One of the most controversial issues in New Jersey workers’ compensation has to do with whether an injured worker who has been fired is entitled to temporary disability benefits.  The leading case is Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div.), certif. denied, 188 N.J. 402 (2006).   That case was a true disrupter because until it was decided, the general consensus was that the employer paid temporary disability benefits post-termination until the point of maximum medical improvement.

But where did the rule in Cunningham come from? The roots of the Cunningham decision rest in Outland v. Monmouth-Ocean Educ. Serv. Comm’n, 154 N.J. 531 (1998).  Outland was a Supreme Court case which focused on whether a teacher who was injured during the school year was entitled to temporary disability benefits over the summer months when the teacher would not have been working due to the closing of school.   The Supreme Court held that such a teacher is not entitled to temporary disability benefits in the summer months unless the teacher could prove that he or she would have been working in some other summer job.  Evidence of prior summer employment and an offer of upcoming summer employment would suffice, but without that evidence, the teacher would not be entitled to temporary disability benefits during the summer months, even if the teacher was actively treating for the workers’ compensation injury.

The theory in Outland is simple:  there is really no wage loss during the summer for many teachers, except for those who had a job lined up and now cannot perform it due to the work injury.  Eight years after Outland was decided, Mr. Cunningham tested the same waters.  He was fired from Atlantic States for reasons of work misconduct but then returned to the authorized workers’ compensation doctor who had been treating his knee.  The authorized doctor then recommended surgery on petitioner’s knee.  Cunningham sought temporary disability benefits for the period of his surgery, but the employer argued that he had no wage loss because he had been fired.  The Court agreed with the employer and ruled no temporary disability benefits were due unless Mr. Cunningham could prove that he would have been working in some other job but for the work injury.

This same rationale carried the day in Gioia v. Herr Foods, Inc., No. A-0667-10T4 (App. Div. October 11, 2011).  In that case the petitioner had a legitimate work injury, fracturing his foot stepping from his delivery truck. The company required a post-accident drug test, which came back positive, leading to the termination of petitioner, who was on light duty at the time.  The petitioner argued that he was entitled to temporary disability benefits because he was actively treating.  But the employer prevailed, arguing that petitioner had no wage loss since he had been fired for violation of the company drug policy, and he had no proof of another job offer.

Other cases have patterned themselves on the Cunningham case, and practitioners need to be aware of this line of cases.   The rule remains that an employer can deny temporary disability benefits following job termination unless the injured worker can prove that he or she would have worked in another position but for the work injury.  The Cunningham also case makes clear that it does not matter if the employee quit or was fired:  the same test applies, namely would the employee have been working some other job but for the work injury?

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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. 

Don Drysdale, a skilled carpenter, works for Craftsmen Trades and seldom goes to the company office in Mt. Laurel, N.J.  He generally spends weeks or even months working at major job sites.  On May 1, 2017 he drives his personal vehicle from his home in Cherry Hill, N.J. to a job site in Woodbridge, N.J. where a large commercial building is being constructed.  He has been working at that site for a month.  As he is driving up the Turnpike, a truck veers into his lane and strikes his vehicle, causing Mr. Drysdale serious injuries.  Is he covered for workers’ compensation purposes?

The starting point is to study the language of N.J.S.A. 34:15-36, which states that “employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work . . . provided, however, when the employee is required by the employer to be away from the employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer; but the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from the job site.”

This first question to ask is whether this commercial site is the “employer’s place of employment?”  The answer to that question is probably no since Craftsmen Trades has an office in Mt. Laurel, N.J.  That is the employer’s place of employment.  The second question is whether this commute falls under the special mission exception cited above for those trips that are “away from the employer’s place of employment?”  The answer to this question is also likely no because this location in Woodbridge would qualify as a job site since Drysdale works there for weeks or months at a time.  So we have to consider what the test is for driving to and from a job site.

Based on the statutory language above, Don Drysdale’s drive is only covered if he is using an employer authorized vehicle or if he is paid travel time for the commuting segment of his day.  In this case, he is driving his personal vehicle, so he does not meet the “authorized vehicle” exception.  But we do not yet know whether he is paid travel time.  If not, the commute is not compensable.

