State News

The Honorable Russell Wojtenko, Jr., Director and Chief Judge, issued a Memo effective October 21, 2016 to all workers’ compensation attorneys advising that the administrative rules on motions for medical and temporary disability benefits will be strictly enforced.  What this means to employers, carriers, third party administrators and practitioners is that motions for medical and temporary disability benefits must be handled right away and forwarded to counsel immediately.  Otherwise respondents will lose motions based solely on failure to meet certain time deadlines noted below.

The Director’s Memo cites N.J.A.C. 12:235-3.2, which says that “a respondent shall file an answer within 21 days of service of the motion or within 30 days after service of the claim petition, whichever is later.”

“The respondent’s exam shall be completed within 30 days of receipt of the motion and the report issued in not more than 35 days from receipt of the motion and shall not delay the start of the hearing of the motion except for good cause shown.”

This is not a new rule. The prior rule was amended in 2002 to state exactly what the Director has quoted above.  However, the rule has been seldom enforced since 2002 primarily because it is extremely difficult for respondents to get an exam within 30 days of the filing of the motion and still harder to get a report within 35 days of the filing of the motion.  Some doctors will not schedule within 60 days, much less 30 days, and it often takes a doctor 10 to 14 days to issue a report.

The Director’s memo concludes by stating, “The following requirements on motions for medical and temporary disability benefits shall be strictly enforced.”  We advise that carriers and third party administrators, when served with motions for medical and temporary disability benefits, must send such motions immediately to defense counsel.  An answer must be filed within 21 days, unless the motion comes with the claim petition (in which case the time is extended to 30 days). The time is running from the date the carrier, third party administrator or self-insured receives the motion.  If the carrier holds the motion for 10 days without acting on it, then there remain only 11 days to file an answer, 20 days to get the defense exam and only 25 days to obtain the report.

These timelines will be extremely problematic for all respondents statewide because treating and IME doctors can seldom find scheduling slots within a few weeks and then turn around a report in a few days.  Because of these somewhat unrealistic timelines established in 2002, many employers will soon lose and pay orders on cases for which there were valid defenses.  All employers, carriers, third party administrators and counsel should develop reliable methods to handle motions for medical and temporary disability benefits.  A motion for medical and temporary disability benefits should be treated now like a 911 call.

Practitioners should bear in mind that the Director also reminded claimants’ counsel that a valid motion must contain affidavits or certifications in support of the motion.  The Memo adds that the motion should include reports of a physician, stating the medical diagnosis and the specific type of diagnostic study, referral to a specialist, or treatment sought.  Motions which do not meet these requirements will be rejected.  This is less onerous on petitioners and their counsel because a deficient motion can always be refiled later with adequate paperwork.  But once an order is entered against respondent, the only route left to respondent is an appeal.

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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. 

In Giordano v. High Point Insurance Company, No. A-4971-14T3 (App. Div. October 11, 2016), Michelle Giordano, an employee of High Point Insurance Company, was injured in a parking lot adjacent to a multi-tenant office building.  After parking in the lot, she fell on twigs and debris, injuring her right shoulder.  Her employer denied the claim based on the premises rule arguing that she was not at work until she got to the floor where her insurance company did business.

Giordano contended that High Point had 10 assigned parking spots in the lot in addition to another 12 parking spots for directors, management, and employees who won awards.  There were other tenants in the building who also assigned marked parking spots to their employees.  The key fact in this case was that the lease made High Point partially responsible for maintenance costs of the parking lot.

Giordano testified that High Point instructed other employees, like herself, to park in the spots that were “not marked.”  High Point did enforce the marked parking spots in the parking lot.  Giordano observed that there was no other on-street or off-street parking for a mile.

The Judge of Compensation found for petitioner, and the Appellate Division affirmed.  The Judge also awarded petitioner 15% permanent partial disability.  High Point appealed and argued that the premises rule barred recovery.  The court recited the main principle in parking lot cases.  “The pivotal questions under the premises rule are (1) where was the situs of the accident, and (2) did the employer have control of the property on which the accident occurred.”  The Judge of Compensation noted that High Point instructed employees where to park and where not to park, and it could do so because of its responsibility under its lease.

The Appellate Division reviewed a number of leading cases in recent years on parking lot injuries.  The court said that there was substantial proof that High Point had control over the parking lot.  The company leased parking area in the parking lot from the landlord and for its employees and invitees. The court said that this set of facts is quite different from the Hersh v. County of Morris case where the Supreme Court found a county employee not covered for workers’ compensation purposes on the way from the parking lot to work.  Here High Point controlled a fairly large number of parking spaces.  The court said, “Although High Point here did not add any special hazards by having employees park in the lot, it did control where employees parked by directing them to park in the spots that were not marked.”

The only way to square this decision with the decision in Hersh, which went against the petitioner, is to focus on the partial responsibility of the employer High Point for the parking lot.  The claimant here was actually not parking in the designated parking spaces but was still found to be covered for workers’ compensation purposes.  The claimant in Hersh did in fact park in the designated parking space that the County provided, but the county did not own or maintain the lot in question.  It just leased certain spaces for its employees.   The court seems to be saying that one does not use the “special hazard” test in the Hersh case where the employer has partial responsibility for maintenance of the parking lot.

