NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
The South Dakota Department of Labor recently held that when a Petition for Hearing is not filed within two (2) years from the date of the denial letter, the claim cannot be reopened for a change in condition pursuant to SDCL 62-7-33. In Palmquist v. Luverne Truck Equipment, Inc. and Travelers Insurance, the Claimant’s medical benefits were denied via letter and no Petition for Hearing was submitted until after two years had passed from the denial. Claimant argued that a letter she filed with the Department prior to the denial letter should be considered a Petition for Hearing (the medical benefits were denied after benefits had been issued for a matter of years). The Department first analyzed the letter that Claimant sent to the Department in prior years to determine whether it included the necessary information to be considered a Petition for Hearing. In determining that the letter was not a Petition for Hearing, the Department relied on Administrative Rule 47:03:01:02 to hold that the letter did not contain the specific information required by the Rule. Since there was no prior Petition for Hearing on file, the Department then analyzed whether SDCL 62-7-33 applied to a claim where the two year statute of limitation applied.
It was undisputed that Claimant’s Petition for Hearing was filed after the two year statute of limitations had run. Claimant argued that her claim should be reopened under the change in condition statute found at SDCL 62-7-33 because she experienced a change in her physical condition after the two year statute of limitations had run. Claimant relied on language from Owens v. F.E.M. Electric Assn., Inc., 2005 SD 35, 694 N.W.2d 274, 280, when arguing that a change in condition after the expiration of the two year statute of limitations allows Claimant to continued workers’ compensation benefits. The Department denied Claimant’s request to reopen her claim and held that Claimant’s assertion flied in the face of the clear language of SDCL 62-7-35, which says all claims which have been denied in writing and for which no petition for hearing has been filed are “forever barred.” The Department also held that allowing a claim to be reopened under SDCL 62-7-33 would be contrary to the Legislature’s intent. Claimant also made equitable arguments to overcome summary judgment and the Department rejected them in their entirety.
This matter has been appealed and is currently set for oral arguments in Spring of 2017.
On September 23, 2016, the Alabama Court of Civil Appeals released its opinion inAugmentation, Inc. v. Harris. Debra Harris alleged injuries to her neck, back, and left shoulder while working for Augmentation on April 3, 2011. Harris’ authorized treating physician, Dr. James Bailey, diagnosed Harris with "recurrent cervical and lumbar strains", and prescribed conservative treatment that consisted primarily of injections and pain medications. Augmentation disputed that the "recurrent strains" were related to Harris’ alleged accident, and Harris filed a Complaint for workers’ compensation benefits in the Circuit Court of Tuscaloosa County. At the outset of the case, Augmentation filed a motion seeking an independent medical examination, and that motion was denied. After the depositions of Harris and Dr. Bailey, the parties agreed to a settlement of Harris’ indemnity and vocational benefits. The settlement agreement presented to the trial court clearly stated that compensability of Harris’ alleged injuries was disputed, and that the issue of "future medical benefits shall remain open, subject to all medical necessity, causation, and pre-authorization requirements as provided by The Alabama Workers’ Compensation Act." The trial court approved the settlement in April 2014.
Subsequent to the settlement, in 2015, Dr. Bailey prescribed a lumbar epidural steroid injection and prescription pain medications to treat Harris’ lumbar strain. The workers’ compensation adjuster wrote to Dr. Bailey, asking him to address whether the need for said treatment was related to the April 2011 injury or some other cause, and if so, what the basis for his opinion was. According to Augmentation, Dr. Bailey did not respond to the letter. The adjuster then contacted two other orthopedic specialists, and asked for their respective opinions on the matter. Both of those physicians penned reports in which they stated that the cervical and lumbar strains Harris sustained in the April 2011 accident most certainly would have resolved after nearly four years, and the need for further treatment would not be related to the accident. Based on this information and the fact that Dr. Bailey had not provided any information to the contrary, the treatment prescribed by Dr. Bailey was not approved. Harris then filed a petition asking the Court to hold Augmentation in contempt of the April 2014 Order approving the settlement. Augmentation responded to Harris’ petition, asserting that the April 2014 Order did not require it to provide the treatment prescribed by Dr. Bailey unless Harris could prove that the treatment was related to the 2011 accident. Citing § 25-5-88 of The Alabama Workers’ Compensation Act, Augmentation pointed out that Harris was entitled to have a trial on the issue to resolve the dispute, and that Harris would have the burden of proof. Augmentation also argued that even if it should have approved the treatment recommended by Dr. Bailey, it’s failure to do so was not willful and contumacious based on the language of the settlement agreement. The court set the matter for hearing, and Augmentation sought leave of court to obtain the deposition testimony of the two orthopedic specialists who provided written opinions prior to the hearing on Harris’ contempt petition, which the trial court denied.
