Motions for medical and temporary disability benefits are urgent matters that are treated as such by Judges of Compensation.  Because injured workers are not receiving benefits, motions for medical and temporary disability benefits require all parties to work swiftly to prepare for court hearings.  In the case of Capel v. Township of Randolph, A-1315-18T1 (App. Div. October 10, 2019), the employer never got a chance to argue its defense due to the failure to comply with administrative rules.

Mr. Capel filed a claim petition alleging an injury on May 21, 2018.  He alleged injuries to his neck, back and left shoulder while lifting logs at work.  Respondent filed an answer in which it did not deny an injury to the shoulder or back but did deny an injury to the neck.

Respondent sent petitioner to treat with Dr. Sayde, who opined that petitioner needed left shoulder surgery related to the accident.  Respondent declined to approve the surgery and then sent petitioner for a second opinion with Dr. Montgomery, who also recommended left shoulder surgery.  When surgery was declined,  Capel filed a motion for medical and temporary disability benefits on October 9, 2018.  The Motion sought approval of surgery, appropriate counsel fees, and sanctions for delay in paying temporary disability benefits.

The Judge of Compensation set the hearing for November 9, 2018.  Under the administrative rules, respondent was required to file a response to the motion rebutting the allegations by October 30, 2018.  The answering statement was filed late on November 8, 2018, the day before the hearing.  In the responsive papers, respondent alleged that petitioner actually injured himself in his other job at Samaritan Inn, a homeless shelter where petitioner was living. 

The Judge of Compensation evaluated the papers on both sides.  The Judge noted the delay in timely filing of the answering statement to the motion as well as deficiencies in the opposing papers.  The Judge of Compensation ruled in favor of petitioner based on the failure to meet the filing deadlines and the failure to file appropriate certifications. Counsel for the Township then sought reconsideration, which was also denied.  The Judge of Compensation noted that instead of submitting certifications required by the rules, defense counsel submitted a two-page letter raising various arguments. In that letter defense counsel conceded that two doctors had recommended shoulder surgery.  Defense counsel argued that petitioner lived for free at Samaritan Inn, a homeless shelter, in exchange for work, and counsel submitted handwritten time sheets for April 9, 2018 through June 23, 2018 of work allegedly performed at Samaritan Inn.  The Judge observed that there was no explanation of how these materials were prepared, who prepared them and or whether they were admissible in evidence.   

As part of the motion for reconsideration, defense counsel also submitted certifications of the claims adjuster and Scott Wagner, a co-worker in the Township’s Department of Public Works. The certification of the adjuster violated court rules by being unsigned. Neither document included the required language stating, “I certify that the foregoing statements made by me are true.  I am aware that if any of the foregoing statements made by me are willfully false, I may be subject to punishment.”  See R. 1:4-4(b).

In addition, defense counsel submitted six unsigned statements by co-workers dated November 5, 2018.  These statements also lacked the specific verification required for certifications in lieu of oath.  For these reasons, the Judge of Compensation refused to vacate her prior order in favor of petitioner.

Respondent next appealed to the Appellate Division and argued that the Judge of Compensation should have relaxed the rules to allow respondent to go to trial on the motion.  The Appellate Division held, “In the absence of any competent evidence in opposition to Capel’s claim that the left shoulder injury arose out of and in the course of his employment by the Township while lifting logs on May 21, 2018, there was no need to conduct a plenary hearing or basis to deny the MMT.”

In an interesting comment, the Appellate Division said that both N.J.A.C. 12:235-1.2 and Rule 1:1-2 permit relaxation of the rules to secure a just determination or to avoid injustice, but the Court said that movants who seek relaxation of the rules “bear a heavy burden.”  In this case, the Court noted that the defense motion papers were “woefully late, one of the certifications was unsigned, both certifications lacked the required verification language, and the other submissions were deficient.” Finally, the Court commented that there is no rule in the Division of Workers’ Compensation regarding motions for reconsideration.  Such motions are within the discretion of the court.   The Court said:

R]econsideration should be limited to those cases ‘in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.  D’Atria v. D’Atria, 242 N. J. Super. 392, 401 (Ch. Div. 1990).

This case represents a wake-up call for employers, adjusters and defense lawyers on the importance of responding to motions for medical and temporary disability benefits in a timely fashion and submitting affidavits or certifications that meet the rules.   In this case, one will never know whether the respondent had a valid basis to argue that the petitioner really injured himself at another job because the respondent lost the case before the trial ever started. 

