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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

October 2017 – December 2017

Injury Not Compensable Because Claimant Made Multiple Inconsistent Statements of How and When Injury Occurred and Failed to Establish Injury Was Caused by a Compensable Accident

Saine vs. Pepsi Beverages Company, Injury No. 15-069886

The claimant alleged he sustained an injury to his neck and right arm while driving a tractor trailer in August 2015.  His first Claim for Compensation alleged an injury to his right shoulder and arm that occurred on August 31, 2015.  He subsequently amended the claim three times to allege injury to his neck, changed the date of injury to August 25, 2015, and then changed the date of injury back to August 31, 2015.  The claimant testified at a Hearing that the injury actually occurred on August 15, 2015. 

The claimant also made inconsistent statements regarding how the injury occurred.  He told a nurse at work that his right shoulder pain was caused by tight steering in his work truck.  He went on his own on September 10, 2015 to the hospital and reported right shoulder pain following a lifting injury.  On May 3, 2016, he reported to Dr. Rutz that he sustained an injury by repeatedly backing into loading docks and twisting his body when unloading products off of his truck and then his symptoms became irritated when a car cut in front of him and he tried to avoid the collision.

At a Hearing, the ALJ found that the claimant failed to establish that his complaints were a result of an injury that he sustained as a result of an accident arising out of and in the course of his employment.  The Judge noted that an accident is an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by aspecific event during a single work shift.  The ALJ noted that the claimant made multiple inconsistent statements regarding how and when the injury occurred and there was no relevant objective evidence of an issue with his work truck.  Also, the employer’s experts testified that none of the three possible versions given by the claimant of how his injury occurred would have caused his injury.  Therefore, the ALJ found there was no single identifiable traumatic event or unusual strain that occurred during single work shift, and the claimant failed to show that his injury was caused by a compensable accident.  On appeal, the Commission affirmed the ALJ’s decision and Award denying benefits. 

Appeal Transferred to Missouri Supreme Court to Determine Whether Applying Mesothelioma Statute to Claim with Last Exposure in 1990 Violates Missouri Constitution

E.J. Cody Company, Inc. vs. Casey, Case No. WD80470 consolidated with WD80481 and WD80525 (Mo. App. 2017)

FACTS:  The claimant worked as a flooring installer applying vinyl asbestos tile from 1984 until April 1990, when he retired.  He was diagnosed with mesothelioma on October 14, 2014 and died from the same on October 11, 2015.  His diagnosis and the fact that mesothelioma was the prevailing cause of the claimant’s death was not at issue.  The insurer provided the employer with workers’ compensation insurance with a mesothelioma endorsement, which was in effect as of the date the claimant was diagnosed with mesothelioma. 

At a Hearing, the insurer argued that it was not responsible for paying benefits because the claimant was exposed to asbestos prior to the beginning of its insurance coverage and the responsible party was the insurer in 1990.  However, the ALJ found that under the statute dealing with mesothelioma benefits, the date of diagnosis determines what insurer is liable for benefits under the statute, and reasoned that the provision in the insurance policy stating that the exposure must occur during the policy period is essentially voided by the endorsement, which provided coverage for mesothelioma benefits.  On Appeal, the Commission modified the Award but ultimately agreed that the insurer was responsible for paying benefits. The Commission agreed with the ALJ that the insurer’s mesothelioma endorsement applied to this claim because the date of diagnosis was after the amendments, which went into effect on January 1, 2014, and the claimant was diagnosed with mesothelioma during the insurer’s policy.

On Appeal, both the insurer and employer argued that application of the new mesothelioma statute to the present case violated the Missouri Constitution’s prohibition against retrospective laws because the employee’s last exposure to the hazard predated the statute’s effective date of January 1, 2014. 

HOLDING:  The Missouri Court of Appeals held that the Missouri Supreme Court had exclusive jurisdiction over this appeal in light of the constitutional issues raised, and it transferred the appeal to the Missouri Supreme Court. 

Boatright is the Employer Because He Had Authority to Hire/Fire, Assign Driving Routes, and Determine Payment, and FFE is a For Hire Motor Carrier

Parr vs. Bobby Boatright and Frozen Food Express a/k/a FFE Transportation Services, Inc., Injury No. 08-124297

Boatright was a sole proprietor who owned trucks that he leased to FFE to transport frozen or refrigerated food between Chicago and Dallas.  The contract provided that Boatright would supply drivers at his own expense who met requirements imposed by FFE’s liability insurance carrier and Federal Law.  Boatright did the hiring and firing and paid the drivers.  FFE did not control the routes the drivers took to deliver or pick up loads, did not determine which driver was assigned to the route, and did not control the amount or frequency of payment to any driver.  On February 16, 2008, the claimant was driving his assigned route as an OTR truck driver when he was involved in a motor vehicle accident in Missouri.

At the Hearing, the issue was the claimant’s employer.  The ALJ found that Boatright was the employer, not FFE, and noted that Boatright had the right to hire and fire, determine the amount and frequency of payment, assign routes, provide the trucks and maintain the same.  Additionally, because FFE was a for-hire motor carrier operating within a commercial zone, it was not a statutory employer of claimant under workers’ compensation law.  With respect to permanency, the ALJ did not find Boatright responsible for the same because the claimant did not hit his head or lose consciousness in the accident and did not seek treatment for three weeks after the accident, the damage to the vehicle was minimal, and there was no evidence suggesting that the work accident was the prevailing factor in causing any medical condition related to his current complaints.  The ALJ denied payment of PTD, TTD, PPD, or future medical.  On Appeal, the Commission affirmed the ALJ’s Decision and Award.

Editor’s Note: At the Hearing, the ALJ also found that under strict construction, 287.210.3 and 287.210.7 only apply to physician testimony.  Therefore, certified treatment records that are not offered as a substitute for an expert’s testimony would still be admissible, even if not provided to all parties at least seven days in advance of a Hearing.

Court Affirms Commission’s Decision and Award Finding that Claimant’s Work Conditions Were Not the Prevailing Cause of His Heart Attack and Death

White vs. ConAgra Packaged Foods LLC, Case No. SC96041 (Mo. Sup. Ct. 2017)

FACTS:  The claimant worked as a machinist before he died on June 30, 2012 while at work.  His autopsy showed severe coronary artery disease, and his death certificate listed his cause of death as acute myocardial infarction and heart failure.  His surviving spouse filed for death benefits under workers’ compensation.  Testimony established that the claimant operated a lathe in a machine shop on the day of his death and the weather was extremely hot.  Dr. Schuman testified on behalf of the surviving spouse and opined that the claimant’s work was the prevailing factor in causing his death because the extreme heat combined with the claimant’s physically demanding work duties and leg brace placed added stress on his already strained heart.  Dr. Farrar testified on behalf of the employer that the claimant’s death was caused by his coronary artery disease and other heart conditions and was not related to his work activities.