The trial court held a hearing, and found Augmentation in contempt "for its willful, continuing failure or refusal to comply with the Court’s Settlement Order dated April 3, 2014, wherein the Court ordered that future medical benefits shall remain open." The trial court further stated that Augmentation failed to present evidence that the treatment prescribed by Dr. Bailey was not reasonably necessary, and that it failed to present good and valid reasons for its refusal to authorize that treatment. The court ordered Augmentation to pay Harris’ attorney’s fees, and ordered Augmentation to approve all treatment prescribed by Dr. Bailey. Augmentation appealed, arguing that it was not in contempt because the settlement order put limitations on its liability for future medical treatment; that any violation of the settlement order was not willful and contumacious; and that the trial court erred by failing to allow meaningful discovery or conduct a trial on the merits of the case.
The Court of Appeals found that while the settlement order only required Augmentation’s to provide future medical care subject to medical necessity, causation, and pre-authorization requirements, the trial court had concluded that the treatment prescribed by Dr. Bailey satisfied those requirements. The Court of Appeals further held that it was Augmentation’s duty to contest its liability (prior to Harris filing her contempt petition), citingTotal Fire Prot., Inc. v. Jean, 160 So.3d 795, 799 (Ala.Civ.App. 2014). The Court noted that Augmentation did not seek a judicial determination in accordance with § 25-5-88 prior to Harris filing her petition, and it did not resort to the utilization review process outlined in § 25-5-293(g). As a result, the Court of Appeals held that the trial court did not abuse its discretion in finding that Augmentation’s failure to approve the treatment "without just cause" was willful and contumacious.
The Court of Appeals affirmed the trial court’s ruling, and Augmentation petitioned the Supreme Court of Alabama for a Writ of Certiorari. On December 9, 2016, the Supreme Court denied the Petition for Writ, without a written opinion.
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About the Author
This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his 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 Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.
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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
October 2016 - December 2016
Insurer to Pay Medical Fee Because Evidence Showed Medical Device Was Authorized and Medically Necessary
Crain vs. U.S. Engineering, Inc., Injury No. 12-008230, Medical Fee Dispute No. 12-01430
The claimant underwent surgery and received a cold therapy machine from Mr. Curran (the Provider) as part of his post-operative treatment. The Insurer paid $15,540.00 in medical fees for the cold therapy pump from December 14, 2012 - September 18, 2013. The Provider also billed $5,600.00 for use of the medical device from November 13, 2012 - January 31, 2013, which the Insurer denied, claiming it was “an unlisted procedure” or “improper coding.” The Provider submitted an Application for Direct Payment.
At a Hearing, the ALJ found that the medical device was both medically necessary and authorized in advance, even though the Provider did not speak directly to the Employer/Insurer regarding prior authorization. The ALJ reasoned that the medical device was authorized just one day prior to the dates of service in dispute, because the Insurer paid for the device from April 6, 2012 - November 12, 2012 and testimony established that the Insurer would not make payments toward equipment unless it was authorized. The ALJ also held that in this case, the Provider was not required to receive direct prior authorization from the Employer/Insurer in order for the medical treatment to be authorized in advance. Therefore, the employer/insurer were ordered to pay $5,600.00 to the Provider for use of the medical device during the disputed dates of service. On appeal, the Commission affirmed the ALJ’s Award.