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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. 

In Cook v. Gregory Press, Inc., 2016 N.J. Super. Unpub. LEXIS 1885 (App. Div. August 11, 2016), the Appellate Division reversed a trial court’s dismissal of a plaintiff’s disability discrimination case involving an employee eventually diagnosed with Lyme disease.  The case involved Matthew Cook, who worked as a printing machine operator since 2002.  In 2011, he began experiencing facial numbness, tingling in the hands, and neck pain.  He saw a neurologist who thought he might have a demyelinating disease, recommending an MRI of the brain and spine.

Before Cook went for the MRI, his home was damaged by Hurricane Irene, and he was out of work for almost a week making repairs. He was given a day off from work on September 9, 2011 to undergo the MRI, which showed myelitis.  His doctor recommended next a spinal tap to determine whether he might have MS, Lyme disease, or a virus. His boss granted him time off to get the spinal tap but suggested that Cook really had nothing wrong with him.  The boss said he thought his problem was stress from the flood.  Cook responded that this would not explain a lesion on his spine.

The spinal tap occurred on September 16, 2011, and Cook experienced complications from the spinal tap, including dizziness and headaches.  He stayed in bed all weekend but went to work on September 19, 2011.  He found that his head was pounding as the day went on and he had to leave to go home.  His doctor prescribed fioricet.  He could not work the next day due to severe headaches and nausea.  His doctor prescribed Prednisone to relieve inflammation, but that made him jittery.  His doctor next faxed a note to Cook’s supervisor saying that Cook needed to be out until released later in the week.  Cook called his boss to ask for more time off, but his boss said that Cook better get back to work by Wednesday, September 21, 2011.

Cook did not feel well enough to return to work on September 21^st but he did return anyway because he felt he had to.  His head was pounding, and the loud noise from machines was aggravating his pain.  He made a production mistake which delayed a printing job and wasted paper.  His boss then proceeded to yell at him for the production mistake.  Cook told his boss to stop yelling at him and then took off his headphones and threw them in a garbage can, walking away.  His boss continued to yell at him, whereupon Cook told his boss that he would pay for the wasted paper but admonished his boss to stop yelling.  The two men stared at each other, and then Cook walked away, telling his boss that all the yelling was aggravating his headache pain.  Shortly thereafter, Cook was fired.

At some later point in time, Cook was diagnosed with Lyme disease and began intravenous therapy for 27 days.  His doctor noted that the combination of Lyme disease and the effects of the spinal tap would naturally have an effect on Cook’s ability to handle stress.  Cook sued under the New Jersey Law Against Discrimination (NJLAD) for wrongful termination and failure to make reasonable accommodation.

The trial judge threw out Cook’s case, finding that Cook was terminated for his bad attitude, not because of any disability.  The judge also found that it not the responsibility of the company to initiate the interactive process where all the plaintiff says is that he has a headache.

The Appellate Division reversed for the following reasons.  It said that the definition of disability under the NJLAD is much broader than the ADA.  Under the NJLAD the plaintiff only has to show a physical or psychological condition which prevents the normal exercise of any bodily or mental function.  One need not show a substantial limitation of a major life activity as is required under the ADA.

Under the court’s analysis, Lyme disease is a serious condition which qualifies as a disability under the NJLAD.  It said that Cook’s doctor established that his patient had physical symptoms of Lyme disease while employed by Gregory Press.  Because of his condition, Cook had to undergo medical testing that caused severe headaches and required steroid treatment, both of which affected Cook’s ability to work.  The court also found that a jury could infer that the employer was aware of this disability, that Cook requested a reasonable accommodation in the form of leave, and that he could have been reasonably accommodated.  The court said:

Plaintiff requested and was granted time off for the MRI and spinal tap.  Plaintiff told Jeffrey (supervisor) about the spinal tap, and Gregory (another supervisor) approached plaintiff prior to the procedure and, despite knowing of the lesion on plaintiff’s spine, expressed his doubt there was anything wrong with plaintiff.  Plaintiff returned to work on Monday with a severe headache, told Jeffrey about it, and Jeffrey permitted him to leave early.  The next day, defendants received Dr. Monck’s note advising plaintiff was under her care and had an exacerbation in his neurologic condition, side effects of the spinal tap, and could not return to work until later  that week ‘based on his recovery.’ Plaintiff advised Jeffrey that he was on steroids, the headaches could last a week and asked for the rest of the week off.  Jeffrey ordered plaintiff back to work without further investigation or inquiry.  Believing he had no choice, plaintiff returned to work the rest of the week, still suffering a headache and the effects of the steroids, which attributed to the production mistake.  We conclude a jury could reasonably infer from this evidence that defendants knew of plaintiff’s disability, plaintiff requested a reasonable accommodation, plaintiff could have been reasonably accommodated, and defendants failed to make a good faith effort to provide a reasonable accommodation.