Answering statements for motions for medical and temporary disability must rebut the allegations of the claim in order for defense to get to trial on the motion.  Submitting certifications or affidavits of individuals with particular knowledge that an injury did not occur at work is vitally important, but such certifications should be signed and contain proper verification language.  The rules provide that employers have 30 days to respond to a motion for medical and temporary disability benefits if the motion is filed with the Claim Petition, but if the motion is filed after the Claim Petition has been filed, respondent has only 21 days to respond.  When such motions are received, the defense team should begin work right away in preparing the defense to the motion.  It takes time and effort to interview witnesses and obtain appropriate certifications.

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

The Alabama Supreme Court recently released its opinion addressing the issue of whether a parent company of an employer is immune from suit based on the exclusivity provisions of The Alabama Workers’ Compensation Act. InEx parte Ultratec Special Effects, Inc., (hereinafter referred to as "Ultratec") a Canadian lighting and special effects equipment manufacturing company, sought mandamus review of the Circuit Court of Madison County’s denial of its motion for summary judgment in two related cases involving the deaths of Aimee Cothran and Virginia Sanderson.

On February 6, 2015, Cothran and Sanderson were killed in an explosion while working at a pyrotechnic manufacturing facility owned and operated by Ultratec Special Effects (HSV)’s in Owens Crossroads, Alabama. Ultratec Special Effects (HSV) (hereinafter referred to as "Ultratec HSV") is an Alabama corporation that is a wholly-owned subsidiary of Ultratec.

There was no dispute that the deaths of Cothran and Sanderson occurred in and arose out of their employment with Ultratec HSV. However, Ultratec asserted that the plaintiffs’ tort claims were barred under the exclusivity provisions of the Act, and that the plaintiffs were not entitled to damages beyond the benefits provided in the Act and paid by Ultratec HSV’s workers’ compensation insurer. Ultratec asserted that (1) Ultratec and Ultratec HSV jointly employed Cothran and Sanderson; (2) Ultratec HSV operated as a division of Ultratec; (3) Ultratec retained a right of control over Ultratec HSV’s employees, and (4) public policy strongly favors extending immunity to the parent company . The plaintiffs opposed Ultratec’s motions, asserting that Ultratec and Ultratec HSV were separate companies and were not joint employers. The trial court denied Ultratec’s motions for summary judgment, and Ultratec petitioned the Supreme Court to overrule the trial court. In a lengthy written opinion, the Supreme Court denied Ultratec’s petition, holding that there are genuine issues of material fact that precluded summary judgment, and that Ultratec failed to show that it had a clear right to an order directing the trial court to vacate its order denying summary judgment. The Supreme Court also rejected Ultratec’s public policy argument, stating that the issue was best left to the Alabama legislature.

The Supreme Court pointed out that Ultratec’s argument that it and Ultratec HSV were an "employer group" was misplaced,. The Court held that the exclusivity provisions provide immunity to groups that act as a service company for a self-insured employer, and that there was no evidence that Ultratec qualified as such a service company by providing assistance in administering Ultratec HSV’s workers’ compensation plan. The Court held that there were genuine issues of material fact as to whether Ultratec reserved a right of control over Ultratec HSV’s employees such that Ultratec would qualify as a joint employer or special employer. The Court rejected Ultratec’s argument that Ultratec HSV operated as a division of Ultratec, based on fact that Ultratec and Ultratec HSV were legally separate corporations based in different countries, and had filed separate corporate income tax returns. Finally, the Court noted that Ultratec’s directing officer had successfully petitioned OSHA to have Ultratec’s name removed as a respondent-employer in proceedings OSHA brought against both companies after the fatal accident.

Justices Wise and Mitchell recused, and Justices Shaw, Bryan, and Sellers dissented. Justice Sellers penned the dissenting opinion, in which he stated that the Legislature originally intended to consider companies like Ultratec and Ultratec HSV as a group of entities that employs workers, such that they would be treated as a single employer for purposes of workers’ compensation. The dissent noted that Ultratec owned 100% of the stock of Ultratec HSV, that the two companies were highly integrated, and even operated under the direction of a single officer. The dissent also pointed to the fact that the licenses and permits that allowed the manufacture of pyrotechnics in Owens Crossroads were issued by the State Fire Marshall and the Federal Bureau of Alcohol, Tobacco, Firearms & Explosives to Ultratec - not Ultratec HSV.

