NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Tom Kieselbach of CWK Law presented the 2018 Class of Fellows at the College of Workers’ Compensation Lawyers Induction dinner in Nashville, Tennessee on March 3, 2018. Fifty lawyers and judges from twenty-two states were inducted into the College. The College was created in 2007 with assistance from the American Bar Association. Individuals are selected for their excellence in the field and ethics.
At least once a week this practitioner gets a call from an employer or adjuster asking whether New Jersey has a defense to accidents where the employee is found to be heavily intoxicated or under the influence of illegal substances. The response is always the same: yes, there is technically a defense, but unfortunately the way the statute is written, it is almost impossible for an employer to prevail.
New Jersey is one of a few states in which the employer must prove that intoxication or the use of controlled dangerous substances is the sole cause of the injury. It is not enough for an employer to prove that intoxication is the main cause or a substantial cause: it must be the sole proximate cause. If any other factor is involved, the employer loses. In most states employers win if they can prove intoxication was a substantial or contributing cause. How weak is the New Jersey defense? There is really only one published case in the last 50 years in which an employer has won on the intoxication defense in New Jersey!
If the employee can show that some other factor besides intoxication contributed in some way to the injury – like bad weather, a slippery floor, exhaustion from working too hard – the employer’s defense fails. Frankly, it is almost impossible to exclude all other causes. That point was driven home by the New Jersey Supreme Court in Tlumac v. High Bridge Stone, 187 N.J. 567 (2006). At the end of the opinion the Supreme Court expressed its own frustration with the regrettable language contained in the New Jersey statute.
In Tlumac the employee’s wife admitted that her husband usually drank 10 beers every weekend. On the day of the accident, petitioner arose at 2:15 a.m. to begin his drive. He drove 30 miles south on Route 31 with 77,000 pounds of Belgian block in his truck and then blacked out. His tractor-trailer traveled 180 feet off the road, jumped the curb and traveled 66 feet on the shoulder, hit the guardrail and rubbed against it for 247 feet, struck a parked truck and then struck a utility pole. The officer on the scene noticed an odor of alcohol, and petitioner admitted to drinking the night before. An expert for the employer extrapolated that petitioner’s blood alcohol level was between .10 and .18 at the time of the accident, well above the legal limit.
The employer denied the claim based on intoxication being the sole cause of the accident. The Judge of Compensation, Appellate Division and the Supreme Court all ruled against the employer and in favor of the petitioner on compensability because the employer could not prove the sole cause defense. Other factors may have played a role in the accident, such as petitioner’s exhaustion from working too many hours in the days prior to the accident. He had worked over 200 hours in the prior two week period of time. He also testified to exhaustion from repairing the roof of his home the night before the accident. Justice Wallace, who wrote the decision, conceded that the New Jersey statute “may no longer comport with current policies at deterring the dangers of drinking and driving. Nevertheless, any change in that interpretation must come from the Legislature.”
Twelve years after the Tlumac decision, nothing has been done by the Legislature to address the situation that Justice Coleman addressed, namely deterring the dangers of drinking and driving. As hard as it is for employers to win on an intoxication defense, it is even harder for employers to win when illegal drugs are found in the employee’s system because it is scientifically impossible for an employer to pinpoint exactly when the illegal substances were used. Many drugs, like marijuana, remain in the system for days, if not weeks.
One must wonder what the social policy was that the Legislature was trying to promote many decades ago when the sole cause language was written into law. A cynic might conclude that the purpose was to sanction the practice of employees coming to work somewhat inebriated. The truth is that intoxicated employees not only risk injury to themselves but may also imperil the lives of others. Yet as of 2018 heavily intoxicated employees who are injured at work or those under the influence of illegal substances remain eligible for workers’ compensation, even if the use of alcohol or drugs was the major cause of the accident. The reason is that the major cause is not the same as the sole cause.
A change in the law to “substantial cause” instead of “sole cause” would benefit all New Jersey residents and would send the correct message that employees must keep alcohol and illegal substances out of the workplace. The present statute was written at a time when the two martini lunch was perhaps considered socially appropriate. But those days should be long gone.
