The EEOC has provided guidance that in its view a fairly long leave of absence should be considered a reasonable accommodation even after FMLA leave has been exhausted.  The Court in Severson v. Heartland Woodcraft, Inc., 33 AD Cases 1113, September 20, 2017 disagreed rather strongly with that view and did not follow EEOC advice.

Mr. Severson worked for Heartland since 2006 performing a variety of manual labor duties in the production area of the plant, operating production machinery, making minor repairs, maintaining the building, and frequently lifting items and product weighing 50 pounds or more.

On June 5, 2013, petitioner wrenched his back at home, which aggravated a back problem dating back to 2005.  He received FMLA leave over the summer months for care of multiple herniated discs.  On August 13, 2013, Severson called HR and advised that he needed to undergo back surgery on August 27, 2013, seeking an extension of his medical leave of several months.  The company advised that his FMLA leave would expire on August 27, 2013. The company stated that Severson’s employment would terminate when his FMLA leave expired.  He was told that he could reapply when he recovered from his surgery.

Severson’s doctor performed surgery, then in October put restrictions on him and eventually removed his 20 pound lifting restriction on December 5, 2013.  He was given clearance to return to work without limitation.  Instead of reapplying for the position, Severson sued and argued that the company failed to provide him with reasonable accommodation.

The trial court granted Heartland’s motion for summary judgment, and Severson appealed to the 7^th Circuit.  Severson relied on EEOC Guidance to the effect that a long-term medical leave of absence should qualify as a reasonable accommodation when the leave is of a definite, time-limited duration and is likely to allow the worker to return to the job and perform essential job functions.  The Court said as follows:

Perhaps the more salient point is that on the EEOC’s interpretation, the length of the leave does not matter.  If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical leave statute – in effect, an open-ended extension of the FMLA.  That’s an untenable interpretation of the term ‘reasonable accommodation.’

The Court affirmed the dismissal of this case, stating that a reasonable accommodation is something that allows the employee to perform the essential job functions, but a request for several months of leave is focused on not working.  It said not an extended leave of absences accomplishes the exact opposite of what the ADA is about, namely enabling the worker to do his or her job.  The logic is compelling but readers should recognize that not all United States Courts of Appeal agree on this issue.  At least in the Seventh Circuit, (Indiana, Illinois, and Wisconsin), the logic of this case will prevail.

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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. 

“RIPE FOR CORRUPTION”

By Kevin L. Connors, Esquire

Not our words!

It is a direct quote from the front page banner headline of the Philadelphia Inquirer on September 24, 2017, with the headline being (Inquirer Investigation/Workers’ Comp, Pharmacies’ alliance:  “Ripe for Corruption.”)

For those who did not pick up a copy of the Sunday Philadelphia Inquirer, the hyperlink can be found by googling “Ripe for Corruption.”

For anyone involved in the administration or defense of Pennsylvania workers’ compensation claims, this article is a “must read,” as it investigates the ethical boundaries surrounding Attorney ownership and investment in pharmacies prescribing medications for workers’ compensation Claimants, as the Inquire investigated pharmacies owned by Pond Lehocky, a Philadelphia law firm almost exclusively representing Claimants either receiving or seeking workers’ compensation benefits, with the firm having written referral “arrangements” with physicians prescribing medications for persons receiving or seeking workers’ compensation benefits, to utilize Pond Lehocky-owned pharmacies to fill doctor-prescribed prescriptions.

Yes, the article accurately sets forth that Pond Lehocky secured approval from the Pennsylvania State Licensing Administration, to establish the pharmacy, also having sought legal Counsel as to the ethics of pharmacy ownership, with the question left unanswered as to whether ethical boundaries limit Attorneys profiting from the medical outcomes of Clients through this type of arrangement without full disclosure to either Patient/Client, and/or Party responsible for paying.

However certain that Pond Lehocky and his Partners might be that their “arrangement” was ethically and legally sound, the “arrangement” was apparently outlined by Sam Pond, a legend unto himself, which Sam had emailed referral doctors:  “For all Patients that you may see with a workers’ compensation claim, referred to you from our office or elsewhere, we ask that you have our pharmacy, Workers First Pharmacy Services, fill these scripts.”

Apparently, Workers First Pharmacy received State approval to open its pharmacy in October of 2016, with the application submitted by Pond Lehocky indicating that no medical practitioners had a proprietary interest in the pharmacy, although, in fact, several doctors are part-owners, as evidenced by the Inquirer’s investigation into the pharmacy.