MY TWO CENTS

Generally speaking, the appellate courts will not hear a petition for writ of mandamus on the denial of a motion for summary judgment. One of the few exceptions is when the basis of the motion is immunity, as it was here. However, it is important to note that just because the Supreme Court denied Ultratec’s petition, there has not yet been a final determination. This holding merely means that the issue of whether Ultratec is immune from the plaintiffs’ claims will be decided by a jury. At the summary judgment stage of proceedings, the movant must show that there is no genuine issue of material fact, and that it is therefore entitled to judgment as a matter of law. The fact that Ultratec had taken inconsistent positions(filing separate tax returns and asserting that the two companies were separate in the OSHA investigation) muddied the waters and raised issues of fact that the trial court felt should be decided by a jury.

ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

HOW PERSONAL IS PERSONAL IN PENNSYLVANIA?

By

Kevin L. Connors, Esquire

            Recently, we were privileged to defend an Employer, against which a workers’ compensation claim was presented, for an Employee who was in the course of making a delivery, when the delivery truck was approached by a masked assailant, who then fired several gunshots into the rear bay of the delivery truck, avoiding aiming at a Co-Employee standing in the front of the back of the delivery truck, and aiming instead at an Employee, who then became the Claimant in the workers’ compensation case, who was standing at the back of the delivery truck trailer, with the masked assailant having made several statements, be it declarations, in the course of firing directly at the injured employee, suggesting that the attack was not work-related, but was personal in nature, resulting in the defense to the claim being raised under Pennsylvania’s “personal animus” defense, which is a defense permitted by Section 301(c)(1) which, in the course of describing what injuries are covered by the Pennsylvania Workers’ Compensation Act, included the statutory declaration “the term ‘injury arising in the course of his employment.’ as used in this article should not include an injury caused by any act of a third person intended to injure the employee because of reasons personal to “employee”, and not directed against him as an employee or because of his employment.”

            The personal animus defense in Pennsylvania, as in almost all jurisdictions, is a statutory defense that requires the employer, as opposed to the employee, carrying the burden of proving that an injury alleged by an injured employee to be within the course and scope of employment, is an injury that was caused by the personal animus, i.e., animosity, of a third party to the injured employee.

            Case in point, our firm recently successfully defended this workers’ compensation claim that involved a retail delivery employee sustaining several gunshot wounds in the course of making a delivery in a urban residential area that the injured employee claimed was a high crime area, attempting to set up the argument, for compensability, that the injured employee’s gunshot wounds, and related disability thereto, was caused by the employee being exposed to this incident in a high crime area, as opposed to the employer, our client, successfully proving, first before the Workers’ Compensation Judge, and then before Appellate body, that the injured employee’s injuries occurred because of the personal animus of a third party, who intended, in the course of the shooting incident, to wound and/or inflict bodily harm on the injured employee, and not to injure, and/or aim at a co-employee, who, when the shooting occurred, was actually closer to the shooter than the injured employee, with gunshots fired by a male unidentified third party, arriving on a bicycle, as the two employees, injured employee and co-employee, were unloading furniture for delivery to a employer customer.

            So when the unidentified assailant, presumed to be a male person, was never identified, was never found by police, with the crime itself never being solved, as to why the injured employee was “targeted”, how can the employer prove that incident was not work-related, and was caused by personal animus, such that the incident and related injuries do not fall under the umbrella of being within the course and scope of employment?

            Admittedly, these are not easy questions to answer, with it being obvious concern throughout the litigation of this workers’ compensation claim, being that the claim might ultimately be decided by a Workers’ Compensation Judge sympathetic to the fact that the injured employee was essentially gunned down while on the clock, doing a delivery, in the employer’s business interests, and otherwise not being able to contribute any significant information to the incident investigation, why it occurred, who was involved, and/or what the rationale for this incident was.

            In this particular case, the employer conducted a very thorough initial investigation, using its loss prevention specialist, to quickly interview everyone that the injured employee had worked with, as well as to interview the injured employee, prior to any formal claim for workers’ compensation benefits being asserted, and/or prior to any legal representation being secured by the injured employee.  It also involved a wider search and investigation into lifestyle issues that may have been confronting the injured employee,that may have influenced third party, girlfriends, lovers, friends, to choose a path of drastic retribution, as contrasted against the convenience of familial conversation, the brutally honest exchange of social offenses impactful on our humanity.

            And, yes, this particular claim had a multitude of factors impacting upon it influencing the decision by the employer to challenge the claim on grounds that it did not occur within the course and scope of employment, and that the injuries may have resulted from third party animosity breaching the boundaries of the course and scope of employment.