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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 concept of reconstructing wages for permanency awards pertains to part-time workers with serious injuries. For example, consider an employee who works 20 hours per week earning $10 per hour. The employee has a serious injury that prevents the employee from earning the same amount of money or prevents the employee from working full-time in the future. The wage is $200 per week giving rise to a permanency rate of $140 per week. Assume that the award is 50% permanent partial disability payable over 300 weeks. Unreconstructed the award would amount to $42,000. (300 times $140). If the Judge were to reconstruct the wage to $400 per week (40 hours times $10 per week in a customary work week), the rate would be $280 per week with the award being $84,000. (300 weeks times $280). That reconstructed award to a 40-hour work week would be double the unreconstructed award.
As a reminder, the New Jersey rate chart that all practitioners have at their desks cannot be used for low wage employees. The front of the rate chart is for high wage earners (those subject to maximum rates due to high wages). If one were to pay based on a 2017 rate chart, the award would be 300 weeks or $179,400. That would be an overpayment of $137,400!
Remember also that the minimum for temporary disability benefits is much higher than the minimum for permanency benefits ($35). In 2017 the minimum rate was $239 for temporary disability benefits but the minimum for permanent partial disability benefits was $35 per week. That minimum rate has been $35 per week for many decades.
So when should a judge reconstruct an employee’s wages? The rule comes from Katsoris v. South Jersey Pub. Co., 131 N.J. 535 (1993). The Supreme Court said, “The critical inquiry is whether petitioner has demonstrated that her injuries, while disabling her from engaging in part-time employment, have disabled or will disable her with respect to her earning capacity in contemporary or future part-time employment.”
Let’s consider a few scenarios:
What happened to Ms. Katsoris? She had a part-time job delivering newspapers, which was the work that caused her serious injury. She was no longer able to do that part-time physical job on account of the work injury. However, she was able to return to her full-time secretarial job. The Appellate Division stated that the wage should be reconstructed, but the Supreme Court reversed and said it should not be reconstructed because petitioner did not prove an impairment of full-time earning capacity since she was able to resume her full-time secretarial job. So the focus must always be on whether there is a material impact on contemporary or future earning capacity.
Here’s the last point to remember about wage reconstruction. One does not always reconstruct to 40 hours per week. That is most common but it could be more or less hours, depending on what is a normal work week. The Supreme Court makes clear in the Katsoris case that the judge should determine the customary number of hours and the customary number of days constituting an ordinary work week before reconstructing. So if the normal work week is 50 hours per week, then the multiplier should be 50 instead of 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.
Written by: Elizabeth Ligon
The Court of Appeals recently released two decisions that analyzed issues relating to disability – specifically, the burden of proving futility – post-Wilkes v. City of Greenville. In Adame v. Aerotek, an unpublished decision, Plaintiff sustained a low back injury in June 2013. After receiving conservative treatment with multiple doctors, Plaintiff was ultimately released with permanent work restrictions of no lifting over 40 pounds, with frequent lifting and carrying of objects weighing up to 25 pounds. Plaintiff sought ongoing temporary total disability benefits, but the Industrial Commission found he was not entitled to indemnity benefits or vocational assistance because Plaintiff failed to meet his burden of proving disability. Plaintiff appealed to the North Carolina Court of Appeals.
On appeal, the Court of Appeals noted Wilkes clarified which party had the burden of proving disability. Once a plaintiff meets the burden of establishing disability, the burden then shifts to defendants to show that suitable jobs are available, and that the plaintiff was capable of obtaining a suitable job, considering both his or her physical and vocational limitations. The Court reiterated that a plaintiff is not required to produce expert testimony in order to prove futility. While the Court acknowledged that Plaintiff had the initial burden of proving disability, the Court also referred to the burden as a “burden of production.” (emphasis added)
In Adame, the plaintiff was a 55-year-old man from Mexico who attended “something like high school” in Mexico until the age of 12. The Court of Appeals specifically concluded that Plaintiff met his “burden of production of evidence of futility” by presenting evidence of his age, lack of education, lack of vocational training, limited fluency in written English, and lifting restrictions. Therefore, the burden shifted to Defendant to show that suitable jobs were available to Plaintiff, and that Plaintiff was capable of obtaining a suitable job in light of his physical and vocational limitations. Defendant relied on the testimony of a vocational expert who had prepared labor market surveys in order to meet their burden. However, Defendant’s vocational expert had very limited knowledge of Plaintiff’s education and qualifications, and the Court found Plaintiff could not meet the minimum qualifications of most of the jobs that were identified as suitable. Therefore, Defendant had not met its burden, and the Industrial Commission erred in relying on the vocational expert’s testimony. Also the case was remanded for the Commission to determine whether Plaintiff’s incapacity to earn was caused by his work injury, the third prong of Hilliard.