At a Hearing, the ALJ found that the claimant’s surviving spouse failed to sustain her burden of proof that the claimant sustained an accident or occupational disease, and the claim was therefore not compensable.  On Appeal, the Commission affirmed the ALJ’s Award with a supplemental opinion.  The Commission found that the claimant did suffer an accident because his death at work was an unexpected traumatic event.  However, the Commission found there was no persuasive expert testimony on the issue of medical causation and ruled that the claimant’s work was not the prevailing factor in causing his heart attack or death.

HOLDING:  The claimant’s surviving spouse appealed.  The Court first held that the claimant suffered an accident, which was the unusual strain placed on him due to the extraordinary heat, and this accident resulted in an injury, which was his death.  The Court held that the next step was to determine whether the unusual strain was theprevailing factor in causing the claimant’s heart attack and death.  The Court held that the Commission properly applied the prevailing factor standard, deferred to the Commission’s findings of fact with respect to the persuasiveness of expert medical testimony, and affirmed the Commission’s decision and Award.

Employer Responsible for Unauthorized Treatment Claimant Underwent During the Four Weeks Between the Date She Filed a Claim Demanding Additional Treatment and the Date She Was Evaluated by Employer’s Doctor

Boykins-Walls vs. Normandy School District, Injury No. 13-098181

The claimant, a substitute teacher, sustained an injury to her bilateral knees on December 6, 2013, when she slipped and fell on ice while walking between buildings.  She treated conservatively for contusions and underwent physical therapy and was released from care on December 26, 2013.  She proceeded to treat on her own with Dr. Droege and then filed a Claim for Compensation demanding additional treatment on January 15, 2014.  The employer directed her to Dr. Milne, and she was seen on February 10, 2014, just four weeks later.  She was placed at MMI on April 1, 2014. 

At a Hearing, the ALJ found that although the claimant sustained an accident, she did not sustain any permanent disability from the same.  The ALJ denied all benefits.

On appeal, the Commission modified the ALJ’s Award and decision with respect to unpaid past medical expenses.  The Commission found that the claimant was not entitled to reimbursement for medical bills for any treatment she received after the employer directed her to Dr. Milne for additional treatment.  However, the Commission did award past medical expenses for the treatment she underwent between the time she filed her Claim on January 15, 2014 and when she was seen by Dr. Milne on February 10, 2014.  The Commission reasoned that the employer was notified of the claimant’s need for additional medical treatment when she filed a Claim demanding the same.  It also reasoned that the treatment provided by Dr. Droege during that period was reasonable and necessary and was consistent with the type of treatment that both of the authorized treating physicians recommended and ultimately provided.  Therefore, the claimant was entitled to compensation in the amount of $783.00, referable to past medical expenses.  Notably, the Commission opined that brief delays in scheduling appointments, other than in emergency situations, do not render an employer/insurer liable for unauthorized care. 

Editor’s Note:  Therefore, it appears the Commission is suggesting that four weeks was too long to wait to schedule the claimant for a follow up evaluation.

Employer Liable for PTD Because Claimant Was Sleep Deprived Due to Pain and Had to Nap Several Times Per Day, Despite Fact that He Slept At Least Eight Hours Per Night and Did Not Take Any Medications to Attempt to Alleviate His Sleep Issues

Wann vs. The Lawrence Group, Injury No. 12-090608

The claimant, a 59-year-old carpenter and high school graduate, developed bilateral upper extremity pain, numbness, and tingling in November 2012.  He underwent an arthroscopic surgery on the right shoulder on July 22, 2013, which was performed by Dr. Ritchie, who placed him at MMI, issued permanent lifting restrictions, and assessed 20% PPD of the right shoulder.  The claimant never returned to work after surgery.  Two years later, the employer directed the claimant back to Dr. Ritchie, who also diagnosed work-related chronic left shoulder impingement and probable labral pathology, bilateral carpal tunnel syndrome, and left elbow mild ulnar nerve neuropathy and opined the claimant would require carpal tunnel releases in the future.

The claimant was evaluated by Dr. Volarich, who noted that he awakened several times per night due to shoulder pain, although he was not taking any pain medications to alleviate the same, and the doctor recommended a vocational evaluation and opined that if the claimant were PTD, it was due to the primary injury alone.  The claimant’s vocational expert, Mr. England, opined that he was PTD as a result of his primary injury alone.  He noted that if claimant got an adequate full night’s sleep, he would be a candidate for some jobs, but he noted the claimant has sleep disturbance and takes no medication to help him sleep.  The employer’s vocational expert, Ms. Abrams, opined the claimant was able to work in the open labor market, but she admitted that if he did have to take several naps during the day, he may not be able to find and maintain a job.

At a Hearing, the claimant testified that he had sleep difficulties, although he slept over eight hours per night.  He testified that he takes Ibuprofen a few times per month but no other pain medication.  He had not worked since January 2013 and had not looked for other employment besides one position at a family member’s company.  The ALJ awarded PPD at the level of the bilateral shoulders and wrists but found that the claimant was not PTD.  The ALJ noted that although he was not able to return to his former job as a carpenter, he had no ambulation problems, no need for narcotic pain medication, and was able to perform self-care.  Although he had sleep deficits, he was making no attempt to alleviate the same, and his sleep issues were not noted in his treatment records, only in the expert reports.  The ALJ also noted that the claimant was articulate and had transferable skills and no memory problems.

On appeal, the Commission opined it was plausible that someone with bilateral shoulder injuries may have difficulty sleeping comfortably, and this was noted in Dr. Volarich’s report.  It found Dr. Volarich’s opinion most persuasive and disagreed with the ALJ regarding the claimant’s credibility in light of the opinions of Dr. Volarich and Mr. England.  The Commission held that the claimant’s sleep difficulties rendered him PTD as a result of his primary injury alone and found the employer responsible for PTD and future medical.

Editor’s Note:  It does not appear that the Commission addressed the ALJ’s rationale that the claimant made no efforts to alleviate his sleep issues.

Employer Responsible for PTD After Claimant Sustained Multiple Fractures to Bilateral Lower Extremities After Falling 25 feet, Which Required Him to Spontaneously Recline Throughout the Day and Caused Sleep and Concentration Difficulties

Sanchez-Rivera vs. Jorge Calderon Construction and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 10-059076

The claimant, a 34-year-old construction worker, was working for employer on July 16, 2010, at which time he fell 25 feet from a ladder.  Dr. Horton performed an ORIF of the bilateral tibial fractures on August 9, 2010 and two subsequent surgeries.  The claimant’s lumbar injuries were treated non-operatively.  He was placed at MMI on August 18, 2011 but was restricted to seated work only.  The claimant continues to undergo regular pain management.  He did not return to work after his accident.  He testified that he has to lie down throughout the day due to his pain and is unable to support his weight on his feet, sleep overnight, or concentrate due to his lack of sleep.  He also now uses a cane. 