            No less true, a bigger question is how do you win the unwinnable case, when you begin with an event that seems drastic on its face, although leaking sufficient clues to point towards the events starting before the furniture delivery, coupled with the fact that the shooter aimed around a co-employee who stood closer to the shooter than the injured employee, with the assailant only aiming at the injured employee, and gutterly whispering “I am only here for the big guy”, there being very different physical attributions between the employee and the co-employee, who was not wounded in the incident, was never struck by any of the gunshots, and, after ducking for cover, was not confronted by the assailant, who continued only firing at the injured employee.

            And, yes, the claim investigation did reveal that the injured employee had talked with several co-employees, prior to the incident, that there was unsolvable tensions existing in his life, to include girlfriends, lovers, rent issues, with every potential witness being contacted, and with the witnesses presenting corroborating testimony to the Workers’ Compensation Judge, acting as factfinder, that the injured employee had personal conflicts in his life under personal conflicts in his life unrelated to his employment which, when coupled with the actual facts of the assault statement by shooter, shooter only aiming at the Claimant, than injured employee, shooter never aiming at the Co-Employee, all of which then became grounds for the Workers’ Compensation Judge to deny the compensability of the claim, a result then affirmed by the Appellate body, with both the Judge as factfinder, and the Appellate body as the Affirming Court, finding that   Pennsylvania’s “personal animus” defense did apply, that the assault, and related injuries were not injuries that occurred within the course and scope of employment, that the assault and injuries occurred as a result of a third party having personal animus towards the injured employee, a Decision which was rendered by both the fact-finding Judge and the Affirming Appellate Court as predicated upon both the statutory implication of Pennsylvania’s personal animus statute, as well as the individual facts of this particular claim and litigation.

            Yes, no doubt, this is a relatively rare case, hard to win, with it being no less true that a different Workers’ Compensation Judge may have found a different result, although our client rightly believes that this was the right decision based on the facts presented to the deciding Workers’ Compensation Judge.

            Obviously, very few workers’ compensation cases will potentially implicate compensability issues under the “personal animus” defense, although it is a defense that should be analyzed whenever there might be injuries involving interaction with third parties, particularly when the third parties have interacted with the injured employee before the alleged incident, and/or the alleged incident itself suggests third party interference, as well as potentially being a necessary evaluation when there are incidents between employees, be it horseplay, be it physical in-fighting, physical confrontations, etc.

            And then how do we, as defense law firm, representing the Employer and its Third Party Administrator, assess any credit or responsibility for the ultimate outcome of the Workers’ Compensation Decision, be it the denial of the workers’ compensation claim, beyond it being a moment of personal satisfaction, that a workers’ compensation case has been decided on the facts as applied to the legal standards, as well as the acute understanding that the outcome achieved in this particular case can only be achieved with the integration of employer investigation, Third Party Administrator continuing investigation, and support for defense recommendations made by defense counsel during the prosecution of the claim, and for all three parties, employer, administrator, and defense counsel coordinating their efforts for the benefit of the employer, to develop the necessary facts to establish a legitimate statutory defense to a claim involving irrefutable injuries.

ConnorsO’Dell LLC

            Trust us, we just get it!  It is trust well spent!

            We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

            Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

We are taking a chance that you will be interested in the latest court of appeals decision on the “coming and going” rule.  The Amarillo Court of Appeals in Steen v. Texas Mutual Ins. Co. held at the end of last month that an employee who gave a prospective employee of the company a ride to his job interview at the company office was not in the course and scope of his employment because when he was killed en route his injury did not originate in the employer’s work, trade or profession because transporting the friend was not essential to his employment, that the employee was not expected to be at the office because there were no job openings, and that transporting people for interviews was not part of his job description.  Further, the employee was not on a “special mission” at the behest of the employer.  This sure seems to us to be a lot of words which really boil down to the employee not being furthering the affairs of the employer at the time of his injury.  This type of case almost always involves a serious injury or death, and unusual fact patterns.  Every case hinges not on the law, but on the particular actions of the employee vis a vis his job duties at the time of the incident. 

Or rather perhaps the Texas Side Step.  Chiropractor Robert Coolbaugh failed to refund money to an insurance company even after an ALJ with the State Office of Administrative Hearings ordered him to do so.  To avoid complying, he found a lawyer to file a lawsuit in Travis County in the guise of a declaratory judgment action, arguing that this was a penalty order that was “void and unconstitutional.”  The Austin Court of Appeals upheld the trial court’s ruling that it lacked jurisdiction to review the SOAH order because the order had become final over two years before the doctor filed suit.  The Court noted in particular the fact that Coolbaugh tried to get around the finality of the SOAH order by disguising his complaint as a suit for declaratory relief.