In the second case, Neckles v. Harris Teeter, a published decision, Plaintiff was 68 years old at the time of hearing and was originally from Grenada. His prior employment history consisted of working as a meat cutter, which required lifting and moving up to 100 pounds on a regular basis. He sustained an injury to his back, right hip, and right extremities in 2009 while attempting to move a box of meat. In 2010, he underwent an FCE and demonstrated the ability to perform in the light physical demand category. In 2011, a vocational rehabilitation specialist opined that it would be “difficult” to place Plaintiff in the open job market on a full-time basis due to his work history, limited transferable skills, age, and lack of computer knowledge. No additional testing or analysis was completed.
In 2014, Defendants requested a hearing, contending Plaintiff was no longer disabled. The deputy commissioner awarded Plaintiff ongoing indemnity benefits on the grounds of futility. On appeal, the Full Commission reversed in part, concluding Plaintiff had failed to meet his burden of proving futility. The Court of Appeals reversed. Defendants appealed to the Supreme Court, who remanded the case to the Court of Appeals for reconsideration in light of Wilkes.
On remand, the Court of Appeals concluded that the Commission failed to make necessary findings regarding the effect of Plaintiff’s compensable injury on his ability to earn wages. The Court stated that if a plaintiff can show total incapacity for work, he is not required to also show that a job search would be futile. Here, Plaintiff offered evidence of numerous physical and vocational limitations, including his work history, limited transferrable skills, age, lack of computer knowledge, other chronic health problems, and communication barriers. The burden then shifted to Defendants to show that suitable jobs were available, and Plaintiff was capable of getting one, considering his limitations. The Court reversed and remanded, ordering the Commission “to take additional evidence if necessary and make specific findings addressing plaintiff’s wage-earning capacity, considering plaintiff’s compensable [injury] in the context of all of the pre-existing and co-existing conditions bearing upon his wage-earning capacity.”
RISK HANDLING HINT:
Taken together, it appears that the Court of Appeals wants the Commission to specifically address all pre-existing and co-existing conditions in their analysis of disability. What is unclear is whether the Court of Appeals is effectively transferring the burden of disproving disability to the defendants. Presumably, every plaintiff will have some level of pre-existing or co-existing conditions. The question also remains what level of such conditions is enough to satisfy plaintiff’s burden of production of evidence of futility, thereby transferring the burden of disproving disability to the defendants. Please contact any member of our Workers’ Compensation team with questions or to discuss these issues in more detail.
The Iowa Workers’ Compensation law underwent significant changes last legislative session (2017), going into effect for work-related injuries occurring after July 1, 2017. For a comprehensive summary, lookhere (for those changes to the Iowa Code) and here (for those changes to the Iowa Administrative Code). This update addresses one change in the effect of return to work on the industrial disability analysis. In that regard, the discussion below illustrates two main take-a-ways:
-- Functional impairment ratings will become more important in return-to-work situations.
-- Job descriptions and work restrictions will be scrutinized more in cases where an employer offers a claimant a return to work but the claimant denies the offer, arguing he/she is unable to perform job functions/duties under restrictions.
By way of background, in Iowa, an injury to a “whole person” – an injury that is not considered a scheduled-member injury per Iowa Code §85.34(a)–(t) (2017) – results in an “industrial disability.” Iowa Code §85.34(u) (2017). Thus, with an industrial disability claim, the determination of the injured worker’s permanent disability is the effect the whole-person injury has on employability, as determined by a number of factors – which are: functional disability (i.e., impairment rating), age, education, qualification, experience, and ability to engage in employment that claimant is fitted. Larson Mfg. Co., Inc., v. Thorson, 763 N.W.2d 842, 857 (Iowa 2009);see also Bearce v. FMC Corp., 465 N.W.2d 531, 535 (Iowa 1991).
Under the new law, if a claimant returns to work making the same or greater earnings, the claimant is not entitled to the industrial disability analysis; rather, the permanent partial disability award, if any, is determined by the functional impairment rating for the whole-person injury assigned by the doctor(s), as determined by the 5th Edition AMA Guides. Iowa Code §85.34(u) (2017).