Claimant Entitled to Past Medical Expenses But Not PPD Because Injury Caused a Temporary Increase in Pre-Existing Neck Complaints But Did Not Result In Permanent Disability
Stevenson vs. Laclede Gas Company and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 06-078015
On August 15, 2006, the claimant was changing out a gas propane valve when she felt a pop in her neck and experienced shooting pain. She also had a history of neck complaints beginning in 2000, which worsened over time. Seven months prior to the work injury, on January 13, 2006. Dr. Stewart performed a multi-level cervical fusion.
With respect to the August 15, 2006 work injury, the claimant was initially seen at Concentra and then transported by ambulance to Barnes Jewish Hospital, where she received intravenous pain medication. Three days later, on August 18, 2006, she was seen Dr. Samson, at which time she reported that her increased neck pain had resolved in the three days following her work injury. The doctor diagnosed a neck strain, which he opined had spontaneously resolved and did not require further treatment, as well as pre-existing non-work related cervical spondylosis, stenosis, and myelopathy secondary to a degenerative congenital neck condition. The claimant did not receive any additional treatment with respect to her August 15, 2006 injury.
At a Hearing, the ALJ found that the claimant sustained a work place accident that resulted in temporary disability referable to a temporary neck strain and increased neck pain as diagnosed by Dr. Samson. Pursuant to Dr. Samson’s report, the ALJ found that the neck strain resolved spontaneously with pain medication and did not result in permanent disability. Therefore, the employer was responsible for the claimant’s medical expenses following the work accident, but not responsible for any PPD benefits because the claimant’s August 15, 2006 injury did not result in a permanent disability. On appeal, the Commission affirmed the ALJ’s Award and decision.
Claimant’s Left Knee Injury Compensable Despite Pre-Existing Left Knee Condition, Because Increase/Change in Job Duties Caused an Increase in His Complaints
Clawson vs. Cassens Transport Company, Injury No. 10-114126
The claimant worked as a union car hauler and was required to climb ladders, squat, kneel, and walk up ramps. In 2014, his work load doubled, and he began working 6-7 days per week rather than 5 days per week. The claimant had a pre-existing left knee condition after a work accident on December 7, 2010, where he slipped on a ramp and twisted his left knee. An MRI of the left knee showed a mild sprain but no tear. He was released from care and worked full duty for another 3 ½ years without additional medical treatment.
After the change in job duties in 2014, the claimant’s left knee complaints worsened and in February 2015, he reported his complaints to the Employer. The employer denied his claim and declined to provide medical treatment. Therefore, the claimant treated on his own with Dr. Parmar and Dr. Rasmussen. He underwent another MRI of the left knee on February 15, 2016, which showed free edge tearing of the body of the lateral meniscus of the left knee. Dr. Parmar recommended surgical intervention and opined that the tear and the increase in his complaints were casually related to the increase in his job duties.
At a Hearing, an ALJ found that although the claimant had a prior left knee injury from 2010, the prevailing factor in causing his worsening left knee complaints was the change/increase in his job duties. The ALJ considered the change in MRI findings between 2010 and 2016, the latter of which showed new tearing that was not present in the first MRI. The ALJ also reasoned that the claimant worked full duty for 3 ½ years without additional treatment after he was released from care for his 2010 injury. Therefore, the claimant’s left knee injury was found compensable, and the Employer was ordered to pay medical treatment and TTD benefits. On appeal, the Commission affirmed the ALJ’s decision and Award.
Employer Not Entitled to Reduction in Benefits Due to Safety Violation
Hadley vs. Beco Concrete Products, Inc., Case No. SD34191(Mo. App. 2016)
FACTS: The claimant was killed in a motor vehicle accident on July 25, 2012. The employer argued they were entitled to a reduction in benefits due to a safety violation. The employer alleged that it adopted a reasonable rule that its employees must obey all of the rules of the road and the claimant did not obey that rule by driving at an excessive speed for conditions, driving in a careless and prudent manner, and failing to obey traffic control devices. Basically, the employer argued that they were entitled to a reduction because the claimant was speeding. The Commission determined that the employer was not entitled to a reduction for a safety violation.
