New Jersey public employees who are unable to work due to work accidents may apply for generous accidental disability pensions, providing approximately two thirds to 70% of pay with no federal taxes owed.  The standards for an accidental disability pension are rather similar to those in a workers’ compensation case, as is shown by the recent case of Bowser v. Board of Trustees, Police and Firemen’s Retirement System, A-0568-16T4 (App. Div. June 13, 2018).

The case involved correctional officer, Kristy Bowser, who suffered a fall on ice outside the Mercer County Correctional Center.  On the day of the injury Bowser parked her car on the employer’s property in an area reserved for corrections officers.  She worked one shift already and was then asked to work a second shift.  She asked a co-worker to cover for her while she retrieved feminine hygiene products from her car.  She slipped on black ice near the jail where she worked while walking to her car.  The Board of Trustees agreed that Bowser was totally and permanently disabled from working her job, that the disability was not caused by her own willful negligence, and that she was physically incapacitated from performing her usual duties or any other duty.  However, the Board disagreed that this arose from the direct performance of her duties and therefore the Board denied her claim.

The Appellate Division reversed in her favor.  It cited a prior case which said “Common sense dictates that the performance of an employee’s actual duties incorporates all activities engaged in by the employee in connection with his or her work, on the employer’s premises, from the formal beginning to the formal end of the workday.”

The Court added, “Just as restroom breaks at the work location during the workday ‘are necessary concomitants of an employee’s performance of his or her regularly assigned tasks,’ Kasper, 164 N.J. at 586 n.7, so was Bowser’s break to retrieve those necessary products. She remained on the MCCC premises, and had no intention of leaving.  She obtained relief from a fellow officer so she could briefly leave her post, as she would if she had headed straight to the restroom.  And, she was ‘on the clock,’ as she would be during a restroom break.  Consequently, her accident occurred ‘during and as a result of the performance of her regular or assigned duties.’”

For these reasons, the Appellate Division reversed the Board and awarded the officer her accidental disability pension.  Practitioners should note that accidental disability pensions are for work injuries only and are available to public employees.  Non-work medical conditions cannot be considered in an accidental disability application, unlike less generous ordinary disability pensions.  The standards for compensability in an accidental disability pension application for a public employee are similar to those in workers’ compensation.  Generally in workers’ compensation, on premises injuries are compensable unless the activity of the employee constitutes a deviation from employment or the injury is idiopathic.  Walking to one’s car during a break to retrieve something on the employer’s premises would be covered under New Jersey workers’ compensation law just as it was in this disability pension case.

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

Did you know that, effective June 1, 2018, the Industrial Commission’s Rules were recodified from Title 04 Chapter 10 of the North Carolina Administrative Code to Title 11 Chapter 23 of the Administrative Code? According to the NCIC’s website, all references and citations to an Industrial Commission Rule on or after June 1, 2018, should use the new title and chapter citation. The recodification is part of the transfer of the Industrial Commission from the Department of Commerce to the Department of Insurance.

Please contact our Workers' Compensation Team with any questions about this new procedure.

Written by: S. Scott Farwell

Recent rulings from The North Carolina Supreme Court and Court of Appeals have set Workers’ Compensation Defendants somewhat adrift regarding the burdens of proof relating to disability. With this uncertainty, and to counter the testimony historically provided by Plaintiffs seeking indemnity benefits, Defendants involved in complicated disability disputes should consider early involvement of a vocational expert well in advance of hearings. Otherwise, Defendants risk even strong defenses turning sour, and the higher ranges of exposure being reached.

Recall, first, the matters of Hilliard and Russell historically provided a meaningful structure to evaluate a Plaintiff’s burden of proof. Hilliard v. Apex Cabinet Co., 54 N.C. App. 173, 282 S.E.2d 828 (1981), rev’d on other grounds, 305 N.C. 593, 290 S.E.2d 682 (1982); Russell v Lowes Prod. Distribution, 108 N.C. App 762, 425 S.E.2d 454 (1993). Those matters established that proving disability requires specific and objectively supported persuasive evidence produced by Plaintiff.

