State News

On July 26, 2012, Stephanie Nichols applied for a job as a Senior Radiology Technologist with OhioHealth Corp at the Riverside Breast Health Center.  She had worked in similar positions for over 30 years.  Nichols received the job offer contingent on passing a medical examination.  In the health assessment form that Nichols completed, she was asked “Do you have any limitations that would keep you from performing the duties of your job?”   Her answer was, “Cannot stoop or work standing on my knees.”

Nichols indicated that her limitations stemmed from a prior meniscus tear that had been repaired one year before she applied for the job.  She added that she has poor balance and that if she needs to go down to the floor that she usually “hangs onto something.”

The next step was a meeting with the Riverside Hospital nurse, Charissa Cattrell.  In that meeting Nichols clarified that kneeling caused her knee pain.  She said she could do the job but that performing some of her duties would cause her more knee pain.

Cattrell referred Nichols to an accommodation specialist, Nancy Miller, at the hospital.  Nichols spoke with the accommodation specialist but said that did not ask for accommodations because she felt she did not need any.  Miller had a different recollection of the phone call and recalled that Nichols requested accommodations by potentially leaving the door to the mammography suite open or having another person to be available to assist her.  Miller said that there was also a discussion about grab bars being installed to help Nichols with any balance issues.

Miller then spoke with the manager of Radiology about the possible accommodations.  The manager said that leaving the door open would violate hospital rules, and installation of grab bars was not possible because of the size of the rooms.

Miller next discussed with Nichols the importance of getting a note from her own doctor stating that Nichols had no limitations.  Nichols offered to come to the hospital and demonstrate that she could do the job, but that offer was declined.  Plaintiff’s physician, Dr. Barker, then faxed a note to OhioHealth stating, “Patient was last seen 9/7/11.  The patient was released without restrictions at that appointment.”   He faxed a second note stating, “Nichols has not required physical therapy at this point in time but certainly she will give us a phone call if she stalls with progress and perceives the need for some reconditioning, which would be nicely accomplished by therapy if necessary.”

The next day Nichols advised hospital personnel that she was ready for orientation.  She was informed that the job offer had been rescinded and the position would not be filled.  Plaintiff sued alleging that the hospital discriminated against her based on her disability or her perceived disability in withdrawing the job offer.

The hospital moved to dismiss the case on the ground that Nichols did not have a covered disability under the ADA.  In her deposition, Nichols admitted that she is not disabled; she just has pain sometimes.   The hospital also argued that Nichols’ own doctor said she has no restrictions whatsoever. “The Court agrees with Plaintiff that Dr. Barker’s return to work without restrictions is not dispositive of whether or not she has a disability, but it is a significant blow to her claim that the knee injury substantially limited a major life activity.”  The Court added, “Further, that her doctor released her without restrictions and that she never sought medical help for her knee between the surgery and the events in this lawsuit is evidence that her knee injury did not substantially limit a major life activity.”

Nichols also argued that even if she did not have a disability, the hospital perceived her as having one and therefore regarded her as being disabled in violation of the ADA.  The Court also dismissed this argument:  “Although this evidence certainly suggests that OhioHealth knew of a possible impairment, the Court agrees with the Defendant that receipt of a doctor’s report showing no restrictions has a preclusive effect on a regarded-as-claim.”

This case illustrates the difficulty a plaintiff may have in proving an ADA claim where, on the one hand, the plaintiff asserts that she can do her job without accommodation and her doctor finds no restrictions, but on the other hand the plaintiff asserts that she has a covered ADA disability.  It is difficult to square those two positions, and the court in this case clearly made the right decision to dismiss this case.  The case can be found at Nichols v. OhioHealth Corp., 2017 U.S. Dist. LEXIS 131146 (S.D. Ohio August 17, 2017).

-----------------

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. 

As many of you know, an Alabama Circuit Judge recently issued an Order declaring the entire Alabama Workers’ Compensation Act unconstitutional.  As a result, there have been many questions as to whether the constitutional issue would be appealed and what effect, if any; the ruling would have on other Alabama cases.  The case in which the Order was issued recently settled which nullifies any chance of the constitutional issue reaching a higher court, at least in that case.  As a result of this recent constitutional attack, the Alabama State Bar Association has appointed a task force to research the workers’ compensation laws of surrounding states in an effort to try to revise or amend certain provisions of the Alabama Workers’ Compensation Act. While we can expect that a focus will be put on the $220.00 cap on permanent partial disability and the 15% contingency fee, other parts of the Act will be examined as well.

