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On December 15, 2016, a decision following trial in New Jersey was handed down on the question of whether medical marijuana can be ordered under workers’ compensation.  Petitioner Andrew Watson worked for 84 Lumber and was injured on November 6, 2008.  He received an award of one third of partial total in 2012 apportioned 50% of the hand and 12.5% for complex regional pain syndrome (CRPS).  The terms of the settlement required respondent to approve ongoing pain management treatment with Dr. Peter Corda.  Petitioner received prescriptions on a monthly basis, including 120 Endocet/Oxycodone tablets as well as other pain medications such as Ibuprofen 800mg and lidocaine patches.

In late 2013 petitioner consulted with Dr. Corda about participating in New Jersey’s medicinal marijuana program (MMP).  Dr. Corda referred petitioner to his partner, Dr. Jeffrey Drew Polcer, who possessed the required credentials to do medical marijuana evaluations.  Petitioner saw Dr. Polcer and complained of burning pain and swelling in his left hand with extreme sensitivity to light touch.  He said that his narcotic medications were not providing him with sufficient relief.  Petitioner admitted to Dr. Polcer that he had experimented with marijuana and obtained a significant reduction in pain.

Dr. Polcer diagnosed petitioner with neuropathic and complex regional pain syndrome of the left hand and recommended petitioner for medicinal marijuana.  He noted that neuropathic pain is one of the better indications for medicinal marijuana.  He further said that if successful with medicinal marijuana, petitioner should lower his use of narcotics.

The New Jersey Department of Health issued an Attending Physician Statement to the Petitioner which authorized petitioner to register for the MMP and purchase one ounce of marijuana per month for three consecutive months. Petitioner received his Patient Registration Card and then used the card to purchase medicinal marijuana at authorized dispensaries, making his first purchase on March 28, 2014.  Petitioner submitted the invoices and proof of cash payments to the respondent’s carrier for reimbursement, but the carrier denied reimbursement.

Petitioner filed an Emergent Motion to Enforce the terms of the Order Approving Settlement from 2012.  The respondent disputed Dr. Corda’s referral to his partner and contended Dr. Polcer was not an authorized physician.  Respondent also withdrew authorization of Dr. Corda in favor of Dr. Morris Antebi, who was asked to perform an IME of petitioner.

The Judge of Compensation, the Honorable Ingrid L. French, A.S.J.W.C., preliminarily entered an order requiring respondent to reinstate authorization of Dr. Peter Corda for pain management.  Trial then ensued on the central issue regarding medical marijuana as curative treatment.

Drs. Corda and Polcer refused to testify at trial because they had ongoing business relationships with the respondent’s third party administrator. Instead, petitioner offered the testimony of Dr.  Edward Tobe, Board Certified in Neurology and Psychiatry.  Respondent had petitioner examined by Dr. Morris Antebi, whose report supported the position of respondent.  However, Dr. Antebi also refused to testify and therefore his report was excluded from evidence.  Respondent tried to offer into evidence three explanatory letters written by Dr. Corda to the third party administrator in response to a request for explanation on his initial referral and Dr. Polcer’s recommendations. These three letters were written subsequent to Dr. Corda’s initial referral to Dr. Polcer for the MMP and tended to undercut Dr. Corda’s initial position in the case, but the trial judge would not allow these reports to go into evidence without Dr. Corda’s testimony, which he refused to provide.

Dr. Tobe testified that Dr. Polcer’s plan to begin a course of medicinal marijuana was medically appropriate.  He added that this plan made particular sense since it would lead to a reduction in the use of opiates. Dr. Tobe discussed the risks in using Percocet (oxycodone) in respect to kidney and liver function.  He said narcotics impact alertness, concentration, memory, and cognitive function, potentially causing emotional detachment.  In addition, possible side effects are loss of teeth, blurred vision, constipation, urinary retention and cardiac problems.