At a Hearing, the claimant testified that he completed the seventh grade in Mexico and never returned to school, and he understands and speaks only a little English.  He did not have a driver’s license or any computer or typing skills.

The claimant was evaluated by Dr. Koprivica, who opined he was PTD as a result of his last injury alone. He recommended permanent restrictions of no working on uneven surfaces, climbing activities, standing and walking for less than 20 minutes only, sitting when necessary, and the ability to change positions frequently when needed.  Mr. Dreiling, a vocational rehabilitation specialist, evaluated the claimant at the claimant’s attorney’s request, and he opined the claimant was not a candidate for any type of formal academic or vocational retraining because English was his second language and he did not have a high school degree or GED and no transferable job skills.  He also opined that he would find the claimant PTD as a result of his last injury alone due to his need to spontaneously lie down throughout the day, even if his primary language was English.

At a Hearing, the ALJ found that the claimant was PTD because he testified credibly regarding his need to lie down throughout the day, his use of narcotic pain medication, and his lack of concentration and sleep. On appeal, the Commission affirmed the ALJ’s decision and Award.

Fund Liable for PTD Because Prior Low Back Injury Caused Primary Low Back Injury to be More Severe Than Otherwise Would Have Been

Branham vs. Schrimpf Landscaping, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury Number 06-077118

The claimant, a man of unspecified age with a GED, was working for the employer driving a tanker truck and operating a seed sprayer when he sustained an injury to his low back on July 17, 2006.  He underwent surgery to repair an annular tear on May 10, 2007.  He subsequently underwent two additional low back surgeries, including a three-level fusion on January 24, 2011 as well as a surgery to remove bone graft material from the stomach wall on February 1, 2012.  The claimant has not worked since 2010. 

The claimant previously sustained a low back injury in 2000 while working for a roofing company, after which he underwent surgery at L5-S1 and resolved his claim for 16.1% PPD of the body referable to the low back.  He was unable to continue working as a roofer following his injury due to lifting limits and ongoing back and leg pain. 

Dr. Volarich evaluated the claimant and opined that his prior low back injury was a hindrance to his employment and he was more disabled as a result of a combination of his two injuries because his lumbar spine was weakened after the first injury, which caused his 2006 injury to be more severe than it otherwise would have been.  Dr. Volarich opined the claimant was PTD as a result of a combination of his 2000 and 2006 injuries.  Vocational experts Mr. Weimholt and Mr. Cordray agreed that the claimant was unemployable as a result of a combination of both low back injuries.  Mr. Hughes was the only rehabilitation counselor to opine that the claimant was able to continue working, although he noted that if the claimant were found PTD it would be as a result of both of his low back injuries.

At a hearing, the ALJ found the employer responsible for 45% PPD of the body referable to the low back as a result of the 2006 work injury as well as future medical.  The ALJ also found the claimant was PTD as a result of a combination of both his low back injuries.  On Appeal, the Commission affirmed the ALJ’s decision and Award with respect to permanency and future medical, but they modified the Award with respect to the claimant’s TTD and PTD rate.

Sanderson vs. Dolgen Corp., Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 09-108286

The claimant, a 65-year-old warehouse worker, sustained an injury to his back on October 27, 2009 while working for the employer.  He treated on his own and underwent physical therapy and an injection. 

The claimant sustained a prior low back injury in 1998, which was settled for 11% PPD of the body referable to the lumbar spine.  Dr. Levy evaluated the claimant and opined that he had 30% PPD to the body in 1998.  It is not clear whether the claimant underwent surgery for the 1998 injury, but he testified he was forced to leave his job in security because he could no longer perform the physically demanding job duties.  He also testified that he was unable to return to work for two years and continued to have intermittent low back pain leading up to his primary injury.

The claimant was evaluated by Dr. Volarich, who testified that he sustained 35% PPD to the body as a result of his primary injury and was PTD as a result of a combination of his 1998 and 2009 back injuries.  Vocational experts Mr. Weimholt and Mr. Cordray agreed with Dr. Volarich.  Mr. England testified on behalf of the Fund and opined that he was employable, although he agreed that the 1998 injury was a hindrance to his employment.

At a hearing, the ALJ found the claimant PTD as a result of a combination of his pre-existing low back injury and his primary injury and ordered the Fund to pay PTD benefits.  The ALJ also found the employer responsible for 20% PPD of the body, past medical expenses, and future medical care.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Fund Not Liable for PTD Benefits Because Claimant PTD As a Result of Her Pre-Existing, Non-Work-Related Low Back Condition Considered Alone

Glasco vs. Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD80186 (Mo. App. 2017)

FACTS:  On April 27, 2011, the claimant fell at work and injured her left knee and was diagnosed with a strain.  She treated with the employer’s doctors and ultimately resolved her claim against the employer for 15% PPD of the knee. 

The claimant had a significant pre-existing and non-work-related condition in her low back, for which she treated with Dr. Drisko.  She underwent multiple back surgeries prior to 2008 and then a fusion.  She was diagnosed with failed back syndrome and was referred to a pain specialist and psychiatrist.  She was subsequently diagnosed with “Transition Syndrome” after she developed stenosis over the site of her prior surgery.  She underwent additional injections.  Dr. Drisko took her off work in May 2010 for her low back condition, and she did not return to work until April 12, 2011, at which time she returned to work with restrictions.  She then only worked two weeks for the employer prior to sustaining her primary injury.

The claimant filed against the Fund for PTD benefits.  Dr. Zimmerman, the claimant’s expert, opined she was PTD as a result of a combination of her primary injury and pre-existing conditions.  However, he did not review all of the claimant’s prior medical records and did not have a complete history of her prior treatment and disability.  Mr. Dreiling also testified on behalf of the claimant, and on cross-examination, he admitted that even assuming that her left knee was fine, she would be virtually unemployable due to her back condition.  Dr. Drisko testified that she was PTD due to her progressive back problems alone.

At a Hearing, the ALJ found the Fund liable for PTD based on the combination of the claimant’s primary injury and pre-existing disabilities.  On Appeal, the Commission reversed and found that the Fund was not liable because the claimant was PTD as a result of her pre-existing low back condition, considered alone.

HOLDING:  The claimant appealed to the Court, which affirmed the Commission’s Award and Decision to deny benefits against the Fund.  It held that questions of employability and when a claimant becomes permanently and totally disabled are issues of fact within the province of the Commission, and it deferred to the Commission’s factual findings in this case.

Fund Liable for PTD Because Claimant Unemployable Due to Primary Injury Combined with Pre-Existing Right Leg Injury, Anxiety/Depression, and Need to Lie Down Throughout Day

Johnson vs. Direct TV Home Services and Treasurer of Missouri As Custodian of Second Injury Fund, Injury No. 12-100647

The claimant, a 48-year-old satellite technician, did not graduate high school or obtain a GED.  On December 19, 2012, he fell in a customer’s yard and sustained injuries to his right foot, right buttock, and low back.  He underwent injections, and Dr. Rahman ultimately performed a microdiscectomy at L5-S1.  He was released from treatment on December 17, 2013.