We will continue to report as this issue progresses or stalls.

---------------------------

ABOUT THE AUTHOR

This article was written by Joshua G. Holden, Esq., a member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of the National Worker’s Compensation Defense Network (NWCDN). The NWCDN is a national network of reputable law firms organized to provide employers and insurers access to the highest quality of representation in workers’ compensation and related employer liability fields. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Mr. Holden by emailing him at jholden@fishnelson.com or calling him directly at 205-332-1428.

The Mississippi Workers’ Compensation Commission has published Guidelines for the Prescription of Opiates, which were effective as of June 14, 2017. The Commission directed that all clinicians who prescribe opioids should follow the guidelines, but noted that failure to do so would not warrant denial of a service, except in limited instances identified in the guidelines. Among the contraindications to prescribing opioids beyond three months, the guidelines state that opioids should be discontinued if the medication has not reduced the injured worker’s subjective pain complaints by a minimum of 30 % or if he or she cannot function secondary to the medication’s side effects. The guidelines also instruct that clinicians should conduct random drug screens at least two times a year and note that monthly drug screens, which are not random, are not indicated.

The guidelines include recommendations to help clinicians detect injured workers who may be at risk for addiction and to ensure that injured workers are informed about the risks and benefits of opioids before beginning use. For example, the guidelines state that injured workers should undergo psychosocial evaluation, to include formal psychological testing, if they are placed on opioids for more than three months. The guidelines also instruct that, before beginning opioid therapy for chronic pain, clinicians should establish treatment goals with the injured worker, educate the injured worker about the potential risks and benefits of opioid therapy, and discuss how the opioid therapy will be discontinued when risks outweigh benefits.;

In addition, the guidelines make clear that treatment for addiction will be considered compensable where an opioid abuse disorder is directly related to the use of controlled substances that were prescribed for a workers’ compensation injury. The guidelines note that formal detoxification programs will not be required in all such cases, but would be appropriate where the injured workers would experience withdrawal symptoms.

About the Author

This article was written by Jennifer H. Scott, Esq. of Wise Carter Child & Caraway, P.A., a law firm with offices in Jackson, Hattiesburg, and Gulfport, Mississippi. Wise Carter offers legal solutions for a wide array of corporate, litigation, regulatory, administrative, and governmental matters, including representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related employment law and liability matters. Scott and her 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 Mississippi workers’ compensation issues in general, please feel free to contact the author at jhs@wisecarter.com or (601) 944-7722.

Rarely does the Appellate Division reverse a Judge of Compensation when the only issue is the extent of permanent partial disability.   The case of Van Artsdalen v. Fred M. Schiavone Construction, No. A-3392-15T1, 2017 N.J. Super. Unpub. LEXIS 2516 (Oct. 5, 2017) is that rare example.

The petitioner, Mr. Van Artsdalen, was injured on January 26, 2012 in a fall at work while carrying 60-70 pounds of plywood.  He saw a doctor after work and then again two days later.  He attempted to return to work the next day but was unable to do so because there were no work assignments available.  He did go back to work on January 30, 2012 but could not finish his shift on account of severe back pain.  Petitioner obtained an MRI and received physical therapy and pain management.  He was cleared to return to work on May 5, 2012.  He did not return to work initially because there were no assignments.  Finally, he returned to work on July 12, 2012 and continued through September 2012 when he retired.  He testified that he could no longer take the pain and therefore retired at the age of 53.  He did admit to having chiropractic treatment in 1992 and symptoms of low back treatment in 2008.

In 2013 petitioner had another MRI and then filed a petition in the Division of Workers’ Compensation.  He received more pain management and an epidural injection.  He never treated again after September 2014. He never had any surgery to his spine.  Petitioner testified at trial that he had difficulty lifting things, bending over while getting dressed and performing household chores.  He was subject to sudden onset of sharp pain, particularly in the groin area.  He used over-the-counter medications and ice.  Sometimes the pain interfered with his sleep and often prevented him from doing heavy lifting of objects.  He did admit that he was able to perform most daily activities including household chores and driving his grandchild to and from school.

