In a surprising but unreported decision, the Appellate Division affirmed an award to a police officer who fell in the municipal parking lot on December 9, 2011 on a day when he was not supposed to be at work.  The officer said he came to work to collect his paycheck and also to check his court schedule while he was there.  The case is Grawehr v. Township of East Hanover, A-1686-15T3 (App. Div. June 29, 2017).

The accident involved a slip and fall on ice which led to shoulder surgery.  The Township denied the claim since petitioner was not working that day, and no one asked him to come to work.  The petitioner admitted that he was coming to work to get his paycheck, but he said that he also wanted to check his personal folder for any new subpoenas for scheduled court dates.  There had been problems with police officers missing scheduled appearances due to a recent merger with the Township of Hanover. A township Lieutenant testified that it was not uncommon for the more diligent officers to come in on their days off to check on their court files.

Even though Officer Grawehr never failed to appear for court and had not been disciplined (unlike others) for failing to come to court, and even though the next court date was not until December 22, the Judge of Compensation found for petitioner and awarded petitioner 27.5% or $41,187 for permanency and medical expenses. The Appellate Division affirmed. The theory of compensability in this case was the existence of a mutual benefit to the Township and the employee by these impromptu visits to the police department on days off.  The Township denied that there was any benefit to it at all.

The “mutual benefit” theory has been questioned as recently as May 1, 2017 in Liu v. 4D Security Solutions, Inc., A-3591-15T1 (App. Div. May 1, 2017).  In that similarly unpublished case a different appellate panel found that the mutual benefit doctrine did not survive the 1980 amendments.  That appellate panel rejected the doctrine completely just one month before this decision.  The decision in Grawehr makes no mention of the Liu decision.

In Grawehr, the Appellate Division struggled mightily to find case law supporting the existence of a mutual benefit doctrine.  The only case it cited was a pre-1980 case called Salierno v. Micro Stamping Co., 136 N.J. Super. 172 (App. Div. 1975), where a heart attack experienced by a worker during contract negotiations on behalf of his union was found to be compensable.   That case is not really a mutual benefit decision, and it would likely not meet the current law dealing with the requirements for compensability of heart attacks.  In essence, the panel in Grawehr assumed the existence of the mutual benefit doctrine even though the issue was whether it exists at all.

It is clear that an injury that occurs when an employee comes into work simply to pick up a paycheck is not compensable.  Miller v. Saker Shoprite, A-3746-13T2 (App. Div. November 13, 2015).  In this practitioner’s opinion, the Grawehr decision is open to criticism because the appellate panel never really found a case that supported the existence post 1980 of the mutual benefit doctrine in New Jersey.  Interestingly, neither could the appellate panel in Liu cited above.  This practitioner is aware of only two reported post-1980 decisions where the court based its decision on the existence of the mutual benefit doctrine.  One case was Daus v. Marble, 270 N.J. Super. 241 (App. Div. 1994) and the other was Mahon v. Reilly’s Radio Cabs, Inc., 211 N.J. Super. 28 (App. Div. 1986).  These cases were not mentioned in this matter or in Liu.  We will need clarification from a future reported appellate division panel or the Supreme Court on whether the mutual benefit doctrine, as applied to trips to and from work, still exists – or exists in any other context.

This case illustrates the problem inherent in the mutual benefit doctrine when it is applied to cases involving trips to work on non-work days.  The doctrine can be interpreted so broadly that it can create a massive end-around to the requirement that all accidents must meet the test of “in the course of employment.”  Anyone who comes into work to retrieve something and falls at work after hours or on days off can argue that there was a mutual benefit conferred on the employer by coming to work.  Do both parties have to agree that there was a benefit?  The township said there was no benefit in this case.  It is an extremely subjective test.  The obvious reason the claimant was coming to work in this case was to pick up his paycheck.  But that activity alone is not compensable.  Further, the next court date was 13 days away, so the decision in favor of compensability makes very little sense under any analysis.

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

Beginning July 1, 2017, the maximum workers’ compensation payable in Alabama was raised to $843.00 per week and the minimum was raised to $232.00 per week.

