make sure to have good experts secured prior to the hearing, along with possible surveillance and a labor market survey tailored specifically to claimant. It is also helpful to have a complete picture of the claimant’s job history, educational background, and other activities outside of work or education, like the ability to exercise, do yardwork, or maintain positions on boards or as a volunteer.

Jurisdictional Comparison

As we continue to forecast how the Court of Appeals will address extended benefits, we anticipate they will look to other jurisdictions with similar statutory caps on benefits. South Carolina, Virginia, Tennessee, and Georgia have similar statutes and their case law may provide guidance on how entitlement to extended benefits will be analyzed in North Carolina. 

South Carolina

South Carolina places a 500-week limit on total disability. Their provision is stricter than North Carolina’s, and only allows extended benefits in very specific circumstances. S.C. Code Ann. § 42-9-10 establishes the cap on benefits. Any person determined to be totally and permanent disabled who, due to a compensable injury, is a paraplegic, a quadriplegic, or has suffered physical brain damage is not subject to the 500-week limitation and shall receive the benefits for life. There is no additional provision under the South Carolina limitation that allows for proving extended benefits beyond the 500-week cap, outside of those circumstances outlined above. The main disagreements in South Carolina case law arise due to arguments regarding the “level of severity” of brain injuries.

For example, in Crisp v. SouthCo., 401 S.C. 627, 738 S.E.2d 835 (2013), the claimant sustained injury to the head and right hand while working in construction. The claimant was ultimately diagnosed with a cognitive disorder. When the claim went to hearing, the claimant alleged injury to his head, brain, neck, back, right upper extremity, and psyche and sought continued temporary benefits and continued medical treatment, including treatment in a traumatic brain injury program. In the alternative, the claimant sought a finding that he was permanently and totally disabled and entitled to lifetime compensation benefits due to “physical brain damage.” The claimant argued to the Supreme Court that the presence of any physical brain injury, regardless of degree, entitles the claimant to benefits beyond the 500-week cap on benefits, per the statute. The Supreme Court, however, emphasized that “inherent in the requirement that the injury to the brain be severe is the factor that the worker is unable to return to suitable gainful employment.” Thus, the analysis hinges on whether the claimant with the diagnosed brain injury can return to work in light of the severity of the injury.

Based on this type of precedent in South Carolina, we can see how difficult it would be for a claimant to prove entitlement to extended benefits outside of the specific circumstances outlined above. Similar to North Carolina, testimony about educational background, work history, and expert testimony on the issue of functionality seem to be important factors in determining return to work options for claimants with a brain injury, which is one of the few conditions that allow benefits beyond the 500-week cap.

Virginia

Virginia is another comparable jurisdiction. They have a 500-week cap, which is enforced even where the claimant continues to have work restrictions after receiving 500 weeks of indemnity/wage loss benefits and is unable to return to his pre-accident job or similar work. Va. Code Ann. § 65.2-503(c) outlines benefits for permanent and total incapacity. Under this code, a claimant may receive permanent total disability benefits when there is:(1) loss of both hands, both arms, both feet, both legs, both eyes, or any two of these body parts in the same work accident;(2) injury that results in total paralysis, as determined by the Virginial Commission on the medical evidence before it; or, (3) an injury to the brain that is traumatic and severe enough to render the worker permanently unemployable in gainful employment.

Most of the determinations of permanent and total incapacity in the Virginia system concern the level of permanent partial impairment ratings, coupled with the factors above. In practice, the courts consider wage-earning capacity and apply similar factors that the North Carolina courts will also be likely to consider.

In Georgia-Pac. Corp. v. Dancy, 24 Va. App. 430, 482 S.E.2d 867 (1997), aff'd, 255 Va. 248, 497 S.E.2d 133 (1998), the claimant’s legs were crushed by a conveyor while at work. The claimant attempted to return to work on one occasion but was sent home after a few hours. The claimant was seen by a company doctor who opined “I do not think that he is ever going to return to work under these circumstances.” Another physician completed a permanent disability assessment and assigned a 100% disability to one leg and a 15% disability to another leg. He was restricted to no standing longer than one hour, no sitting greater than two hours, and no climbing, stooping, crawling, or working on uneven ground. The record showed that the claimant had a tenth-grade education and had experience only in heavy physical labor jobs. A rehabilitation counselor testified that with the claimant’s limited education, time in the service, geographical location, and medical condition, there were some things he could do at least on a part time basis, providing there were no complications. For example, he could work at a nursery watering flowers, or work at a senior citizens’ home, or at a medical clinic preforming local driving tasks.