Iowa Code §85.34(u) provides in pertinent part:
If an employee who is eligible for compensation under this paragraph returns to work or is offered work for which the employee receives or would receive the same or greater salary, wages, or earnings than the employee received at the time of the injury, the employee shall be compensated based only upon the employee’s functional impairment resulting from the injury, and not in relation to the employee's earning capacity. Notwithstanding section 85.26, subsection 2, if an employee who is eligible for compensation under this paragraph returns to work with the same employer and is compensated based only upon the employee’s functional impairment resulting from the injury as provided in this paragraph and is terminated from employment by that employer, the award or agreement for settlement for benefits under this chapter shall be reviewed upon commencement of reopening proceedings by the employee for a determination of any reduction in the employee's earning capacity caused by the employee's permanent partial disability.
While it is yet to be determined how the Iowa Workers’ Compensation Commission and the courts will interpret this new law, we can use two recent Court of Appeals decisions (applying the old law) as case studies and compare how they would have been affected by the new law.
Norton v. Hy-Vee, Inc.
In Norton v. Hy-Vee, Inc., Vicky Norton, the Claimant, injured her neck and back on April 2, 2009, and suffered from mental health issues of anxiety and depression as a result of the injuries. The Deputy found that Norton sustained a 70% industrial disability. In assigning the industrial disability rating, the Deputy analyzed Norton’s motivation to work, her “unique skills that allow her to be an exceptional [employee],” and the fact that her work restriction – maximum of 6-hour work days – resulted in her working 25% less than before the injury. Norton argued she sustained a permanent total disability; Hy-Vee argued Norton sustained a 25% industrial disability. The Commissioner, in approving the Deputy’s conclusion of 70%, noted that Norton received very high marks from her supervisors, and she was working what was considered full-time in the local market (30 hours per week). Norton argued that the Commissioner erred in adjusting the industrial disability rating downward based on the fact that she returned to work. On this point, the Court of Appeals noted:
Based on the above law, we agree with Norton that an injured worker's performance of accommodated work, in and of itself, many [sic] not be used to reduce a worker's industrial disability rating. But the injured worker's performance of accommodated work can be considered in assessing the industrial disability rating if the work being performed is “transferrable to the competitive job market,” and “discloses that the worker has a discerned earning capacity.”Id. at *6 (citations omitted).
The case was being decided under the old law. That said, the new law explicitly instructs theadjustment of the industrial disability award if the claimant returned to work and earned the same or greater wage. Under the new law, evidence of Norton’s wage would have been admitted and discussed, and if it was the same or greater, then the functional impairment rating of Norton’s whole-person injury would have been admitted and discussed. Likely, the outcome would be the same under either the new or old law, as it is unlikely that Norton was earning the same or greater (considering the 25% decrease in work time). In any case, there is an additional evidentiary piece – the post-return-to-work wages – that must be analyzed, prior to undertaking the traditional industrial disability analysis.
Allen v. Tyson Fresh Meats, Inc.
In Allen v. Tyson Fresh Meats, Inc., the Claimant, Allen, was assigned a 12% body-as-a-whole impairment rating (which was the combination of injuries to two body parts – knee and spine). While Allen argued that his advanced age and history of working only manual labor supported a finding of industrial disability of greater than 12%, the Court disagreed, noting that “Allen had no loss of job or earnings due to his injury. In fact, he continued to work in the same job, for the same company, without having missed any days due to injury . . . .” p. 6. The Court noted: “While such a finding does not preclude Allen from an award of industrial disability, it cannot be overlooked in determining how much his injuries affect his employability.” Under the new law, this “employability” analysis is unnecessary, which is common place in pre-July 1, 2017, whole-person injury analysis. If this was a post-July 1, 2017, claim, Allen’s industrial disability would be 12%, the functional impairment rating. In short, the new law offers a level of certainty to this type of a claim: it effectively makes a whole-person injury to a claimant that returns to work earning the same or greater wages a scheduled-member, whole-person injury, leaving the permanent partial disability percentage to be determined by the functional impairment rating(s) assigned.
Even in return-to-work situations as discussed above, the traditional industrial disability analysis still applies in the event that the claimant receives an industrial disability award based on the new return-to-work provision but is later terminated – in such case, the earning-capacity analysis is appropriate upon a review-reopening proceeding.