Concerning medical marijuana, Dr. Tobe said that the medicinal version is not tainted with contaminants that street marijuana might contain.  He said that one is less likely to have cravings with the medicinal product.  He did not agree that medicinal marijuana is a gateway drug, although he did admit that marijuana can have similar side effects as opiates in respect to withdrawal, impaired concentration and loss of memory. In his view, medicinal marijuana offers promising prospects as a pain management modality.

Based primarily on the testimony of Dr. Tobe, Judge French found that petitioner’s trial use of medical marijuana was medically warranted.  She concluded, “While the Court is sensitive to the controversy surrounding the medicinal use of marijuana, whether or not it should be prescribed for a patient in a state where it is legal to prescribe it, is a medical decision that is within the boundaries of the laws in the State of New Jersey.  In this case, there is no dispute that all of the credible evidence presented confirms that this Petitioner is an appropriate candidate for New Jersey’s medical marijuana program.”

An equally significant aspect of this case had to do with respondent’s challenge to the referral by Dr. Corda to Dr. Polcer.  The judge focused on the issue of whether a respondent has a right to object to a referral from the authorized doctor to another physician.  “Whether it is a second opinion directed by a Respondent/Carrier or a referral to an alternative specialty directed by an authorized doctor, this Court interprets the statutory language as requiring an analysis that focuses on whether the referral is in the best interest of the injured worker.”

The Court acknowledged that Dr. Corda failed to discuss his recommendation of Dr. Polcer with the respondent/carrier or obtain pre-approval for the referral.  “Medical experts must be given sufficient latitude in directing the care of an injured worker.  Here, the Court will not allow the respondent to deny authorization of a treatment, which has now proven to be beneficial to the Petitioner, simply because the doctor did not allow the Respondent an opportunity to second guess his medical opinion.” 

The Judge entered an order requiring respondent to pay for the costs of the medical marijuana program and prescriptions and ordered respondent to authorize either Dr. Corda (who since became licensed to participate in the MMP) or Dr. Polcer for petitioner’s ongoing participation in New Jersey’s MMP.

This case is not binding on other courts because it is a Division level decision.  Nonetheless, this decision will be studied by other judges and practitioners given that there are few trial decisions in New Jersey on the use of medicinal marijuana for workers’ compensation treatment.  Respondent could not prevail in this case because defense counsel never offered any expert testimony to rebut the opinions of Dr. Tobe.  The failure to produce expert testimony put respondent at an impossible disadvantage and all but guaranteed that Dr. Tobe’s testimony would carry the day on the issue of the reasonableness and necessity of medical marijuana.  Based on the evidence presented, the Judge of Compensation made the only decision she could make.  The most compelling evidence in favor of petitioner was that the use of medical marijuana would decrease the use of narcotics.

This case is also extremely useful in dealing with an often litigated issue of whether respondent is bound by a referral from the authorized doctor to another physician.  The 2012 court order in this case only referred to treatment by Dr. Corda.  Interestingly, the Court did not focus on the basic rule of agency, namely that a principal is bound by the actions of his or her agent.  Rather, the Court addressed the rule in Benson v. Coca Cola to the effect that the Court can make a retroactive analysis of the alleged “unauthorized treatment” to determine whether the treatment should be ordered.  The rule under Benson is that if the treatment proves helpful, that fact would strongly favor a conclusion that respondent must pay for it.  In this case, the only evidence presented at trial (Dr. Tobe’s testimony) supported petitioner’s position that medical marijuana helped relieve petitioner’s pain levels.

Practitioners who are interested in this case can email the undersigned for a copy of the opinion.

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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. 

There are a number of misconceptions about the rules on independent medical examinations.  Several provisions in the New Jersey Workers’ Compensation Act are helpful in clarifying these misconceptions:

§  Misconception One: An employer must set up an IME in the county where the employee resides.  Section 19 states that an IME may be arranged at any reasonable location within the state.  There is no limitation to the employee’s county of residence.

§  Misconception Two: An employee may have his lawyer present during the examination. Section 19 states than an employee only has the right to have his or her personal physician present.

