State News

Independent contractor Selena Scola was a content moderator for Facebook. Her job was to review content flagged as “inappropriate” by a Facebook user and determine whether the flagged content should be removed from the platform. The job was difficult and stressful, requiring Ms. Scola and her fellow content moderators to review, among other things, photos and videos of “rapes, suicides, beheadings and other killings.” The job took its toll and, according to a lawsuit filed by Ms. Scola in California, caused PTSD. The lawsuit asks Facebook to provide treatment for the content moderators, including the independent contractors.See New York Times article here.

Placing aside the question of whether Ms. Scola’s PTSD-type claim would be a compensable injury under the Texas Workers’ Compensation Act, after reviewing unhinged political Facebook posts from crazy family and friends, don’t we all feel a little traumatized?

-  Copyright 2018, Stone Loughlin & Swanson, LLP.

Every month we publish a newsletter and, it seems, every month we report a new criminal indictment related to a provider involved in some sort of criminal activity. The latest compound cream scheme involved pain management doctor Adam Gallardo Arredondo of the Texas Anesthesia & Pain Institute. The federal grand jury indictment alleges Dr. Arredondo, a Texas physician, accepted kickbacks from an OK Pharmacy (an Oklahoma compounding pharmacy) for prescribing excessive – allegedly – compound drugs to patients insured under the federal workers’ compensation system and other federal programs. Dr. Arredondo also – allegedly – accepted payments for recruiting other physicians to prescribe compound drugs for the OK Pharmacy.

Maybe next month we won’t have any indictments to report . . . but I wouldn’t count on it.

HT www.workcompcentral.com.

-  Copyright 2018, Stone Loughlin & Swanson, LLP.

Legislative Update by Attorney Alison Stewart

The Division of Workers’ Compensation is announcing a delay in the roll-out of WCES, the new electronic filing, case management, hearing scheduling and EDI system for workers’ compensation.

The Division had planned to Go-Live on December 3, 2018. It has been determined it is not possible to thoroughly test the system before December 3, 2018. The Division was advised to delay the Go-Live date until they can be confident WCES has been thoroughly tested.

A new Go-Live date for WCES has not been determined. Work will not stop on this project and the Division will publish a revised Go-Live date once they have agreement among the vendors and the Division.

The delay in the go-live date applies to both filing in contested claims as well as EDI. EDI filers will continue to file using EDI Release 2.0 until WCES goes live and then will switch to EDI Release 3.1. Claimants, employers and insurance carriers will continue to file paper documents in contested claims until WCES goes live. The process for scheduling hearings will also remain as it is currently until WCES goes live. 

CALFEE, HALTER & GRISWOLD LLP

STATE LAW (OHIO) UPDATE

SEPTEMBER 2018[1]

“Calfee Corner” - - Recent Calfee Cases before the Ohio Industrial Commission

Claim 18-163810 (“Fight in parking lot”). On 6/29/18, Injured Worker (IW) was hurt in the parking lot of the facility where he was placed by his staffing company employer. The injury was a blow to the head caused by a punch from a co-worker. Upon investigation and several witness interviews, the following factual circumstances were uncovered:

Earlier that day, IW had been driving a forklift and ran that forklift into a pole, damaging it. IW was cited by the employer for failing to survey his surroundings before backing up the forklift. The employer took him off forklift duty for the remainder of the day and going forward. Subsequently, a female co-worker asked IW why he was upset and he responded to her angrily. The female co-worker reported this behavior to her boyfriend, also an employee at the facility, and the remainder of the shift was filled with angry stares and tension between IW and the two co-workers. At the end of the shift when the workforce gathered at the time clock, another female co-worker asked IW what was wrong, and he responded to the group “Let’s go outside.” Once in the parking lot, the other co-workers entered their vehicles, but IW made a “come on” motion to the male co-workers in their vehicles while still in the parking lot. One of the male co-workers (the aforementioned boyfriend) got out of his vehicle and struck IW with a punch to the face.

The aftermath of the fight was caught on cell phone video, and the operations manager began his investigation of the incident. All workers involved in the incident, including IW, were terminated. Witness statements were gathered.  IW went to the emergency room for treatment for his punch injury and an Ohio workers’ compensation claim was filed with the diagnosis of a “contusion to head.”

The staffing company employer appealed Ohio BWC’s allowance of the claim. At hearing, counsel and the employer’s operations manager presented the evidence and argued that the claim should be disallowed as it did not arise in the course of IW’s employment. Ohio workers’ compensation law authorizes the allowance of a claim for an injury resulting from a workplace fight as long as: (1) the origin of the assault/fight was work-related; and (2) the IW/claimant was not the instigator of the assault/fight. While the origin of the fight may well have been work-related (IW’s anger over forklift incident), and despite IW being the only one actually punched, it was argued that he was the instigator and therefore his claim should be disallowed. The Industrial Commission agreed and disallowed his claim. Thorough investigation with witness statements was crucial to the hearing presentation in establishing that IW was the instigator, and getting his claim denied.

Claim 15-859933 (“Paraplegia diagnosis not medically justified”).  On 12/3/15 IW, a then 52 year old experienced nurse’s aide in a facility providing care for the elderly, slipped and fell in the dining room. A week later she had surgery to her right elbow. While hospitalized she developed an infection to the surgically repaired elbow. Still in the hospital, the IW developed a lumbar epidural abscess which also necessitated surgery. The IW had a complicated hospital course and was not released to rehabilitation until some six (6) months after the initial elbow surgery.  Her claim was allowed for “Displaced Fracture Lateral Condyle Right Humerus; Lumbar Epidural Abscess.”

The IW remained physically unable to return to her former position of employment as a nurse’s aide and was restricted to sedentary/office work. She eventually came under the care of Dr. N, a Physical Medicine and Rehabilitation Specialist. Dr. N provided a causal relationship for the additional allowance of her claim for “L3 AIS D Paraplegia.”  The Employer obtained an independent medical examination which concluded the additional condition shouldnot be allowed because: “Paraplegia is defined as paralysis characterized by motor or sensory loss in the lower limbs and trunk…The medical records support that she has good strength…”

In successfully arguing the case before the Industrial Commission, Calfee emphasized the “International Standards for Neurological Classification of Spinal Cord Injury.”  The “L3” was simply the nerve root level that was the source of the alleged Paraplegia. “D” stood for “Motor Incomplete.”  Motor Incomplete status is defined…“with at least half (half or more) of key muscle functions below the single Nerve Root Level having a muscle grade greater than or equal to 3.”  Dr. N’s extensive office notes all showed physical examination muscle function scores of “4” and “5” throughout the IW’s lumbar spine.  The additional allowance was denied.