We all know the rules for coverage in New Jersey under the “premises rule,” the rule that replaced the former going-and-coming rule. N.J.S.A. 34:15-36 states that one is covered for workers’ compensation purposes when he or she arrives at a place of employment owned or controlled by the employer. That is easy enough, but what about employees who do not report to the normal place of business of the employer, such as a carpenter who drives to a housing development every morning in a company truck?
The statute has different rules for those workers who report to job sites and not the normal office locations that most of us report to daily. It says this: “… the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.” This sentence says two totally different things:
A. Employees who are paid travel time are covered traveling to and from a job site; this is the old portal-to-portal rule.
B. Employees who use an authorized vehicle may be covered when they are pursuing business authorized by the employer.
This is the only part of the statute in which the use of an employer authorized vehicle actually can turn the outcome of a case. Unfortunately, the statute does not explain what an employer authorized vehicle means. Clearly, it would cover a company car or business truck. But does it mean just a personal vehicle for which the employee gets reimbursed mileage? There is no answer to that question but the likely answer is probably not.
The more one focuses on this language regarding the use of an authorized vehicle, the more one realizes how broad this language is. It goes way beyond just those who are paid travel time. It suggests that travel time is not necessary at all for coverage when an employee is utilizing an employer authorized vehicle on business authorized by the employer and the drive is not to the office of the employer. What if the carpenter above drives to a Home Depot on a Saturday when he is not working to get sheetrock as requested by the supervisor? (Presumably this would be covered). Does it mean that the carpenter who drives to a job site in the morning from his or her home and does not receive paid travel time is covered portal-to-portal because the carpenter is using an employer authorized vehicle on business? The key words are “authorized vehicle on business authorized by the employer.” Again, there is no reported case on point.
Very few employees are actually paid travel time over and above their normal pay. But there are tens of thousands of New Jersey employees who use an authorized vehicle on business authorized by the employer. They often leave home in a company vehicle and report to a job site – and they may be able to argue successfully that they are then covered because they are using an authorized vehicle on business authorized by the employer. As noted above, there is no reported case on this issue.
The statute also says that an employee is covered when he or she is required by the employer to be away from the employer’s place of employment. This is known as the “special mission” exception. So if a defense lawyer is required to go to court by the law firm, the trip is covered because the employee is required to be away from the law firm, which is the employer’s place of employment. The question is this: is a job site considered the same as the employer’s place of employment if the employer does not have a regular office or place of business in New Jersey? Many companies do not have a regular place of employment in New Jersey. There are insurance companies which have no office in New Jersey; there are health care companies which have no office in New Jersey; there are sales companies with no office in New Jersey. Employees of these companies work from their home.
Suppose a health care company has a nurse’s aide who leaves her home and drives to the same patient’s home every day for months using her personal vehicle? The nurse’s aide has no office to report to in New Jersey and is not paid travel time. Is that drive covered for workers’ compensation purposes? Is the nurse’s aide engaged in routine travel to work (not covered) or is she covered because she is reporting to a job site? It would seem that the nurse’s aide will have a hard time arguing that her personal vehicle is an “employer authorized vehicle” if it is not a company car and if she is not paid travel time. The nurse’s aide will also have a hard time arguing that she is required to be away from her employer’s place of business if there is no regular office where she works. The “job site” is where she works every day. So the nurse’s aide may have to argue that her home is her place of employment. She may argue that since she is required to be away from her place of employment (her home), she should be covered on the ride to the patient’s home. This is an interesting situation, and it is more and more common as employees are encouraged to work from home. Unfortunately, the statute is not particularly helpful in providing an answer.
The author wishes to thank Stephen Fannon, Esq., and Judge Richard Hickey for their analysis of this interesting and little known provision of the statute. Any comments from readers are welcome.
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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.
Teague Campbell is proud to announce that on March 3, 2018, Asheville Partner Daniel Hayes was officially inducted into The College of Workers’ Compensation Lawyers. He joins just 23 fellows from North Carolina, including Raleigh Partner Bruce Hamilton, inducted in 2011.
Fellows are nominated to the College by their peers for possessing the highest professional qualifications and ethical standards, character, integrity, professional expertise and leadership over a career of 20 years or longer. Daniel took an oath committing to a lifelong dedication to professional conduct, scholarly pursuits, integrity, excellence in the law, and a respect for the legal process.
Twenty years ago, Daniel began his career in South Carolina as a workers’ compensation defense attorney. He continues to practice workers’ compensation and has also developed a thriving Medicare practice. Daniel is a certified Medicare Set-Aside Consultant and licensed to practice in North and South Carolina.