The parties agreed to submit the expert reports into evidence without having the experts testify.  Dr. Gaffney for petitioner estimated 52.5% based on petitioner’s lack of relief from epidural injections.  He diagnosed “chronic pain and lumbar fibromyositis syndrome” and noted “restriction of function.” The Judge stated that “it was understood that surgery could not be wisely undertaken in Van Artsdalen’s condition to obtain an optimum result bettering his condition.”  However, there was apparently no testimony to the effect that surgery could not be performed, and Dr. Gaffney’s report did not spell this out.   The Judge also stated that the petitioner’s condition “simply was inoperable due to his condition of multiple levels impeded in his lumbar spine.  Therefore, his disability rating is construed as worse than one who could obtain relief from a procedure or operation.”

Dr. Maletsky’s report was also admitted into evidence without testimony by the doctor on behalf of respondent.  Dr. Maletsky found 2% permanent partial disability.  Dr. Maletsky noted that petitioner had x-rays of his spine in 2008, four years before the accident, but the Judge of Compensation found Dr. Maletsky’s report was not as credible as that of Dr. Gaffney because in part he did not address the fact that petitioner had multiple levels of discs which were impaired.  She found that Dr. Maletsky did not “adequately address petitioner’s increased symptomology as being related to the last work incident.”

The Judge awarded 47.5% permanent partial disability or $153,900.  Schiavone appealed and argued principally that the judge’s conclusions were not supported by the record.  The Appellate Division first acknowledged the expertise of the Judge of Compensation in awarding disability.  However, in this case the Appellate Division found two areas where the Judge of Compensation drew conclusions that were not supported by the record.  “[W]e are constrained to vacate the judgement and remand for reconsideration as we conclude there was no evidence to support the findings that Van Artsdalen’s injury was inoperable or that he took few days off during his years of employment.”   The Court added that “neither Van Artsdalen nor the experts stated these facts or opinions, nor was there any other evidence presented from which the judge could have logically inferred them.”  For these reasons the award was reversed.

This case would not have been reversed had there been evidence in the record that petitioner did not take time off in the past and had been advised that his condition was inoperable.  Both petitioner’s attorney and respondent’s attorney took risks when they did not produce the live testimony of their experts.  Through live testimony petitioner’s attorney could have focused on whether the back condition was inoperable, thereby giving the Judge of Compensation support in the record for her conclusion.  Respondent’s expert could have cross examined effectively on petitioner’s prior condition and alternative explanations for why petitioner was never advised to have surgery on his spine.  This was simply a case where the sparse record did not support some of the conclusions of the Judge of Compensation, and that was mainly due to the failure to bring in the experts.  Without that testimony, 47.5% seemed extremely high for an unoperated back condition.

The lessons learned are to bring in experts when trying cases and only try cases on reports where there is very little money at stake and there are no real issues of causation.

-----------------

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 case of Apperman v. Visiting Nurse Association of Westfield, A-5446-15T3 (App. Div. October 30, 2017) presented an unusual situation where a carrier agreed to pay benefits that exceeded its obligation under the statute.  The case involved the tragic death of Phyllis Apperman who died in a motor vehicle accident in December 2003. The claim was accepted by New Jersey Manufacturers, which agreed to pay dependency benefits to Eric Apperman, the decedent’s husband, and Harold Apperman, a 34-year-old son who was legally incapacitated.

Dependency payments to Eric Apperman ended when he remarried.  In 2007 at the time of settlement, NJM’s counsel stipulated to the following terms in respect to benefits for the incapacitated son:

However, we are here today as he has requested benefits for his son as a dependent, and we do stipulate that the son is incompetent and should receive dependency benefits at the amount of fifty percent of Phyllis Apperman’s wages of $800.  So, he will get $400 per week for 450 weeks and continuing as long as he remains incompetent.  Payments shall date back to March 4, 2005.

The Judge of Compensation entered an order stating that the son’s dependency benefits “shall continue for 450 weeks and shall be paid thereafter pursuant to N.J.S.A. 34:15-12(b) et seq.”  When the 450 week period ended, NJM correctly stopped payments based on the language of the statute which limits payments to 450 weeks for adult children who are incapacitated.  Eric Apperman then appealed the denial of benefits past 450 weeks in part based on the agreement made by NJM counsel at the time of settlement.