HOLDING: The Court also held that the employer was not entitled to a reduction as the Court agreed with the Commission’s finding that the employer failed to prove that it had a valid safety rule. The Court noted that the employer offered no evidence that it had a written rule advising employees that they had to obey all federal, state, statutory, and administrative laws. Also the Court noted that the employer’s representative was deposed and did not provide any testimony or documentary evidence of this rule. Thus the employer’s claim that it had a specific safety rule to obey the rules of the road was rejected by the Commission. Also, the Court noted that the Commission also stated that under the employer’s rational, so long as an employer generically admonishes its workers to obey a law, every motor vehicle accident caused in part by a workers’ error or negligence would be subject to the so called safety penalty. The Commission determined that if the legislator intended to systematically halve the compensation available to imperfect drivers it would have said so. Therefore, the Commission’s decision was affirmed.
Claimant’s Widow Not Entitled to Continuing PTD Benefits because No Evidence of Dependency was Presented at the Hearing
Carter vs. Treasurer of State of Missouri as Custodian of the Second Injury Fund., Case No. WD9437 (Mo. App. 2016)
FACTS: On January 25, 2005, the claimant sustained a work related injury. In 2009, the claimant was awarded PTD benefits from the Fund. In 2014, the claimant died of causes unrelated to his work injury. Therefore, the Fund stopped paying benefits. The claimant’s widow filed a Motion with the Commission to substitute herself as a party in the claimant’s workers’ compensation case. The Commission denied her Motion and she filed an Appeal.
HOLDING: The claimant’s wife argued that Schoemehl applies to her case, and therefore since the claimant died of causes unrelated to the work injury she is entitled to continuing benefits. The Court did note that despite the fact thatSchoemehl has been abrogated, courts have continued to rule that Schoemehl does continue to apply to claims for PTD benefits that were pending between January 9, 2007, the dates the Supreme Court issuedSchoemehl and June 26, 2008 the effective date of the 2008 amendments. However, the Court noted that the issue in this case is that at the Hearing there was no testimony with respect to dependency and since it was not made an issue at that level, the Commission cannot make any findings regarding the same. Therefore, the Court confirmed the Commission’s decision in dismissing her Motion.
Employer Prevailed in Civil Case Where Claimant Alleged Retaliatory Discrimination
Lambrich vs. Kay, et al., Case No. ED103128 (Mo. App. 2016)
FACTS: The claimant and his wife filed a Petition against Cassens Transport Company along with some of their employees alleging retaliatory discrimination after he filed a workers’ compensation claim. The claimant sustained a compensable injury to his shoulder and was released from care with restrictions which the employer determined they could meet. The claimant was told to contact the employer about returning to work as his TTD benefits would be ending. However, he did not return to work because he believed that he could not work. He then obtained a slip from Dr. Cohen excusing him from work. Thereafter he was placed on ISL, indefinite sick leave, as this was protocol at the insured when an employee had a claim and there were conflicting medical opinions as to whether the claimant could return to work. The claimant remained off work and on ISL without pay. The claimant then brought this retaliation suit and the trial court found for the employer and the claimant appealed.
HOLDING: The Court of Appeals affirmed the decision of the trial court. It noted that the trial court heard testimony from five different employees all of whom testified that they would never punish or discriminate against an employee for filing a workers’ compensation claim and the trial court found their testimony credible and also found that there was no evidence of animus or intent to discriminate or retaliate against the claimant at all. The Court noted that to prevail on his claim he must establish that he was discharged or discriminated against for exercising his rights under the workers’ compensation law. The Court noted that placement on ISL was not tantamount to a discharge and the employer testified that the claimant could return to work when able.
The Court of Appeals did recognize that the standard for retaliatory discrimination has changed to “a contributory factor” from “the exclusive clause” it noted that the trial court determined that under either standard the claimant failed to establish his burden of proof and therefore the employer prevailed.