One case which is helpful on this issue is Mahon v. Reilly’s Radio Cabs, Inc., 212 N.J. Super. 28 (App. Div. 1986).  In that case the injured worker, a New Jersey Transit employee, was traveling on a New Jersey Transit Bus, driven by defendant Cruz, from Hoboken to his place of employment.  He paid no fare as he was provided free transportation on all NJ Transit buses as part of his Collective Bargaining Agreement.   The bus stopped at a dangerous angle in the street, and when Mahon exited the bus and walked into the street, a cab driven by Cruz struck him causing serious injuries.  Mahon sued the cab driver and NJ Transit.  NJ Transit argued that petitioner was in the scope of his employment and therefore could not sue his own employer.  NJ Transit further contended that Mahon was provided free transportation in an employer authorized vehicle.  Both the trial court and the appellate court disagreed with these arguments.

First, the Appellate Division distinguished the “place of employment” from “job site” in the above statute.  “In this case before us, the plaintiff’s accident did not occur while he was traveling to a job site away from the employer’s place of employment.  Rather, he was injured while on the way to the place of employment.”  What this meant is that the language about authorized vehicle and travel time did not apply.  Secondly, the Court said that when someone is driving to his or her place of employment, it does not matter if the transportation is cost free to the employee.  “That he was provided free transportation on NJT buses as a benefit of his employment, which he could utilize in commuting to work, does not operate to bring this travel within the scope of his employment.”  The Court cited to Nebesne v. Crocetti, 194 N.J. Super.  278 (App. Div. 1984) for the proposition that an employer does not render a commute to work compensable just because the employer reimburses all travel expenses.

The analysis workers’ compensation practitioners should make when dealing with commuting issues is this:

1.       Was the employee commuting to the employer’s place of employment? If that is the case, the travel is not compensable, including alternate places of employment.  So if an employer has an office in Trenton, an office in Parsippany and an office in Harrisburg, PA., and throughout the year the employee has to drive to all three offices, the commute to any of these offices is not compensable because all three locations would qualify as an employer’s place of employment.

2.      Was the employee commuting to a job site? If so, this commute is only compensable if the employee was using an authorized company vehicle or paid travel time.

3.      Was the employee reporting to a location that is not the employer’s place of employment and not a job site?  If so, this commute will likely qualify as a special mission and the commute will be covered because it will be “away” from the employer’s place of employment.

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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. 

A leave of absence can qualify as a reasonable accommodation under the ADA, but how long should employers consider granting such leaves?  In Echevarria v. Astrazeneca Pharmaceutical, LP, 33 A.D. Cases 673 (1^st Cir. 2017), some practical guidance emerges on this issue.  The case involved a Pharmaceutical Sales Specialist named Taymari Delgado Echevarria (hereinafter Delgado) who developed a small brain tumor in November 2010, followed by recurrent depression and anxiety.

On December 12, 2011, Delgado’s physician, Dr. Sanchez, recommended that Delgado take time off work for reasons of severe depression and anxiety.   She eventually received short term disability benefits retroactive to December 12, 2011.  Those benefits continued until March 11, 2012, but were terminated because Delgado failed to submit adequate documentation of her disability.  Human Resources then wrote to Delgado and advised her that she must return to work by March 22, 2012.  The letter made clear that if she failed to return to work, Delgado would be considered to have abandoned her employment.

Delgado did not return to work on March 22, 2012, so the HR rep offered her a severance package if she were to resign.  That conversation set Delgado back and caused her condition to relapse, according to Dr. Sanchez.  Astrazeneca then extended Delgado’s leave until April 29, 2012. Another letter was sent to Delgado advising that she must return to work by May 17, 2017 or be considered to have resigned.

Delgado did not return to work on May 17, 2012.  Dr. Sanchez wrote to the company HR rep stating that Delgado would need another 12 months of leave before she could return to work.  Eventually Delgado was terminated in mid-July 2012.  Delgado refused to accept a severance package and sued for discrimination under the ADA.  She argued that her request for leave constituted a reasonable accommodation under the ADA.  The Court said:

The combined effect of two aspects of this case convince us that Delgado has failed to show that her request for twelve more months of leave was a reasonable accommodation.  First, it seems doubtful that Delgado shouldered her burden of showing that the requested accommodation would have enabled her to perform the essential functions of her position.  Second, Delgado has not shown that additional leave for this duration is a facially reasonable accommodation. . .