For more information about The College of Workers’ Compensation Lawyers, please visit: http://www.cwclawyers.org/
YOU WANT ME TO PARK WHERE;
A RECENT PA. WORKERS’ COMPENSATION
PARKING LOT COMPENSATION CLAIM
By: Jeffrey D. Snyder, Esquire
The Commonwealth Court of Pennsylvania reviews the law – a parking lot case.
In US Airways, Inc., v. WCAB (Bockelman), 612 C.D. 2017, filed February 22, 2018, in an Opinion authored by Judge Brobson, the Court affirmed the granting of a Claim Petition, finding that the Claimant was in the course of employment at the time she was injured by a fall down incident on an airport shuttle bus returning her to one of two employee parking lots after work.
The Court reviewed the facts. The Claimant was employed as a Philadelphia based flight attendant for US Airways, Inc. In order to get to work, she drove her own vehicle to the airport and parked in one of two designated employee parking lots that were both owned, operated and maintained by the City of Philadelphia/Division of Aviation for the use of all airport employees, not just those employees of US Airways, Inc.
In order to park in one of these two lots, employees were required to get a secured identification display area badge issued by the Department of Aviation and paid for by the Employer. After an employee parks in one of these lots, a shuttle bus transports the employee from the employee parking lot to the airport terminal and the reverse on the return at the end of the workday. Employer does not own or exercise control over the shuttle buses and did not require its employees to use the airport employee parking lots. The Employer maintained that it gave its employees no directive whatsoever in terms of how they should commute to work. There is a train from Center City Philadelphia to the airport, with no contentions regarding that alternate means of transportation by either the Claimant or the Employer in this Appeal based on the language in the Opinion.
The incident in question occurred on January 23, 2015. The Claimant was returning from a one day and back trip to Miami late in the evening about 9:47 p.m. She boarded the shuttle bus and attempted to lift her suitcase onto the luggage racks and while doing so stepped in water on the floor causing her right foot to slip out from underneath her. Her left knee buckled causing her to fall backwards, crushing her left foot under her. She needed assistance.
The Claimant subsequently filed a Claim Petition for injuries to the left foot from this slip and fall incident. The Answer to the Claim Petition denied that the Claimant was in the scope of employment at the time of the injury.
In a Decision circulated April 27, 2016, the Workers’ Compensation Judge granted compensability concluding that the injury occurred on the Employer’s premises, that the Claimant’s presence on the shuttle bus was required by the nature of her employment, and that the injury was caused by the condition of the premises. The Board affirmed.
On Appeal to the Commonwealth Court of Pennsylvania, the Employer was arguing that the Claimant was not injured on the Employer’s premises because the Employer did not own, lease or control the shuttle bus and parking lot, and they were not integral to the Employer’s business. The Employer asserted further error in the conclusion that the Claimant’s presence on the bus was required due to her employment status because Employer never required Claimant to use the shuttle bus.
The Commonwealth Court observed that injuries may arise during the course of employment in two distinct situations. First, the course of employment may be established by showing that the employee is injured on or off the Employer’s premises, while actually engaged in furtherance of the Employer’s business or affairs. This was not shown in the case.
Alternatively, to establish a course of employment, an employee can show that although not actually engaged in the furtherance of the Employer’s business or affairs, the Claimant is on the premises occupied or under the control of the Employer, or upon which the Employer’s business or affairs are being carried on, and is required by the nature of employment to be present on the Employer’s premises, and sustains injuries caused by the condition of the premises or by operation of the Employer’s business or affairs thereon, further citing to WCAB (Slaugenhaupt v. United States Steel Corporation, 376 A.2d 271 273 (Pa. Cmwlth., 1977).
The third prong, the condition of the premises, was undisputedly met, so the Court focused on the first two factors, premises and required by the nature of employment to be present on these premises.
In terms of whether the Claimant was on the Employer’s premises, noting the Employer did not own, lease, maintain or control the shuttle bus, the Court observed that Section 301(c)(1) of the Workers’ Compensation Act presents the issue as determinative on the establishment of the site of the accident being so connected to Employer’s business as to form an integral part of that business, citing toEpler v. North American Rockwell Corporation. 393 A.2d 1163 (Pa. 1978).