With the advent of Wilkes v City of Greenville, ____ N.C. ____, 799 S.E. 2d 838, (2017) , in combination with Neckles v. Teeter, No. COA 16-569-2, 2018 WL 944070, (N.C. Ct. App. Feb. 20, 2018) and Adame v. Aerotek, 809 S.E.2d 922 (N.C. Ct. App. Feb. 20, 2018) however, the evidentiary structure provided by Hilliard and Russell has somewhat unraveled. Wilkes is the landmark case decided by the Supreme Court which held that Plaintiff could prove disability in ways outside of the Russell framework and suggested that the Industrial Commission may rely upon competent lay testimony to prove disability. In Neckles, the Court of Appeals held that the Full Commission did not properly address plaintiff’s wage earning capacity in light of his pre-existing and co-existing conditions. In Adame, the Court of Appeals held that Defendants failed to meet their shifted burden to prove Plaintiff was not disabled. Defendants in Adameutilized a vocational expert who performed a labor market survey and offered testimony; however the expert had limited knowledge of Plaintiff’s education and qualifications. Plaintiffs may argue these newer rulings reduce their burden of proof to a burden of production, which, if met, shifts the burden of proof to Defendants to disprove disability.

While this potential burden shifting is, itself, concerning, the time needed for Defendants to obtain persuasive evidence is, perhaps, even more harrowing. Following notice of a request for hearing, Defendants typically have four to six months to gather and present evidence before the case will be heard. This timeframe can be further reduced depending on when the file is assigned to defense counsel and whether any discovery disputes arise between the parties.

Since Plaintiffs may now be able to meet their burden and demonstrate a job search is futile by offering evidence that their age, education, and experience render future job searches futile, Defendants must spend the limited months available to them before hearing to locate jobs the Plaintiff is actually capable of obtaining given both his work-related and non-work related limitations and present that evidence in a format which will persuade a Deputy Commissioner to rely on it over Plaintiff’s own testimony. This can be challenging given that the Workers’ Compensation Act must be liberally interpreted in Plaintiffs’ favor.

Wilkes, Neckles and Adame leave Defendants wondering how to approach this developing dilemma. Utilization of a well-qualified vocational expert will be essential in many cases, but prudent employers should heed the guidance provided by these recent decisions.

The Industrial Commission has indicated a willingness to consider labor market surveys, but the above cases demonstrate that a labor market survey alone may not be enough. Employers who recognize the need for vocational evidence and retain an appropriate expert must also prepare the expert to both obtain an appropriate labor market survey and offer well-informed testimony at a hearing. This requires Defendants to obtain comprehensive information about Plaintiff’s pre-existing and co-existing limitations in discovery and to ensure the vocational expert has reviewed and considered this information in preparing his or her report and rendering opinions. Satisfying these standards will require early diligent planning by Defendants well in advance of hearing, but appears inevitable in the post-Wilkes era.

Please contact any member of our Workers’ Compensation team with questions or to discuss these issues in more detail.

On June 18, 2018 Senators Portman (R-OH) and Nelson (D-FL) introduced a bill to amend title XVIII of the Social Security Act to provide for the application of Medicare secondary payer rules to certain workers’ compensation settlement agreements and qualified Medicare set-aside provisions.  The proposed legislation (S.3079) was designed to provide specific statutory guidance to CMS in its review of workers’ compensation set-aside determinations.  According to Doug Holmes, the President of UWC – Strategic Services on Unemployment & Workers’ Compensation, the bill is the product of discussions with representatives of all the primary stakeholders in the workers’ compensation system, the Centers for Medicare and Medicaid Services and congressional staff.  Per Mr. Holmes, the legislation would provide for improved administration of Medicare in conjunction with settlements in workers’ compensation cases. 

In summary, the legislation seeks to:

o   Establish clear criteria in the determination of amounts to be set-aside in workers’ compensation settlements;

o   Create legal certainty in determining  the amounts to be included in set-asides and that workers’ compensation laws are appropriately followed;

o   Provide a right of appeal  to CMS determinations for parties to workers’ compensation settlements; and

o   Provide an optional direct payment of set-aside amounts to Medicare to speed payments, increase revenue for Medicare, and provide certainty for injured workers.