In New Jersey, it is rather easy for a plaintiff to prove a disability, so employers must take requests for time off work seriously when there are medical issues involved. The case is a primer for how an employer should not make termination decisions in a situation where an employee is having serious pain and symptoms from a cause as yet unknown.  That the employer did not know plaintiff had Lyme disease at the time of firing was not a defense.  The employer knew enough to realize that Cook may have a disability.  The employer made a number of major mistakes in this case, first in pressuring the plaintiff to return to work before his doctor approved it, and second in engaging in a verbal confrontation while Cook was complaining that the yelling was aggravating the condition that he was treating for.  It is also worth noting that the employer should not have speculated on the “real” problem that plaintiff was having, in suggesting his problems were related solely to stress. Lastly, the employer should have tried to engage in the interactive process before making the precipitous decision to fire Cook.

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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.

What is a reconstructed work week and wage and why does it matter?  Originally, this referred to a principle by which certain injured employees can seek recalculation of their work week, thereby increasing their wage and permanency rate at the time of settlement.  For example, an employee works 20 hours per week earning $20 per hour for a $400 wage and a rate of $280 for permanency.  The employee is injured and is unable to work full-time in the future due to the effects of the injury.  The court may recalculate the rate to $560 per week instead of $280 per week by reconstructing the work week and wage to a 40-hour week.  In this example, reconstruction would mean wages of $800 per week, which would in turn equate to $560 per week for the permanency rate.  Depending on the severity of the injury, that can double the permanency award.

The leading case remains Katsoris v. South Jersey Pub. Co., 131 N.J. 535 (1993) but as indicated below, the principle of reconstructing a wage may be changing.  In Katsoris, petitioner had two jobs.  She was seriously injured delivering newspapers in her part-time job for the Atlantic City Press.  She also had a full-time job as a secretary and was able to return to that job.  She worked three hours per day, seven days per week, delivering newspapers.  She received an award of 55% partial permanent disability, entitling her to 330 weeks of compensation.  But the issue was which wage and rate should be used?  The employer argued for use of her rate of $106.97 per week, which would limit her award to $35,300.  Petitioner’s attorney argued that she was entitled to reconstruction of her wage based on a 40-hour work week, thereby yielding a new rate of $221 per week for a total award of $72,930.

The Appellate Division ruled that no reconstruction should occur in this case.  It said, “The key to the availability of compensation based on a reconstructed work week for a part-time employee is not contemporaneous full-time employment but whether the disability represents a ‘loss of earning capacity, i.e., a diminution of future earning power.’” The court said that Ms. Katsoris only lost the ability to work her part-time job, not her full-time job and had not proved a diminution of future earning power.

Many practitioners translated the rule in Katsoris to mean that if the employee actually returns to work full time following the work accident, reconstruction of the work week and wages should not occur.  That interpretation has now been called into question via the recent decision in Dunkley v. Costco Wholesale Corp., No. A-3405-14T2 (App. Div. Sept. 30, 2016).  Ms. Dunkley worked in the Costco member services department four hours per day, five days per week.  She was laid off in 2008 but got rehired in 2009 on a part-time position in the food court, making pizza, lifting cooking equipment, working as a cashier, mopping, sweeping and removing containers of garbage.  Before working at Costco in the 1990s, she worked as a nurse’s aide until her license expired in 2000.  Thereafter she worked as a home health aide until 2008.

On April 27, 2009, she slipped on a wet floor while cleaning at Costco, leading to surgery.  On June 27, 2010, she injured herself again, sweeping the floor, requiring another surgery.  In August 2011 Costco increased her working hours and she became fulltime in the member services department.  She received an increase in her hourly wage, additional vacation time, and potential family benefits.

Petitioner argued that she was entitled to a reconstructed work week and wage because the injuries prevented her from performing duties required in her full-time position with Costco, including positions in the food court, kitchen, cashier, butcher and supervision.  Her doctor testified that her injuries precluded certain full-time duties.   The Judge of Compensation disagreed with petitioner and held that her wage should not be reconstructed.  Petitioner appealed.

The Appellate Division did not decide the issue of reconstructed work week and wage, but it remanded the case because the court clearly disagreed with the reasoning of the Judge of Compensation that petitioner’s wage should not be reconstructed on account of the fact that she earned a higher hourly wage after the accident than she was earning before the accident and was working full time.  The Appellate Division sent the case back to the Judge of Compensation to make findings concerning whether the disabilities suffered in each work accident affected petitioner’s future earning capacity or will have an impact on her probable future earnings.  The court said “contemporaneous full-time employment does not require rejection of a request for reconstruction of a part-time employee’s work week.”

It will be important for practitioners to see how courts deal with the proofs on this sort of issue.  Bear in mind that most doctors in workers’ compensation do not have a vocational background, nor do they necessarily know whether a work injury will likely impact the ability to do certain jobs that the employee does not have but could in theory have obtained but for the work accident.  That sort of analysis requires a thorough understanding of various potential jobs, essential job functions of those jobs, and specific restrictions on the employee.  FCEs would be helpful in this regard.  Does the employee have to prove that she would have been just eligible for the higher paying positions or that she would have likely obtained those positions? How does one prove that one would have obtained a job that he or she never had before? Doesn’t that depend on the employee’s credentials and the assessment by the employer of more than just the employee’s physical capacity?  Would surveillance by the employer be relevant to show that the employee has more capacity than the expert for petitioner says the petitioner has? Presumably, yes.  There are a lot of unanswered questions.