Claim 14-864539 (“She fooled all the doctors, but not the camera”).  IW suffered a left foot fracture at work on 12/7/14.  The claim later was additionally allowed for complex regional pain syndrome (CRPS – formerly known as RSD).  IW was paid TT from the DOI without interruption.  Two separate employer IMEs supported on-going TT status as this doctor and that doctor tried this treatment and that treatment (PT, blocks, etc.), all to no apparent avail as the years went by.

The Employer then had IW surveilled.  Surveillance revealed an active IW with no apparent left foot problems at all and an IW ambulating in complete contradiction to her professed clinical picture.  A somewhat indignant IME doctor (who previously found the CRPS condition to be on-going and requiring treatment) issued a supplemental report finding MMI and no need for additional treatment.  All of this lead to a Commission order terminating TT, as well as all on-going and future treatment in the claim.

Court Decisions of Note:

Employer Intentional Tort 

HP Manufacturing Co. v. Westfield Insurance (Eighth District Case No. 106541 7/19/18).

The reports of the demise of employer intentional torts in Ohio have been greatly exaggerated.  A case in point isH. P. Manufacturing Co. out of Cuyahoga County (Cleveland) wherein the appellate court upheld a $400K jury verdict against the employer for the deliberate removal of a safety guard leading to injury to IW.  See also Lunsford v H. P. Manufacturing Co. (Cuyahoga C.P. Case No. 14-828457).  In addition, the court held that the loss was uninsurable as it involved intentional conduct. 

As well as demonstrating that employer intentional torts live on in Ohio, the H. P. Manufacturing Co. case is also instructive in that an employer should not simply turn over an intentional tort case defense to its insurer and assume that it will be all taken care of as though it was just another premises liability claim. 

Travelling Employee/Personal Errands

Aysha Osten v. Ohio BWC (Second District Case No. 27583 12/29/17). 

Reports that Ohio is a “24/7” coverage state for travelling employees also are greatly exaggerated. Osten is a case in point.  Flight attendant Osten was on a lay-over at LaGuardia staying at a Hampton Inn between assigned flights.  That evening, after having dinner with other flight attendants and crew personnel, she slipped and fell on a public sidewalk while returning to her hotel.

The Ohio Industrial Commission, the trial court, and then the Court of Appeals, all found that this slip and fall by a travelling employee was one occurring on a “personal errand” (i.e., dinner), and therefore wasnot compensable under the Ohio Workers’ Compensation Act. The take-away here is that an employer should assume nothing when it comes to the compensability of injuries to travelling employees (or any other employee for that matter).

Travelling Employee/Coming & Going Rule

Green v. Mark Glassman, Inc. (Eleventh District Case No. 17-P-0041). 

IW’s job was installing cash registers at retail stores.  IW suffered injuries in an MVA upon returning home from his last store.  IW argued that travelling on various roads to various locations made him a “travelling employee,” and one that also faced a “special hazard.”  The court disagreed and found in essence that he was a “rotating fixed site” employee who did not commence his employment duties until he arrived at a specific and identifiable workplace as designed by the employer.  Thus, IW’s claim was barred by the “coming-and-going” rule.

 Job Abandonment

State ex rel. Demellweek v. Indus. Comm. (10^th Dist. Franklin No. 16AP-874).

The court granted the IW’s request for a writ of mandamus ordering the Commission to vacate an order denying TT compensation.  The Commission had found IW’s safety rule violation subjected him to immediate dismissal, making him ineligible for TTD compensation.  The court found no evidence that the employee handbook provided IW with notice that his actions would constitute conduct that would warrant immediate firing.  The takeaway here is that the employer did not have sufficient evidentiary support to show voluntary abandonment so as to bar TT.

State ex rel. Williams v. Indus. Comm. (10^th Dist. No. 17AP-157).

In Williams, the court held that the Commission properly denied IW’s request for PTD compensation on the ground that he had voluntarily abandoned the workforce.  The evidence indicated IW did not attempt rehabilitation following his injury, and that his only attempt at employment in the 30-year period involved a position not within his work restrictions.

Medical Evidence

State ex rel. Farrell v. Ohio Indus. Comm. (10^th Dist. No. 17AP-126).

The court denied IW’s request for a writ of mandamus to order the Commission to vacate its order denying PTD compensation, finding that the Commission properly relied on the medical report of a doctor who opined that IW was capable of working in a “supportive environment.”  IW argued the doctrine of stare decisis operated to compel the Commission to grant PTD compensation, asserting that the Commission, in a separate and wholly unrelated decision, granted a different IW’s PTD application based on the same doctor’s opinion that used nearly identical language as the opinion in his claim.

The court held the doctrine of stare decisis applies to principles of law, not findings of fact.  To conclude that the Commission had to use the doctor’s report to determine that this IW was entitled to PTD compensation ignores the myriad factual intricacies at play in both IW’s case and the case of the unrelated IW.  Both decisions involved heavily fact-dependent determinations by the Commission, and it was the Commission’s role, in each case it evaluated, to determine the appropriate weight given to the evidence before it.

Independent Contractor  

Green v. Admr., Ohio Bur. Of Workers’ Comp. (4^th Dist. No. 17CA17).

In Green, the appellate court held that competent and credible evidence supported the trial court’s ruling that IW’s alleged employer did not exert the requisite control over his logging work necessary to establish an employer/employee relationship.  IW was hired as an experienced logger, he de-limbed trees independently without control exerted by the alleged employer, and he was free to leave regardless of hours worked or time of day.

The take away here is that Ohio continues to be fairly conservative on the “employee versus independent contractor” disputes and with proper presentation of evidence under the standard “right to control” test, a lack of employment relationship frequently can be found. 