For more information regarding the bill, Doug Holmes can be contacted directly atholmesd@uwcstrategy.org or 202-223-8904.

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About the Author

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

Robert Stein worked for Atlas Industries.  He tore his meniscus at work and ten weeks into his recovery he saw the treating surgeon, who allegedly said that Stein would not be released from work until August 10^th.  Stein admitted that the surgeon gave him a release slip to return to work on July 20^th but to do only office work until August 10^th.  Stein actually gave that release slip to his employer.  Around the same time, the treating surgeon advised Atlas Industries that Stein could return to work with light duty restrictions in two days.  Atlas thought that Stein would return to work on the following Monday.

For his part, Stein thought that he had two more weeks of FMLA leave coming to him.  He did not show up for work on Monday, nor the next few days, nor did he call in.  On Thursday Atlas fired him for violating company policy in missing three workdays without calling in or providing notification.

Stein sued alleging violations of his rights under the FMLA because he was still within two weeks of the 12 weeks he was permitted under the FMLA.  The district court ruled for Atlas, noting that while an employee is out on FMLA, he must comply with the employer’s notice and call-in policies.  Stein appealed to the Sixth Circuit Court of Appeals.

The Atlas policy required employees to either return to work or call in once their doctor released them with light-duty restrictions.  The handbook said that someone who was absent three consecutive days without permission or call in would be automatically discharged.

Stein argued that an employer may not require an employee to return to work once cleared for light duty if the employee still has not exhausted FMLA leave, citing to 29 C.F.R. 825.702(d)(2).  The Court agreed with this principle but noted that Atlas’s policy required either return to work or call in, and Stein did not call in to report his intentions.

The Court of Appeals held that once Stein’s doctor verified that he was physically able to work, Stein had to call in at a bare minimum.  “The fact that he ultimately could have turned down a light-duty assignment does not change this requirement.”  The Court added, “Indeed, the handbook is unequivocal; it provides that ‘it is the employee’s responsibility to be on the job and keep Atlas advised when you are unable to work, whatever the reason.’”

The Court also rejected Stein’s argument that the company retaliated against him for using FMLA leave.  It noted that Stein was not fired right after he sought FMLA leave.  This did not happen until 10 weeks later when Stein had two weeks of FMLA leave left.  Interestingly, however, the Court did allow Stein to go to the jury on another legal basis, namely retaliation and interference under ERISA.  Stein had a son who suffered from a rare neurological condition and for whom the company had spent over $500,000 on medical expenses the year before Stein was fired.  The Court noted that both before and after Stein’s firing, the company had publicly expressed worries about “skyrocketing” health-care costs in a series of employer notices.

The Court noted that Stein had worked for Atlas for nearly 20 years, had worked overtime when asked, and won a perfect attendance award in the past.  The Court said, “In combination with Atlas’s documented concerns about skyrocketing health-care costs and its managers’ purported comments about Jordan (the son’s) claims, this evidence permits an inference that Atlas was motivated at least in part by its desire to be free from a medical-cost albatross.”  The Court therefore allowed the ERISA claim to go to a jury.

The case can be found at Stein v. Atlas Industries, 2018 WL 1719097 (6^th Cir. April 9, 2018).

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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. 

Assessing permanent disability is such a vital aspect of every formal workers’ compensation claim petition.  New Jersey is a loss of function state unlike the more common wage loss states.  An employee can return to his or her job following treatment or surgery, perform the very same work tasks, and still remain eligible for a substantial award of permanent partial disability benefits if the individual can show a substantial impairment of non-work activities.  In other states, if an injured worker returns to the employment, that generally ends the entitlement to workers’ compensation benefits.

New Jersey’s peculiar system of compensation raises an interesting dilemma for employers, lawyers, physicians and judges:  how does one assess the extent of permanent partial disability in one who has returned to the very same occupation with no limitations at work? And how credible is it when an employee performs very physical work without restrictions but complains about difficulty mowing the lawn at home?  Both sides in the case gather all the relevant medical records and send the injured worker for an IME, or even multiple IMEs, with physicians who specialize in assessing the extent of permanency.   The medical records tend to drive the outcome, and all stakeholders in the process focus heavily on the objective studies:  surgery records, MRIs, CT scans, EMGs, pulmonary function testing, and the like.  But there is generally too much emphasis on the treatment that occurred some time ago as opposed to current level of function.