Part four of the five-part test states that an employee must file a claim with his employer requesting the benefits in order to be entitled to the same. The South Dakota Supreme Court, in Chiolis v. Lage Dev. Co., 512 N.W.2d 158, 161-162 (S.D. 1994), stated:

“Even recognizing that the primary purpose of rehabilitation benefits is to restore the injured employee to substantial and gainful employment, the worker may not unilaterally decide what training he or she may want to pursue and proceed to do so at the employer’s expense. To approve such an independent approach to rehabilitation training by a claimant would result in untold administrative and economic chaos and a total breakdown of the legislatively intended benefits to the injured worker of rehabilitation training. While such self-improvement is highly laudable, particularly in view of the claimant’s independent quest for it, unaided by the employer or carrier, it is outside the range of benefits provided by South Dakota law. To approve a procedure which allows an injured employee to select a rehabilitation program before petitioning Department or reaching an agreement with the employer would be putting the cart before the horse.”

The Court in Chilois denied retraining benefits, in part, due to the claimant’s unilateral decision to enter into a rehabilitation program.

The Department addressed a similar factual scenario in Shellie Holvig v. Rent-a-Center and Specialty Risk Services, HF No. 130, 2004/05, when the claimant therein moved to Phoenix and began her retraining program without alerting her employer and insurer of the same. The Department held that the acts of the claimant deprived her employer and insurer or a reasonable opportunity to evaluate her vocational situation properly and demonstrate the necessity of element four of the retraining test. Id. at 6. The Department also noted that the claimant had decided long before the denial to assume financial responsibility for her bachelor’s degree, and that there was no evidence that employer and insurer therein led the claimant to believe she would receive benefits for the program and she took no actions to her detriment based on any actions of the employer and insurer. Id.

All seemed pretty clear on this issue until Koval v. City of Aberdeen and SDML Workers’ Compensation Fund, HF No. 142, 2014/15. In Koval, the claimant had completed his claimed retraining program before petitioning or otherwise requesting retraining benefits from the Employer/Provider. On a motion for summary judgment, the Department stated:

“However, there is nothing in SDCL 62-4-5.1 or the five part test established by the Supreme Court which dictates when such a claim must be made. It is merely required that a claim be made. That such a claim could later be denied is merely a risk the Claimant makes by not getting preapproval. “A claimant may enroll in a rehabilitation program without the consent of employer, but he does so at his own risk; that is, rehabilitation benefits will not be guaranteed for a particular program simply because the program is one the claimant wishes to pursue.” Kurtenbach v. Frito-Lay, 1997 S.D. 66, ¶ 23, 563 N.W. 2d 869, 875. “It is [claimant’s] right to seek a college education, but [employer] cannot be compelled to pay for such a program if it is not necessary.” Chiolis v. Large Dev. Co., 512 N.W.2d 158, 161 (S.D. 1994) (emphasis added) (quoting Cozine v. Midwest Coast Transport Inc., 454 N.W.2d 548, 554 (S.D. 1990)).

Pursuing a rehabilitation program without first filing a claim and receiving approval does not guarantee the receipt of benefits. However, not seeking preapproval does not preclude the application of the rest of the test to establish if claimant is entitled to the rehabilitation benefits. Therefore, since Claimant’s claim satisfactorily fulfills step four of the test, and Claimant and Employer disagree on his fulfillment of the rest of the five-part test requirements, issues of material fact remain regarding Claimant’s petition for retraining benefits.”

The Koval decision was settled before hearing and consequently there have been no appeals from this curious decision that clearly allows a claimant, contrary to Chiolis, to “…put the cart before the horse”.

Josephine Holt (“Employee”) slipped and fell on an icy sidewalk, breaking her hip. She was a painter employed by the University of Minnesota (“Employer”) and after finishing her shift and “punching out”, she began walking the four blocks to her car. She had parked in an Employer owned ramp because it was one of the cheaper places to park. She had not been instructed on where to park. It was snowing and sleeting that day and despite the Employee’s attempt to walk carefully, when she began to cross the street across from the parking ramp, she slipped on the sidewalk’s curb ramp and fell. Per a City ordinance, it is the responsibility of the Employer to maintain the relevant sidewalk and keep it clear of snow and ice.

The matter went to hearing before a compensation judge. The issues disputed at hearing were whether the injury arose out of and in the course on the employment. The compensation judge held the injury did not arise out of the employment because the hazard the Employee faced (an icy sidewalk) was no different than that faced by the general public. The decision was appealed.