Industrial Commission Update

Memo D8 (“Temporary Total Disability Certification for Physical and Psychological Conditions”):

During the first six weeks after the date of injury, temporary total disability can be certified by a physician, certified nurse practitioner, clinical nurse specialist, psychologist, or physician assistant who has examined the injured worker.

Both during and after six weeks from the date of injury, certification of temporary total disability for physical conditions may be submitted by a Medical Doctor, Doctor of Osteopathy, Doctor of Podiatric Medicine, or Chiropractor.

Both during and after six weeks from the date of injury, certification of temporary total disability for psychological conditions may only be submitted by a Psychologist, Medical Doctor, or Doctor of Osteopathy.

Memo F4 (“Loss of Use of Vision and/or Hearing Secondary to a Traumatic Brain Injury”):

R.C. 4123.57(B) does not permit an award for loss of vision or hearing resulting from the loss of brain stem functioning.  To be entitled to an award for loss of vision or hearing, evidence must demonstrate an actual loss of function of the eyes or ears.

Memo F6 (“Orders Awarding Scheduled Losses”):

When awarding compensation for a scheduled loss, hearing officers shall provide a start date for the award.  In the case of amputation or actual loss, the start date is the date of amputation or loss.  In the case of a loss of use, the start date is the date of the earliest medical evidence being relied upon to make the award. 

However, pursuant to R. C. 4123.52, in no case shall the start date be earlier than two years prior to the filing of the application seeking the award.

Memo S-11 (“Request for Allowance of a Condition by Either Direct Causation, Aggravation/Substantial Aggravation, or Flow-Through, and Jurisdiction to Rule at Hearing”):

If there is evidence on file or presented at hearing to support the theories of direct causation, aggravation (date of injury or disability prior to August 25, 2006)/substantial aggravation (date of injury or disability on or after August 25, 2006), or flow-through, a request to allow a condition in a claim is to be broadly construed to cover those theories of causation.  The hearing officer shall address the origin of the condition under those alleged theories of causation without referring the claim back to the prior hearing level or the Bureau of Workers’ Compensation.  Where a new theory, not formerly requested, is raised at hearing or where new evidence regarding an alternative theory of causation is submitted by any party, hearing officers and/or hearing administrators shall ensure that all parties are given adequate opportunity to obtain evidence in support of their position by continuing the hearing for a period of at least 30 days, unless the parties agree that less time is sufficient for obtaining the necessary evidence.  The hearing officers and/or hearing administrators shall state in their order or compliance letter the period of time allotted to obtain the necessary evidence.

New BWC Rules

OAC § 4123-6-32 (“Payment for Lumbar Fusion Surgery” 1/1/18).

This new rule requires at least sixty days of conservative care before considering a surgical fusion option.  Exceptions: spinal fractures, tumors, progressive functional neurological deficits.

OAC § 4123-6-33 (“Payment for Health & Behavioral Assessment and Services” 7/1/18).

This rule allows for a modicum of psychological-type assessment and counseling in order to help a physician “address cognitive, emotional, social and behavioral issues interfering with expected healing,” without adding a psychological condition to the claim.

New BWC Form – C-512 (“Notice of Intent to Settle”)

This form puts the BWC (and presumably any others receiving it) on notice that, after a final order of the Industrial Commission, the parties are entering into settlement negotiations.  This allows the Statute of Limitations governing the filing of an appeal into court of an adverse order of the Commission on allowance and additional allowance issues to be extended from sixty days to one hundred and fifty days, “unless the opposing party files an objection of the Notice of Intent to Settlement within fourteen days after date of receipt of the Notice of Intent to Settle.”

Medical Marijuana

Medical marijuana has come to Ohio, although the rules governing the dispensing, etc. of medical marijuana are not yet set.  However, BWC has gone on record with an August 2018 bulletin that essentially states that BWC’s position is that medical marijuana does not exist in Ohio for workers’ compensation purposes.  This is based on the fact that medical marijuana is not an approved FDA drug, will not be dispensed by a registered pharmacist, and is not listed on the BWC pharmaceutical formulary.  Thus, marijuana is not an approved drug in Ohio for workers’ compensation purposes.

Additional Ohio BWC Updates

Since our last update, the Ohio Bureau of Workers’ Compensation (BWC) has implemented additional changes affecting Ohio employers.  A summary of some of the more intriguing updates follows:

Motor Vehicle Accidents Not Chargeable – Updated Application In Process

As previously reported, the passage of House Bill 207 states that if a State Fund employer can establish that an employee’s claim is the result of a motor vehicle accident involving a third party in which the employee was not at fault, the cost of that claim will be excluded from the employer’s future premium rating calculations.  This law/policy is effective for accidents occurring on or after July 1, 2017.

The law, as originally written, required that to obtain the claim cost exemption, the third party at-fault driver must have active insurance coverage, or the employer must have active uninsured motorist’s insurance coverage,and the at-fault driver must have been issued a citation as a result of the accident.

Initial experiences with this new procedure revealed that the citation requirement was in many cases an unforeseen stumbling block in gaining BWC approval of the exemption, as issuance of a citation tends to be discretionary, and therefore is not always available. 

This unintended consequence was brought to the attention of the Ohio legislature, and an amended law has been passed & signed by the Governor.  This revision removes the requirement for an actual citation, but fault on the part of the third party must still be shown.  The change is intended to be retroactive to the original July 1, 2017 effective date of the law, which will require the BWC to re-adjudicate previously denied applications for recovery.

BWC is currently finalizing their procedures to comply with the revised law.  We urge employers to re-visit any claims involving motor vehicle accidents occurring July 1, 2017 or after, to ensure that if applicable, this potential 100% recovery is obtained.

Failure to meet all the requirements of this new statute, however, does not prevent the BWC from pursuing their historical rights to subrogate against a responsible third party, and provide proportional relief to the employer’s rating experience based on the amount they recover.

Rating Experience Changes / Premium Credits for July 2019 Policy Year

BWC analyses suggest that premiums for individually rated State Fund employers (those who are not in group experience rating programs or involved with PEOs) may not be adequately aligned to their actual claims costs.  As a result, BWC has implemented a number of changes to the factors which govern BWC’s experience rating calculations, and the resulting premiums charged to many Ohio employers.