§  Misconception Three: An employee may apply for mileage for travel to an IME. There is no statute or rule in New Jersey which requires that employers pay mileage for IMEs, even to those who travel from out of state back to New Jersey.

§  Misconception Four: An employee cannot object to an IME performed by a physician of the opposite sex. Section 68 states that where a physical examination is taking place, an employee may request an exam by a physician of the same sex. If such a request is made, the statute says that the employer “shall” comply.

§  Misconception Five: An employer is limited to only one IME during the case. Section 19 states that an employee may be required to attend an examination “as often as may be reasonably requested.”

§  Misconception Six: An employee is entitled to one missed IME before benefits are stopped. Section 19 states that during the period that the employee refuses to participate in attending examinations, the employer can terminate all workers’ compensation benefits.

§  Misconception Seven: An employer can make a voluntary offer within 26 weeks of MMI or return to work but the percentage of the offer must correspond to the estimate of the defense IME. Case law makes clear that an employer is not required to limit the bona fide or voluntary offer to the same percentage as respondent’s IME.  In fact, there is no requirement at all that an IME be done for an employer to make a voluntary offer of partial permanent disability.

§  Misconception Eight: After an IME, the physician must provide a copy of the report to the injured worker. The rules of the New Jersey Medical Society make clear that there is a difference between a patient and an examinee.  An independent medical examination occurs when there is no expectation of treatment and therefore no doctor/patient relationship. In that case, the injured worker is an examinee, not a patient, and has no right to a copy of the report that the defense IME expert prepares for the employer or carrier.  The report is the property of the employer/carrier.  During litigation of a formal claim petition, the parties must exchange independent medical exams at the pretrial stage of the case.

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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.

Fitness for duty examinations must meet a standard of being job related and consistent with business necessity.  If the employer does not have enough to meet this standard, the employer may be sued for discrimination under the ADA for improperly requiring a fitness examination.  The employer in Painter v. Illinois Department of Transportation, 2016 U.S. Dist. LEXIS 94940 (D. Ill. July 21, 2016) addressed the issue of meeting the job-related standard by obtaining detailed statements from co-employees supporting the need for a fitness examination.

Deanna Painter was assigned to a position of Office Administrator at Traffic Safety, which was part of a division of the Illinois Department of Transportation (IDOT).  The initial problem concerned an incident involving plaintiff and a co-worker where plaintiff loudly accused the co-worker of prank calling her in the Spring of 2011. Plaintiff was put on administrative leave at that time.  An investigation of this incident led to other employees preparing written statements regarding what they witnessed.  These statements were given to the IDOT fit-for-duty physician, Dr. Fletcher, who then made a decision whether there was a basis for a fitness examination.

Dr. Fletcher read the statements and determined that a fitness exam was needed.  He found plaintiff fit for duty but recommended a reevaluation in 45 days. Around the same time, other employees surfaced and described other incidents involving plaintiff.  Seven more employees wrote statements, describing how the plaintiff would have frequent outbursts and would walk around the office while talking to herself.  Some expressed fears for their own safety. Two or three employees insisted on being escorted by security guards to their cars at the end of the day because they feared that plaintiff would approach them in the parking lot while she was on leave.

Interestingly, plaintiff admitted in her deposition that she had issues with 11 employees in the Traffic Safety area.  The statements from this new group of employees were given to Dr. Fletcher, who again saw plaintiff for a fitness examination but recommended that she see a psychologist, Dr. Karen Lee.  After seeing plaintiff, Dr. Lee decided to take plaintiff as her personal patient, thereby creating a conflict of interest and preventing her from informing the employer of her views.

On September 26, 2011, plaintiff returned to work but in the Day Labor division of IDOT as an office administrator.  Her supervisor noticed that she was making logs of actions of co-employees and conversations with co-employees and reprimanded her for this.  Plaintiff said that she was creating the logs in order to document everything so that she could figure out why she had been placed on leave. Her supervisor pointed out that none of the people in Day Labor had been involved in her situation in Traffic Safety.