The lower courts determined the claimant was permanent and totally disabled. The Virginia Court of Appeals cited Va. Code § 65.2-503, noting that permanent and total incapacity shall be awarded where there is loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof in the same accident. Even so, they stressed that in determining the extent of the loss of use of two members, the inability of the injured employee to engage in gainful employment is a proper element to consider. Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 858–59, 80 S.E.2d 537, 542 (1954). The medical evidence showed a rated loss of 100% and 15%, respectively, of his left and right legs. The Commission had found, despite the testimony concerning the ability to return to work including that from the rehabilitation counselor, evidence in the record that the combination of the losses to the legs rendered the claimant unemployable. The Court of Appeals agreed, finding that the proper inquiry was whether the rated loss of use in the claimant’s legs rendered both legs unusable. The court affirmed the finding of permanent and total incapacity and awarded extended benefits.

Although the case is unpublished, Hopkins v. RDA, Inc., No. 1053-11-4, 2012 WL 48156 (Va. Ct. App. Jan. 10, 2012), further demonstrates how courts examine the permanent and total disability analysis. The claimant argued he was entitled to extended benefits. The courts first note that the claimant’s physicians disagreed about whether he was permanent and totally disabled and he saw a number of physicians. As to the ability to work, Dr. Harry Li, the authorized treating physician, testified claimant’s disability was total and permanent and that he should be removed from the work force. Dr. Zeena Doria, the authorized treating neurosurgeon stated that claimant was partially disabled due to his lumbar condition and stated claimant should receive permanent partial disability to the right leg only. Dr. Michael Shear stated that claimant was permanently and totally disabled and concluded he could not work for even an hour or so at a time. Dr. John Bruno, an orthopedic surgeon who conducted an independent evaluation, opined that claimant’s permanent partial impairment rating to his spine should be split to assign an 11.5% rating to each leg. Dr. Bruno reviewed claimant’s FCE and noted claimant was totally disabled from gainful employment. Dr. James Melisi and Dr. Charles Citron opined that there were no objective findings that claimant could not work in any capacity, and found claimant was not permanent or totally disabled. Dr. Anthony Debs specifically testified that claimant could work light duty or sedentary work. Dr. Debs also commented on “splitting the ratings” to each leg as suggested by Dr. Bruno, and disagreed, stating he would assign a rating to the right leg, but not the left leg. The Deputy Commissioner and Full Commission found claimant was not permanently and totally disabled. They gave little weight to Dr. Bruno’s ratings to both legs and noted that the evidence failed to demonstrate a loss of use of both lower extremities, and claimant failed to show he was unable to use his legs to any substantial degree in gainful employment.

The court agreed with the Commission’s findings that the claimant was not permanently and totally disabled, and the decision was affirmed. The court found that there was credible evidence to support the Commission’s findings. Specifically, Dr. Dorai found claimant had no impairment to the left leg and Drs. Melisi, Citron, and Debs all opined claimant was capable of light duty or sedentary work and was not permanently disabled.

It appears that the main difference between the Georgia and Hopkins decisions lie in the lack of high ratings to both legs, as well as the inability of the claimant to demonstrate that he was not capable of gainful employment due to said ratings. Though there was some evidence of the ability to work in the Georgia decision, the 100% rating to one leg, and additional rating to the other leg, outweighed that opinion. The Virginia case law again emphasizes the importance of obtaining credible expert physicians who will provide good evidence on disability and work ability. Further, it is interesting to note how the Virginia courts look to impairment ratings assigned to body parts as part of their analysis in determining entitlement to total disability.

Tennessee

Tennessee utilizes a 450-week cap on benefits similar to North Carolina. Tenn. Code Ann. § 50-6-102(15)(D) provides: “For injuries occurring on or after July 1, 2014, the maximum total benefit shall be four hundred fifty (450) weeks times one hundred percent (100%) of the state's average weekly wage… except in instances of permanent total disability.” Tennessee courts also appear to analyze the amount of a permanent impairment rating when considering entitlement to extended benefits.