The claimant had pre-existing injuries.  When he was two years old, he severed the muscles in his right leg below his buttocks, which required surgery.  However, a nerve was nicked and resulted in paralysis of the right leg, which necessitated multiple additional surgeries and additional medical treatment over the next 10-12 years.  Due to this condition, he developed anxiety and began taking Xanax when he was 35.  His right leg never regained full function and mobility and he could not rotate his right ankle.  His pre-existing conditions affected his employment prior to 2012.  He was fired from a construction job because he was unable to climb on a roof without decking.  He also had to stand on cardboard or mats while working as a welder, worked slower, and took more breaks as a result of his pre-existing injuries.  He was not able to continue working as a truck driver after he began taking anti-anxiety medications.  He also had difficulty keeping his right foot on the gas pedal for extended periods of time due to his right leg and foot injury.  Even while working for the employer, he had trouble climbing on roofs and balancing on ladder rungs prior to his 2012 accident. 

The claimant’s attorney had him evaluated by Dr. Paul, who recommended permanent work restrictions, including no significant climbing, balancing, stooping, bending, kneeling, crouching, or crawling and that the claimant be able to lie down during the day.  He opined the claimant was PTD as a result of his work accident in combination with his pre-existing conditions.  Mr. Eldred, a vocational rehabilitation specialist, also opined that he was unemployable as a result of his work accident and pre-existing conditions.  He believed that the claimant’s need to lie down during the day would negate employment. 

At a Hearing, the ALJ found the clamant to be PTD as a result of his work accident in combination with his pre-existing disabilities and ordered the Fund to pay PTD.  The ALJ noted prior accommodations and limitations the claimant had as a result of his pre-existing disabilities for his 2012 work accident and also found the testimony of Dr. Paul and Mr. Eldred to be persuasive on the question of PTD.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Commission Decision Finding Fund Liable for PTD Benefits Supported by the Record Because Claimant’s Expert Testified He Was PTD and Employer’s Expert Testified He Had a Pre-Existing Disability

Barnes vs. Treasurer of Missouri as Custodian of Second Injury Fund and Park Express LLC, Case No. ED105508 (Mo. App. 2017)

FACTS:  The claimant worked for the employer, an airport parking and shuttle company, and on November 11, 2009, while changing a tire on his shuttle bus, he sustained an injury to his lower back.  He underwent injections and physical therapy and was released from care by Dr. Doll without restrictions.  The claimant subsequently treated on his own with Dr. Wilkey, who performed a two-level lumbar fusion at L4-5 and L5-S1.  He recommended permanent restrictions that included taking a break to recline for 15 minutes every two hours, ongoing narcotic pain medication, and possibly missing work up to twice a month.  The claimant had not returned to work since his 2011 surgery and was terminated by the employer when he was unable to return to work full duty.

The claimant suffered a prior low back injury in May 2000 and underwent surgery at L5-S1 in September 2000, including a right-sided laminectomy and discectomy.  He returned to work without permanent restrictions and settled that claim for 25% of the body referable to the lower back.

The claimant’s experts, Dr. Wilkey and Mr. Kaver, testified that the claimant was unemployable and PTD as a result of his 2009 work injury alone.  The employer’s expert, Dr. Lange, assessed 15% PPD of the body due to the 2009 injury and 25% PPD of the body from his prior injury in 2000.  Dr. Lange concluded that the claimant’s 2009 work accident was not the prevailing factor in causing his disability at L5-S1.  Rather, his prior injury in 2000 was the prevailing factor in causing his disability.

At a Hearing, the ALJ found the claimant PTD as a result of his last work injury alone.  On Appeal, the Commission modified the Award and found the Fund liable for PTD benefits as the claimant was PTD as a result of his last work injury in combination with his pre-existing low back injury.

HOLDING:  The Fund appealed and argued that the Commission substituted its own determination of medical causation, which was unsupported by medical expert testimony because there was no single medical expert that testified that the claimant was PTD as a result of a combination of primary injury and pre-existing disabilities.  The Court found that the Commission’s decision was supported by the record because the claimant’s experts testified that the claimant was permanently and totally disabled, and the employer’s expert testified that there was pre-existing permanent disability to the claimant’s low back.  It held that there is no requirement that a single expert’s testimony wholly support the Commission’s determinations of both causation and the nature and extent of disability.  The Court deferred to the Commission’s factual findings and affirmed the Commission’s decision and Award.

Claimant Not Entitled to Enhanced Benefits Under 287.200.4(3), Because Employer Went Out of Business More Than Fifteen Years Prior to When the Statute Became Effective on January 1, 2014 and Could Not Have Elected to Accept Mesothelioma Liability

Hegger (Deceased) vs. Valley Farm Dairy Co., Injury No. 14-103079

The claimant worked for the employer from 1968 until 1984, during which time he was exposed to asbestos.  The employer went out of business in 1998.  The claimant worked for subsequent employers, but he credibly testified he was not exposed to asbestos during that employment.  The claimant was diagnosed with mesothelioma in 2014 and died as a result on June 7, 2015.

At a Hearing, the ALJ addressed the sole issue of enhanced benefits under Section 287.200.4(3).  The ALJ found that the claimant was last exposed to asbestos while working for the employer, and his exposure was the prevailing factor for his diagnosis of mesothelioma which resulted in his death.  However, neither of the insurers who insured the employer during the claimant’s dates of employment were liable for paying enhanced benefits because the enhanced benefits provision did not go into effect until January 1, 2014.  The employer could not possibly have elected to be held liable for the same, because it went out of business in 1998.  Also, insuring its liability for occupational diseases in 1984 did not qualify as electing to be liable for enhanced benefits, which are separate and in addition to benefits otherwise payable for an occupational disease.  Therefore, the claimant was not entitled to enhanced benefits.  On Appeal, the Commission affirmed and adopted the ALJ’s decision and Award.

By: Jeffrey D. Snyder  Valenta v. WCAB (Abington Manor Nursing Home and Rehab and Liberty Insurance Company), 1302 C.D. 2016 – Filed December 7, 2017, Pennsylvania Commonwealth Court

            In this case of first impression, the Commonwealth Court affirmed the Decision of a Workers’ Compensation Judge which modified benefits based on an Earning Capacity Assessment.

            The work injury in question was sustained on October 2, 2010 in the nature of aggravation of a pre-existing calcific tendonitis with chronic tendopathy of the left shoulder, disc herniations at C5-6 and C6-7 with radiculopathy, a left trapezius strain, left medial scapula strain, and a left posterior shoulder strain. 

           The noted Earning Capacity Assessment identified six jobs and via the Assessment provided notice of those jobs to the claimant/attorney. The Court described the jobs in some detail, noting that per the Claimant, she attempted to apply for all six (6) positions but was not offered any of them.  The claimant took issue as well regarding the suitability of the jobs – there was expert medical and expert vocational testimony on both sides.