 -  Copyright 2019, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

Wiggling around the exclusive remedy defense is still pretty hard to do. The Corpus Christi Court of Appeals held early this month in Barrett v. Berry Contracting, LP  that in the context of general contractor/subcontrator claims, if the claimant accepts workers’ compensation benefits where a general contractor purchased a policy of insurance that covered subcontractors, the claimant cannot escape and the comp bar applies.  It is not clear whether the Court’s analysis would have been different if the claimant hadn’t “accepted” the benefits.  

 -  Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

There has been a 97% decrease in the number of comp claims where the injured worker was receiving high levels of N-drug opioids between 2009 and 2015... the closed formulary went into effect in 2011.  As a further bonus, the average return-to-work rate for both network and non-network claims increased after the closed formulary went into effect.  Texas is becoming a standard bearer across the nation on this issue, and when we attended the National Workers’ Compensation Defense Conference last month in Chicago, we were frequently approached by national insurers and risk managers wanting more information about Texas’ success.  We, of course, are not surprised that Texas leads the nation in, well, everything good!  And some of you may remember when Jane Stone from the firm and Suzanne Novak, M.D. Ph.D. first raised the alarm when presenting at ICT and the State Bar about the opioid crisis in Texas comp. The lesson?  It pays to bring things to light, even if it takes time for regulations to be implemented to address the problem. https://www.tdi.texas.gov/wc/regulation/roc/formulary2019.html.

As a side note, William Rabb reports that medical disputes in Texas comp have “dropped like a rock.”  Very true, and good news for the system because the reason for the drop in disputes is effective, targeted regulation.
 

-  Copyright 2019, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

“Andrew Michael Garrett, D.C. is hereby forever removed from the Texas workers’ compensation system’s designated doctor list [which] removal shall be permanent, of indefinite duration and without a right of reconsideration at any point in the future. . . .“ So, what did he do?  He performed 11 exams and never filed a report from the exams.  To top it off he refused to perform subsequent DD exams when appointed to do so.  The icing on the cake was his failure to respond to a Letter of Clarification.  And then there was the cherry on top of the icing on top of the cake – he is forever banned from providing treatment within the Texas workers’ compensation system and was ordered to pay a $2,500 fine.

-  Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

When individuals work for staffing agencies, interesting legal questions often arise.  In Uribe v. Quartz Master, A-4071-17T1 (App. Div. May 2, 2019), Alberto Uribe was injured working for On Target Staffing, LLC, a job placement agency.  On Target had a “Temporary Employee Work Agreement” with Quartz Master, where it placed Uribe.  That agreement provided that Uribe needed to discuss any work issues with On Target supervision only, would get his paychecks from On Target, and would notify On Target in the event of a work injury.

Uribe worked at Quartz Master for several years in the warehouse.  His Quartz Master supervisor, Mr. Patel, would tell Uribe what work to do.  Uribe was injured at Quartz Master while performing his job duties and received workers’ compensation benefits from On Target.  He then brought a civil law suit against Quartz Master.

The defense to the law suit filed against Quartz Master was simple:  Quartz Master argued that Uribe was equally its employee as well as the employee of On Target.  Uribe essentially had two employers.  The trial judge agreed with Quartz Master.  The Court analyzed the test for special employment and found that Quartz Master was by law a special employer:  1) Uribe had an implied contract to work for Quartz Master because he accepted work from them; 2) Uribe performed work duties under the direction of Quartz Master; 3) Mr. Patel, his supervisor at Quartz Master, directed his work; 4) Quartz Master essentially paid Uribe’s wage by payment to On Target; 5) Quartz Master had the right to advise On Target if it wanted to get rid of Uribe.

The Appellate Division agreed with the trial judge and affirmed the dismissal of Uribe’s civil suit under the exclusive remedy provision in workers’ compensation.  The Court was persuaded that Uribe was doing the work of Quartz Master for years.  He worked in their warehouse loading trucks with marble and granite slabs. Of equal importance to the Court was that Mr. Patel had the power to direct On Target not to send Uribe to Quartz Master.  The court said it did not matter that Quartz Master never exercised this right:  the company actually had the power to do so. 

When a client company of a temporary agency considers the benefits of working with a temporary agency, chief among them is that the client is not liable for workers’ compensation, as the staffing agency generally contracts to handle workers’ compensation.  Moreover, the client is immune from civil suit.   You could say that the client has the best of both worlds:  immunity from workers’ compensation and civil liability.

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