A claimant who is unable to return to any job in the open market because he/she retains a permanent disability from a work injury may be entitled to permanent total disability benefits.Bomely v. Mid-Am. Corp., 970 S.W.2d 929, 931 (Tenn. 1998). This benefit continues at the claimant’s compensation rate until the claimant is eligible for retirement based on their age under the Social Security Law.

The Hinson case is particularly instructive. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675 (Tenn. 1983). In this case, the claimant fell off a ladder at work and sustained injury to the femur. The trial court held that claimant was permanently and totally disabled, and the Supreme Court of Tennessee agreed. Specifically, the court emphasized that “it must be kept in mind that this Court makes a clear distinction in worker's compensation cases between anatomical impairment as determined by a physician and disability to work which results from such impairment.” Federated Mut. Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967). The court recognized that in determining what may constitute permanent and total disability many pertinent factors should be considered, including the skills, education, and training of the claimant as well as job opportunities and other factors bearing upon employability. In determining the sufficiency of evidence to support disability, the extent of the disability should be determined through further medical evidence and lay testimony. The court also stated that the judge should not be bound by the physicians’ opinions only but should analyze evidence from expert and non-expert witnesses, including those outside of the medical field.

In another case, which is unpublished, Darnell v. Connecticut Indem. Co., No. M2003-00914-SC-WCMCV, 2005 WL 625885, at *1 (Tenn. Workers Comp. Panel Mar. 17, 2005), the claimant began working as a machinist out of high school where he sustained injuries to the right upper back and shoulder. The doctor that treated claimant assigned a 49% permanent partial impairment to the body as a whole. The claimant was able to use his left arm. The claimant attended a second opinion with another physician and his diagnosis was confirmed. There was also testimony from a vocational counselor for the claimant, who concluded that the claimant was permanently and totally disabled considering the medical opinions and educational history of claimant. Another vocational expert testified for the employer and was of the opinion that there were jobs available in the labor market that could be performed with the use of one hand or arm.

The trial court found claimant was totally disabled, and the workers’ compensation panel agreed. The record established that the claimant, a high school graduate, was right hand dominant. Although he occasionally managed to hunt and perform other functions, he was in constant pain, which caused him the need to lie down. The authorized treating physician testified that the claimant could perform work using his left arm. Although the vocational expert for defendants testified that there were jobs available in the marketplace, there was no evidence presented that those jobs actually existed in the marketplace where the claimant lived. Considering the physical limitations of the claimant and other factors such as past work history, job skills, training, education, and job opportunities, it was concluded that the claimant was totally disabled.

This case helps emphasize the factual specificity that may be very important in each extended benefits case. For example, it is foreseeable that, even where a vocational expert provides good testimony on job availability and prospective employment, there may need to be specific considerations for geographical location and actual real-world availability.

Georgia

Georgia also has a 400-week limit on benefits per Ga. Code Ann. § 34-9-261. In the event of a catastrophic injury, there may be an entitlement to extended benefits. Ga. Code Ann. § 34-9-200.1 outlines the possible catastrophic injuries and defines this type of claim as one of more of the following: the claimant has a severe brain or closed head injury; the claimant has a spinal cord injury resulting in severe paralysis of the arm, leg, or trunk; the injury resulted in an amputation of arm, hand, foot, or leg; the injury resulted in second or third degree burns covering a specific percentage of the body; the worker has a diagnosis of industrial or total blindness; or the injuries render him unable to perform his prior work, as well as any additional work available for which he is otherwise qualified. The last group, as expected, results in the most litigation and involves a more subjective analysis of entitlement to benefits. The courts have typically analyzed educational history, work background and experience, the current labor market, vocational experts and analysis, and the possibility of job training when considering whether the claimant is entitled to extended benefits under that classification.

In Reid v. Georgia Bldg. Auth., 283 Ga. App. 413, 641 S.E.2d 642 (2007), the claimant sustained a work-related hand injury and requested a hearing to determine whether her claim was catastrophic under the Act. The State Board of Workers’ Compensation found the injury was catastrophic and the appellate court agreed. The superior court reversed the state board and the claimant appealed. The Georgia Court of Appeals upheld the superior court’s ruling. The claimant argued that her claim was catastrophic as it prevented her from returning to work. There was no dispute that she could not perform her pre-injury job. The only question was whether there was any work available within the national economy for which claimant was otherwise qualified.