The critical factor is not the Employer’s title or control over the area, but rather the fact that the Employer had caused the area to be used by employees in performance of their assigned tasks. The Commonwealth Court observed that reasonable means of access to the work place is considered an integral part of the Employer’s business and, therefore, part of the Employer’s premises, citing toNew House v. WCAB (Harris Cleaning Services, Inc.), 530 A.2d 545 (Pa. Cmwlth., 1987),appeal denied, 538 A.2d 879 (Pa. 1988). Property becomes integral to an Employer’s business when the Employer causes employees to be in the area, citing toEpler, supra. The Court quoted from the Opinion in Interstate United Corp., 424 A.2d 1015 (Pa. Cmwlth., 1981):
“[T]he record shows that [Employer’s] cafeteria was located in the interior of the …plan, that employees customarily crossed the foot bridge that Claimant was injured on to enter and exit the cafeteria area, and that [Employer] was aware of this fact. In numerous cases, Pennsylvania Courts have held that a reasonable means of access to the situs of an Employer’s business operation is such an integral part of an Employer’s business has to be encompassed within the definition of “premises” as determined to be used in Section 301(c)(1) of the Pennsylvania Workers’ Compensation Act.”
The Court noted with approval the analysis in Fashion Hosiery Shops v. WCAB, 423 A.2d 792 (Pa. Cmwlth., 1980), where a Claimant sustained injury while approaching an entrance to her workplace. That Employer had three separate points of entry and indicated no preference to which point an employee should utilize. That Employer did not own, lease or control the walkway upon which that Claimant fell. The fact that the Employer inFashion Hosiery Shops did not require any particular point of entry to be utilized, was not found to be significant in the course determination of the premises issue there. The Court observed that in that case ofFashion Hoisery Shops, supra.:
“Given the relational nature of the area in question to the Employer’s place of business, it must be concluded that the Claimant was injured on an entranceway that was available and intended for use; and as such, a constituted part of the Employer’s premises, regardless of it not being owned or controlled by the Employer. Nor does the availability of alternative entrances nullify that conclusion. Each of the three available and intended ways of ingress to Fashion’s shop was a part of Fashion’s “premises” for purposes of Section 301(c) of the Workers’ Compensation Act.”
Turning to the instant case involving Ms. Bockelman, the Commonwealth Court of Pennsylvania observed that Ms. Bockelman used the airport parking lot and shuttle bus to enter and exit the workplace. She used her vehicle as her means of transportation to work and the airport provided employees who work at the airport, which included Ms. Bockelman, no cost parking in employee parking lots designated by the airport. Ms. Bockelman rode the shuttle bus in order to get to her workplace. The Employer, US Airways, knew that as to employees who drove to work, they would need to board the shuttle bus after commuting to the airport and the same for the return trip. “Accordingly, the shuttle bus is such an integral part of Employer’s business and has to be part of the premises, in addition to being a customary means of ingress and egress, and the WCJ correctly concluded as such.”
The Commonwealth Court of Pennsylvania then turned to the next prong of theSlaugenhaupt test, that is whether the nature of Claimant’s employment required her to be on Employer’s premises where she was injured. The Employer argued that the Claimant’s presence on the shuttle bus was not required, as Employer gave no directive on where to park and hence did not require the Claimant to board the shuttle bus.
The Court noted the case of ICT Group v. WCAB (Churchray-Woytunick), 995 A.2d 927 (Pa. Cmwlth., 2010), where a Claimant who slipped on ice on the Employer’s premises while leaving for her lunch break was found to be in the course of employment, the Court pledged no significance on the fact that the Claimant inICT Group independently decided to leave the building during her lunch break, since the Claimant’s presence was required by the nature of her employment.
Injuries that occurred reasonably proximate to work hours are compensable, as justified by the observation that once an employee is on the Employer’s premises, actually getting to or leaving the Employer’s work station is a necessary part of an employee’s employment. Reasonable time is a concept discussed in the case ofHeverly v. WCAB (Ship N’ Shore), 578 A.2d 575 (Pa. Cmwlth., 1990), where the Claimant returned to work after initially leaving because she wanted to retrieve her eyeglasses.
The Commonwealth Court of Pennsylvania concluded that in this case, the Claimant’s presence on the shuttle bus was a necessary part of her employment, because it was the means by which he traversed between her work station, which was a terminal, and the parking lot designated for airport employees. The Court considered the Claimant’s presence on the shuttle bus “so connected to her employment relationship” that it was required by the nature of that relationship.