The Dunkley case is important, even if it is unreported, because it moves the focus from reconstructing the workweek to reconstructing wages of someone who is working fulltime and in fact has received a higher wage than the wage at the time of accident.  Perhaps that was the original meaning in Katsoris, but if it was, it was unclear to most practitioners at that time.  For a claimant who is now working fulltime (with a raise) to prove that but for the injury she would have earned more by obtaining other potential jobs can certainly involve a fair amount of speculation.

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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 employer appealed to the Commission arguing that the claimant was not entitled to future medical because the only medical care he has received since the hearing is what he was already receiving for his pre-existing conditions.  The Commission affirmed the ALJ’s decision, finding that just because a claimant has not yet sought treatment beyond what he was already receiving before his work injury does not mean that he will not require such treatment in the future.  It also noted that the fact that treatment needed for a work injury may also benefit a non-compensable or pre-existing injury is irrelevant.

Medical Provider’s Application for Payment of Additional Reimbursement of Medical Fees was Untimely because It was Filed More Than One Year After the First Notice of Dispute of the Medical Charges

Rathgeber v. Phelps County Regional Medical Center, Injury No. 12-003925, Medical Fee No. 12-01320

The claimant was an employee of Phelps County Regional Medical Center when she sustained an injury and received authorized treatment at St. Louis Spine & Orthopedic Surgery Center (Provider) on August 8, 2013.  The Insurer mailed an EOB and a check in partial payment of the Provider’s medical bill, which the Provider received and deposited on September 20, 2013.  Over fourteen months later, the Provider filed an Application for Payment of Additional Reimbursement of Medical Fees with the Division.

The ALJ denied the Provider’s Application for Payment, finding that it was barred by the statute of limitations under §287.140.4.  Since the date of service in question occurred after July 1, 2013, the Provider had one year from the first notice of dispute of the medical charge in which to file its Application for Payment.  The first notice of dispute occurred when the Provider received the partial payment check and EOB on September 20, 2013.  Since the Provider did not file its Application for Payment within one year after receiving the check and EOB, its Application for Payment was untimely and barred by the statute of limitations.  The Commission affirmed.

Twenty-Nine Year Old Claimant Found PTD from Last Injury Alone, Despite Pre-existing Disabilities, Because Primary Injury Makes it Necessary for Him to Lie Down Three to Four Times Per Day

Brumble v. Missouri Department of Corrections and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 12-101047

The claimant was a 29 year old employee of the Department of Corrections.  On December 6, 2012, he was lifting a “cambro” container during breakfast when he felt a pop or pull in his right hip.  Dr. Taylor diagnosed an L5-S1 annular tear and performed surgery in May of 2013.  The claimant also had pre-existing injuries.  On February 20, 2011, he hit his right elbow on a food cart, after which he had continuing pain in his elbow and stiffness.  On January 24, 2012, he tripped on a doorframe and injured his left knee, after which he had weakness in the same as well as pain.  It appears that he received minimal treatment and did not undergo surgery for these conditions.  He testified that neither condition interfered with his ability to perform his job duties.

At a hearing, the claimant alleged to be permanently and totally disabled and testified that he is no longer able to sit or stand for very long and has to lie down during the day to relieve his back pain.

Dr. Taylor, the treating physician, opined the claimant could work at the medium demand level, noting that he had been lifting up to 50 pounds at physical therapy, bending down, butchering roosters, chopping wood with a log splitter and cutting logs with a chainsaw.  The claimant’s expert Dr. Volarich opined that he was permanently and totally disabled as a result of the December 6, 2012 injury alone due to his need to lie down during the day.  Vocational counselor Mr. Eldred noted that the claimant’s pre-existing disabilities were not sufficient to prevent him from working prior to his December 6, 2012 injury and noted that he now needs to lie down four times a day, which would make him unemployable in the open labor market.

The ALJ found that the claimant was permanently and totally disabled as a result of his December 6, 2012 injury alone, in light of his need to recline during the day to alleviate his back pain.  Since he was PTD as a result of the last injury alone, the Fund was not liable for PTD benefits.  On appeal, the Commission affirmed the ALJ’s decision.  

Court Affirmed Commission’s Finding that Claimant PTD as Result of Last Injury Alone

Palmer v. City of Columbia and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. WD79225 (Mo. App. 2016)

FACTS: The claimant was a 61 year old man with a low IQ who received a high school diploma before working as a trash collector for 38 years.  His left shoulder was crushed in 2011 when a trash truck pinned it against a pole, requiring surgery.  He filed a claim for PTD benefits against the employer and the Fund.

After testimony from the claimant and expert witnesses for both sides, the ALJ found the claimant PTD as a result of his left shoulder injury alone, reasoning that he was an older worker with a low IQ and no transferable skills or possibility of retraining.  Therefore, the ALJ ordered the employer to pay PTD benefits beginning after the original MMI date and all future medical.  His claim against the Fund was denied in full. On appeal by the Employer, the Commission affirmed the AlJ’s decision.

HOLDING: The employer appealed, arguing that the Commission’s finding that the claimant was PTD due to the last injury alone was not supported by competent and substantial evidence.  The Court found that the Commission was free to credit the opinions of the claimant’s experts and reject the contrary medical opinions of the employer’s experts.  After reviewing the evidence on the record, the Court also found that the Commission’s decision was based on substantial and competent evidence on the record and affirmed the Commission’s decision.