Her new co-workers began to complain about plaintiff’s behavior.  Her supervisor also complained that she was sending him emails in the middle of the night that were nonsensical. Plaintiff was again put on administrative leave on November 23, 2011. Two employees prepared statements that said they feared for their safety.  Plaintiff again went for a fitness exam and was again authorized to return to work.  After returning to work, plaintiff sent an email to her union representative stating: “for the record, the clock in the small conference room being set to 4:30 PM when it was only 4:00 PM – that is a tell-tale sign for me.  It told me everything I needed to know. Thanks.”  Plaintiff included a smiley-face emoticon with this email.  The union rep responded that he did not understand the reference and thought the battery was dead. Plaintiff responded, “Something’s dead alright – however, I prefer to be ‘a lady’ and not say what I think is dead.”  This email was treated by IDOT and the Illinois State Police as a threat.

Plaintiff was again placed on administrative leave and sent for a fitness examination.  This time she was found to be psychiatrically unfit for duty as a result of paranoid thinking. Plaintiff’s own psychiatrist disputed this finding.  Plaintiff sued and alleged that she was improperly required to attend fitness examinations.  She later became employed with the Illinois Department of Human Services.

The federal court ruled for the employer stating that there was ample reason to require the fitness examinations:  “The record establishes that prior to each leave and subsequent exam, multiple employees raised concerns about the Plaintiff’s behavior in the workplace.  A number of employees felt unsafe around the Plaintiff. Certain employees did not want to be alone around her and some were afraid to walk to their cars at night.  The Plaintiff shouted at her co-workers, talked in a fast-paced manner and talked to herself at times.  The Plaintiff’s supervisors considered the employees’ statements and their own interactions before determining that Plaintiff was a security risk to the other employees.”

The case is interesting because it shows how careful the employer in this case was in documenting the basis for the fitness examination.  The care which the employer took was clearly warranted, and the result was that the employer easily defeated plaintiff’s ADA law suit.

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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. 

Derrick Dillard injured his back and shoulder in a work-related car accident in March 2011.  He was unable to perform his previous duties as a Street and Drainage Maintenance Senior for the City of Austin, Texas.  He took FMLA leave and then placed in the City Return to Work Program, which was designed to help employees like Dillard find alternative work for a maximum of 180 days in a year.

Dillard exited the Return to Work Program in January 2012. During the entire period he was enrolled in the program, the City was unable to place him in any position because he remained on a “no duty status.”  The City continued to allow him to remain on leave. Between late January and late April 2012, Dillard was released by his doctors to perform “limited duty” or “administrative duty” work.  The City offered him “administrative work” from May through October 2012.

Dillard lacked the three years of clerical or secretarial experience for an administrative assistant position, so the City offered him on-the-job typing and computer training.  Dillard’s supervisor testified that she repeatedly told Dillard to complete more training and showed him how to sign up for more training, but Dillard did not do so.  He was found playing computer games, surfing the internet, sleeping, making personal calls or looking for other positions while he was supposed to be training.  He missed work without proper notice, came late and left early, and lied about his time.  He attended work only 74% of the time over a 21-week period.  The City gave him an unsatisfactory rating.

For his part Dillard admitted that his lack of typing skills made it impossible for him to complete the one assignment he was given.  He asked Human Resources to give him another position.    Meanwhile, Dillard’s doctors were increasing his capacity to perform certain lifting and physical activities.  The City scheduled him for a pre-termination meeting based on his poor performance while on administrative duty.  The Director noted that Dillard was unapologetic for his inappropriate behavior and admitted that comments about his poor performance were accurate. The City fired Dillard on October 26, 2012.

Dillard sued for discrimination under the ADA and argued that the City should have considered him for vacancies across all departments, not just the Public Works Department, once it became obvious that he lacked the skills of an administrative assistant.  The lower court disagreed and noted that the breakdown in the interactive process was caused by Dillard’s failure to make a good faith effort to make the administrative position work.