This Opinion of the Commonwealth Court illustrates the complexity of parking lot cases that can turn on a nuance. These cases are highly fact sensitive and suggest that exposures can be somewhat mitigated by advance planning regarding directives to employees as to commuting and the lack of such directives.
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On February 23, 2018 the Alabama Court of Civil Appeals released its opinion inEx Parte Alabama Gas Corporation denying Alagasco’s Petition for Writ of Mandamus wherein it sought relief from a particularly restrictive HIPAA Order entered by the trial court. It is quite a common occurrence for judges in workers’ compensation cases to enter a "HIPAA Order". The purpose of such an order is to ensure compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), while still allowing parties to obtain protected health information relevant to the case. However, in the underlying case of Robert Smitherman v Alabama Gas Corporation, the trial court entered a HIPAA order that was a departure from the "standard" order typically entered. That order provided, among other things, that the parties and their attorneys were only allowed to obtain protected health information (namely medical records and bills) after issuing a subpoena to obtain them. It also limited the parties’ ability to obtain records pertaining to "personal injury", and prohibited any medical care provider from disclosing any protected health information other than that which directly pertained to the alleged work-related injury. The order further expressly prohibited Alagasco’s attorneys from engaging in anyex parte discussions, conferences, interviews, and/or telephonic or email communications with any of the plaintiff’s healthcare providers without first providing notice to the plaintiff’s attorney.
Alagasco filed a Motion to Amend the HIPAA order, asserting that it prohibited certain methods of discovery that are allowed in workers’ compensation cases. The trial court set Alagasco’s Motion to Amend for hearing on December 20, 2017. However, two days prior to that, Alagasco filed a Petition for Writ of Mandamus with the Alabama Court of Civil Appeals, and also filed a Motion to Stay proceedings at the trial court level, pending the Court of Appeals’ resolution of its mandamus petition. At the December 20, 2017 hearing, the trial court denied Alagasco’s Motion to Stay. However, the judge stated "I think the HIPAA Order, to some degree, is due to be amended...there may be some revision that I acknowledge needs to be made".
Alagasco argued to the Court of Appeals that the HIPAA Order prohibits any meaningful opportunity on the part of Alagasco to make timely determinations of reasonableness, necessity, and relatedness of recommended medical treatment. It also argued that the order precludes any opportunity to ensure that the plaintiff is complaint with reasonable requests to submit to medical treatment as provided in the Act. However, the Court of Appeals denied Alagasco’s petition without ruling on the merits of Alagasco’s arguments. The Court of Appeals held that Alagasco failed to demonstrate that the trial court clearly exceeded its discretion, or that Alagasco lacked another adequate remedy by appeal. Judge Terry Moore wrote a concurring opinion, stating that while he agreed that the Petition for Writ of Mandamus was due to be denied, it was primarily because the trial court had not explicitly refused to act on Alagasco’s Motion to Amend the HIPAA Order.
MY TWO CENTS
Mandamus is an "extraordinary remedy", and is only available when the trial court clearly exceeds its discretion or refuses to act when it is required to do so, and there is no other remedy available. In this case, Alagasco’s Petition for Writ may have been a little premature, since the trial judge indicated that he was considering amending the order. While the Court of Appeals declined to decide the issue on the merits, Alabama is clear how the Courtshould have decided it if the Petition for Writ had been proper. The trial court has broad, but not unfettered, discretion in discovery matters. § 25-5-81(f) of the Alabama Workers’ Compensation Act provides that the same discovery rules apply to workers’ compensation cases as apply to other civil cases, with a few minor limitations aimed at reducing costs. The Supreme Court has previously held that a defendant has a right to contact, and even haveex parte communications with, a plaintiff’s treating physicians. See, Romine v. Medicenters of America, Inc.,476 So. 2d 51 (Ala. 1985). In Romine, the Court held that "No party to litigation has anything resembling a proprietary right to any witness's evidence...Unless impeded by privilege, an adversary may inquire, in advance of trial, by any lawful manner to learn what any witness knows if other appropriate conditions the witness alone may impose are satisfied...". Id. The Supreme Court has also held that a case manager has the right to contact a medical provider by telephone to obtain reasonably necessary information, allowing the employer to fulfill its statutory obligation to provide and oversee the employee’s medical care.Ex Parte Smitherman Bros. Trucking Inc., 751 So. 2d 1232 (Ala. 1999).
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.