Employer Responsible for Medical Bills from Unauthorized Treatment as Claimant Testified She did not Know if Insurance Company Would Try to Recoup Money
Cook vs. Missouri Highway and Transportation Commission, Case Nos. SD34290 & SD34291 (Mo. App. 2016)
FACTS: The claimant, a 55 year old woman, worked at the employer since August 1997 as a secretary. She spent 85 - 90% of her time at the computer performing data entry work. She intially sought treatment in 2005 and underwent an EMG/NCS which was normal and she was not diagnosed with carpal tunnel syndrome. She next treated in 2007 and again was not diagnosed with carpal tunnel. In late 2010 and early 2011 she began to again notice symptoms and told the employer about them and she was evaluated by Dr. Crandall who diagnosed carpal tunnel but didn’t believe her symptoms were work related. The claimant filed claims on January 10, 2012 and underwent treatment on her own. At a Hearing the ALJ determined that the claimant’s condition was work related and awarded benefits. The employer appealed.
HOLDING: The employer first argued that the claimant’s claim was barred by the statute of limitations arguing that her injury became reasonably discoverable and apparent as early as 2005 and 2007. However, the Commission did not agree since the EMG/NCS was normal and she was not diagnosed with the condition.
The employer also argued that the Commission erred in finding that the employer was responsible for the claimant’s past medical treatment. The employer argued that even the claimant testified that her insurance through the employer paid for all of her medical expenses and to her knowledge those bills were completely satisfied. She also testified that she was unaware of whether she would be asked for reimbursement of those charges in the event that the case was deemed compensable. In light of this the Commission found that since she was not aware as to whether the insurance company could ask for reimbursement, the employer was responsible for the bills. The employer also argued that because of being self insured for workers’ compensation purposes any payment by the claimant’s health insurance through the employer must be deemed a payment directly from the employer. The Court did not agree and the Commission’s Decision was upheld.
Firefighter Who Had Knee Replacement Found PTD as Result of Last Injury Alone Despite Prior Arthroscopy on Opposite Knee
Palmer vs. South Metro Fire District and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 11-077076
The claimant, a 59 year old long term firefighter/EMT, was walking out of a fire and his foot caught on debris causing him to fall on his left knee. He underwent an arthroscopy and ultimately underwent a total knee replacement on November 8, 2011. When he was placed at MMI by the authorized treating physician he was given multiple restrictions which caused him not to be able to return to work as a firefighter. At a Hearing the claimant also testified that as a result of his injury he was having problems with his right knee and back due to gait issues. The claimant did have a prior right knee injury in 2007 for which he underwent an arthroscopy and received a settlement for 15% disability to the knee. After this injury he was released to return to work with no restrictions.
The claimant’s expert, Dr. Koprivica, believed that if the claimant was PTD it was due to his injury and his pre-existing condition. Dr. Stuckmeyer, presumably the Fund’s expert, believed that the claimant was PTD as a result of the last injury alone.
The ALJ found that the claimant was PTD based on the last injury alone opining that the claimant’s prior injury did not result in any restrictions. Also as a result of the last injury he developed additional pain in his right knee along with law back pain. The Commission affirmed the Award of the ALJ.
Claimant Entitled to TTD After Being Placed At MMI Because Continued to Be Engaged in “Rehabilitative Process”
Jefferson City Country Club vs. Pace and Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD79405 (Mo. App. 2016)
FACTS: On October 4, 2002, the claimant was breaking down tables when 5-6 table toppers fell on her and she sustained an injury to her neck and right shoulder. In August 2004, Dr. Graven performed surgery on her neck. Thereafter, Dr. Rummel performed surgery on her right shoulder. She was placed at MMI on November 17, 2005. Thereafter, she continued to have complaints and was diagnosed with depression. She sought treatment on her own and went to a Temporary Hearing and thereafter she underwent a second surgery on her neck which was performed by Dr. Chabot.
A Final Hearing was held at which time the parties stipulated that the claimant reached MMI on August 25, 2011. A Final Award was issued by the ALJ and it was appealed to the Commission who determined that the claimant sustained a work related injury; she is PTD as a result of her neck and right shoulder injuries coupled with her depressive symptoms; she failed to prove Fund liability as there was no evidence of disability before her work injury; she is entitled to past temporary disability benefits from November 7, 2005 - August 24, 2011 and she is entitled to future medical treatment. The employer appealed.