In an interesting opinion, the Court considered the effect of such a request on the operations of an employer. “Compliance with a request for a lengthy period of leave imposes obvious burdens on an employer, not the least of which entails somehow covering the absent employee’s job responsibilities during the employee’s extended leave.”

This case makes sense.  While it does not answer what the outcome would have been had a shorter period of time been requested, it does provide useful guidance for employers in requiring the employee to show that the requested accommodation would allow the employee to perform the job and is a reasonable request.  Certainly a request for three months of leave would be considered by most courts to be reasonable, just as a request for one year would be considered unreasonable. The gray area is in between the three month period and one year, and the specific facts will always be critical in determining the outcome.

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

Written by: Courtney Britt and Matt Flammia

In addition to creating a medical presumption for accepted claims, the North Carolina Supreme Court’s decision inWilkes v. City of Greenville has significantly altered the landscape for proving disability.  The Court has held that an employee can prove a disability outside of the four methods outlined inRussell v. Lowes Product Distribution.  The Court also stated that an employee may rely upon competent lay testimony, as to how the employee’s injury and related symptoms have affected his activities, to prove disability.  In addition, the Court held that if an employee demonstrates an inability to work after taking into account his work-related conditions and pre-existing limitations, expert testimony is not required to prove a job search is futile.

Wilkes calls into question the framework parties have used to evaluate disability in workers’ compensation claims for more than two decades and leaves employers and carriers unsure of the standard to defend disability claims in the future. Wilkes suggests that disability can be proven by methods other than those outlined inRussell, but does not specify all of the ways an employee may prove disability.  Also, the Court’s statement inWilkes that the Court may rely on competent lay testimony to support a disability claim may result in a greater number of disability determinations and is contrary to the prior conclusion of the Court of Appeals on the same issue.  In cases of contested disability, employers and carriers should consult with defense counsel and consider obtaining expert review of medical and vocational issues to refute disability. 

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Wilkes involved a compensable motor vehicle accident and a later dispute about whether Mr. Wilkes had an ongoing disability which was litigated by the parties. Regarding disability, The Deputy Commissioner found that it would be futile for Mr. Wilkes seek employment due to pre-existing conditions that were personal to him, including his age, IQ, work history, and physical conditions as a result of the at-work injury.  Defendants appealed and the Full Commission reversed the Deputy Commissioner’s decision on disability, concluding that Mr. Wilkes had presented insufficient evidence that a job search would be futile.  Mr. Wilkes appealed and the Court of Appeals held that he had successfully demonstrated that searching for work would be futile based on his pre-existing, personal conditions.

The Supreme Court affirmed the Court of Appeals, holding that the Commission failed to adequately evaluate plaintiff’s wage-earning capacity.  Significantly, the Court expressly stated that it has not adopted theRussell methods of proving disability and that there are other ways an employee can prove disability.  The Court noted the employee still bears the burden of proving disability and that once the employee has done so, the burden shifts to defendants to show not only that suitable jobs are available, but also that the employee is capable of getting one, taking into account both physical and vocational limitations.  The Commission must consider the employee’s work-injury-related condition, age, education, prior work experience, pre-existing and co-existing conditions. 

The Court held that Russell did not apply in Mr. Wilkes’ case because, unlike inRussell, Mr. Wilkes had numerous preexisting limitations, including being over age 60, having a limited IQ, education and work experience.  Also, the Court concluded that where an employee demonstrates a total incapacity to work, expert testimony is not required to show a job search would be futile.  The Court also suggests, in dicta, that expert testimony is not required to prove disability at all and further, that an employee’s own testimony and the testimony of other lay witnesses can be used to prove disability. 

The Court then noted the Commission had denied Mr. Wilkes claim for anxiety and depression, but found his severe tinnitus was compensable.  As such, the Court found that the Commission did not adequately address Mr. Wilkes’ wage earning capacity and remanded the case to the Industrial Commission to make specific findings of fact and, if necessary, take additional evidence regarding whether his compensable tinnitus, preexisting and coexisting conditions impacted his eligibility for future disability benefits.