The Judge of Compensation heard the motion of petitioner’s counsel to enforce the prior agreement and ruled that NJM’s agreement to pay beyond 450 weeks was a mistake of law.  Therefore, the Judge of Compensation ruled against Apperman, who then filed an appeal.

The Appellate Division first examined the precise language of N.J.S.A. 34:15-13, which states that “payments to such physically deficient persons as are for such reason dependent shall be made during the full compensation period of 450 weeks.”  The statute further states that benefits for dependents under age 18 shall continue until they reach the age of majority.

In this case, the Appellate Division held that payments for those under age 18 can continue for over 450 weeks until the age of majority, but payments for an adult person who is mentally incapacitated are limited to 450 weeks by statute.  The Court further said, “Neither party has cited any authority, nor have we found any, that would confer jurisdiction on the Division of Workers’ Compensation to sanction the payment of dependency benefits for a period exceeding that authorized by statute.”

To petitioner’s argument that NJM had previously agreed on the record to make payments beyond 450 weeks, the Court responded that a Judge of Compensation does not have authority to enforce an order that would extend benefits beyond statutory limits. The Court said that the Division of Workers’ Compensation lacks equitable powers.  Finally, the Court noted that it was sympathetic to the plight of petitioner since he remained incapacitated, but any change in the law must be effected by the Legislature.

This decision is noteworthy because there are so few cases involving dependent adults who are incapacitated and also few cases involving mistakes of law.  The ruling is correct that a Judge of Compensation is limited to his or her statutory powers.  For example, if there is no jurisdiction in New Jersey, (no accident, no contract and no employment in New Jersey), the Judge cannot hear the case even if the parties agree to present it in New Jersey.  Similarly, when a claim is time barred, even if the respondent agrees to waive the statute, the Judge cannot hear the case, because powers of the Judge of Compensation are limited to claims timely filed in the Division.

-----------------

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. 

Can an employee maintain both a workers’ compensation retaliation claim at the same time as he alleges discrimination under the New Jersey Law Against Discrimination (LAD)? That was one issue answered in Larson v. City of Paterson, A-2526-15T4 (App. Div. October 26, 2017).

Carl Larson worked as a firefighter for the City of Paterson from 1987 to 2013. He filed a number of workers’ compensation claims. In 2008 he underwent surgery for his neck from a work-related injury. In March 2010 he injured his left ankle exiting a fire truck and returned to work within two months. In 2010 and 2011 he filed for neck and ankle injuries and settled those cases for $105,876 in early 2013.

Following the approval of the workers’ compensation settlement, Larson was at home for a few days due to a non-work matter when he got a phone call. He was advised that he needed to attend a fitness-for-duty examination. Larson agreed to attend the examination. However, he was told that the Fire Chief wanted him to remain off-duty until further notice.

Larson was concerned and spoke with his union representative, Captain Michael Caposella, who advised that the City was considering termination because of Larson’s numerous workers’ compensation claims. The Captain urged Larson to meet with the Chief.   That meeting occurred in mid-March 2013. Larson alleges that he was asked if he was wearing a recording device. The Chief allegedly said that due to his multiple awards, Larson was viewed as a liability. He was further advised that some council members allegedly thought Larson and his doctors were defrauding the city.

Larson said that he did not want to retire. He claimed that the Chief then said, “Well, if you are telling me you are not disabled and you come back to work you are suspended without pay.” Larson was warned that if he fought this issue, he would go one or two years without a paycheck.

Based on this conversation, Larson decided to retire, fearing suspension if he did not do so. He then filed a complaint alleging retaliation under the New Jersey Workers’ Compensation Act and discrimination based on age under the NJLAD. The trial judge dismissed Larson’s workers’ compensation retaliation claim as barred because he also sought a remedy under the NJLAD. The judge reasoned that any claim for being “required to retire” must be filed under the NJLAD.

The Appellate Division disagreed that the NJLAD was Larson’s only remedy. It said that asserting a “required to retire” claim under the NJLAD is quite different from asserting a claim for retaliation on account of assertion of rights to workers’ compensation benefits. The former claim is focused on impermissible acts of discrimination, while common law workers’ compensation retaliation claims are focused on asserting rights under the New Jersey Workers’ Compensation Act.