The Fifth Circuit Court of Appeals held that the City did not fire Dillard because of any disability but because he was frequently late, used work time to play games, and failed to take advantage of training opportunities.  The Court conceded that the City had a duty to make reasonable accommodation and engage in the interactive process. “Dillard’s position neglects that the interactive process is a two-way street; it requires that employer and employee work together, in good faith, to ascertain a reasonable accommodation.”  The Court said that the City made a reasonable accommodation with the administrative assistant position.  “At this point, the ball was in his court; it was up to him to make an honest effort to learn and carry out the duties of his new job with the help of the training the City offered him.”  The Court felt it was pivotal that the City offered him training which Dillard neglected.

The case can be found at Dillard v. City of Austin, Texas, 837 F.3d 557 (5^th Cir. 2016). It is an interesting case because there are so few published cases where the plaintiff is fired while on alternative duty and while performing inadequately during alternative duty.  Clearly the case’s reasoning makes sense:  when an employee’s job performance is grossly sub-par during alternative duty, and where the employee does not take advantage of offered accommodations, the employee has no argument that his termination is a violation of the ADA.

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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.

Diana Vernacchia worked as a housekeeper for Warren Hospital performing vacuuming and cleaning duties in the radiology department and hallways, dusting and cleaning the x-ray machines and diagnostic devices, and lifting and discarding biohazardous waste and linen bags weighing an average of 50 pounds each.  She filed an occupational disease claim alleging that she developed neurological problems with her left ankle, ganglion cysts, plantar fasciitis in both feet, lower back pain and fibromyalgia from her work duties.  Vernacchia also filed a claim saying that she was shocked while using the vacuum cleaner, which caused and aggravated similar injuries.

Petitioner produced two doctors on her behalf.  Dr. Maio, an expert in general surgery, testified that she examined petitioner four times.  She diagnosed various injuries including ankle sprains, disc bulges in her low back, and sprains of her knees and ankles. She said that repetitive micro-trauma and movements caused her injuries.

Dr. Waller, a primary care internal medicine practitioner, testified that her ongoing work activities caused burning sensations in her feet, stiffness in her neck and back, and tendonitis in her extremities.  He diagnosed petitioner with fibromyalgia which was aggravated by work activities and by the one incident involving electric shocks from the vacuum.  Both doctors conceded that petitioner had bilateral ankle pain and edema well before her employment but they contended that work duties aggravated her condition.

Respondent did not produce any medical experts.  Rather, respondent made a motion to dismiss the claims based on lack of proof.  The Judge of Compensation granted the hospital’s motion and entered an order of dismissal stating as follows:

Neither Dr. Maio nor Dr. Waller referred to any demonstrable objective medical evidence to support their assertions.  The medical witnesses merely asserted a probable contributory work connection without medical support.  I find the petitioner has failed to set forth one iota of proof regarding the compensability of her claim.  I find there was no competent evidence submitted relating multiple medical problems to her employment with Warren Hospital. 

The Appellate Division affirmed the dismissal of petitioner’s case even without testimony from respondent’s medical witnesses.  It said that it is not enough for a medical witness to simply say something is work related without providing medical support or medical literature.  The Appellate Division relied on a line of cases from the 1990s which emphasizes the importance of offering medical literature in occupational disease claims or scientific evidence establishing causation.  The Court added, “Also, in this case before us, neither expert witness explained which of petitioner’s work responsibilities may have resulted in her injuries, choosing, instead, to rely upon broad and conclusory averments untethered to the facts in the case. While petitioner testified about the walking, standing, lifting and pushing associated with her employment with respondent, her expert witnesses failed to show that her injuries were a consequence of her work based upon qualitative medical support.” 