The WCCA reversed, holding the injury did arise out of the employment because the Employee was on the Employer’s premises when she was injured and was “walking a short distance on the most direct route to a parking ramp owned and operated by her employer.” The WCCA noted that the Employee was on the premises because of her employment and not because she was a member of the general public. The Employer appealed. arguing the WCCA had misapplied Dykhoff’s distinct “arising out of” and “in the course of” tests.

The Minnesota Supreme Court affirmed the WCCA’s decision, finding the injury compensable. The Court noted that there were no relevant facts in dispute, and therefore reviewed the case de novo. The Court analyzed the facts under the two-part test established in Dykhoff, reiterating that both the “in the course of” and “arising out of” tests must be applied separately and both must be satisfied for an injury to be compensable.

In order for the “arising out of” part test to be satisfied, there must be some casual connection, A causal connection can be established by showing an increased risk. The Court held the WCCA correctly concluded there was a causal connection between the injury and the employment because the Employee was exposed to the hazard of the icy sidewalk because of her employment. The Court stated, “…the test is not whether the general public was also exposed to the risk, but whether the employee was exposed to the risk because of employment.” When an employee is exposed to a hazard on the employer’s premises that creates an increased risk, the “arising out of” prong of the test is satisfied.

An employee is “in the course of” employment both when he or she is providing service to the employer and for a reasonable period of time beyond working hours when engaging in activities incidental to the employment. In this case, the Employee was walking four blocks directly from the building she was working in to where her car was parked. This walk was incidental to her employment and within a reasonable time after she completed her shift. When the incident occurred, she was traveling between Employer premises – the building she was working in and the parking ramp. Traveling between two Employer premises puts an Employee “in the course of’ employment. Additionally, she was walking on Employer maintained sidewalks.

There was a vigorous dissent from Justice Anderson who opined that neither the “arising out of” or “in the course of” tests were satisfied. Justice Anderson reasoned that there was no causal connection between the injury and the employment because the Employee was not exposed to any greater risk than the public and could just as easily have fallen at that same spot in pursuit of personal activities. She was not “in the course of” her employment because she had punched out, was not performing work duties and was walking on a public sidewalk to a parking location of her choosing.

Full Decision: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/OPA160349-062817.pdf 

Summary prepared by Emily Johnson, associate attorney

In this case, Kubis (“Employee”) sustained an injury at work while rushing up a staircase at Community Memorial Hospital (“Employer”). The matter proceeded to a Hearing. The issue before the compensation judge was whether her injury arose out of and in the course of her employment. During the Hearing, the Employee testified that she needed to go up to the second floor to complete a report and clock out. In conflicting pieces of testimony, she stated that she rushed up the stairs because she was “afraid of the overtime” and “wanted to report off to the next crew.” In the weeks leading up to her fall on the staircase, there was some discussion by her Employer regarding limiting “unnecessary overtime” for all employees. However, this Employee had been authorized to work overtime to complete her documentation in the past. Additionally, she had worked overtime in 10 of the 13 pay periods preceding her fall. There was nothing hazardous about the staircase itself according to an expert report submitted by the Employer and Insurer. The compensation judge dismissed the Employee’s claim and found that she failed to establish that her injury was caused by an increased risk that arose out of her employment. Most importantly, the compensation judge found that her “claim that she was rushing up the stairs because she felt pressured to do so because of the hospital’s policy encouraging employee’s [sic] to log out on a timely basis at the end of their shifts is not credible.”

The matter was appealed to the WCCA, and it reversed the compensation judge’s decision. The WCCA reasoned that the Employee’s split motivation of prompt report to the oncoming shift established an increased risk that arose out of her employment. The case was appealed to the Minnesota Supreme Court.

The Minnesota Supreme Court reversed the WCCA’s decision and reinstated the ruling by the compensation judge. The Court held that the WCCA failed to adhere to the appropriate standard of review, which is found in Hengemuhle. The WCCA cannot substitute its view of the evidence as long as the compensation judge’s findings are supported by substantial evidence. Ultimately, the Court held that the WCCA substituted its own credibility determination of the Employee in this matter and decided that the compensation judge was incorrect. This is improper under the Hengemuhle standard of review.