         The Workers’ Compensation Judge made credibility determinations that accepted the testimony of the defense medical expert as well as that of the defense vocational expert.  The Claimant appealed to the Workers’ Compensation Appeal Board, arguing that the six (6) jobs should not be considered actually open and available if the Claimant tried to apply for them and was unsuccessful in receiving a job offer.  The Appeal Board rejected that argument, pursuant toPhoenixville Hospital v. WCAB (Shoap), 81 A.3d 830 (Pa., 2013) which essentially requires that identified jobs be open and available at the time of the issuance of an Earning Capacity Assessment.  The Claimant argued on Appeal to the Commonwealth Court that the jobs were not actually open to her, the Claimant, when she applied for the jobs and therefore the Workers’ Compensation Judge should not have used the standard set-forth in Phoenixville Hospital.

            The Commonwealth Court considered this  a case of first impression regarding the rights of Claimants and Employers under §306(b) of the Act after the Pennsylvania Supreme Court’s Decision inPhoenixville Hospital.  The Claimant was argued that if she applied for a position listed on the Earning Capacity Assessment but did not get the job, the Employer had not proven earning capacity and so modification must be denied.  The Employer argued that a Claimant’s testimony that she applied unsuccessfully to the position is relevant but not dispositive, that is that the Workers’ Compensation Judge could accept evidence of the Claimant’s unsuccessful application but was not bound by such evidence to reject the earning capacity found in the Earning Capacity Assessment. 

            The Commonwealth Court noted that §306(b) of the Act does not require that the Claimant be offered a job, merely that the Employer prove the existence of meaningful employment opportunities and not a simple identification of jobs found in want ads or employment listings.  The Court viewed this matter as one of credibility, not sufficiency of the evidence.  The Court noted that one possible exception to the credibility process might be such where a job was filled before notice of it was given to a Claimant via an Earning Capacity Assessment - in that case it would not “exist”.  In other words, the jobs must be open and available at the time of the issuance of the Labor Market Survey/Earning Capacity Assessment to the Claimant/counsel: “We reject Claimant’s argument that the mere presentation of evidence of unsuccessful application to jobs listed in a LMS/EPA mandated a finding that the positions were not open and available and that she lacked any earning capacity.  Rather, as our Supreme Court stated inPhoenixville Hospital, such evidence from Claimant was ‘relevant’ but not ‘dispositive’ with regard to the earning power inquiry, 81 A.3^rd at 846.” 

            The take away from this case of  “first impression” is that the Claimant’s application and failure to secure employment relative to jobs identified in the Earning Capacity Assessment is simply one facet of multi-faceted litigation that includes broad discretion as to findings of credibility in Earning Capacity Assessment cases.

The first decision of 2018 involves a permanent total disability claim heard by Judge Thronson. This is the first decision we have seen from Judge Thronson following a hearing. There were a number of issues presented at hearing and the Department found in Claimant’s favor on all of them.

The first issue was whether the work injury was a major contributing cause of Claimant’s condition. Frankly, this part of the opinion is difficult to understand. The opinion starts by stating the Insurer argued that Claimant could not prove that the accident, and not some other unrelated medical condition, was responsible for her condition. There is then some discussion of cervical stenosis and the Department of Labor states the injury need only be a major contributing cause, not the major contributing cause. Despite that, the Department then states that Dr. Cederberg, the IME doctor, provided the medical opinion that the work injury was a major contributing cause to the disability. If the IME doctor relates the injury to work, it is not at all clear why it would have been an issue at hearing. Regardless, the Department found the injury was a major contributing cause of the condition complained of.

The next question was whether Claimant was permanently and totally disabled. Claimant had a $691.00 per week comp rate. She was 61 years old with a high school diploma, and her vocational expert, Tom Audet, testified she would be unable to work within her restrictions and make at least her workers’ compensation rate. The Employer and Insurer did not have their own expert at the hearing. The Department of Labor accepted Audet’s testimony that Claimant was in the odd-lot category. The most interesting part of this opinion was in the Department’s analysis of whether Claimant conducted a good faith job search. Claimant looked for 26 jobs between December of 2014 and May of 2015. It appears she did not make any other job search and the hearing was in August of 2017. If that is correct, Claimant would have gone more than two (2) years without looking for work. The Department held that “no case law in South Dakota specifies that a job search need be made in any particular timeframe.” What constitutes a reasonable job search depends on the facts, but it’s curious that the Department of Labor found the job search to be reasonable as it focused only on the 26 job contacts over a five-month period and did not make any mention that Claimant failed to look for work for more than two (2) years, or attempt to address why the Department was not concerned with this seemingly relevant fact. The Employer and Insurer’s lack of an expert may have been the determining factor here as there was no evidence that a job search would have made a difference.

The final claim was that Claimant refused medical care, and thus, aggravated her condition. Claimant was prescribed a second round of physical therapy but did not proceed forward with it. The IME doctor indicated the failure to complete the second round of physical therapy aggravated Claimant’s shoulder. The Department of Labor stated the evidence was insufficient to establish that the physical therapy would have helped Claimant’s condition as the first round of physical therapy did not provide much benefit. Moreover, the Department of Labor did not find Claimant at fault for failing to attend physical therapy as Claimant had difficulties in obtaining authorization from the Insurer on getting therapy. The Department stated, “Claimant cannot be penalized for failing to attend physical therapy sessions which are not available to her.”

If you have questions regarding this decision or any other South Dakota questions, please contact the Boyce Law Firm at 605-336-2424 or contact Charles Larson at calarson@boycelaw.com

Written by: Scott Farwell

After practicing law in the field of workers’ compensation for eleven years, I decided to return to school. Not business school; not for an LMS or other decorative degree which would typically boost the resume of a partner within a larger firm. Instead, I enrolled in Johnston Community College’s Truck Driver Training program, in Smithfield, North Carolina, and it was one of the best opportunities I have experienced in my career to date. Humbly, that is saying something given my eight year military experience as an interrogator both at home and abroad, time in the public high school system as a teacher, and as a traveling Russian linguist.

First, some relevant background on the Truck Driver Training Program at Johnston Community College itself.  It is the most seasoned truck driver program in the nation (and, by all accounts, the world), having been founded in 1939. Over 50,000 truck drivers have graduated from the school in its 79 years; with over 343 drivers graduating per year (on average). With night, daytime, and weekend course options, it stands significantly above so many other programs with both its stringent and respected testing requirements and behind-the-wheel drive times for its students. Recruiters were, very literally, asking for time to present the merits of their companies to the students throughout the 12 week course – detailing starting salaries for first year drivers which far exceeded dollar figures that any of the students, myself included, had seen in our initial years with other jobs.