The most significant of these changes involves introducing a Premium Size Factor to reduce the premiums of non-group experience rated employers who pay in excess of $5,000 in annual premium.

 The reductions, which will be applied automatically to the employer’s premiums, are:

    ·         15% discount on premiums between $5,000 and $100,000

    ·         20% discount on premiums between $100,000 and $500,000

    ·         25% discount on premiums above $500,000

The impact of these changes suggest that long-standing rating program selections should be closely examined to determine if they still provide optimum results, especially for employers with larger premium and/or moderate loss ratios.

For instance, for a larger employer, if traditional group experience rating results in savings of less than ~25%, consideration may be given to the group retrospective rating option, which could provide downstream rebates dwarfing the traditional up-front group rating discounts.

Employers’ third party administrators or other resources should be consulted to determine how their premiums and alternative rating program options may be affected by these proposed changes. 

Other changes for the July 2019 policy year include:

    ·         An experience modifier adjustment factor for individually rated employers 

        o   Experience modifier adjustment credit of 5% for EMRs 0.90 and lower

        o   No adjustment factor for EMRs 0.91 to 1.99

        o   Experience modifier adjustment penalty of 5% for EMRs 2.00 and higher

    ·         Revised group retrospective rating program basic premium factors to compensate for the premium size factor               adjustments

    ·         Reduce the maximum chargeable claims losses for the smallest Ohio employers

July 2018 Policy Year Rates Reduced

The BWC reduced private employer premium rates by an average of 12% for the July 1, 2018 policy year.  BWC estimates this will save private employers $163.5 million during the policy year ending June 30, 2019. 

Ohio Workers’ Compensation rates are at their lowest point in over 40 years, with no overall rate increases since 2007.

Employers should consult their third party administrators or other resources to confirm the impact of these rate changes, as individual manuals’ base rate changes can range from +14% to -36%.  

Additionally, premium rate reductions often are accompanied by similar reductions to expected loss rates, which can result in higher experience modifiers that would at least partially offset base rate reductions.

BWC Wellness Initiative

Through their recently announced “Better You, Better Ohio” program, BWC is taking steps to introduce wellness resources and services to workers who work for small employers (50 or fewer workers).

At present, this program is limited to the following high-risk industries:  agriculture; automotive repair and service; construction; firefighters; health care; manufacturing; police and public safety; public employers; restaurant and food service; transportation and trucking; trash collection; wholesale and retail.

Upon being identified by Ohio’s WC Managed Care Organizations (MCOs), and by agreeing to participate, injured workers can qualify for free services such as:

    ·         Health and wellness awareness, education and training

    ·         Health assessments & biometric screenings to better understand their health and well-being

    ·         A website allowing them to develop health plans & track progress to achieve their health goals

    ·         A state-of-the art mobile app for creating weekly action plans and getting health tips

    ·         Digital coaching to help them on their journey to better health.

This program, still in its infancy, strives to extend the BWC’s existing Wellness Grants program, which offers up to $15,000 in refunds to employers (usually larger ones) who implement a comprehensive Wellness program including biometric measurements and coaching to address at risk health behaviors.

A number of Ohio-certified Wellness program developers, including Paramount Preferred Solutions, are available to assist employers to implement Wellness programs which qualify for the BWC Wellness Grant reimbursements.

About the Author

Michael Brown, ARM is an Account Executive with Paramount Preferred Solutions, a Third Party Administrator (TPA) recognized nationally for expertise in all aspects of Workers’ Compensation, Group Health, and Disability Management solutions.  Michael has over 38 years’ experience in the Workers’ Compensation and Risk Management business since obtaining his mathematics & statistics degree from Miami University in Oxford, Ohio. 

In addition to experience as a claims examiner and hearing representative, Michael has consulted with employers on the development and maintenance of best in class strategies, including evaluating the wide array of risk financing options available to employers.  Michael has also served as a Workers’ Compensation and Employee Benefits Manager for a multi-facility self-insured employer, and is well versed in Integrated Disability Management programs and philosophies.  This experience and his certification as an Associate in Risk Management (ARM) affords him in-depth insight into creative and wide reaching solutions to the most complex Workers’ Compensation challenges. 

With his extensive experience in the field of workers’ compensation and other employee benefit matters, Michael consults with employers in a number of ways to allow them to save time and money by reducing the risk and costs of illness and injury. 

Please feel free to reach out to Michael at mike.brown@promedica.org, www.linkedin.com/in/michaelbrown5 or (844) 777-5867 ext. 301770.

Daniel Cotto worked as a forklift operator at Ardagh Glass in Bridgeton, N.J.  On November 1, 2016, Cotto hit his head on the roof of a forklift at work.  He was advised to see Premier Orthopedics in Vineland, N.J. for a medical examination, and a Premier Orthopedics doctor placed Cotto on light duty work with a follow-up appointment set for December 8, 2016.  The Safety Department asked Cotto to submit to a breathalyzer and urine test in order to return to work.  Cotto explained that he was taking prescription medications, including medical marijuana under the New Jersey Compassionate Use of Medical Marijuana Act (“CUMMA”).  He was also taking prescription Percocet and advised the company that he could not pass any urine or drug test.

Cotto alleged that he was told he could no longer work at Ardagh Glass because he could not operate machinery while on narcotics.  Cotto argued that he revealed his prescription medications to the company when he was hired.  His doctor had given him a note stating he could operate machinery while using these drugs.  The company advised that it was not concerned about his use of Percocet but was concerned about his use of marijuana.

Cotto was not fired but he was placed on an indefinite leave.  He was not permitted to return to work until he could pass a drug test.  Cotto’s doctor wrote that Cotto had lifting restrictions because of medical conditions, but Cotto maintained that he could perform the essential functions of the job.  He sought a “reasonable accommodation,” specifically asking that the company waive any requirement that he pass a drug test for marijuana.

Eventually Cotto filed a law suit asserting disability discrimination and failure to make reasonable accommodations.  Ardagh Glass moved to dismiss the complaint because CUMMA does not mandate employer waiver of a drug test.