The Court went on to explain that when one files for age discrimination, for example, he or she must file such a claim under the NJLAD because the NJLAD protects victims of discrimination. But workers’ compensation retaliation claims emanate from the state’s workers’ compensation law.   The Court considered Larson’s retaliation claim to assert “constructive discharge.”   The Court said “[A] constructive discharge occurs when an employer engages in ‘severe or pervasive’ conduct that is ‘so intolerable . . . a reasonable person would be forced to resign rather than continue to endure it.’” (citations omitted).

The Court concluded that there was sufficient evidence for Larson to prove in a jury trial that he was forced to retire. Larson believed he could return to work and twice requested a fitness-for-duty examination. Nonetheless, according to Larson, he was forced out due to misconceptions about his ability to perform job duties. The Court noted that both sides offered different versions of fact, but if the jury were to accept the version Larson presented to the effect that he would be suspended without pay should he return to work, that would support a jury verdict of discriminatory conduct by the city.   The Court summarized, “Based on our review of the record, and viewing the evidence in the light most favorable to plaintiff, we are convinced a reasonable trier of fact could conclude that plaintiff was constructively discharged and forced to retire.”

This case is helpful to practitioners because New Jersey has surprisingly few published and unpublished retaliation claims. It is also helpful because it shows how different a claim is under the NJLAD and the New Jersey Workers’ Compensation Act. In New Jersey, a retaliation claim focuses on the assertion of rights under our workers’ compensation law as opposed to discriminatory conduct.

-----------------

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: Scott Farwell 

An independent contractor is an individual who generally falls outside of the structure of the Workers’ Compensation Act. Whether a person employed to perform specified work for another is to be regarded as an independent contractor or as an employee within meaning of Workers’ Compensation Act is determined by application of ordinary common-law tests.  Youngblood v. N. State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433 (1988). There are generally eight factors, with no one factor being determinative, which indicate classification as an independent contractor – namely, the person employed: (1) is engaged in independent business, calling, or occupation; (2) is to have independent use of his special skill, knowledge, or training in execution of work; (3) is doing specified piece of work at fixed price or for lump sum or upon quantitative basis; (4) is not subject to discharge because he adopts one method of doing work rather than another; (5) is not in regular employ of other contracting party; (6) is free to use such assistants as he may think proper; (7) has full control over such assistants; and (8) selects his own time. McCown v. Hines, 140 N.C. App. 440, 537 S.E.2d 242 (2000) aff’d, 353 N.C. 683, 549 S.E.2d 175 (2001). The fact that the work must meet specific standards and requirements is not enough to find sufficient control. The control must be in the method in which the results were obtained, not in the results themselves. Grouse v. DRB Baseball Mgmt., Inc., 121 N.C. App. 376, 465 S.E.2d 568 (1996).

The term “statutory employer” is not defined in the North Carolina Workers’ Compensation Act. However, North Carolina Courts have applied the term in situations involving general and sub contractors when the sub contractor is the employer but has neglected to cover themselves with workers’ compensation insurance. The chain of liability for making workers’ compensation payments extends from the immediate employer of the injured employee up the chain to the first responsible contractor who has the ability to pay. N.C. Gen. Stat. § 97–19. Spivey v. Wright’s Roofing, 737 S.E.2d 745 (N.C. Ct. App. 2013).

The statutory employer statute (N.C. Gen. Stat. 97-19) is an exception to the general definitions of “employment” and “employee” set forth in the Workers’ Compensation Act, and provides that a principal contractor, intermediate contractor, or subcontractor may be held liable as a “statutory employer” where two conditions are met: (1) the injured employee must be working for a subcontractor doing work which has been contracted to it by a principal contractor, and (2) the subcontractor does not have workers’ compensation insurance coverage covering the injured employee. Putman v. Alexander, 194 N.C. App. 578, 670 S.E.2d 610 (2009).[1]

As long as the general contractor obtains a certificate of insurance (COI) from the subcontractor, the general contractor will not be liable for workers’ compensation benefits for injured employees of the subcontractor. N.C. Gen. Stat. § 97–19. In Patterson v. Markham & Associates, 123 N.C. App. 448, 474 S.E.2d 400 (1996), a general contractor was not a statutory employer where the plaintiff worked for a subcontractor on a job which was contracted to the subcontractor by the general contractor because when work under the contract began, the subcontractor’s insurance agent sent the general contractor a certificate of insurance indicating coverage for the subcontractor for one year; and when the subcontractor’s insurance was canceled for its failure to pay its premium, the general contractor was not notified of the cancellation.