HOLDING: The employer argued that the Commission used the wrong legal standard for the causation requirement as it assumed that proof of depressive symptoms alone constituted proof of causation. The Court noted that the employer’s argument had no merit as the Commission explicitly accepted the claimant’s expert medical testimony as credible and persuasive.
The employer also argued that the Commission erred in finding that the claimant was engaged in the “rehabilitative process” between November 17, 2005 - January 2, 2011 because the finding was contrary to the overwhelming weight of the evidence. The Court noted that pursuant to the statute partial disability benefits are to be paid “throughout the rehabilitative process.” Whether a treatment is a part of the rehabilitative process is a question of fact for the Commission. The Commission found that the claimant persuasively testified that she continually sought help for her condition after she was released by Dr. Rummel on November 17, 2005.
The Court looked to Greer and noted that in that case the Supreme Court found that the fact that the treatment the claimant underwent after she was placed at MMI was intended to restore Greer to a condition of health or normal activity by a process of medical rehabilitation. The Court further noted that whether the treatment is successful is immaterial to the determination of whether treatment is part of the rehabilitative process. The Court noted that like Greer, the claimant continued to seek treatment for pain related to her work related injury despite the fact that multiple doctors had found that she had reached MMI. Therefore, the Court found that the claimant was entitled to TTD during this time. Therefore, the Commission’s decision was upheld.
On December 1, 2016, Cousineau McGuire closed its doors. The entire workers compensation practice moved to Mendota Heights and became Cousineau, Waldhauser & Kieselbach, P.A. We are proud of our heritage and lineage which dates back 68 years. The only changes are our name, address and phone number. Our lawyers and staff remain the same.
We look forward to continuing our working relationship with you.
Mark Richardson worked for the Chicago Transit Authority as a Bus Operator from 1999 to 2012. He took an extended medical leave from work and attempted to return to his job in September 2010. The Authority sent plaintiff for a fitness exam, and the doctor cleared Richardson to return to work. He was next required to submit to a safety assessment, which he contended turned out to be different than the normal safety assessment required of bus operators.
The Authority eventually rejected Plaintiff’s request to return to work. Plaintiff then filed a charge with the EEOC, stating that the Authority discriminated against him based his disability, namely severe obesity. After the parties were not able to resolve the charge, plaintiff sued in federal court.
Defendant Transit Authority moved to dismiss the case right away before doing any discovery by arguing that the plaintiff’s complaint was fatally flawed. The Authority argued that obesity is not a disability unless it is due to a physiological disorder and further contended that since plaintiff never alleged that there was a physiological basis for his obesity, his complaint must be dismissed.
The Court noted that the Americans with Disabilities Act Amendments Act of 2008 expanded coverage under the ADA. The Court reflected on 42 U.S.C. 12102(3)(A), which states:
An individual is ‘regarded as having such an impairment’ if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.
The Court also reviewed conflicting decisions nationally on the question of whether a plaintiff must prove a physiological basis for obesity to establish a disability. It observed that there is a split among Circuit Courts on what is required for obesity to be considered a covered disability. Some Circuit Courts have required proof of a physiological basis for obesity while others have not.
In this case the Court did not decide which approach was right, but it said that “[e]ven if Plaintiff is ultimately required to prove that his obesity was caused by a physiological disorder, he was not required to allege the same.” In other words, plaintiff’s complaint was sufficient to allow him to move forward with discovery and to attempt to prove his case.
The case can be found at Richardson v. Chicago Transit Authority, 2016 U.S. Dist. LEXIS 143485 (N.D. Ill. 2016). It is an interesting case because obesity claims are likely to become a major area of litigation given both the near epidemic levels of obesity in the United States and the expansion of coverage of disability under the ADAAA.
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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.
Jimmy Mathis worked as a laborer for the City of Red Bank in Tennessee. Eventually he rose to the position of Assistant to the Director of Public Works. Initially he would inspect for building code violations, handle animal control problems, oversee street projects and handle citizen requests. A written job description described his duties, which also included exposure to temperature extremes during outdoor work.