The evidence showed that claimant previously did housekeeping work that included “[s]weeping, mopping, dusting, and regular ... cleaning,” and required the ability to “lift, push, pull, and carry heavy item[s].” Her physician released her to limited work of no heavy gripping, lifting, or carrying over 10 pounds. She returned to work, but was unable to perform her duties, so stopped working in any capacity altogether. Claimant’s physician ultimately concluded she was permanently and totally disabled from performing her previous job. The state board found that the claimant was 66 years old and had performed housekeeping work her entire life. She had no computer skills, completed school only through the 11^th grade, and had no specialized training. It was further found that she could not perform work activities over four hours per day without experiencing swelling in the hand.

The Court of Appeals found that the claimant did not present any competent evidence that she was unable to perform any work available in substantial numbers within the national economy. At the bare minimum, she should have tried to demonstrate that she attempted to obtain employment within her limitations. The sole evidence regarding her job search was a general statement at hearing that she “looked for work.” She also did not present a vocational expert. Thus, the court held there was insufficient evidence that the claimant was entitled to extended benefits.

In another case, Caswell, Inc. v. Spencer, 280 Ga. App. 141, 633 S.E.2d 449 (2006), the claimant argued his back claim was catastrophic in nature and he was entitled to extended benefits. The State Board of Workers’ Compensation found his injuries were catastrophic and cited, among other things, the claimant’s age of 62 years, stating it rendered him unable to even adapt to light duty work. Defendants appealed and were granted a hearing with an administrative law judge, who rejected the state board’s decision and found that the injuries were not catastrophic. The appellate division of the board agreed. Claimant then appealed to superior court, arguing that the board failed to consider his age. The superior court agreed and remanded the case.

The case was then appealed to the Court of Appeals. The court found that the record showed the claimant’s age was fully considered, it was simply that the administrative law judge and appellate division of the board found the testimony from a vocational specialist to be more credible. The vocational expert disagreed with the statement that someone who is 62 years old is unable to learn new skills, noting he was not aware of any rule or school of thought that supported that contention. The vocational expert also provided research that many retired individuals were going back to work. The expert also testified that, in the national economy, there were something like four million jobs the claimant could perform. The Court of Appeals found that the superior court’s decision that age was not considered was unfounded. Thus, the claim was remanded to the board for reconsideration.

Practical Takeaways for Jurisdictions with Statutory Caps

The case law and jurisdictional analyses above help to forecast what issues North Carolina Appellate Courts will consider when analyzing extended benefits cases in the days to come. What is less clear is whether North Carolina Courts will adopt an analysis similar to Georgia, which requires more of an “obliteration” or complete loss of any wage-earning capacity, or whether it will be similar to Virginia where the medical aspect of the case, as well as “loss of use,” will be extremely important to the outcome.

When we zoom out and examine the trends from this analysis, a list of general takeaways emerges on how to defend a claim for benefits beyond a statutory cap:

1.       Each case will be fact specific; documentation and communication remain critical.

2.       The claim will require the use of credible, and in many cases multiple, experts.

3.       Defendants should obtain solid expert opinions, both medical and vocational, that clearly support a finding that a claimant can participate in some form of employment.

4.       It is important to elicit detailed testimony, including dates, times and follow-ups, from the claimant regarding his or her job search, or lack thereof.

5.       The vocational expert should meet with the claimant in person to identify jobs within the claimant’s labor market that are readily available in light of his or her work restrictions and educational and vocational background. Additionally, the vocational counselor should contact those potential employers to determine the likelihood that the claimant can secure employment within his or her work restrictions.

6.       It is important to have a detailed understanding of the claimant’s job history, educational background and daily activities, including volunteer activities, as evidence of the claimant’s wage-earning ability. 

7.       It will benefit the defense to develop solid medical evidence about the claimant’s loss of use or impairment ratings by highlighting the functionality of the injured body part.

Written by: Elizabeth Ligon

North Carolina Supreme Court remands Lauziere v. Stanley Martin Communities, LLC, 376 N.C. 789, 854 S.E.2d 579 (2021) to the Full Commission for further findings. 