Employer Responsible for PTD Benefits After Pain from Primary Injury Caused Need to Frequently Lie Down Throughout the Day

Hunt v. Hendrick Automotive Group/Superior Buick Cadillac and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-014882

The fifty year old claimant was walking from one area of the employer’s premises to another when some co-employees stuck a broom handle between his legs, causing him to fall and twist his leg.  He treated with Dr. Dugan and Dr. Gurba, who performed a total of six left knee surgeries which provided no relief.  Over time the claimant developed complaints in his left hip and low back due to his left knee injury and also injured his right knee when he fell down after his left knee locked.  He was subsequently released from care in 2014 and referred to pain management.  He also had a pre-existing, non-work related left knee injury and underwent surgery in 2008.  He did not miss any time from work as a result of his 2008 left knee injury, had no difficulty obtaining employment, and testified that his personal hobbies and activities were not restricted in any way by this injury.

At a hearing, the claimant testified that he now uses a walker and continues to have pain in his low back, left hip, and bilateral knees, which prevents him from sleeping well at night.  As a result, he must lie down during the day to sleep.  He also testified that he had been seeking employment but has not worked since his injury.

The claimant’s expert, Dr. Stuckmeyer recommended restrictions of no prolonged standing or walking and that he be allowed to lie down frequently throughout the day and opined that if the claimant were PTD it was due to the primary injury alone.  Another claimant’s expert, Dr. Abrams diagnosed chronic pain syndrome and also recommended that he be allowed to frequently lie down throughout the day.  The treating doctor, Dr. Gurba provided permanent restrictions of sedentary work only and alternate sitting and standing as needed.  Mr. Dreiling performed a vocational evaluation and found the claimant to be unemployable due to his need to alternate between sitting and standing and lie down throughout the day.  Mr. Cordray also testified that if Dr. Stuckmeyer’s restrictions required him to frequently lie down throughout the day, then he would be PTD. 

The ALJ found that the claimant was PTD as a result of his last injury alone and noted that all expert testimony as well as that of the claimant indicate that his prior 2008 left knee injury did not prevent him from working and was not a hindrance or obstacle to employment.  Therefore, the ALJ found that the employer was responsible for PTD benefits and future medical care.  The employer appealed, and the Commission affirmed the ALJ’s decision.

Employer Responsible for PTD Benefits After Claimant Could Only Perform Right-Handed Work Following Left Shoulder Injury 

Payton v. Maryville RII School District and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-019253

On March 10, 2014, the claimant, a fifty-eight year old man with a high school education, helped a co-worker lift a soccer goal that weighed 200 pounds, at which time he heard a loud pop and felt excruciating pain in his left shoulder.  He treated on his own with Dr. Atteberry, who diagnosed a rotator cuff tear and performed left shoulder surgery on May 12, 2014.  He filed a claim against the employer for PTD benefits.

The claimant testified that his left shoulder pain interrupts his sleep and he now has to lie down or recline multiple times during the day and sometimes has difficulty concentrating due to his sleep deprivation.  Dr. Koprivica testified on behalf of the claimant that he did not have any permanent disability to his left shoulder prior to his 2014 injury.  The doctor also placed a permanent work restriction on the claimant due to the 2014 injury alone, including the need to recline and take naps on an unpredictable basis during the work day due to sleep interruption due to his pain.  The doctor opined that he was unemployable based on these restrictions.  Vocational expert Mr. Dreiling agreed that the claimant was unemployable due to the 2014 work accident alone because of his need to recline during the day.  Another vocational expert, Mr. Cordray agreed that relying on Dr. Koprivica’s restrictions, the claimant would be considered unemployable in the open labor market.

At a hearing, the ALJ found the claimant’s testimony and Dr. Koprivica’s opinion credible.  The ALJ noted that he was able to work full time without restrictions and regularly lifted 50 pounds at work prior to his 2014 work injury, and he did not have sleep interruption or need to sleep during the day prior to his 2014 work injury.  Therefore, the ALJ found the claimant PTD due to the 2014 work injury alone and ordered the employer to pay PTD benefits and provide future medical treatment.  On appeal, the Commission affirmed the ALJ’s decision.

Court Reversed Commission’s Decision that Claimant Failed to Meet Burden of Proving the Accident was Prevailing Factor, Because Commission Ignored Plain Meaning of Dr. Koprivica’s Testimony

Malam v. State of Missouri Department of Corrections, Case No. SC95170 (Mo. S.Ct. 2016)

FACTS: The claimant, along with two co-employees, subdued a prisoner.  After escorting the prisoner, the claimant went into his office to get a drink and began to spit up blood.  An ambulance was called and the claimant eventually lost consciousness, which he regained one week later.  The majority of the medical records stated that he fell and someone fell on top of his chest.