Initially the federal court agreed that Cotto plead enough to satisfy coverage under the New Jersey Law Against Discrimination.  His back and neck pain met the standard of the NJLAD.  The Court also noted that Cotto appeared to be qualified to perform the essential functions of the job, having done it for five years.  Ardagh, however, maintained that Cotto could not show that he could operate machinery while using marijuana.  The company noted that use of Percocet was not illegal, but marijuana use was illegal under federal law.

The Court next reviewed CUMMA and said, “The New Jersey legislature found that ‘modern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions.’”  The Court added that CUMMA provides an affirmative defense to patients who are properly registered under the statute and subsequently arrested and charged with possession of marijuana.  The Court commented that the decriminalization of medical marijuana does not shield employees from adverse employment actions.

The Court’s decision today is a narrow one, as it must be for the narrow issue presented by Plaintiff’s complaint.  Plaintiff’s discrimination claims turn entirely on the question of whether he can compel Ardagh Glass to waive its requirement that he pass a drug test.  It is plain that CUMMA does not require Ardagh Glass to do so.  We therefore find that Plaintiff has failed to show that he could perform the ‘essential functions’ of the job he seeks to perform.  Ardagh Glass is within its rights to refuse to waive a drug test for federally-prohibited narcotics.

Regarding Cotto’s argument that other injured employees with restrictions had been permitted to work light-duty positions, the Court said that Cotto failed to show that similarly situated employees asked for the specific accommodation he asked for, namely a drug test waiver.

The case can be found at Cotto v. Ardagh Glass Packing, Inc., No. 18-1037 (D.N.J. August 10, 2018).  It is the first decision of its kind in New Jersey on the issue of whether an employer must make a reasonable accommodation of waiving a post-injury drug test for an employee covered under CUMMA.

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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. 

Employees who are out of work due to work injuries or illnesses are eligible for temporary disability benefits at a rate of 70% of wages subject to an annual maximum.  In 2018 that maximum is $903 per week.  That means that the employee who earns $2,000 per week or even $20,000 per week is limited to $903 per week in temporary disability benefits.  But a substantial number of New Jersey employees – particularly public sector employees – receive full salary during their period of work absences and are not limited to the annual maximum.

There are two categories of full salary employees:  those who receive full salary by statute and those who receive full salary by collective bargaining agreement.  The difference is significant and is important to understand.

Full Salary By Statute

One very large group of New Jersey employees receives full salary by statute – employees of boards of education.  Under N.J.S.A. 18A:30-2.1, a board of education employee receives full salary for one year from the date of injury.  So an experienced teacher, for example, earning $1,800 per week receives full salary for up to one year from the date of injury.  Here is the part that is not well known:  that teacher also has no state or federal taxes taken out of the paycheck!  Clearly, that was not the intention of the New Jersey legislature in passing this statute.  The IRS, however, has issued opinions that have resulted in a windfall to education employees such that they actually earn substantially more than they did while working.

How did this happen?  The explanation is really quite simple.  Workers’ Compensation laws are not taxed.  The IRS interprets N.J.S.A. 18A:30-2.1 as a workers’ compensation law because it is a statute passed by the legislature.  The law provides full salary compensation to those education employees who are injured at work for one year.  The IRS therefore concludes that the entire full salary payment is not taxable.  What is the result? Board of education employees keep virtually their whole paycheck while out on workers’ compensation absences up to one year, making more than they did while working.

Full Salary By Collective Bargaining Agreement

The other large category of employees which receives full salary does so by collective bargaining agreement, including those in the public or private sector.  These agreements are negotiated ones between union and management.  In the public sector, virtually all public safety workers, i.e., police, fire, EMT, receive full salary by collective bargaining agreement.  In some towns all municipal employees are covered by such agreements.  In the private sector, there are also comparable negotiated agreements.  The same principle applies:  the police officer earning $2,000 per week receives full salary by negotiated agreement but the employee must pay state and federal taxes from his or her paycheck.

Why the difference?  Because a negotiated agreement is not the equivalent of a law.  It is simply a written agreement between parties.  Therefore when the police officer earning $2,000 per week is out on workers’ compensation, all the same deductions come out of the paycheck.

The IRS would be more receptive to not taxing the entire full salary payment of a public safety employee if the municipality passed an ordinance, and the elected officials voted on it, as opposed to simply negotiating a collective bargaining agreement.

There are generally time limits for full salary under both scenarios.  Under Title 18A the full salary period ends at one year.  After that the third party administrator or carrier pays temporary disability benefits directly to the employee subject to the $903 maximum rate.  The same is true of most collective bargaining agreements.  Most public sector employers provide some limitation to the full salary period, perhaps six months or a year, but a good number remain unlimited, ending only at maximal medical improvement or return to work.

When an employee who was receiving full salary is reduced to the maximum rate of $903 per week for a 2018 injury, he or she may request that the employer allow supplementation of workers’ compensation benefits with accrued leave – sick time, vacation time, or personal days.  This is discretionary on the part of the employer, unless the collective bargaining agreement addresses the issue.  The FMLA does permit substitution of paid leave for those on workers’ compensation, but employees who have been out for a year are not eligible for FMLA since they cannot satisfy the requirement of having worked 1250 hours in the prior year.

The interesting question is what does an employer pay to an employee who is receiving full salary?  Is the police officer who is receiving $2,000 per week while out of work receiving workers’ compensation benefits?  Not really.  The officer is receiving something substantially better than workers’ compensation benefits.  He or she is getting full salary payments in lieu of workers’ compensation benefits. That is part of the negotiation.

Some public employees have argued that the workers’ compensation portion of their check (for example $903 of the $2,000 paycheck) should be tax free, but that would result in a windfall to the employee.  Our hypothetical police officer would be getting $903 tax free on top of $1,100 approximately taxable.  Viewed properly, the full salary employee is not getting workers’ compensation at all.   The 70% temporary disability check goes to the employer from the third party administrator or carrier as a partial reimbursement for the full salary check.

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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. 