Why am I waxing eloquent about the history and merits of this program? Two reasons (at least): First, the nation needs this profession to excel – a statement that intentionally carries multiple meanings. The nation needs truckers in order to excel as a nation; and the nation needs the truckers who drive within the profession to be better than simple bodies holding steering wheels. You can only imagine why this is true. While consumerism and community growth explode across the nation, the only means by which the latest and greatest materials and goods reach our doorsteps, is through this industry; and the only way that industry can accomplish the weighty task with which it has been burdened, is through its drivers. Perhaps more importantly (to you as you drive down the road alongside these monsters of the highway), the only way those drivers can actually reach their assigned destinations, is by being the safe, considerate and consummate professionals that each of us expect to be driving alongside us on the roads.

So I attended night and weekend classes, for 32 hours per week over the course of the 12 week program. I logged over 80 hours of drive time as a student, and ultimately obtained, not only my ‘class A’ driver’s license (CDL) but, an intense appreciation for the profession and art of driving multi-axle vehicles.

Recall, I indicated there were at least two reasons why I am splashing these pages with praise about my experience and the school I attended – first, because the profession must excel, and this school is absolutely providing the quality necessary to accomplish that. The second reason touches on why, as a workers’ compensation attorney, I would spend so much time, energy and effort to learn the hands-on level skills of driving a big-rig.  In a word, ‘closing claims.’

If you are reading this, your interest suggests your familiarity with the cross road within a workers’ compensation claim where the claimant is out of work, has attained MMI, but is an extremely difficult vocational rehabilitation candidate (difficult permanent restrictions involving no lifting, limited education, limited/focused past work experience, a resides in a smaller town 50 miles from any metropolitan area). In those situations, the carrier, the insured, and the attorney all publish to the claimant an expectation that a return to work is just around the corner, even while setting reserves within the file which reflect a long and expensive out of work experience. At mediation, I assure you those elements of exposure are not lost on opposing counsel, who consistently and confidently holds out for a ‘show me the money’ moment in claims where settlement is preferred to often-times fruitless vocational rehabilitation efforts.

Enter, my knowledge of just how badly this nation wants and needs truck drivers. Have no education or work experience in trucking? No problem! Inside of a four to eight week day course, they will have you behind the wheel of a big rig. No other education or experience required. Live in a rural area? No problem!  As a truck driver, your workplace travels home with you, and the 50 mile post MMI ‘area of residence’ limitation set out in N.C. Gen. Stat. §97-2(22) is met. Have a high pre-MMI average weekly wage, implicating exorbitantly high temporary partial exposure? No problem! With starting salaries north of $50,000.00, and second/third year salaries potentially exceeding $70,000.00, Defendants’ 500 week temp-partial headache is resolved. What about those pesky permanent restrictions, though? No problem. Virtually every inter or intra state trucking company is now offering no-touch/lift driver positions with vehicles using automatic transmissions. That means, by and large, even strict permanent restrictions can be met without modification. Ah yes, but what about a claimant with a criminal record? No problem! With notable exceptions having to do with drug trafficking and a select few other crimes (as per federal motor carrier safety regulations), in order to meet the growing deficit of needed drivers (greater than 50,000 as per 2017 publications on the topic), trucking companies are publicly taking the position that a driver’s past is in the past, and are hiring, nay recruiting, prior felons.

These elements impacting the more acute moments within a claim beyond the point of MMI, but prior to a claimant’s return to work do translate into literally hundreds of thousands of dollars of reduced claim exposure. I am living breathing proof of that fact. Since my attendance began in September of 2017, I have applied my knowledge and personal experience of and with the industry to resolve multiple long standing workers’ compensation claims. I have laughed across the table with claimants during opening statements at mediation (much to the chagrin of opposing counsel) about how everyone at the table knows their inactive CDL can be renewed, and their return to work into a no-touch/no-lift driver position is immediately assured; I have gained the respect and cooperation of pro se claimants who were non-communicative prior to my involvement, but who share ‘war-stories’ of their driving past once they realize I, too, carry my class-A license; I have rebutted the lay misstatements and misunderstandings of opposing counsel regarding the mechanics of a big-rig. In sum, I have closed claims.

While it may not always be the answer to closing a difficult claim, I am certain the need for truck drivers, in combination with the industry’s importance to the nation and our daily lives, causes it to be an excellent avenue to consider when faced with a difficult return to work scenario.

Effective January 1, 2018, the mileage reimbursement rate for Alabama is 54.5 cents per mile, a one cent increase from 2017.

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About the Author

This blog submission was prepared by Ashleigh Hunnicutt, 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 Ashleigh by e-mailing her at ahunnicutt@fishnelson.com or by calling her directly at 205-271-7626.

Ombudsmen Patricia Fraley and Ted Roose plan to continue to keep regular office hours on the 2nd and 4th Tuesdays of every month from 9-12 and 1-4 for anyone who wants to submit a settlement for their review. There is no need to make an appointment for these times, just drop by and sign in.  The new Career Center located at 3216 4th Avenue South (Birmingham).

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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.

Can a Judge of Compensation order a respondent to pay temporary disability benefits without a motion being filed in the first place?  The answer is no according to the decision in Munch v. Atlantic Health System, A-1265-16T1 (App. Div. December 21, 2017).

Petitioner, Dana Munch, worked as a paramedic for Atlantic Health System (AHS) and witnessed the death of a child during the course of her employment on October 12, 2014. She received authorized treatment and temporary disability benefits from November 14, 2014 to January 14, 2015.  She then returned to work.

On June 18, 2015 petitioner had a hand injury at work and received temporary disability benefits from June 22, 2015 through April 21, 2016.  During this period of time she began treating with Dr. Nayak, a psychologist, for a psychiatric reaction to the October 12, 2014 incident noted above.  Dr. Nayak treated petitioner from January 2016 through June 2016.

A key fact in this case is that petitioner failed to return to work in June 2016 and was therefore terminated.

On August 16, 2016, petitioner filed a claim petition for psychiatric injuries related to the incident on October 12, 2014.  AHS accepted the case as compensable.  Petitioner did not request temporary disability benefits, nor did she file a motion for temporary disability benefits.

The first listing of the case occurred on November 2, 2016.  Counsel for petitioner presented the Judge of Compensation with a report from Dr. Nayak, the psychologist, dated October 28, 2016.  The doctor said that petitioner suffered from post traumatic stress disorder related to the October 12, 2014 incident.  He added, “Ms. Munch has not been able to return to work for the duration of time that I have been treating her since January 18, 2016.  Furthermore, I believe within a reasonable degree of probability based on my expertise as a clinical psychologist that in Ms. Munch’s current psychological state she will not be able to return to her old job as a paramedic at the present time.”

After reading this letter, the Judge of Compenstion indicated that he was inclined to enter an order for payment of temporary disability benefits.  Capehart Scatchard represented AHS and argued that there had been no motion filed and no request for temporary disability benefits from petitioner.  Further, defense counsel argued that petitioner had no job and therefore no wage loss to replace.  Moreover, counsel argued that Dr. Nayak failed to explain why petitioner was able to return to work after the October 12, 2014 incident up until June 2015 when she injured her hand but now could not work.