The treating physicians were uncertain whether the incident aggravated the claimant’s pre-existing cardiac and respiratory conditions and caused the hypertensive crisis or the hypertensive crisis was a direct result of the incident alone.  The employer’s expert, Dr. Puricelli testified that the claimant’s pre-existing health problems were the prevailing factor in causing his hypertensive crisis.  The claimant’s expert, Dr. Koprivica, believed that the work incident was the prevailing factor in precipitating his hypertensive crisis, as he felt that absent the work incident, it would be impossible to predict that the claimant would have developed the hypertensive crisis.  At a hearing, the ALJ found for the employer based on Dr. Puricelli’s testimony.

The claimant appealed, and the Commission agreed that the claimant was not entitled to benefits because he failed to prove that the incident was the prevailing factor in causing his hypertensive crisis.  It found Dr. Koprivica’s testimony equivocal because he testified that the incident was “the direct, proximate and prevailing factor precipitating [the claimant’s] hypertensive crisis.”  The Commission interpreted this to mean that Dr. Koprivica believed that the altercation was both the prevailing factorand a triggering factor.

HOLDING: The claimant appealed to the Missouri Supreme Court arguing that the Commission erred by disregarding Dr. Koprivica’s testimony.  The Court reversed and found that the Commission was overly technical and ignored the plain meaning of Dr. Koprivica’s testimony, which was that the accident was the prevailing factor causing the hypertensive crisis.  Therefore, the Commission’s decision was reversed and remanded.

ALJ Not Bound by Stipulation Regarding a Pre-existing Disability When Determining Fund Liability for Pre-existing Conditions

Carroll v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 12-106262

The claimant developed right cubital tunnel syndrome on or about October 1, 2012 for which he underwent surgical intervention.  He settled his claim with the employer for 17.5% PPD of the right upper extremity at the elbow.

The claimant sustained a prior injury to his left hand in 1986, which he settled with the employer for 14.57% PPD of the left hand.

Dr. Stuckmeyer testified on behalf of the claimant that he had 30% pre-existing PPD of the left hand due to his 1986 work injury.  The Second Injury Fund did not provide expert medical opinion testimony providing a current rating for the 1986 work injury.

At a hearing, the ALJ found that the claimant failed to meet the minimum threshold to trigger Fund liability because he was bound to find that the claimant had 14.57% pre-existing PPD of the left hand pursuant to the 1986 settlement agreement. 

The claimant appealed to the Commission, which reversed the ALJ’s Award.  The Commission found that although an ALJ is bound to accept the percentage of PPD agreed upon in a compromise settlement agreement with respect to a primary injury, it is not bound to accept the percentage of PPD that was agreed upon in a prior compromise settlement agreement when determining the Fund’s liability with respect to pre-existing conditions.  To hold otherwise would fail to take into account additional disability involving the same body part such as degeneration due to the normal aging process.  Also, pursuant to statute, the minimum threshold to trigger Fund liability refers to the nature and extent of pre-existing disability as it exists on the date of the primary injury, not at the time of a prior settlement.  Therefore, the Fund was liable for enhanced PPD benefits.

ALJ’s Conclusion that Statute Requires Physician Certification to Find PTD Reversed by the Court

Treasurer of the State of Missouri v. Daryl Majors, Case No. WD79465 (Mo. App. 2016)

FACTS: The claimant stepped off a street sweeper truck onto a cobblestone curb while working on March 29, 2012, at which time his foot slipped into a hole and he sustained an injury to his right knee, which required surgery.  The claimant also had significant prior injuries to his left knee, including surgery to repair MCL and ACL tears in 1973 and a total knee replacement in 2002.

Dr. Stuckmeyer examined the claimant at his attorney’s request and recommended a right total knee replacement as well as a vocational assessment to determine the claimant’s employability.  The claimant then underwent a vocational evaluation with Mr. Cordray, who opined the claimant was not employable due to the combination of his primary injury and his pre-existing left knee condition.

The ALJ noted that although Mr. Cordray opined that the claimant was unemployable, he was not a doctor, and Dr. Stuckmeyer did not explicitly find the claimant to be PTD.  The ALJ held that he could not award PTD since Statute requires physician certification of PTD in order to award PTD benefits.  The Commission reversed, finding that Statute does not require specific language as long as the doctor otherwise confirms the extent of the claimant’s diagnoses, medical conditions, and restrictions.  Here, Dr. Stuckmeyer provided a diagnosis, identified permanent restrictions, and recommended a vocational evaluation, which amounted to a certification of the claimant’s PTD status.  Therefore, the Fund was responsible for PTD benefits.

HOLDING: The Fund appealed the Commission’s decision, and the Court of Appeals affirmed.

Fund Responsible for PTD Benefits Because of Pre-existing Conditions Prior to Claimant’s Date of Disabilityfor Primary Claim

Wickam vs. Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD79188 (Mo. App. 2016)

FACTS: The claimant sustained a right shoulder injury on August 17, 1999 and subsequently developed bilateral carpal tunnel syndrome, which required bilateral carpal tunnel releases in 2003.

The claimant had numerous other conditions.  He sustained a right shoulder injury and underwent a total shoulder replacement in 2000.  He also presented testimony that he suffered from ADHD and a personality disorder.  He underwent a tracheostomy in 2003 for sleep apnea followed by a stoma revision in 2004.  Finally, he presented evidence of bilateral knee disability due to a knee problem he had for 20-30 years.  Dr. Thomas diagnosed retropatellar crepitance of the left knee and performed surgery on the same on February 5, 2004, along with a medial meniscectomy and debridement.