A Second Bite of the Lemon in West Virginia - Appellate Review and Aggravation of Preexisting Injury

In Arch Coal, Inc. v. Lemon, No. 17-0152, 2018 WL 2470654 (W. Va. May 30, 2018), the Court took the unusual procedural step to reverse a prior ruling and granted the appellant's motion for reconsideration of the Court's memorandum decision. The West Virginia Supreme Court of Appeals ruled the Court's prior opinion, reversing a decision by Worker's Compensation Board of Review, incorrectly applied the
appellate standard of review. Therefore, the court affirmed the Board of Review's decision that the claimant's injury was compensable.
This case is important to carriers for two reasons. First, the court clarifies the "discreet new injury" argument by applying the theory to new facts and rearticulating the rule. Second, the finding provides an example of how courts can grant benefits in a close case through the application of the correct standard of review.

The underlying injury was sustained by a general laborer at a mine, who had previously complained of back pain and had an MRI revealing mild concentric bulging. The claimant alleged, while driving a shuttle car, he hit a hole in the ground and bounced out of his seat. On landing, he claimed his back hurt so badly he could not breathe. Shortly thereafter, he left work early. After seeking treatment from a chiropractic physician, he was diagnosed with a disc protrusion and nerve root compression. A subsequent MRI revealed a herniated disc and bulge. The claimant filed the Employees' and Physicians' Report of Occupational Injury or Disease, claiming he injured himself in the course and scope of his employment, and the chiropractic physician likewise, designated the injury as occupational. However, the claim administrator denied the claim, because it was not work-related and was a result of a chronic condition. Subsequently, the claimant pursued additional medical reports and received a discectomy by a neurological surgeon. A physician, other than the surgeon, completed a Record Review and Opinion indicating that the claimant's injury was not traumatic in origin, but, "was the consequence of progressive, pre-existing degenerative disc disease." Id. at 4, 2018 WL 2470654 at *2. Finally, a diagnostic specialist conducted an Age of Injury Analysis and MRI Comparison and "concluded that [claimant's] condition was due to a progression of degenerative disc disease with chronic disc herniation…" Id.

Based on the additional medical reports, the Administrative Law Judge of the Office of Judges reversed the Claim Administrator. The ALJ found that, although some of the evaluating physicians concluded the condition was degenerative, the MRI after the alleged injury established the claimant exhibited a "right lateral disc herniation and disc bulge at L4-5…" The judge concluded the herniation "could certainly explain the claimant's assertion of severe low back pain…", and therefore, found the claim was compensable. Id. at 6, 2018 WL 2470654 at *3. The Worker's Compensation Board of Review adopted the findings and conclusions of the ALJ and affirmed the decision.

After appeal, the Supreme Court of Appeals "issued a Memorandum Decision in which [they] determined that the evidence showed that [claimant] did not sustain a work-related injury…" reversing the Board of Review decision. Id. The claimant asked the Supreme Court to reconsider its Memorandum Decision for failure of the court to "afford proper deference to the findings of the Administrative Law Judge and Board of Review." Id.

To begin their analysis, the court recognized that the standard of review for a worker's compensation case is provided by W. Va. Code § 23-5-15(b) which states a Supreme Court of Appeals decision that reverses or modifies a decision by the Commission or Office of Judges can only be reversed or modified if the decision "is in clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board's findings, reasoning and conclusions, there is insufficient support to sustain the decisions." Likewise, the statute states "the court may not conduct a de novo re-weighing of the evidentiary record." W. Va. Code § 23-5-15(b). In addition, the court is required to "state with specificity the basis for the decision" and how it falls under one of the three categories. Id. Finally, any issue regarding benefits shall be resolved by a preponderance of the evidence.

With this standard in mind, the previous Supreme Court of Appeals decision incorrectly stated the issue. Instead of asking whether the claimant's injury was properly found to be non-compensable, the court should have asked whether the decision of the Board of Review, favorable to the claimant and based on the evidentiary findings of the ALJ, should be affirmed, reversed, or modified pursuant to the standard of review found in W. Va. Code § 23-5-15. The court recognized that, in addition to the incorrect framing of the issue, the Memorandum Decision likewise failed to include an analysis stating "with specificity the basis for the decision" and how it falls under one of the three categories.

In addition, the court held the ALJ's finding of compensability was, in fact, based on the preponderance of evidence. The prior Supreme Court of Appeals decision failed to address the chiropractic physician's statement that the MRI indicated a new injury at the L4-5 nerve root compression. The court recognized it almost entirely based its holding on the degenerative disc disease discussion in the Record Review and Age of Injury Analysis, but that the medical evidence was "virtually unanimous in establishing [the claimant] did not have a herniated disc prior to [the date of injury]". Id. at 10, 2018 WL 2470654 at *5. Other matters considered by the ALJ provided additional evidence indicative of compensability, including: a doctor's visit the day after the injury, the claimant reporting to work with a limp, statements by the claimant that his back was killing him and that after running a shuttle car his back hurt so bad he couldn't breathe, and that the claimant left work early. Therefore, the Supreme Court of Appeals held the Board of Review's order affirming the ALJ decision was supported by a preponderance of the evidence and should be upheld. 

Finally, the court recognized the accepted rule stated in Gill v. City of Charleston (2016) that “a noncompensable preexisting injury may not be added as a compensable component of a claim for workers’ compensation medical benefits merely because it may have been aggravated by a compensable injury.” "To the extent that the aggravation of a noncompensable preexisting injury results in a discreet new injury, that new injury may be found compensable." Id. at 11, 2018 WL 2470654 at *5. From this, the court held the preponderance of the evidence shows the claimant left his shift early, upon sustaining a compensable, discreet, new injury. Therefore, the Court withdrew its Memorandum Decision and affirmed the Board of Review order finding the claimant's injury compensable.

When faced with preexisting injuries or degenerative conditions, Arch Coal v. Lemon provides a few instructive practice pointers. A “discreet new injury" must be proved by preponderance of evidence. When analyzing a similar case, a claims administrator can use the Rule 20 treatment guidelines and treat a noncompensable preexisting injury which has aggravated a compensable injury. W. Va. C.S.R. § 85-20-21 (treatment of unrelated conditions).

 When does TTD overpayment actually occur in West Virginia? 

In Reed v. Exel Logistics, Inc., No. 17-0864, 2018 WL 2769041 (W. Va. June 6, 2018), the West Virginia Supreme Court of Appeals clarified the circumstances necessary for an employer to claim overpayment of temporary total disability (TTD) benefits. The question arose after the employer's claims examiner paid a claimant for an additional 156 days past the 104-week limit. The Court held this type of "overpayment" lacked the requisite statutory elements, and therefore, the employer could not seek reimbursement. 