The Judge of Compensation allowed oral arguments on the issue of temporary disability benefits at the same first court listing but denied a request by AHS for a three week adjournment.    The Judge then entered an order for temporary disability benefits without requiring a motion for medical and temporary disability benefits to be filed. AHS appealed.

The Appellate Division reviewed the administrative rules that require a motion to be filed for an order to be entered for temporary disability benefits.  The Court said, “Petitioner did not undertake any of the steps pursuant to N.J.A.C. 12:235-3.2 to support an award of temporary disability benefits.  Thus, Atlantic had no opportunity to respond to or oppose an award of benefits.”  The Court added, “The Workers’ Compensation judge did not afford Atlantic an opportunity to challenge the legal or factual basis for awarding benefits to petitioner despite Atlantic’s request for a brief adjournment to submit such opposition.  Moreover, there were no depositions, sworn statement, or documentary evidence (other than Dr. Nayak’s letter) submitted in support of petitioner’s claim.”

The court then cited the basic principle in law regarding due process. “In accordance with due process principles, the opportunity to be heard, ‘includes not only the right to cross-examine the adversary’s witnesses but also the right to present witnesses to refute the adversary’s evidence.’”  Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 97 (App. Div. 1986).

While the technical rules of evidence may be relaxed in workers’ compensation proceedings, they may not be relaxed to the point of infringing on the parties’ due process rights or other fundamental rights. Id.At 95-96.  Atlantic was not given the opportunity to proffer any medical records or reports, call witnesses, or submit any evidence in opposition to petitioner’s claim.  Based on the foregoing, we find that Atlantic was denied a meaningful opportunity to be heard in accordance with the due process principles.

The Appellate Division also concluded that the rule applied in Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423, 432 (App. Div. 2006) requiring claimants to prove that they were both available and willing to work and would have been working if not for the disability.  The Court noted that petitioner had been terminated well before the order was entered in the first listing of the case.  The Court also observed that petitioner had in fact returned to work for six months after the October 12, 2014 incident, a fact which Dr. Nayak seemed unaware of.  Further, the petitioner herself never sought temporary disability benefits nor filed  a motion for benefits.  The first time there was any mention of petitioner requiring temporary disability benefits was when her attorney produced the report from Dr. Nayak in court, several months after petitioner had been terminated for not returning to work.

Dr. Nayak’s letter did not address petitioner’s ability to work in a different capacity or perform light duty assignments.  Dr. Nayak did not testify before the Workers’ Compensation judge or provide an affidavit in support of petitioner’s claimed disability.  Dr. Nayak’s letter does not explain how petitioner was able to return to work for six months after the October 2014 incident but was unable to return to work in June 2016.  More importantly, petitioner did not testify or present evidence that she suffered a wage loss as a result of her disability because she was available and willing to work and would have been working if not for the disability.

 The Appellate Division concluded that the petitioner failed to demonstrate any entitlement to temporary disability benefits.  Therefore the Court reversed the decision of the Judge of Compensation.   This case is significant because it emphasizes how important it is to allow due process to the parties in a workers’ compensation claim.  Further, it underscores the solid principles outlined in the Cunningham case.

This case was successfully handled by the Capehart team of Stephen Fannon, Esq. and John Pszwaro, Esq., who successfully argued before the Appellate Division.

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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. 

After decades of confusion over the issue of paying temporary disability benefits to volunteer firefighters who have no outside jobs, practitioners finally received an answer from the Appellate Division in Kocanowski v. Township of Bridgewater, A-3306-15T2, (App. Div. December 11, 2017).

The case involved a volunteer firefighter with the Finderne Fire Engine Company in Bridgewater Township.  Petitioner was responding with her company to a multi-alarm fire in March 2015 when she slipped and fell on ice, breaking her right fibula. The injury led to several surgeries over the next year.  Petitioner had not worked since 2013 when she began taking care of her father, who had serious health problems. In 2014, she resumed working as a volunteer firefighter in an unpaid capacity.

Petitioner filed a motion for medical and temporary disability benefits.  She asserted that she was entitled to temporary disability benefits at maximum rates under N.J.S.A.34:15-75. The Township argued that no temporary disability benefits were required because petitioner really had no wage loss. She had not worked since 2013.  The Judge of Compensation ruled for respondent, and petitioner appealed.

The Appellate Division methodically explained why the Judge of Compensation was correct in dismissing the claim for temporary disability benefits.  First, the Court cited to N.J.S.A. 34:15-38, which states that temporary disability benefits are due the day that the employee is first unable to continue at work by reason of the accident.  Petitioner argued that Section 75 creates a different right for volunteer firefighters because it states that compensation for any volunteer fireman must be based upon a weekly salary or compensation that is conclusively presumed to be the maximum allowed under the New Jersey Workers’ Compensation Act.

The Court agreed with respondent that there must first be proof of a wage loss before Section 75 is referenced.

Kocanowski’s claim is at odds with the underlying reason for awarding temporary disability, which is to replace lost wages.  It is at odds with the method for calculating temporary disability, which is to consider weekly wages.  When the legislature enacted the provisions that addressed firefighters and others, it did not make any special provisions for calculating temporary disability in a different way.

The Court ruled as follows:  “We agree with the compensation judge that although a volunteer firefighter is entitled to temporary benefits at the maximum rate and that the seven-day waiting period does not need to be served, there first must be an entitlement by the volunteer to payment of temporary disability benefits.  That payment depends of proof of lost wages.”  In other words, one does not get to  the maximum benefit rate contained in Section 75 unless the volunteer can prove an entitlement to temporary disability benefits.

This case was expertly handled by Jennifer A. Cottell, Esq. of Cooper, Cottell & Taylor, LLC.  Ms. Cottell not only won the case at the Division level and on appeal but she successfully defeated an amicus brief filed by COSH on behalf of the petitioner.

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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. 

New Jersey law has very strict procedures for workers’ compensation carriers to follow in subrogation, and failure to comply with those strict rules can mean loss of subrogation rights, as noted in Pino v. Polanco and New Jersey Manufacturers, A-5027-15T4 (App. Div. November 22, 2017).

Ms. Pino was injured in a work-related car accident on May 20, 2011.  Another vehicle driven by an uninsured driver, Polanco, struck Pino’s vehicle.   Pino had uninsured motorist coverage with NJM.  Hartford paid workers’ compensation benefits totaling $48,056.79 for medical and temporary disability benefits.  The Hartford subrogation representative sent a letter to Pino’s attorney dated December 5, 2011 advising counsel of its subrogation rights under N.J.S.A. 34:15-40.  The letter asked that Pino notify Hartford if she was not going to proceed with a third-party claim.