The claimant’s expert Dr. Koprivica evaluated the claimant on November 1, 2001, diagnosed bilateral carpal tunnel syndrome, and recommended surgical intervention.  In a later report, the doctor opined that claimant’s right shoulder, psychological condition, sleep apnea, and bilateral knee conditions pre-existed his bilateral carpal tunnel syndrome and he was PTD due to a combination of his primary and pre-existing conditions.  Dr. Koprivica’s opinion was not contradicted by any other expert’s opinion.

The Commission found that the correct date of disability for his bilateral carpal tunnel syndrome was November 1, 2001, because that was the date Dr. Koprivica recommended surgery.  Therefore, it found that his bilateral knee and sleep apnea conditions did not pre-exist the primary injury and should not be considered when evaluating the Fund’s liability.  Because Dr. Koprivica’s report included consideration of his bilateral knees and sleep apnea when finding him PTD, the Commission also declined to find that he was PTD.

HOLDING: Both the claimant and the Fund cross-appealed.  The claimant argued that the correct dates of disability for his carpal tunnel syndrome should be September 2003 and December 2003, the dates he was no longer able to work due to his need for surgery.  The Fund argued that the date of disability should be November 6, 2000, the date he was first diagnosed with carpal tunnel syndrome.  The Court of Appeals held that the correct date of disability was September 12, 2003, because there was no evidence that the claimant’s earning ability was impaired prior to that date and he was capable of working without restrictions up to the date of that surgery.  Therefore, the claimant’s sleep apnea and bilateral knee conditions were pre-existing conditions, the claimant was PTD based on Dr. Koprivica’s report, and the Fund was responsible for PTD benefits.

The case that generates more questions than any other in this practitioner’s experience is George v. Great Eastern Food Products, Inc., 44 N.J. 44 (1965) regarding idiopathic claims.  This case comes into play any time that an employee falls for reasons unknown and suffers an injury caused by the fall itself.  Countless employers have had situations where employees fall at work for no work-related reason, and the question is whether or not such a fall is compensable.  The George case was decided by the New Jersey Supreme Court, and it has been the leading case on this particular type of claim since 1965.

The facts are very simple.  Mr. George worked for Great Eastern and became dizzy at work probably related to some personal cardiovascular condition.  That led him to fall to the concrete floor and fracture his skull.  He died from the skull fracture, and his widow filed a dependency claim.  Mr. George did not strike any object while falling, and he did not trip on anything.  He simply fell onto a concrete floor from a standing position.

The lower courts found that this accident was not compensable based on a number of very old workers’ compensation decisions.  But the Supreme Court of New Jersey reversed in favor of the widow’s dependency claim.  The Supreme Court said that an employer takes the employee as he finds him.  The Court added that an accident under the New Jersey Workers’ Compensation Act occurs “if either the circumstance causing the injury or the result on the employee’s person was unlooked for, regardless of whether the inception or the underlying reason for the circumstance or result was personal or work connected.”

 The Court viewed both the circumstance causing the injury in this case (striking the floor) and the consequence upon the employee’s person as unexpected events.  Since an accident is by definition an unexpected event, the case was found compensable. The Court said, “We also completely endorse the second necessary element . . . that such an unlooked-for mishap arises ‘out of’ the employment when it is due to a condition of the employment – i.e., a risk of this employment, and that the impact with the concrete floor here clearly meets that test.”

The Supreme Court concluded with this comment; “Of course, we do not mean to intimate that an employee is entitled to compensation for some idiopathic incident in and of itself, as, for example, where one suffers a none-work connected heart attack or convulsion at work and simply dies at his desk or machine or falls to the floor and suffers no injury from the impact.” Thus the general rule that we do not pay for the underlying condition which caused the fall, but we do pay for the effects of the fall under the rule in George.

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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. 

 Katherina Swank worked for CareSource Management Group (hereinafter CareSource) as a Registered Nurse (RN).  CareSource provides managed healthcare services to Medicaid recipients.  Her work involved case manager duties by telephone until CareSource initiated a new approach in 2011 to delivering managed care services to the Ohio Department of Job and Family Services, which mandated that CareSource employees meet face-to-face with certain high risk members of the community on at least a quarterly basis.

This face-to-face requirement posed a problem for Swank because she suffered from rheumatoid arthritis.  She had intermittent difficulty with walking, lifting heavy items, and driving.  She had a weakened immune system and was susceptible to illness.  Because of these medical issues, CareSource had allowed Swank to begin working from home in 2009.  When management contacted Swank in 2011 about the change in requiring face-to-face visits with members, Swank said that she had concerns about this, in particular having to drive a great deal as well as the impact on her autoimmune condition.

Swank sent a letter on November 14, 2011 to the Senior Vice President of Health Services stating that the new position “would be hazardous considering her current health condition.” She elaborated that contact with high risk patients would be detrimental to her health. She met with management and stressed that long distance driving would also be a problem.  CareSource suggested that Swank make an accommodation request.