The primary directive of this case is twofold. First, claim administrators must be vigilant in recognizing TTD overpayment. The Court will not sympathize with a carrier who has paid out more than is required. Second, claim administrators must issue the correct protestable orders to force the overpayment issues into litigation. The Court has made it clear without the satisfaction of certain procedural elements, overpayment cannot occur. A practical caveat may be of most importance - a claims administrator controls TTD under W. Va. Code § 23-4-7a(e). Claims administrators should develop a system to "red flag" TTD at 104 weeks, when TTD can be terminated or a claimant can request rehabilitation TTD if participating in an approved rehabilitation program. The facts of the Reed case are instructive. 

The claimant worked as a shuttle drive for the employer, when he stepped on the frame of a truck and slipped, fracturing his left ankle. After numerous surgeries, the claimant continued to have instability in his ankle. After two-and-a-half years of physical therapy, the claimant's doctor declared the claimant had reached his maximum degree of medical improvement (MMI) and was a candidate for vocational rehabilitation services. In response to this report, the claim examiner halted the benefits and refused to approve further physical therapy or vocational evaluations. In addition, the claimant was granted a 4% permanent partial disability award, valued at $7,553.44. Roughly six months later, the claim examiner discovered the TTD benefits should have been terminated two years after the claimant's injury, and the insurer had improperly paid the claimant for 156 days beyond the statutory limit of 104 weeks. The claim examiner maintained the insurer had overpaid $10,509.72 and refused to pay claimant's permanent partial disability, declaring the claimant had an overpayment of $2,956.28 to be credited against any future award. 

After the claims examiner notified the claimant of the overpayment, the claimant protested the overpayment order to the Office of Judges (OOJ), which reversed the order. The OOJ found the examiner failed to timely seek termination of the benefits, or otherwise comply with the laws regarding modification or overpayment of TTD benefits. The Worker's Compensation Board of Review reversed and reinstated the examiner's decision. On review, the Supreme Court of Appeals recognized the Board of Review's decision involved the interpretation of law and, therefore, analyzed, de novo, the question of whether an "overpayment" of TTD benefits occurred. 

The insurer insisted the law governing TTD benefits was clear, "no person may receive temporary total disability benefits under an award for a single injury for a period exceeding one hundred four weeks." 2 W. Va. Code § 23-4-6(c). The insurer argued any benefit paid to the claimant in excess of the 104-week limit should "automatically" qualify as an overpayment. The claimant countered the workers' compensation scheme expressly limits an examiner's ability to declare overpayment of TTD benefits. The claimant asserted overpayment only occurs in a certain circumstance. First, the examiner must try to modify or terminate TTD benefits. Then, during an adversarial proceeding, which later results in a decision favoring the employer, the carrier is required to continue payment. Therefore, the overpayment only consists of the benefits awarded between the date of the attempted modification or termination and the ruling. More specifically, the claimant argued because the examiner never objected or sought modification to the claimant's TTD benefits, the excess benefits do not qualify as an overpayment. 

The Court analyzed the TTD statutory scheme, recognizing W. Va. Code § 23-4-1c(h) governs overpayment of TTD benefits, and requires two circumstances must occur for an employer to overpay a claimant. First, an employer must timely object to an order denying an application for modification or termination of TTD benefits. Second, there must be an adversarial proceeding which results in an order that the claimant was not entitled to TTD benefits. 

However, before the court could dismiss the employer's argument, the employer asserted that the overpayment statute was "a meaningless relic of a bygone era." Reed, at 9, 2018 WL 2769041 at *5. The employer claimed that employers no longer object to the decisions of private insurance carriers, but instead, the carrier has sole authority to act on the employer's behalf in all litigation related aspects of the claim, and enter final decisions. The claimant responded to this argument by asserting that a claims representative for an insurer is still the representative of the employer, and that the workers' compensation scheme allows the representative to make applications for a modification of any award made to an employee of the employer, including to modify or terminate TTD benefits. The claimant reiterated that W. Va. Code § 23-4-1c(h) delineates a clear process for overpayment which requires the employer or its representative to object to an order denying modification or termination and a final decision in the employer's favor. As neither the employer nor the claims examiner gave notice, objection, or an appealable order indicating the benefits should be terminated, an overpayment did not occur. 

The court agreed with the claimant and outlined the legislative history of the TTD benefits modification process prior to 1974 amendment, currently enshrined in W. Va. Code § 23-4-1c(h). Previously, the payments of TTD benefits were halted immediately after an employer protested, which would cause substantial economic hardship on the claimant due to the extended adversarial proceedings. The Legislature amended the statute for the purpose of limiting the employer's ability to "stymie a claimant's receipt of temporary total disability benefits." Id. at 11, 2018 WL 2769041 at *6. Based on this history, the court held that W. Va. Code § 23-4-1c(h) provides a baseline that once a claimant has been awarded TTD benefits, the claimant continues to receive those benefits until the employer (or representative) properly seeks to modify or terminate them. Then, while the order is under review, the 3 employer must still continue to pay the TTD benefits. But if the claimant is later found not to be entitled, only then does an overpayment legally exist. In the instant case, the Court found the examiner did not follow these procedures and, therefore, an overpayment did not exist. 

Justice Walker dissented from the majority, claiming the majority conflated the overpayment of claimant's benefits pursuant to § 23-4-6(c) and the dispute of his initial entitlement to TTD benefits pursuant to § 23-5-1. The dissent argued that any discussion of § 23-4-1c(h) is unnecessary because the section applies only where the Commissioner, in a §23-5-1 proceeding, determines the claimant was not originally entitled to TTD benefits because the claim did not jurisdictionally qualify. The purpose of a protest under a § 23-5-1 proceeding is to dispute the claimant's original entitlement to TTD benefits, not the overpayment of benefits to an originally entitled award. "Exhausting one's statutory entitlement to TTD benefits is different from failing to satisfy the jurisdictional requirements necessary to qualify for workers' compensation benefits, initially." Id. at 3 (WALKER, J., dissenting). Therefore, the claimant simply received TTD benefits to which he was not entitled and must repay those benefits. 