Notably, this case was a 4-3 decision. The Minnesota Supreme Court did not analyze the increased risk test, as the case was solely decided by the standard of review issue described above. However, the dissent notes that Minnesota should consider adopting the “positional-risk test” instead of the increased risk test. This may be an interesting development in the future should the Minnesota Supreme Court decide to hear this issue.

The full decision can be found here: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/OPA160361-062817.pdf 

Summary prepared by Parker Olson, associate attorney.

This is an employment law case which involves the workers’ compensation anti-retaliation statue, Minn. Stat. 176.82. The underlying facts of this case concern an employee who came to the United States on a tourist visa, but continued to live in the United States without documentation after the visa expired. He bought a social security number to apply for jobs, and this social security number was provided to the employer when he was hired in 2005. The employee alleged his managers were aware that he was no legally authorized to work in the United States.

He was injured in 2013 while operating a sandblaster. He missed work and incurred medical expenses. A claim petition was filed, and the workers’ compensation claim had settled. In any event, in his deposition, he testified he was not legally authorized to work in the United States. After his deposition, he was asked about his legal status by his employer, and he was told he could not work for the employer any longer due to his legal status. He was then presented with a letter – which he signed – indicating that he had voluntarily told his employer that his social security documentation was not legitimate and that he was not authorized to work in the United States, and thus, he was sent home on unpaid leave. He could return to work once he provided legitimate paperwork evidencing he could legally work in the United States.

Procedurally, the employee sued the employer under Minn. Stat. 176.82 for retaliatory discharge. The district court granted summary judgment to the employer concluding there was no issue raised of material fact about whether the employee was discharged due seeking workers’ compensation benefits. The Court of Appeal reversed, and the Supreme Court affirmed.

Minn. Stat. 176.82 only applies in cases of discharge, threatened discharge, and intentional obstruction of benefits. Thus, there was a question on whether the employee’s “leave” constituted discharge. The Court held that the actual intent of the employer was key in determining whether discharge occurred, and where the employee is placed on “temporary” leave, but the intent is for the leave to not end, then said “leave” amounts to discharge. If the motivation was retaliatory, then it implies there was intent for the leave to be permanent. This was determined to be an issue of factual dispute, which was to be resolved by a factfinder.

In addition, the Court held there was an issue of genuine material fact regarding whether the employee was discharged for seeking workers’ compensation benefits, another element of Minn. Stat. 176.82. The Court noted that the employee asserted the employer knew about his immigration status for years prior to the workers’ compensation injury.

Finally, the Court held the Immigration Reform and Control Act (IRCA) did not preempt an undocumented worker’s claim under 176.82. The Court indicated employer could have complied with IRCA and 176.82, if the employee had been discharged due to immigration status.

Impact: This is a procedural employment law opinion; however, the impact on workers’ compensation is that an employee can bring a 176.82 retaliatory discharge claim even if the employee is placed on “leave” when it is the employer’s intent is for the employee not to return to work. In addition, complying with IRCA will not be a defense to a 176.82 claim when the discharge is retaliatory for bringing a workers’ compensation claim. Simply put, where an employer knows that the employee is undocumented prior to the workers’ compensation claim, and discharges the employee after the workers’ compensation claim on the basis of the employee being undocumented, they expose themselves to a 176.82 claim.

The full decision can be found here: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/OPA151183-062817.pdf 

Summary prepared by Elizabeth Cox, associate attorney.

In every state, two investigative forms have an enormous impact on helping employers save money and win cases in workers’ compensation: first, a detailed Employee Accident Form filled out entirely by the injured employee and signed by the employee, and second, a detailed Supervisor’s Report Form.   This practitioner has tailored both forms for the use of firm clients.  I have written extensively in the past about the enormous value of an effective Employee Accident Form, and this blog will explore why a Supervisor’s Report Form also helps win cases and reduces workers’ compensation costs.  Clients who use both forms have enhanced their chances of prevailing geometrically.