In April 2013, Pino filed a personal injury action against Polanco and later amended the complaint to name NJM as a direct defendant under the uninsured motorist policy.  The parties eventually decided to arbitrate their dispute and entered into a “Stipulation of Dismissal Without Prejudice Subject to Reinstatement” of the law suit.   The arbitrators awarded Pino $65,000 subject to the workers’ compensation medical lien.  NJM rejected the arbitration and sought a jury trial, believing that Pino could not get past the verbal threshold and would likely lose.

Ultimately Pino chose not to reinstate the Law Division case, which meant no recovery at all.  But The Hartford did not know this.  There was a long gap in time between the arbitration in July 2015 and the point in time when The Hartford finally learned about the ultimate outcome of the UM matter on January 26, 2016.  Once The Hartford found out, it quickly filed a motion days to set aside the dismissal without prejudice and reinstate its complaint against NJM.  That motion was filed well past 90 days from the dismissal without prejudice in 2014 but within 90 days from when The Hartford found out about the dismissal and decision not to pursue the matter.  The trial judge rejected The Hartford’s motion based on an obscure provision contained in N.J.S.A. 34:15-40(f).  That provision states:

Where an injured employee or his dependents have instituted proceedings for recovery of damages for his injuries and loss against a third person and such proceedings are dismissed for lack of prosecution, the employer or insurance carrier shall, upon application made within 90 days thereafter, be entitled to have such dismissal set aside, and to continue the prosecution of such proceedings in the name of the injured employee or dependents in accordance with the provisions of this section.

The Hartford appealed and argued that the 90 days should start from when the company learned that the UM matter had been dismissed.  NJM argued that the statute says 90 days from the dismissal for lack of prosecution.  The Appellate Division contemplated that one reason for the 90-day rule is undoubtedly to foster expeditious resolution of subrogation claims.  There are no reported decisions on this particular issue, as noted by the Court.

The Appellate Division was not sure that a dismissal for “lack of prosecution” mentioned in the statute fit precisely the “dismissal without prejudice” in this matter, but it said that the statute says what it says, and it does not have a provision for a “knowledge requirement.”  The Court explained, “We share the trial court’s observation in its oral ruling that perhaps Pino or her attorney should have advised The Hartford of the June 2014 dismissal of the UM case sooner, consistent with the request that The Hartford had made in December 2011 to be kept advised of the matter’s status.  However, we are aware of no authority that imposes a legal duty upon an employee or her personal injury attorney to supply such notice.”

The Court went on to state that the record did not disclose proof that The Hartford regularly followed up with Pino or her counsel about the status of the third party recovery following the December 5, 2011 letter.  The Court seemed to be laying some blame on The Hartford for not being more diligent.  While this case involves a very rare problem in the law, it is interesting to read in that the Court favored a very technical study of the obligations under N.J.S.A. 34:15-40.   It is precisely for situations like this that subrogation representatives must vigorously follow up on the status of third party law suits and arbitrations.  There is never too much diligence in keeping tabs on third party law suits.

Thanks to Ron Siegel, Esq. for bringing another important case to our attention.

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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.

Many police officers work outside assignments that are approved through their police department.  What happens if an injury occurs to the officer in the approved outside assignment?  What are the ramifications for workers’ compensation and civil liability purposes?  This issue arose in Dutcher v. Pedro Pedeiro and Black Rock Enterprises, LLC., A-1088-16T3 (App. Div. October 25, 2017).

Black Rock Enterprises approached the Township of Woodbridge Police Department for permission to hire police officers for traffic control while its workers performed a road milling project in town.   The Company specified how many police officers would be required for the job and paid the Township for their services.  The Township assigned the police officers and then in turn paid them directly.  Officer Dutcher, the plaintiff in this case, was approved by the Township to do work for Black Rock Enterprises.  The company assigned him to a specific intersection of Woodbridge Center Drive and Plaza Drive.

On the day of the accident, Dutcher reported to the site, and was instructed by the company on his duties.  He followed all the construction company’s policies.  Dutcher reported to the company’s supervisor, which had control over his work.  The company directed Dutcher in how to direct traffic, depending on the progress and status of the milling work.  The Township had no authority over Dutcher’s duties at the work site.  The company also had the power to discontinue Dutcher’s services if his work was unsatisfactory.

Dutcher was injured when a vehicle driven by Pedeiro, an employee of the construction company, struck him while performing his traffic control work.  Dutcher received workers’ compensation benefits from the Central Jersey Joint Insurance Fund, of which Woodbridge Township was a member.  Dutcher also attempted to sue the construction company for negligence.   The Central Jersey Joint Insurance Fund took the position that Dutcher had two employers, and that Black Rock Enterprises was equally responsible for the workers’ compensation claim.

The trial judge ruled that Dutcher was a special employee of the construction company and therefore could not sue the construction company.   The Appellate Division agreed stating that “a ‘special employment relationship’ where the ‘special employer’ is also responsible for workers’ compensation exists ‘when a general employer lends an employee to a special employer.’”

There are five factors to consider in establishing a special employment relationship.  First, the Court noted that there must be consent for contracting:  “Here, plaintiff signed up for the Extra Duty Services knowing the Township would hire him out to a second employer and would expect him to perform his duties for that employer.” Consent was therefore established.

Second, the Court said that the work being done must be essentially that of the second employer.  That was easy to show because the construction company specified how many officers it needed and the date, time and location of the work.   The company specified the requirements of the job, and traffic safety was essential for the safety of the construction workers.

The most significant factor is the third, namely the right of control.  The Court said it was clear that the construction company controlled Dutcher’s activities, as it could direct his work and get rid of him if it wanted to do so.  There was a foreman on the site in control of the operation.

The fourth factor involved payment by the construction company to Dutcher.  The Court said that it really amounted to the same thing when the company paid the Township, which in turn paid Dutcher.

The fifth factor pertained to the right of the company to hire or discharge the special employee.  Even though the company did not hire Dutcher personally (the Township assigned him), the company clearly had a right to dispense with Dutcher’s services if it wanted to do so.

For all these reasons, the Appellate Division held that Dutcher could not sue the construction company, as Black Rock Enterprises was his special employer.  New Jersey has a powerful exclusive remedy provision which states that an employee cannot sue his or her own employer for personal injuries in a civil action except in truly rare cases of intentional harm.

This case follows prior case law on this issue.  There are many joint employer and special employee situations in New Jersey.  Where the parties to the joint employment or special employment relationship have not clearly established liability for workers’ compensation, a Judge of Compensation has the power to assess responsibility for workers’ compensation equally between the employers.  The issue in this case focused more heavily on the corollary principle, which is that the injured worker cannot sue either company in a joint or special employee situation.

It makes good sense for employers like police departments, which routinely assign officers to outside companies for approved work, to get written agreements signed in advance regarding the responsibility of the special employer to pay for workers’ compensation injuries.  Most employers who request police officers or special employees do not realize that they are responsible for workers’ compensation injuries in whole or in part.  That leads to unnecessary and expensive litigation.  The easy solution is to address this issue right up front.

Thanks to Ron Siegel, Esq. for bringing this appellate division decision to our attention.

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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.