The lessons of Reed are that a claims administrator should be proactive about TTD closures at 104 weeks, be mindful of W. Va. Code § 23-4-7a(e), and issue timely suspensions and closures where appropriate. 

Everyone knows that New Jersey has a minimum rate for temporary disability benefits, but it is not as widely understood that New Jersey also has a minimum rate for permanency.  In 2018 the minimum rate for temporary disability benefits is $241 per week.  But the minimum rate for permanency remains $35 per week, as it has for many decades.

Why is this important?  Part-time employment is at an all-time high in the United States, and millions of Americans have second jobs. There are many situations where an employee will have a high-paying full-time job but the injury occurs on the part-time job.  The question for adjusters and professionals is how to set the rate and thereby determine exposure and reserves.

Consider a cafeteria worker in a private business who works part-time earning $100 per week.  He falls, fractures his hip and develops problems with walking.  What do we pay this worker for temporary disability benefits?  The answer is $241 per week until he reaches maximal medical improvement or can return to work either full-time or on a light duty basis.  It does not matter that $241 per week is higher than the wage of $100 per week.  That is the minimum rate.

Now fast forward to the permanency stage of the case.  The injured worker has had a hip replacement and has permanent gait issues.  The Judge of Compensation has reviewed the permanency estimates for both sides and recommends 50% permanent partial disability as a compromise for settlement purposes.

What do we pay this worker for a 50% award?  He is back to work at the cafeteria job and back to work full-time at his regular job at a grocery store, but he clearly has objective evidence of a significant impariment.  The rate chart which we all have at our desks says that 50% permanent partial disability equates to 300 weeks of compensation at a rate of $657 per week for a 2018 injury for a grand total of $180,600.   But remember that his wage is $100 per week in the part-time job.  That is the wage we focus on, not the worker’s full-time job at the grocery store.  Can we pay less than $241 per week, which is the minimum for temporary disability benefits?  Yes we can because there is a different minimum for permanency purposes.

This is an area of practice that every good practitioner must master.  We do not pay $180,600 over 300 weeks.  That would be an enormous overpayment.  We take the wage of $100 and multiply it by 70% for a rate of $70 per week.  We then multiply $70 per week times 300 weeks and get an award of $21,000.  That is about $160,000 less than the rate chart provides for someone with a 50% disability!

So the lessons in understanding the minimum rate for permanency are crucial to grasp.  Countless workers’ compensation cases get overpaid for failure to understand that the minimum for permanency is far less than the minimum for temporary disability benefits.

*  Remember not to use the rate chart on your desks for low wage employees. The rate chart is only relevant for high wage employees

*  Do not count the other job’s wages in New Jersey in calculating the amount due for temporary disability or permanent disability purposes.  You use the wage for the job where the injury occurred.

*  For permanency awards, take the average weekly wage, multiply by 70% and that becomes what we refer to as the “capped rate.”  The rate never goes higher than that number.  In the above case, the capped rate is $70 per week.

*  Set the wage and rate at the start of the case for both temporary and permanency purposes.  All accurate reserves and exposure analysis depend on this.

*  We do not reconstruct wages for temporary disability benefit purposes.  In some cases a worker’s part-time wage may be reconstructed to a 40-hour week if the worker can show a permanent diminution of working ability.  It is our position that someone who is back to work on both jobs cannot meet this test for reconstruction of wages.

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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. 

On August 24, 2018, Governor Murphy signed a bill that for all practical purposes ends the right of employers to make bona fide offers of permanent partial disability free of counsel fees.  The statute that enabled employers to make bona fide offers within 26 weeks of maximal medical improvement, or return to work, whichever is later, without the offer being feeable, was passed on April 3, 1928.  For almost a century, employers made such voluntary offers to tide injured employees over while their workers’ compensation cases were pending.  The inducement to employers was the savings on counsel fees.  Neither petitioner nor respondent paid a counsel fee on the amount of a timely voluntary offer.

Under the new law signed by the Governor, counsel for petitioners are entitled to a fee on all benefits paid to the petitioner if those payments occur after the date of a signed agreement between counsel and the injured worker.  An employer can still make an offer of permanency if the employer so desires and get a dollar credit, of course, but for practical purposes there will be no way to know whether the voluntary offer will be feeable.  There is no obligation on the part of the injured worker to disclose to the employer or carrier whether he or she has a signed agreement with counsel.  In many cases the adjuster may be well aware that the injured worker has an attorney and can therefore infer that there is an attorney-client relationship.

One question practitioners have is whether an attorney for the injured worker can still agree with the employer or carrier not to take a fee on a voluntary offer of permanency as an inducement for such an offer to be made.  Voluntary offers of permanency are popular with injured workers because they help with the employee’s finances while the case is pending.  This sort of agreement by petitioner’s counsel to waive a fee on an amount offered would almost certainly be honored by a Judge of Compensation, even if there is a written agreement predating the offer of permanency.

One other important legislative development in New Jersey is the potential loss of the “reverse offset.”  New Jersey is one of 15 states that has an agreement with the Social Security Administration giving the offset for total disability payments to the employer.  In most states the offset goes to the Social Security Administration.   In a reverse offset state like New Jersey, workers’ compensation benefits in total disability award cases are reduced by the amount of SSDI benefits in certain circumstances.

The proposed 2019 federal budget eliminates the reverse offsets in the 15 states that currently are permitted to offset against SSDI benefits.  There is a formula that limits the employee to 80 percent of the employee’s average current earnings between workers’ compensation and SSDI benefits.  In New Jersey, the benefit from workers’ compensation is reduced rather than SSDI in achieving the 80% limit.  This has saved employers and carriers countless millions of dollars over the years.  The current budget proposal would eliminate this practice in all 15 states that have a reverse offset.  The reason for the budget proposal is that it will allegedly save the federal government $164 million over 10 years.

Thanks to Craig Livingston, Esq. for bringing this budget proposal to our attention.  Employer groups need to speak to their federal legislators about opposition to this budget proposal.  This would be a very costly change for New Jersey employers, and such a change will generate much more litigation in total disability claims.

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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.