The emphasis on medical records and operative reports is understandable, but all too often practitioners, physicians and judges forget to evaluate the overall current function of the individual and instead make assumptions of disability based on the type of surgery that took place.  One hears comments like this quite often:  “I never settle a two-level fusion surgery for less than 35% of partial permanent disability;” or, “I never pay more than 27.5% for a one level fusion surgery.”  There is a very substantial dollar difference between 30% and any percentage over 30%, so battle lines are often drawn at that particular percentage point. The focus should not be so much on the type of surgery that took place but on the level of function that the individual has at work and outside work.  The assumption that many practitioners have that all extensive fusions must be rated at higher than 30% ignores the legal standard in New Jersey.  Every case is different.

Why does this happen?  Because it is easier for practitioners to evaluate the medical records than it is the actual level of function.  We do not have depositions in New Jersey, and complaints contained in IMEs are so often cursory.  Some IME physicians spend only a line or two on the activities that the individual can now engage in or has given up, while spending 95% of the medical report on cataloguing the treatment that occurred many months ago.  Could one individual have more extensive limitations following a one level fusion than another individual after a three level fusion?  The answer is yes, but one seldom sees this reflected in awards because assumptions about the impact of surgery tend to be self-fulfilling.

Case law in New Jersey makes it reversible error for a judge to say that he or she always awards a given percentage for a certain type of surgery.  The appellate courts have consistently emphasized that when assessing permanency one must look at the impact of the injury on the work and non-work life of the claimant – not the type of surgery one has had.  Has the individual returned to previous sports activities, gotten a second job, returned to work without restrictions, or taken on overtime work?  Is the individual able to enjoy jogging, horseback riding, and more vigorous sports?  These are the most important questions that apply under all three Perez decisions.

From a strictly legal standpoint, if an individual had a two-level fusion surgery and came to court to testify that he could do everything now that he could in the past and had no restrictions, no award of permanency would be warranted.  Evaluating physicians make the same fundamental mistake all the time, raising estimates of disability on individuals based on the number of herniated discs involved, or the type of shoulder surgery, without focusing on what the injured worker actually does or cannot do at home and at work.  When reserving a file, practitioners and adjusters have to focus on the medical treatment because it is early in the case, but in the end the focus must be on the actual level of function when all treatment has ended.  One can make a strong argument that the system tends to evaluate medical records too much and not the people whose records are being evaluated sufficiently.

What does this mean for employers?  If employers wish to reduce permanency awards, they need to address the following:  how has the work injury impacted the level of function at work and outside work?  If an injured worker has minimal complaints following a two-level fusion surgery, and is functioning well at home and at work, the award should be fairly modest.  It should not climb over 30% just because most similar surgeries have resulted in high awards.  If the level of function at work and at home is impressive, It should not matter that the surgery involved two levels.  It is really a mistake to assume that a given type of surgery is worth a preset percentage.  While the system has evolved that way, it is not true to the statute at all.

Surveillance can be helpful in lowering permanency awards if the surveillance shows that the individual is performing at a high level of activity outside work.  What can the employee do in terms of sports and hobbies after MMI?  We all know people who have had extensive knee, back and shoulder surgery outside workers’ compensation, and many return fully to the activities that they used to engage in.  After all, surgery does sometimes restore function completely or nearly fully.  The results of functional capacity exams done after MMI are often a great indicator of level of function and should be considered by the parties in a workers’ compensation case.

Employers should speak with supervisors to get a sense of what the individual is involved in socially and recreationally. It is very rare that an employer will bring in a supervisor or manager in the permanency phase of the case to testify regarding what an employee is able to do at work post-surgery.  But that testimony can be crucial if it contradicts statements that the injured worker cannot engage in certain physical activities.  On high exposure cases, this should be considered.  Proving a normal level of function at work and outside work is the best way to counter the pre-conceived notion that every two-level fusion or frozen shoulder case must be worth 35% to 40%.