Many employers traditionally have a combined one-page form for the supervisor to fill out one section and for the employee to fill out another section.  Sometimes the supervisor writes what the employee tells him or her, and then the employee only signs the form.  This is not effective in court because the employee can reject what the supervisor wrote as inaccurate.  It is always better for the employee to complete the Employee Report in his or her own handwriting.   It is also hard to tell if the supervisor is writing what he or she thinks or what he or she was told.  The abbreviated Supervisor’s Form will ask “How did the accident happen?” and the supervisor may write:  “Employee slipped on ice.”   Much later it may become clear to defense counsel that the supervisor really did not think this accident ever happened.  He wrote just what the employee told him, but the form had no place for the supervisor to raise doubts.  So cases get accepted, bills get paid, and surgery ensues when all of this should have been denied.  In short, these abbreviated forms are like an appetizer to an entrée.  You get much more out of two separate and detailed forms filled out as close as possible to the time of the incident.

So what makes an effective Supervisor’s Report Form?  To ask it another way, what information should an employer strive to obtain in a supervisor’s form that will help prepare the defense of a workers’ compensation claim and often help win the claim? In this practitioner’s view, these are the essential elements in a powerful Supervisor’s Report Form:

§  Information that would determine if there is a notice defense or late reporting issue;

§  Detailed information on the time, date and mechanism of injury;

§  A list of witnesses to the incident, if any;

§  Detailed information on what others saw or were told by the employee about the incident or accident;

§  Specific information about the employee’s job duties generally and on the date of the incident;

§  Information on second jobs or other physical activities engaged in by the employee in the years prior to the incident or accident;

§  Information on motor vehicle accidents, home injuries or sports injuries that the employee was involved in during the past few years;

§  Information on whether the employee was offered or declined medical attention.

All of this information – and more — can be easily captured within two pages, and this approach can be used in any state.  But in states like New Jersey, where there are no depositions or interrogatories permitted in traumatic claims, a comprehensive Supervisor’s Report Form is imperative! This form and the Employee Accident Form will often be the only useful discovery that employer will ever get in many cases.  For employers with a high volume of comp claims, using these two forms will consistently lead to success because patterns develop, and supervisors become more adept at understanding the workers’ compensation process.  The carrier, TPA, self-insured employer and defense counsel will be able to make intelligent decisions on whether to deny the claim or accept it, and if denied, how to win the case and not pay for unrelated surgery, lost time and permanency benefits.

There are no reliable statistics on how many comp claims involve some kind of legal issue as opposed to clearly witnessed accidents where there really are no issues other than the extent of permanency. This practitioner believes that perhaps fifty percent to two thirds of claims are unwitnessed or are questionable because the injured employee was known by the employer to have the health condition prior to the accident, or the mechanism of injury simply makes no sense. These are the kinds of claims that bedevil employers and can wreck budgets and explode reserves.  Most employers know their employees pretty well and have an instinctive sense when there is something wrong with a claim.  Defense attorneys get litigation files well after the claim occurs, and they pore over the supervisor’s report form, only to conclude that there just is far too little information on the form to win the case.  Memories fade quickly, and any claims professional or defense lawyer knows how hard it is to resurrect the facts of a claim with a supervisor or witness in a discussion that occurs 12 or 24 months later.

The solution is simple:  require a few extra minutes to obtain a more detailed series of questions right up front.  Some of the 22 questions on this practitioner’s two-page form require simple yes or no answers, such as “Did you personally observe the incident involving this employee?” and “To your knowledge, was this accident witnessed or unwitnessed?”   Some of the questions require a few sentences of description: for example, “If you did not witness the incident but others told you about it, describe exactly what they told you, who spoke with you, and what that individual said.”

How much does this cost to implement? The answer is it costs nothing.  This is what it requires: an extra two or three minutes to complete over the traditional one page form.  In exchange for an investment of two or three more minutes, employers get a useful form that paints a clear picture of whether the claim should be denied, whether there are strong defenses, and who the witnesses will be to help the employer win the case.  It doesn’t matter what state the employer is in, as this approach is universal.  There is no training required for supervisors because this kind of supervisor’s form must be self-explanatory and simple.

Clients of Capehart who are interested in reviewing this practitioner’s Employee Accident Form or the Supervisor’s Incident Report Form should contact the undersigned.

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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. 

Thanks to our wonderful clients who continue to refer more and more of their interesting cases to us, we are growing. This month we welcome attorney Amanda Schwertner to our firm.

Amanda is a native of Big Lake, Texas and attended Texas Tech University where she was a student trainer for the football team. She has two dogs named Willie Nelson and Dolly Parton.

Please go to our website to check out herbiography and, when you have a free minute, give her a call to say hello.