There are many cases currently in the Division that contain similar vague allegations and vague diagnoses.  Several firms representing claimants file claims directly along the very same lines of this case. The rationale employed by the Judge of Compensation and Appellate Division in dismissing this case is pertinent to many other similar claims in the Division. Employers can defeat such claims by arguing the well established case law in New Jersey requiring proof in an occupational claim of scientific evidence or medical literature to establish a causal link to work.  For a medical expert to testify simply that a condition is work related is completely insufficient.  It is always the medical and scientific explanation that is more important than the mere conclusion on causation. This case can be found at Vernacchia v. Warren Hospital, A-4634-14T1, (App. Div. October 19, 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. 

DEFENSE COUNSEL SELECTION IN WORKERS’ COMPENSATION MATTERS

Kevin L. Connors, Esquire

With grateful appreciation to one of our very favorite workers’ compensation bloggers, Michael Stack, a Principal in COMPClub and Amaxx LLC, and an expert in workers’ compensation cost containment systems and Consultant to Employers seeking to reduce their workers’ compensation costs, we are reprinting Michael’s recent article, published on December 21, 2016, which he had titled “Important Factors In Workers Comp Defense Attorney Selection,” endorsing and adopting the selection factors cited by Michael:

Selecting the right person to defend a workers’ compensation claim is an important component of any program.

Not selecting the right attorney can be detrimental.

This includes failing to settle cases in a timely manner, unnecessary litigation costs and other missed opportunities.

Now is the time to review the panel of attorneys you are working with and remove those who are not meeting the needs of your program.

It All Starts with the Selection Process

Over the years, experienced claim handlers develop relationships with countless attorneys who defend workers’ compensation and other insurance related claims.  This results in a referral process where various firms are selected to represent the program on claims and the funneling of a consistent file load to those who make the grade.

While the development of these relationships is great, it can often have a negative impact on your claim files if the attorneys are not meeting the objectives of your program.

The review of defense attorneys and panels should be done on an ongoing basis.  While the development of a prior professional relationship is important, it should never be the sole or controlling factor.

Important Factors to Consider

There are a number of factors members of the claims management team should consider when selecting the right attorney to defend a case.  This includes some thoughtful consideration on the part of all members on the claims team who need to deal with and interact with attorneys.

·                     Ability to think independently.  All workers’ compensation cases are subject to evaluation based on criteria related to the statute and interpreting case law.  While component counsel must understand these basics, effective defense attorneys have the ability to peel back the layers of a claim and develop strategies that will drive a case toward settlement.

·                     Ability to be a zealous advocate.  This is the core of what separates a good attorney from one who is great.  In workers’ compensation, a zealous advocate is able to see through the smoke and provide the claims handler with an honest analysis on the case and all likely outcomes.  They will also be able to provide common sense solutions that take into consideration the law and other extraneous factors that are in play when it comes to a demanding file load.

·                     Ability to “win” every case.  The inherent bias in the workers’ compensation system toward the employee and compensability of claims means a majority of cases that go to hearing will result in an award to the employee.  It is important to work with those defense attorneys who understand the biases within the system and proceed with caution.  Top-notch defense attorneys are able to pick the cases that should go to court, and settle those that are destined for failure.

Other Important Intangibles

Interested stakeholders responsible for programs should also monitor and be aware of important intangibles that make a defense attorney great.  This should never include the inducement of free tickets to sporting events or fine wine.  Instead, those who seek to improve the counsel they work with should look at other facts:

·                     Ability to seek creative solutions to complex problems;

·                     Responsiveness to inquiries such as voicemail messages and email;

·                     Regular status reports and forthright analysis on files; and,

·                     A positive reputation amongst peers and ability to deal with difficult opposing counsel and claimants.

Conclusions

Most claims management teams have a number of good defense attorneys to work with on their disputed files.  The ability of claims handlers to find the great attorneys will reduce time spent on files and promote savings in their workers’ compensation program.  Part of this process includes the need to evaluate all defense counsel on a regular basis and work only with those dedicated to effective and efficient representation.

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.