In a recent decision issued by the North Carolina Supreme Court, the judges remanded a case back to the Full Commission where a plaintiff’s case was dismissed with prejudice for failure to prosecute.

Background of the Case

Plaintiff was employed as a realtor and allegedly sustained an injury while trying to manually shut a garage door at a model home. Defendants denied Plaintiff’s claim. Plaintiff’s case was originally set to be heard in May 2016, but the case was continued because Plaintiff had not responded to discovery. On June 16, 2016, Plaintiff produced discovery responses to Defendants and asked to be placed on an expedited hearing docket. Defendants alleged Plaintiff’s discovery responses were insufficient. Over a year later, Defendants moved to dismiss the claim with prejudice. The Commission filed an Opinion and Award, dismissing Plaintiff’s case with prejudice pursuant to Industrial Commission Rule 616(b). Plaintiff appealed to the Full Commission, and the Full Commission affirmed the decision.

The sole issue on appeal to the Court of Appeals was whether the Commission erred in dismissing Plaintiff’s claim with prejudice. The Court of Appeals looked to North Carolina Civil Procedure Rule 41(b) for guidance and noted that the Commission must address three factors before it can dismiss a workers’ compensation claim for failure to prosecute under Rule 616(b). First, “whether the plaintiff acted in a manner which deliberately or unreasonably delayed the matter.” Lee v. Roses, 162 N.C. App 129, 132, 590 S.E.29 404, 407 (2004). Second, “the amount of prejudice, if any, to the defendant caused by the plaintiff’s failure to prosecute.” Id. Third, “the reason, if one exists, that sanctions short of dismissal would not suffice.” Id. at 133, 590 S.E.2d at 407.

The Court of Appeals found that the Commission erred on three grounds due to a lack of competent evidence. First, Defendants offered no competent evidence to support a finding that they had been materially prejudiced because they were unable to direct medical treatment since the claim was denied. Second, Defendants did not produce any evidence that supported their contention that they bore “substantial” expenses. Third, there was no evidence that Plaintiff could not have afforded to pay a monetary sanction, if so ordered, so the finding that Defendants’ monetary damages could not have been recouped was not supported by the evidence.

The Court of Appeals found that other, less permanent, sanctions remained available, such as civil contempt. The Full Commission’s order of dismissal was reversed, and the case was remanded to the Commission.

Judge Dillon concurred in part and dissented in part. While not all of the Commission’s findings were supported by the evidence, he believed that the remaining findings were sufficient to support a dismissal in the exercise of the Commission’s discretion. However, he could not conclude that the Commission would have reached the same result based on the remaining findings. Therefore, he voted to vacate the dismissal, remand the matter for further proceedings, and allow the Commission, in its discretion, to order dismissal or lesser sanctions.

Defendants appealed to the North Carolina Supreme Court. The Court remanded the case to the Full Commission to review the award, and as it deems necessary, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the Award.

Implications for Defendants

We will continue to monitor this case to determine the implications it has on the evidence defendants need to present in order to successfully secure a dismissal with prejudice. The Commission will likely be reluctant to dismiss a claim with prejudice, so defendants must carefully document and present evidence that plaintiff deliberately or unreasonably delayed the matter, that defendants were prejudiced by plaintiff’s actions, and that no other sanctions short of dismissal would suffice. Such evidence may include documentation of how the delay impaired defendants’ ability to locate witnesses, medical records, treating physicians, or other data; how much money defendants expended, how often they traveled, or how far they traveled to litigate the claim; and financial documentation or other evidence to show why defendants’ costs could not be recouped from plaintiff.

If you have any questions regarding this recent Supreme Court decision, feel free to reach out to Elizabeth Ligon or a member of our workers’ compensation team.

On August 22, 2021, the Alabama Supreme Court issued Administrative Order No. 13, which declared a temporary state of emergency for the entire Judicial Branch of the State of Alabama due to recent increases in COVID-19 infections.  The Order expressly provides that, subject to any party’s substantive or constitutional rights, any Alabama rule or statute that impedes a judge's or court clerk's ability to utilize available audio/visual technologies is suspended until November 29, 2021. 

Judges are now temporarily authorized to use their discretion to allow any discovery, testimony, appearance, proceeding, hearing, review, or bench trial to be conducted by audio/video technologies upon making a written finding that, for good cause shown, time is of the essence for the administration of justice.