In 2011 a new Public Works Director required of Mathis more code inspections, which meant more outdoors work. The level of outdoor work continued to rise in 2012 when Mathis’s desk was moved from City Hall to the Public Works Garage. He was no longer responsible for much of his former administrative work, and those duties moved to other employees.
By 2012 Mathis began to have skin problems and saw a dermatologist, who diagnosed Lupus. He took FMLA leave and his dermatologist, Dr. Susong, noted that Mathis needed to be indoors. Mathis next sought an indefinite leave, which lasted six months. During that time, the Department continued to restructure its workflow. A code enforcement officer was hired, and the position of Assistant to the Public Works Director was eliminated.
Preparing to return to work from leave, Mathis met with the Public Works Director and City Manager. There was a dispute whether they told Mathis his job would mainly involve code work. The reality is that his job continued to evolve into outdoor work. Mathis did not request an accommodation at this juncture. He bought protective clothing and was permitted to wear ultraviolet light protective shirts. He paid for them himself, but the City eventually bought him other such shirts.
By 2013 it was clear that the protective clothing was not reducing Mathis’s symptoms. He requested a new FMLA leave. His job at this point was described mainly as mowing grass and weeding. Dr. Susong wrote a certification stating that Mathis must avoid sunlight. Asked to clarify whether Mathis could not work outside, Dr. Susong said emphatically that he must work indoors.
The City met with Mathis, who inquired about possible indoor work but he was advised that he was not qualified for the two open jobs, lacking computer skills and a CDL. On account of the strongly worded note from Dr. Susong and the absence of any vacant positions, the City terminated Mathis’s employment. Mathis sued under the ADA alleging failure to make reasonable accommodation.
The City prevailed at the federal court level, and Mathis appealed to the Sixth Circuit Court of Appeals. The Appeals Court observed that Mathis must show that he can perform the essential functions of his job with or without accommodation, but Mathis failed to do that. Mathis said he wanted to be returned to his pre-2011 work, but even that job required some outdoor work. There were days even in his pre-2011 job when Mathis would be outside four to five hours. The Court said that Dr. Susong’s note disqualified Mathis from any outdoor work.
During the course of litigation, Mathis changed his position and argued that he could handle limited sun exposure with protective clothing. After the City’s motion for summary judgment was filed, Dr. Susong watered down his initial certification which prohibited any outdoor work. The Court said that these after-the-fact changes in Mathis’s position were irrelevant. The City had the right to base its decision on the note that Dr. Susong prepared in 2013 prohibiting any outdoor work. The Court commented that essential functions of a job can and often do change. The changes in this case occurred well before Mathis’s diagnosis of lupus.
The Court concluded, “Mathis’s reasonable accommodation claim fails most plainly because the need for an accommodation was not apparent until mid-2013, when his limitations would not have allowed him to perform his desired job’s essential functions. But it also appears that no accommodation would have been available even if Mathis had requested one in early 2012, because the job he desired no longer existed.”
Mathis also argued that the City failed to engage in the interactive process. But the Court responded that before that process commences, the worker must inform the employer that a reasonable accommodation is needed. 29 C.F.R. Pt. 1630, App. In the end, the Court explained that the City really had no options once Dr. Susong wrote his note saying that Mathis could not have any outdoor exposure because Mathis was not qualified for any available indoor job.
This case points out the importance of having a good job description and the fact that jobs can and do change, adding and sometimes subtracting essential functions. The case also demonstrates the power that doctors have when they prepare medical certifications regarding restrictions at work. In this case Dr. Susong’s restriction against any outdoor work boxed the plaintiff out of his job. A late attempt by the doctor to amend his opinion during litigation but after the job termination was properly rejected by the court. What matters is what information the employer has at the time it makes its employment decision, and in this case, the doctor’s report was crystal clear in stating that Mathis could have no outdoor exposure. This case can be found at Mathis v. City of Red Bank, 2016 U.S. App. LEXIS 19423 (6th Cir. 2016).
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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.