The “arrangement” has been questioned by legal and medical ethicists, on grounds that it may potentially lead to conflicts of interest, and to create a financial incentive to prescribe the costliest drugs, whether or not medically appropriate, in order to prolong workers’ compensation legal disputes, to boost legal fees and legal recoveries.

Citing to Pond Lehocky’s website, it makes a vague reference to its relationship with Workers First, noting that the firm is “partnering” with the pharmacy to help Clients get the best pharmaceutical care.

However, Clients can click right through Pond Lehocky’s website, to the pharmacies’ website, without being apprised of the law firm’s financial interest in the pharmacy and any medication scripts that it might fill.

The Inquirer article cites to numerous references of Workers First charging what some are calling “inflated” prices for medications, particularly for high-cost compounded pain cream.

Of course, Pond Lehocky takes the position that Workers First Pharmacy is an attempt to “stand up” to “diabolical people” and insurance companies, who frequently deny medications to Pond Lehocky’s Clients, in order to boost insurance company profits.

Pond’s quote is:  “You ever have an insurance claim?  You ever go up against these bastards?”

Pond Lehocky apparently denies that the email/letter that it sent to doctors, asking doctors to use Workers First for their workers’ compensation Patients, does not constitute aquid pro quo, nor does the firm believe that doctors might feel pressured to use the firm’s pharmacy, in order to continue receiving Patient referrals from Pond Lehocky, noted in theInquirer as a major pipeline for new Patients.

Conveniently, Pond says “I would be outraged--if I heard that.”

According to Workers First Board of Pharmacy application, 65% of the firm is owned by Sam Pond, and his two law Partners, Jerry Lehocky and David Stern, as well as law firm CFO, Bryan Riley.

The remaining 35% of the pharmacy is owned by six other doctors.

No less interesting is the fact that Pond Lehocky has been a strong advocate in opposition to House Bill 18, which was introduced in February of 2017 in an attempt to address the over-prescription of opioids and other painkillers, attempting to create a list of approved drugs, a set duration for treatment, and established dosage amounts for workers injured on the job.

In essence, House Bill 18 would create a pre-approved list, or “formulary” of opioids and other drugs for injured Employees requiring medical care and financial assistance for lost wages under the Workers’ Compensation Act.

With Pennsylvania ranking third in a recent 25 State study of the amount of opioids prescribed to injured workers, Bill supporters advocate that House Bill 18 is necessary to protect workers from the effects of being over-prescribed opioids, potentially resulting in other health conditions and extending recovery phases.

In response, Pond Lehocky, in advertisements that it had raised in response to House Bill 18 criticized the proposed legislation as catering to the insurance company, potentially leaving injured workers without proper treatment, as well as being a wedge between Patients and their doctors.  Pond claims that Workers First is a “mail delivery pharmacy” serving as a “counter to insurance companies warranting capricious denial of medical care to people who are recovering from injuries sustained while on the job.”

The opposition to House Bill 18 has been intensive, and no less expensive with close to $4,000,000.00 being spent by “legal professional” lobbyists, opposing the legislation.

True, more dollars were spent by “liability reform” lobbyists, although it is unclear how much of the “liability reform” dollars were spent on workers’ compensation issues.

The September 24, 2017 article by The Philadelphia Inquirer raises very serious issues with respect to conflicts of issue, as well as the potential for abuse and overreach, while, no doubt, advocates, like Pond Lehocky, will claim that their efforts are geared towards reducing worker suffering, as opposed to prolonging the shelf life of workers’ compensation claims, and eventual recoveries predicated on the length and duration of claims remaining open.

However you might look at this issue and whatever your orientation might be, there would still seem to be an unholy alliance in “investing” in the medical outcomes of Clients.

In the final analysis, the Inquirer’s banner headline poses the essential question, being whether this “arrangement” is, in fact, “ripe for corruption?”

ConnorsO’Dell LLP

Trust us, we just get it!  It is trust well spent!

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

Written by: Matt Flammia and Bruce Hamilton

The North Carolina Industrial Commission recently announced a stricter policy, which includes increased sanctions for failing to timely file a Form 60, 61 or 63. Pursuant to an October 2, 2017 Memorandum issued by the North Carolina Industrial Commission, effective December 1, 2017, there will be changes to the sanction amounts and processes for sanctions pursuant to N.C. Gen. Stat. § 97-18(j).