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

The Alabama Supreme Court recently released its opinion in Jackson v. Voncille Allen and Penn Tank Lines, Inc. The plaintiff, Patrick Jackson, was riding in the passenger seat of a commercial vehicle being operated by Valerie Allen, an owner/operator leased to Penn Tank Lines (PTL).  Allen was killed in the accident, and Jackson alleged severe injuries.  Jackson sued Allen’s estate, asserting that Allen’s negligence had caused the accident, and asserted claims of negligent hiring, training, and supervision against PTL, as well as vicarious liability for Allen’s actions through the doctrine of respondeat superior.   Allen’s estate claimed it was entitled to immunity pursuant to § 25-5-53 of The Alabama Workers’ Compensation Act, which provides that agents of the same employer are immune to civil liability, except those based on willful misconduct.  PTL claimed it was immune pursuant to § 25-5-52 and § 25-5-53 as Jackson’s employer and because Allen was PTL’s agent.  

In support of its position, PTL argued that it was leasing the commercial vehicle from Allen and had exclusive possession, control, and use of the vehicle.  PTL also asserted that Allen was training Jackson at the time of the accident, and that Allen was therefore an agent of PTL.  Finally, PTL asserted that under Federal Motor Carrier Safety Administration (FMCSA) regulations, an owner/operator of a commercial vehicle, despite her status as an independent contractor, is deemed to be an employee of the motor carrier while operating the commercial vehicle.  PTL and Allen’s estate both filed motions for summary judgment, and Jackson argued that there were genuine issues of material fact as to whether Allen’s estate and PTL were entitled to immunity.

In support of his position, Jackson pointed out that the independent owner/operator agreement between Allen and PTL specified that Allen would use her own judgment when conducting her work, PTL could not require Allen to accept specific assignments, and that PTL had not withheld taxes from Allen’s pay.  Jackson further asserted that although Allen had been required to comply with PTL’s policies and procedures, Allen was required to provide her own safety clothing, shoes, and equipment.  The trial court entered summary judgment in favor of both defendants, and Jackson subsequently appealed.  

The Supreme Court affirmed summary judgment in favor of PTL as Jackson’s employer, but reversed the trial court’s judgment to the extent that it found Allen was PTL’s agent as a matter of law.  The Supreme Court noted that the test for determining whether one is an agent or an independent contractor is whether the principal/employer retained a right of control, and that such determination was a question of fact that should generally be decided by the jury.  However, the decision was not unanimous.  Justices Bolin and Sellers concurred in part and dissented in part, stating that it is possible for someone to be both an independent contractor and an agent at the same time.  However, both agreed the undisputed material facts established that Allen was acting as an agent at the time of the accident. 

About the Author

This blog submission was prepared by Charley Drummond, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation.  Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at cdrummond@fishnelson.com, or calling him directly at (205) 332-3414.

On July 28, 2021, the Alabama Supreme Court issued Administrative Order No. 12, which extended its previous orders concerning workers’ compensation settlements. This means that the following rules will be in effect through October 29, 2021:

1. Any workers’ compensation settlement hearing in any court may be conducted telephonically or by videoconferencing.

2. Any workers’ compensation settlement may be approved by an ombudsman of the Alabama Department of Labor (ADOL) or by a circuit judge. If a workers’ compensation case pending in court is settled with written approval of an ombudsman from the ADOL, that settlement shall result in the dismissal of the workers’ compensation claim pending in court.

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This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.

On July 30, 2021, the Alabama Court of Civil Appeals released an opinion in Kevin Patrick v. Mako Lawn Care, Inc. wherein it addressed the compensability of an assault by a co-employee.  The altercation was the result of a feud between two lawn care crews.  The member of one crew took the other crew’s mower home for personal use.  To retaliate, a member of the other crew did the same thing.  After that, words were exchanged.  The situation escalated into a physical fight resulting in injury.  The trial judge entered judgment for the employer because the altercation did not arise out of the employment, the employer did not benefit from the altercation, and that the plaintiff was an active participant and the aggressor.  The Court of Appeals agreed that the law was correctly applied to the facts but that it did not necessarily agree with all the language and reasoning in the trial court’s final order.