The Supreme Court recently released its decision in Ex Parte Lincare, Inc., which involved an employee who was allegedly assaulted by her supervisor on the employer’s premises immediately after she was terminated. The employee sued her employer for workers’ compensation benefits, and sued both her employer and her supervisor for assault, battery, and the tort of outrage. The employer and supervisor filed motions to dismiss and motions to sever, arguing that the workers’ compensation claim should be severed from the employee’s tort claims, and that the tort claims were due to be dismissed based on the exclusivity provisions of §§ 25-5-52 and 25-5-53 of The Alabama Workers’ Compensation Act. , The supervisor also filed a motion to strike the plaintiff’s jury demand, based on an agreement in the employee’s job application that stated such a waiver was a condition of hire. The trial court issued an order granting the severance, but denying the motions to dismiss and the motion to strike. Both defendants then filed a petition for writ of mandamus with the Supreme Court.

The Supreme Court held that the employee’s alleged assault occurred in and arose out of her employment because it was precipitated by her resignation while she was on her employer’s premises and concerned her possession of certain documents owned by her employer. The Court also noted that the employee’s alleged injuries were not expected or intended by her employer, so they fell within the definition of a "accident" within the meaning of the Act. The Court noted that "even following an employee’s termination, the employee must be given a reasonable time to leave the premises before the employer-employee relationship is considered severed and the workers’ compensation act is rendered inapplicable". As such, the Supreme Court granted the employer’s petition for writ of mandamus, holding that the assault and battery claims were barred by the exclusivity provisions of the Act. However, the Supreme Court denied the supervisor’s petition for writ mandamus, because Alabama law provides for mandamus review of the denial of a motion to dismiss only in cases where the motion is based in immunity (as was the case for the employer, but not the supervisor). Finally, the Supreme Court denied the supervisor’s motion to strike the plaintiff’s jury demand, because the supervisor was not a party to the employment agreement.

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.

Also, new DWC policy (coming, we’re told, from the Chief Docketing Clerk) is for Benefit Review Officers to set disputes for CCH within 60 days of the BRC regardless of whether the participants can be available on the selected date.　 So, if there is only one slot available within two months of the BRC and one or both parties cannot attend, it will be set anyway.　The conflicted party is advised to request a continuance. How this outcome differs substantively from just setting the thing outside of 60 days to begin with is anyone’s guess.　 We chalk it up to DWC-logic.　

Larry Beckham, one of the Ft. Worth Benefit Review Officers, will be retiring effective November 30, 2016.　

John Bell, one of the Dallas Hearing Officers, has accepted employment with a carrier firm.　He, too, will leave the Division on November 30.　

The DWC is apparently having trouble finding qualified applicants to take Mr. Bell’s place and to fill the vacancy left by David Northup in San Antonio last August.　

Chiropractor Garry Craighead, recipient of the aforementioned kickbacks, treated Texas injured workers until the Division got wise to him and denied him admission to the Division’s former approved doctors list on August 26, 2007. Thereafter, he was prohibited from providing healthcare services in the Texas Workers’ Compensation System. However, he continued to treat federal injured workers until being charged with federal crimes.

Craighead pleaded guilty in December 2015 to counts including solicitation and receipt of illegal remunerations in federal health programs. He was sentenced June 10, 2016 to 14 years in prison and ordered to repay more than $17 million to the U.S. Department of Labor.

Craighead treated mainly U.S. Postal Service workers at his Union Treatment Centers. In 2008, Craighead issued a notice to all AFL-CIO union members and postal employees stating:

Important Notice to all Branch 181 Letter Carriers in the Austin Area, our Union brothers and sisters were recently informed of the numerous advantages being offered by Garry Craighead, a physician and Director of Union Treatment Centers located at 8900 Shoal Creek Blvd. Building 200, in Austin, TX. 78757. . . . .

Dr. Craighead is providing assistance and treatment for all Federal and State Workers Compensation claims to benefit your "on the job injury needs" . . . .

The notice did not identify the specific "advantages" Craighead offered the Union brothers and sisters for treating with him over other providers.