The amount sanctioned for failing to file a Form 60, 61 or 63 within thirty (30) days following notice from the Commission of the filing of the claim will increase from $200.00 to $400.00. Also, following an initial sanction of $400.00 for failing to timely file a Form 60, 61 or 63, Carriers/Employers have thirty (30) days to pay the sanction and file a Form 60, 61 or 63. Failure to do either action will result in an additional $200.00 sanction and the claim will be referred to an Enforcement Docket for potential additional sanctions.

Finally, all current cases that have already been assigned a $200.00 sanction need to be paid in full by November 30, 2017. Effective December 1, 2017, any case that has been assigned a $200.00 sanction that has been outstanding for more than thirty (30) days will be assigned an additional $200.00 sanction and be referred to the Enforcement Docket for additional sanctions.

The North Carolina Industrial Commission was tasked by the North Carolina General Assembly to ensure stricter compliance with N.C. Gen. Stat. § 97-18(j) with the hope that the new changes may lead to quicker dispositions of cases.

Handling Tip: We recommend all claims are reviewed to ensure they are in compliance with N.C. Gen. Stat. § 97-18(j), and there are no outstanding sanctions that have not been paid so an additional sanction is not assigned on December 1, 2017. Going forward, be sure that a Form 60, 61 or 63 is timely filed within thirty days after receiving notice from the Commission, and, if you are assessed with a penalty, that it is promptly paid and the requisite form is filed to avoid additional penalties.  Any disputes or questions regarding sanctions should be addressed by e-mail to sanctions@ic.nc.gov.

Please contact one of our workers’ compensation attorneys if you have any questions about this recent announcement and subsequent change in policy.

This summary was prepared by Associate Attorney, Scott G. Ferriss.

Some defenses, like the going-and-coming rule, get all the attention but there are other less well known defenses, like lack of timely notice, which can be very powerful as a defense in workers’ compensation.  One of the reasons that the notice defense is often ignored in New Jersey is its peculiar wording.  It has three stages to it.  N.J.S.A. 34:15-17 states initially that if notice of a work injury is not given to the employer within 14 days, then no compensation shall be due until such notice is given.  The employer cannot win in this stage, only delay payment until notice is provided.

The second stage says that if notice to the employer is given within 30 days, then the employee’s claim cannot be defeated unless the employer can show it was prejudiced by the delay. Finally, the statute provides that if notice is given within 90 days, AND, if the employee can show that the failure to provide notice was due to mistake, inadvertence, ignorance of fact or law, or fraud, then compensation shall be allowed,  unless the employer can prove that it was prejudiced by the failure to provide prompt notice. An employee automatically loses if the first notice occurs after 90 days.

Many practitioners tell clients that an employee only has to give notice within 90 days, but that is not entirely correct.  The employee must give notice within 30 days, and if the employer can show that lack of notice prejudiced the employer, the employer wins the case!  This practitioner calls it a 30-day rule.

Notice issues come into play more often than one would imagine even though most large employers have training sessions on the importance of providing notice of injury with 24 or 48 hours.  The statute does make clear that if the employer has actual knowledge of the injury, then the requirement of prompt notice is not applicable.  But a surprisingly high percentage of workers’ compensation claims involve situations where an employee has not reported a work injury for over 30 days.

Why is the notice defense important? For one thing, there are many unwitnessed accidents and it makes very little sense that an employee who is injured seriously enough to require treatment or file a claim would wait 30 days to report the injury.  If the injury were serious enough, there would usually be medical treatment shortly after the incident, and if medical treatment did occur, there should be statements to the physician about a work-related injury. When an employee waits weeks to report an alleged work injury, red flags should be flying.

Three defenses come to mind when an employee claims to have suffered a serious injury but does not report the injury promptly. First is the notice defense as outlined above, and the employer should argue that the delay in reporting prejudiced the employer.  Second is the defense that no accident ever took place, and efforts should be made to investigate the allegations to see if the accident can be disproved. Third is more of a medical defense, namely that if something did happen 30 days ago but was never reported within 30 days, then that event was almost certainly insignificant. Respondent should engage a medical expert to make this argument.  Bear in mind that most of us have had those days where we slip or fall without suffering any real injury beyond embarrassment.

Think about this:  if you were ever seriously hurt at work, why would you wait a month or even a week to report the injury?  What would be the advantage in NOT reporting it right away? It may make sense to wait a couple of days to see if the body recoveres, but 30 days?  That hardly seems plausible.  If the employee admits to treating outside workers’ compensation close in time to the alleged injury, the employer must obtain those records (often they are family doctor records) to see what history the employee provided to the unauthorized physician. Frequently there is no mention of any work injury at all. On the other hand, if the employee has not treated within 30 days, how significant could the event have been?