My Two Cents:

We may not have heard the last of this Lawncare Crew Feud.  The plaintiff argued that the Court’s reliance on a 1927 decision as controlling was misplaced because there were more recent decisions with a more liberal view on work altercations.  The Court, however, noted that the 1927 case was still controlling and the plaintiff would have to petition the Alabama Supreme Court to overrule the older case. Unless the parties reach a settlement, that the plaintiff may very well do that.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

Andrew Mackoff worked  as a salesman and account manager for New Brunswick Saw Services.  One of his duties was to travel to the company’s businesses for meetings and service calls.  On December 3, 2018, Mackoff left his home in Blackwood, Camden County, New Jersey and drove to West Caldwell in North Jersey for a 10:00 a.m. customer meeting.  Following the one-hour meeting, he decided to drive to the Galloping Hill Inn in Kenilworth, N.J. for lunch. He had been going to that restaurant for many years, and he loved their hot dogs.  After lunch he said he planned to go to the company office in Middlesex County because he had not been to the office for a while.

In testimony petitioner said the Galloping Hill Inn was like a “nostalgia place” for him.   He also commented that he was theoretically going to prospect because the restaurant had slicers for sandwiches.   He called the Inn a “potential customer.”  However, he admitted on cross examination that the Galloping Hill Inn was never a customer of his company, and he had no other customers to visit around the Inn.   On the way to the restaurant he was involved in a car accident.

Petitioner filed a claim petition and a motion for medical and temporary disability benefits, seeking treatment for his injuries.   Respondent opposed the motion and denied the claim as not arising from employment.  The Honorable Ingrid French found that petitioner failed to prove a work-related accident.  The Judge was not persuaded that petitioner was really intending to “prospect” the hot dog restaurant.   The Judge commented that petitioner’s “primary purpose for driving to the hot dog place was personal and not work-related.”  She added that petitioner: “unequivocally testified that immediately following his meeting . . . he was going to get his lunch at the ‘hot dog place.’  Then, his attorney prodded him to state that ‘theoretically,’ the ‘hot dog place’ was also a prospective customer.  Specifically, and in support of this ‘theory,’ the petitioner stated that ‘any’ food establishment that sells prepared food is a potential customer.”

The Judge of Compensation found that petitioner had concluded his work day and was simply on his way to lunch. The Appellate Division affirmed the dismissal of the case.  The Court said, “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.’”

The Court also observed that employees who have been injured in the course of a ‘minor deviation’ have been found to be covered for workers’ compensation purposes.  But the Court did not feel this was a minor deviation case.  The Court noted that petitioner admitted that if he drove to Galloping Hill Inn to get a hot dog and then to his office it would have been about two hours out of his way rather than going directly to the office.  This was a key fact in the conclusion that the primary purposes of the trip was personal and non-work related.

The Court relied mostly on Jumpp v. City of Ventnor, 177 N.J. 470 (2003), noting that Mr. Jumpp’s accident while returning from his post office errand was found not to be a minor deviation even though the stop at the post office was only a few yards away from the road he was traveling on.  The Court said, “ . . . petitioner’s decision to travel an hour east from his West Caldwell meeting because he was hungry and ‘going to get food first’ was not the sort of activity that ‘would have been compensable if carried out by an on-premises employee.’” 

It was interesting that the Appellate Division referenced the decision in Cooper v. Barnickel Enterprises, Inc., 411 N.J. Super. 343, 346 (App. Div. 2010). In that case the petitioner’s car accident was found compensable where he was driving five miles to get a cup of coffee at a deli.  Mr. Cooper was planning to meet with his union instructor but found out that his instructor was tied up teaching a course.  Cooper admitted that he was simply killing time in getting a cup of coffee before meeting with the instructor.  A key difference between the two cases is that Mr. Mackoff’s day was basically done, although he did testify that he planned to visit the company office after lunch.   The Judge of Compensation and the Appellate Division inCooper felt that petitioner was just taking his coffee break, like any other employee would.  But Mr. Mackoff was driving a much longer distance off the route to his office for a hot dog without having any other business meetings scheduled that day.

This case can be found at Mackoff v. New Brunswick Saw Service, A-3625-19 (App. Div. July 14, 2021).

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John H. Geaney, Esq., is a Shareholder and Co-Chair 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.