The Alabama Court of Civil Appeals recently released an opinion dealing with venue statutes and their applicability to claims sought under the Alabama Worker’s Compensation Act. In the case ofEx parte Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch, and Good Hope Contracting, Inc. (In re:Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch v. Lynn Harding), the Court held that the §6-3-7, Ala.Code 1975, was the proper statute to govern venue for worker’s compensation lawsuits, regardless of the initial filer.
Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch ("AGC") filed a lawsuit against Lynn Harding ("Harding"), seeking a declaratory judgment under the Alabama Worker’s Compensation Act.
Harding filed a Motion to Dismiss for Improper Venue, or in the Alternative, Motion to Transfer Venue, relying on the venue statute governing actions filed against an individual, §6-3-2, Ala.Code 1975. Plaintiffs responded to Harding’s motion, relying on the Alabama Workers’ Compensation Act and §6-3-7, Ala.Code 1975, the venue statute that governs where a corporation can be sued. The trial court granted Harding’s motion, and ordered that the case be transferred. Plaintiffs filed a Petition for Writ of Mandamus seeking relief from the Order.
The Alabama Court of Civil Appeals granted the petition. The rationale being that per the Worker’s Compensation Act, venue is proper if filed where a tort action would be properly filed. Case law provides that venue is proper where an employee’s grievance against his employer would be heard. Ex parte Adams. The proper venue statute to govern where an individual can sue his employer is §6-3-7, Ala.Code 1975.
In sum, regardless of who files the initial Complaint in an Alabama Worker’s Compensation lawsuit, venue is proper where an employee can properly maintain an action against the employer.
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This blog submission was prepared by Karen Cleveland, 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 Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.
Two Microsoft employees have sued their employer alleging that they suffer from post-traumatic stress disorder because their job required them to watch horrific internet videos portraying brutality, murder, beastiality, and even child pornography. Both men filed lawsuits in King County, Washington, seeking damages for negligence, disability discrimination, and violations of the Consumer Protection Act. The men allege that Microsoft involuntarily transferred them to its online safety program, where they reviewed online videos to identify and report illegal content. Their lawsuits are currently ongoing at this time, and it remains to be seen how they will be decided under Washington law. However, under Alabama law, it is clear that the employees would have no remedy upon which to base an award of damages for their post-traumatic stress.
First, §§25-5-53 and 25-5-54 of the Alabama Workers' Compensation Act provide that workers' compensation benefits are the employee's sole legal remedy for injuries occurring in and arising out of the employment. Additionally, mental injuries such as post-traumatic stress disorder are only compensable if accompanied by physical injury under Alabama law. Therefore, as horrible as the their jobs must have been, they would not have any grounds upon which to recover damages if they worked in Alabama.
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About the Author
This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his 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 Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.
2017 PENNSYLVANIA WORKERS’ COMPENSATION RATE CHANGES
By Kevin L. Connors, Esquire
Happy New Year!
To Employers and Insurers responsible for workers’ compensation benefits in Pennsylvania, the Pennsylvania Office of Adjudication has issued the controlling compensation benefit rates for 2017.
The maximum compensation benefit payable rate for 2017 is $995.00 per week, yielding $51,740.00 per year in temporary total disability benefits.
The $50,000.00 mark was passed with the maximum rate of $978.00 per week in 2016.
Average weekly wages between $1,492.50 and $746.26 will be adjusted on a 2/3rd%basis, for purposes of yielding the temporary total disability benefit.
Average weekly wages that range between $746.25 and $552.78 will result in the temporary total disability benefit rate being set at $497.50.
An average weekly wage of $552.77 or less per week will result in the temporary total disability benefit rate being calculated based upon a 90% basis.
An average weekly wage of $552.77 would, therefore, yield a temporary total disability benefit rate of $497.49, yielding yearly temporary total disability benefits of $25,869.63.
Kindly contact our office with any questions that you might have regarding any calculations of a pre-injury average weekly wage, typically requiring calculation of wages only for the 52 weeks preceding the date of injury, as well as any questions that you might have in terms of the applicable temporary total or temporary partial disability benefits rates.
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.
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