Winning notice defenses at 30 days comes down to proving that the employer was prejudiced by the delay.  Consider this:  if you rode a bike to the town library and then found an hour later that the bike was stolen, what are the chances that the police could help you if you waited 30 days to notify them? The fact of the matter is that people do report those kinds of incidents right away.  It’s common sense, but common sense often does not prevail in workers’ compensation.  If a claim is reported 30 days late, supervisors and witnesses may not remember the details of events 30 days ago, store security tapes may have been erased or played over, and physical conditions that may have caused the alleged accident will have changed.   Employers are almost always prejudiced by reporting delays of 30 or more days.  These reporting delays make no sense when one considers that most employers train employees about prompt reporting and include this in their employee manuals.

The only conclusion for employers is that these kinds of cases should be denied, and lack of timely notice should be aggressively pursued with the argument that the failure to timely report the injury has indeed prejudiced the employer.

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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. 

                               Hartford Insurance Group v. Kamara et. al. 976 EDA 2016 (Pa. Super., 2017)

By Jeffrey D. Snyder, Esquire

The Supreme Court of Pennsylvania has accepted allocatur of the above captioned case, which considers whether an insurance carrier can independently pursue a third-party case “on behalf of” a claimant.

The Superior Court was faced with Preliminary Objections to Hartford’s Complaint, it being argued that Hartford did not have standing to file a Complaint because the Complaint was not verified by someone with personal knowledge, because the claimant had not assigned a cause of action to Hartford, and because the claimant was not a party to the lawsuit. 

As background, the claimant Chen was standing in a parking lot of a Thrifty Car Rental location when she was struck by a rental car operated by defendant Kamara.  The Complaint against Kamara et. al. averred that Chen was in the employ of Alliance Sourcing Inc., with Hartford  paying funds in both medical and wage loss benefits to Chen under a workers’ compensation policy maintained by Alliance Sourcing Inc. 

There were two counts of negligence in the Complaint. 

Responding to the Preliminary Objections, Hartford asserted that the Supreme Court of Pennsylvania’s holding inDomtar Paper (Liberty Mutual Insurance Co. as subrogee of Lawrence v. Domtar Paper Co. e. al., No. 19 WAP 2014 (Pa., 2015) denying standing to sue was inapplicable because inDomtar the suit was brought “as subrogee of” while in this case suit was brought “on behalf of Chunli Chen”.  It was further asserted that the verification to the Complaint was proper because the Hartford employee signing it had knowledge of the facts through her work on the claim.

The trial court dismissed Hartford’s Complaint with prejudice, in reliance on its interpretation of the law asserted as applicable by the defendants, notably that the case was controlled by the Supreme Court’s Opinion inDomtar Paper and because the trial court did not consider the Complaint properly verified.  The trial court further stated that it did not grant leave to amend the verification because Hartford had failed to assert a legally cognizable cause of action against the defendants, thus granting leave to attach a sufficient verification would have been futile.

On appeal to the Superior Court, Hartford raised two issues.  First, did the trial court misapplyDomtar given that Hartford had filed suit “on behalf of” and not as “subrogee of” and, second, whether the trial court improperly characterized the verification as faulty when it was signed by a representative of Hartford with knowledge of the claim - or in the alternative whether the Court should have allowed an amended verification.

The Superior Court agreed that Domtar Paper was inapplicable because Hartford filed suit “on behalf of Chen” and was attempting to establish the liability of third party tortfeasor to Chen.  The Court, relying on prior case law, considered that either joining the employer as a party plaintiff or as a use plaintiff would operate to secure the employer’s interest in its recovery of its subrogation lien.   “We therefore hold that Section 319 is an exclusive remedy and that for an employer or its insurer to enforce its subrogation rights, it must proceed in an action brought on behalf of the injured employee in order to determine the liability of the third party to the employee.  If such liability is determined, then the employer or its insurer may recover, out of an award to the injured employee, the amount that is paid in workers’ compensation benefits”.  The Superior Court then stated: “Hartford is not attempting to ‘pursue a subrogation claim directly against a third-party tortfeasor’, is not seeking to recover only the amount that it paid to Chen in workers’ compensation benefits, and is not splitting Chen’s cause of action”.  The Court observed that Hartford had otherwise brought a single action against the third-party tortfeasors in the name of the injured employee and was trying to recover the entire amount to which Chen might be entitled.