[1] In Masood v. Erwin Oil Co., 181 N.C. App. 424, 639 S.E.2d 118 (2007), a petroleum wholesaler had a contractor/subcontractor relationship with its gas station operator, who did not have workers’ compensation insurance, and thus the wholesaler was the gas station cashier’s statutory employer for purposes of the cashier’s workers’ compensation claim.

The Washington Post recently published a story about an emerging trend among senior citizens: worker camps. As life expectancy continues to rise and social security benefits stagnate, more and more would-be retirees find they lack the retirement savings to provide for themselves and their lifestyles. The number of senior workers in the United States has more than doubled since the year 2000, and now nearly 20% of Americans over 65 are working. Contributing factors for this phenomenon are the 2008 recession, a shift from pensions to worker-based retirement programs, such as 401(k)’s, and rising costs of healthcare.

“Workampers” is the appellation for a growing group of seniors who have adopted an itinerant lifestyle of traveling the nation’s highways, often in an RV (hence the nickname), driving state to state looking for seasonal employment. The jobs are typically low-paying and devoid of benefits but are increasingly necessary to an expanding class of citizens who simply do not have the retirement savings to provide for themselves in their final years.

As the work camp movement spreads, it can be expected to generate confusion in states’ workers’ compensation programs. “Workampers” routinely travel between states seeking employment, leading to inevitable disputes over which state’s work comp program has jurisdiction over a particular claim. Beyond that, the seasonal nature of the employment will almost surely complicate calculation of a given worker’s average weekly wage and, by extension, the value of his or her weekly benefits. Finally, as employees age, they naturally become more susceptible to workplace illness and injury, which means that as more seniors opt to postpone retirement—by choice or out of necessity—a rise in overall work comp claims can also be anticipated. 

Well-placed sources inform us that the powers that be within the Division have begun focusing on the number of dispute proceedings held each month, supposedly as a means of gauging the effectiveness and productivity of the Hearings section. The higher the number of proceedings held, the reasoning goes, the greater the number of disputes that have been resolved. 

However, as usual, a strict quantitative analysis (i.e., pure statistics and number-crunching) tells only part of the story and provides skewed results. In accumulating their data, the DWC makes no differentiation between Contested Case Hearings that result in a Decision & Order and those that are merely convened and continued at the outset. In other words, a hearing that continues at the scheduled start time is considered a “proceeding held,” while a hearing for which a motion to continue is granted before the proceeding will not count toward the tally.

There are two obvious results of this practice. First, the DWC can artificially inflate its total number of proceedings held per month by urging judges to postpone ruling on continuance requests until the day of the hearing. Second, the costs associated with preparing for and traveling to a Contested Case Hearing, only to find that is has been continued at the last minute, are passed along to system participants.

The Texas hiring freeze for state workers lapsed on September 1, 2017, and since then the Division of Workers’ Compensation has hired three new Administrative Law Judges. 

Ana Kirk Thornton will soon begin presiding over disputes in the new San Antonio Field Office.  Ms. Thornton is a graduate of Trinity University and The University of Texas School of Law. She has been licensed since 1991 and most recently worked with another state agency, the Texas Workforce Commission. 

Christopher Maisel is another graduate of The University of Texas School of Law but has recently returned to Texas after practicing in California. He brings with him decades of experience in bankruptcy, mergers & acquisitions, and insurance law. Mr. Maisel will become one of two new ALJ’s in the Houston West Field Office.

The other new Houston judge is Eric Robertson, a Baton Rouge native but longtime Texas resident. A degree in Business Administration brought him to Texas Wesleyan University School of Law, and he has been licensed in Texas since 2014. Mr. Robertson first practiced criminal law before moving into the realm of workers’ compensation in January 2017 at the firm of Bailey & Galyen.