Alabama Ombudsmen Offering Set Schedule for Benefit Review Conferences

Ombudsmen Patricia Fraley and Ted Roose are now located in the new Career Center located at 3216 4th Avenue South (Birmingham). Because of this new location they are able to handle Benefit Review Conferences at their office. They plan to keep regular office hours on the 2nd and 4th Tuesdays of the month from 9-12 and 1-4 for anyone who wants to submit a settlement for their review. There is no need to make an appointment for these times, just drop by and one of them will be there. The dates for July are the 11th and 25th, from 9-12 and 1-4. 

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

The South Dakota Department of Labor and Regulation will begin posting appellate decisions from the Circuit Court on its website. This is something the South Dakota Workers’ Compensation Committee has been working toward for some time. Currently you can access all Department of Labor decisions, but unless we are involved in the case or the decision was appealed to the SD Supreme Court, we often did not know the outcome of the appeal, or even if a Department decision was appealed in the first place.  Fortunately, this new feature will change that.

Boyce Law will continue to monitor all Department decisions and provide case law updates on this blog. We will also report any relevant appellate decisions from the Circuit Court. The appellate decisions can be accessed at http://dlr.sd.gov/workers_compensation/decisions_appeals.aspx.  You can navigate to that page by clicking “Case Decisions” from the home page and using the “Workers’ Compensation Appeals Decision” link found on the “Case Decisions” page.

An often neglected aspect of a South Dakota permanent total disability claim is there requirement for a reasonable but unsuccessful job search effort on the part of the claimant. This is required unless the claimant is deemed “obviously unemployable” by showing that a job search would be futile, as provided in SDCL 62-4-53. Further, expert testimony is required pursuant to SDCL 62-4-53, providing, “An employee shallintroduce evidence of a reasonable, good faith work search effort unless the medical or vocational findings show such efforts would be futile. Seldom is a claimant obviously unemployable, therefore, as part of the claimant’s proof of permanent total disability there must be a showing of a reasonable but unsuccessful job search effort. What constitutes a reasonable job search? It is not something that can be defined by a bright line rule and will vary by the circumstances. It is not just based on the number of job applications or contacts made, but the number is certainly relevant to the determination.

Did the claimant only start looking in the months before hearing? Has significant time passed between the date of release to work and the job search efforts made? Is the claimant only applying to be able to satisfy the unemployment benefit of requiring two contacts a week? What types of jobs are they applying for? Submitting applications for jobs outside of their abilities and/or restrictions should hardly constitute a reasonable search sufficient to satisfy the requirement. Is the claimant registered with job service or South Dakota Vocational Rehabilitation? How is the claimant presenting in the job application or job interview? Sabotaging the application and interview process by their statements and/or presentation does not constitute a reasonable effort to return to work.

Do not neglect this important legal requirement when evaluating a claim for permanent total disability.

As we discussed in last week’s blog post, a claimant must satisfy five elements before becoming eligible to receive rehabilitation benefits. The first element is that a claimant is required to show they are unable to return to their usual and customary line of employment. In other words, the claimant must prove that they are unable to return to the type of work they were doing at the time of, or before, the work injury. For example, if the claimant previously worked as a truck driver, they must show that, because of the work injury and its accompanying restrictions, they will be unable to return to work as a truck driver. Often times, this element is satisfied when there is a claimant that has spent their entire life working in manual labor with job duties that require lifting and repetitive motion, and now they have permanent restrictions limiting them from doing ever again.

Often, this first element does not receive much attention or discussion because it is so closely tied to the premise underlying a claimant’s need for rehabilitation or retraining benefits. In fact, by the time retraining benefits are being disputed, the parties have likely already agreed whether or not the claimant can perform his usual and customary line of employment. Nonetheless, if there is some dispute regarding whether a claimant can return to their previous line of work, the claimant will need to show that the restrictions limit them from performing the previous work, often times through the testimony of a vocational expert. Please note that although this element is often undisputed and therefore not thoroughly discussed, insurers and self-insurers should remain vigilant to ensure that claimant’s satisfy this element before becoming eligible for retraining benefits.  It is important to remember that simply because a claimant states that they cannot return to their usual and customary line of employment, those statements alone are not sufficient to satisfy the first element of a claim for retraining benefits.

Look out for our upcoming blog posts over the following weeks for more detailed explanations of the remaining elements for proving entitlement to rehabilitation benefits. Of course, if you have any questions about a claimant’s eligibility for retraining benefits, we’re only a phone call away.

The South Dakota Claim for Retraining Benefits