The Superior Court also noted that because the suit was filed in Hartford’s name it was a party in the litigation and therefore its representative could verify the Complaint as a representative of “one or more of the parties filing the pleading”, remanding for further proceedings.

Ultimately, the Supreme Court of Pennsylvania, Eastern District, at No. 205 EAL 2017, granted a Petition for Allowance of Appeal, which raises three specific questions:

(a)       Can a workers’ compensation lienholder bring a third party action on behalf of the injured worker to recoup amounts paid to the injured worker from the alleged tortfeasor to the standard set inLiberty Mutual Insurance Company v. Domtar Paper Company [citation omitted]?

(b)       Did the Superior Court fail to see that the failure to attach the verification of Chunli Chen to plaintiff’s Complaint and decision to attach the verification of the insurance adjuster with knowledge of the lien, supports the argument of [Petitioners] that this lawsuit was brought without the cooperation of Chunli Chen and solely on behalf of the insurance company in an attempt to subrogate its lien in direct contradiction of the standard set inLiberty Mutual Insurance Company v. Domtar Paper Company [citation omitted]?

(c)       Is the caption, and effect of the caption, “The Hartford Insurance Group on behalf of Chunli Chen” synonymous with “Liberty Mutual Insurance Company, as subrogee of George Lawrence” as it appears inLiberty Mutual Insurance Company v. Domtar Paper Company [citation omitted]?

ConnorsO’Dell LLP

Trust us, we just get it!  It is trust well spent!

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

 Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

Cousineau, Waldhauser, & Kieselbach attorney Whitney Teel attended and presented at the Larson’s Annual Advisory Board Meeting on Minnesota’s workers’ compensation trends for 2017. The Advisory Board consists of one lawyer from each state. Thomas Kieselbach has been a member of Larson’s Advisory Board for years, advising all members on Minnesota workers’ compensation law.

Whitney presented on three significant Minnesota Supreme Court cases Kubis,Hohlt, and Sanchez. The Sanchez decision received nationwide attention for the emerging issues intersecting employment, workers’ compensation and immigration law. Lexis Nexus listed theSanchez case as one of the top 10 workers' compensation cases for 2017. 

Whitney has also prepared the Minnesota submission for the Lexis Workers’ Compensation Emerging Analysisbook that will be published later this year.

Natalie Lund will be lecturing at the 2017 Workers’ Compensation Deskbook seminaron December 1, 2017 sponsored by Minnesota CLE. Her topic will be Attorney Ethics.

The Deskbook seminar is an annual event. All key cases and developments over the past year will be covered. This is the premier Minnesota workers compensation seminar.

We congratulate Natalie for being selected as a speaker.

Cousineau, Waldhauser, & Kieselbach is proud to welcome two new Associate Attorneys to the firm. Scott Ferriss and Bryan Wachter will be great additions to the team. See below for their biographies.

Scott Ferriss

Prior to joining Cousineau Waldhauser, & Kieselbach, Scott worked in E-discovery. During law school, Scott was a legal extern at the Minnesota Department of Transportation Chief Counsel’s Office and at a large health insurance company in the government programs compliance department. His externship work included legal research, drafting memoranda, and ensuring compliance with government audits.

In his previous career, Scott served as Legislative Assistant to a United States Congressman in Washington, DC covering legislative issues that included, transportation, education, environment, healthcare, and telecommunications. After nearly five years of working for the Congressman, Scott and his then betrothed, Kristen, decided to go to law school. He does not recommend planning a wedding during the first year of law school.

Scott is passionate about the game of golf, railroads, and The Beatles. When he is not golfing, he enjoys spending time with his wife and two cats, Ringo and Eleanor Rigby. 

Bryan Wachter

Prior to joining Cousineau, Waldhauser, & Kieselbach, Bryan was a law clerk to the Honorable Mike Furnstahl, Referee of District Court, Fourth Judicial District, Minnesota. He performed legal research, wrote memoranda, recommended decisions, and drafted orders for the Court.

While in law school, Bryan served as a law clerk at Mid-Minnesota Legal Aid in the consumer division and worked as a research assistant under Professor Neil Hamilton in the development of the American Bar Association publication “Roadmap: The Law Student’s Guide to Preparing and Executing a Successful Plan for Employment.”

Outside of work, Bryan enjoys staying active and spending time with his wife and two dogs. He is an avid reader, sports fan, and music fan.