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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. 

Beginning July 1, 2018, the maximum workers’ compensation payable will be raised to $865.00 per week and the minimum will be raised to $238.00 per week. https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf

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This blog submission was prepared by Joshua G. Holden, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Holden by e-mailing him at jholden@fishnelson.com or by calling him directly at 205-332-1428.

For many years, the Minnesota Workers' Compensation Law has remained stable with few changes. In May 2018, there were major legislative revisions. The laws pertaining to TTD, TPD, PTD, and the medical fee schedule were amended (eff. for injuries on or after 10/1/2018). Additionally, there will now be a presumption in cases of PTSD involving individuals in certain high risk jobs (eff. for injuries on or after 1/1/2019).

For a summary and analysis of the legislative changes, please see below. If you have any questions, please contact us at Cousineau, Waldhauser, & Kieselbach, P.A. 

http://cwk-law.com/wp-content/uploads/2018/06/2018-Legislative-Changes-to-the-Minnesota-Workers.pdf

One of the most serendipitous work injuries in history befell a teenager in a Birmingham, England sheet metal factory circa 1965.  The youth, a welder by trade, was asked to fill in for an absent co-worker whose job was to cut pieces of flattened metal under a guillotine-like blade.  It was the boy’s last day of work, and during his lunch break he contemplated not bothering to finish out his final shift, but his mother convinced him to honor his commitment to his employer, so he returned. 

That afternoon, disaster struck. Lacking the proper training to operate the machine, the 17 year old sustained a grisly work injury, as the industrial blade sliced through the tips of his middle and ring fingers on his right hand.  Emergency medical attention was unsuccessful in reattaching the appendages, and the youth grew despondent—not merely due to the permanent disfigurement to his hand, but because of what it meant for his great passion in life: playing the guitar. 

The boy, it turns out, was left-handed, and therefore used his right hand to press down on the strings along the fretboard.  His work injury had presumably deprived him of the ability to play the guitar ever again. 

However, when the youngster’s foreman visited him in the hospital, he brought with him a record by renowned Belgian jazz guitarist Django Reinhardt, who, following a severe burn injury, had also lost the use of two fingers on his fretting hand.  Inspired by Reinhardt’s rise to international fame after teaching himself to fret his guitar with just two fingers, the boy grew determined that his work injury would not rob him of his nascent musical talent, either.

Necessity, they say, is the mother of invention.  Finding it too painful to press down on the strings with the bony ends of his fingers, and demonstrating an ingenuity far beyond his years, the young Brit engineered fake fingertips for himself by melting down a plastic soap bottle and covering them with bits of a leather jacket.  The homemade prosthetics relieved the pain, but compressing the tight guitar strings still proved too difficult due to loss of sensation. 

In a flash of genius, he decided to try down-tuning the strings, lessening the tension to make them easier to press and bend.  It worked.  Suddenly the boy could play his beloved guitar again.  However, down-tuning had an unavoidable consequence: it lowered the pitch of each string, giving the guitar a deeper, darker timbre, especially when amplified.  The newly-discovered tones intrigued the guitarist, but it was all wrong for his band, a folk-rock outfit named Earth. 

Fortunately his bandmates shared their guitarist’s fondness for his aggressive new sound.  Rather than eject him from the group, they forged an entirely new musical identity around the more foreboding tones emanating from the young man’s self-forged fingertips.   Shrewdly, they agreed that ‘Earth’ no longer suited the Wagner-esque rock music they were now writing.  Serendipity struck again when a Boris Karloff film playing in a movie theater across the street from their rehearsal space delivered the band a fitting new name.  The film was calledBlack Sabbath. 

Now 70 years old, Tony Iommi, the boy who thought he would never play guitar again, has sold over 70 million records worldwide since 1968, was inducted into the Rock & Roll Hall of Fame in 2006, and is widely credited for (pardon the pun) single-handedly inventing the subgenre of rock music known as heavy metal. 

Just think what he might have accomplished with a lumbar sprain.

Copyright 2018,Robert Greenlaw, Stone Loughlin & Swanson, LLP