Swank filled out an application for an accommodation and stated that she was “unable to tolerate being exposed to changes in weather conditions” and “unable to sit/stand for long periods of time.” Her request was to be permitted to continue to work in an office setting. Her physician weighed in by saying that Swank would have “difficulty” performing some of the job duties of the new CMHR job position.  Her doctor also said that during acute flare-ups of her rheumatoid arthritis, her medical condition would preclude her from traveling to and from work and from being at work.

Ten more conversations took place between the parties with no real progress. Ultimately Swank admitted that she could not perform the essential functions of the new CMHR position, and CareSource advised that it had no other position for her.  The company then terminated her employment.

Swank sued under the ADA and contended that the company failed to make reasonable accommodation for her disability.  The district court ruled for CareSource and the United States Sixth Circuit Court of Appeals affirmed the dismissal of Swank’s case.  The Court noted as follows:

• There was evidence that Swank could not perform her job duties at all during flare-ups of her rheumatoid arthritis.

• The Court had a right to rely on statements by Swank’s doctor that she was likely to have acute flare-ups even though Swank disagreed with her own doctor on this point

• Driving was an essential function of the CMHR position because driving was included in the “Work Environment/Physical Requirements” section of the job description, even if it was not mentioned in the CMHR heading as an essential job function.

• Making face-to-face visits with high risk patients was an essential job function

  Swank also argued that the company should have considered reassigning her to a telephonic position in Dayton or Cleveland.  The Court noted that at the time she raised this issue, there were no such positions available.  Further, this would not have addressed Swank’s restrictions against long distance driving.  Lastly, one of the Cleveland positions would have required a promotion for Swank, and the Court noted that this is never required of an employer under the ADA.

  The Court rejected the argument that Swank made a reasonable accommodation request:

  “Swank failed to propose a reasonable accommodation that would have addressed her stated driving limitations.  Swank contends that she proposed a reasonable accommodation because she ‘sought to be assigned members in the geographic area of her home in order to limit driving long distances.’ However, Swank testified that even if she were assigned members closer to her home, she still might have to sit in the car for long periods of time due to traffic or bad weather and still might experience flare-ups due to changes in the weather. Swank therefore agreed that assigning her members closer to her home would not adequately address her concerns.  Accordingly, because Swank did not propose a reasonable accommodation to CareSource that would address her stated limitations, her interactive-process claim fails as a matter of law.” 

  This case shows how important it is for an employer to ask an employee to outline in writing any health restrictions and make a specific request for accommodation.  Here the plaintiff boxed herself in by listing so many restrictions that it would be nearly impossible for the company to find a job which would meet all the restrictions.  When plaintiff tried to walk some of the restrictions back, contending that she was not really all that restricted, the employer correctly held her to her written representations and held her doctor to them as well.  The case also shows how important it is to list the essential functions on a job description.  It is worth the time to get the job description right, which CareSource did here in stating that driving and traveling were essential functions.

The case can be found at Katherina Swank v. CareSource Management Group Corporation, 32 AD Cases 1731 (6^th 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.

 Many employers have a policy of mandatory post-injury drug testing.  Those policies must now be reconsidered and largely jettisoned. The underpinning of the new OSHA policy on drug testing is the belief that blanket post-injury drug testing policies deter proper reporting of injuries.  On May 12, 2016 OSHA published new final rules against discrimination and injury and illness reporting.  The new rule became effective August 10, 2016.  The rule itself does not mention blanket drug testing policies, but the Comments to the rule make clear OSHA’s position.

The way OSHA gets to drug testing is through Section 1904.35(b)(1)(iv) which prohibits an employer from discharging or discriminating against an employee for reporting a work-related injury or illness.  While the evidence seems threadbare that employers retaliate against employees who report work injuries by requiring post-accident drug testing, employers have to deal with the new rule, like it or not.

Here is the new standard contained in the Comments to the rule.  “To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”  Employers rightly question how they will develop the expertise to know when drugs are contributing to an accident. The Comments suggest that it would not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.  That sort of testing, in the view of OSHA, “is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety.”

Another harm that OSHA sees in drug testing is that it can be perceived as punitive or embarrassing to the employee and therefore likely to deter injury reporting.  OSHA states that “this final rule does not ban drug testing of employees.  However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”

So how can an employer perform post-incident drug testing while at the same time convincing OSHA that it is not doing this to deter reporting of injuries or illnesses?  OSHA says that drug testing which complies with a requirement of state or federal law or regulation is fine because the motive of the employer will be considered non-retaliatory. But those examples of drug testing do not address the issues most employers face.

OSHA adds the following opaque comment: “Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.”  What “reasonable possibility” means is anyone’s guess at this point in time.  Questions abound on how an employer will be able to acquire in the short window of time following an accident sufficient information to make a decision to drug test under the “reasonable possibility” standard?  A huge percentage of workers’ compensation accidents are unwitnessed, and drug use is widespread in our society generally.  One can argue that there is always a reasonable possibility that drugs may be involved in work injuries, but clearly OSHA is looking for something beyond broad generalities like this.  The Comments provide no examples of what OSHA is looking for.  The likely effect of this rule will be to deter employers from drug testing after work injuries, and ultimately this will make workplaces and workers less safe.

Employer groups will surely challenge this rule in federal court.  In the interim, employers should know that maximum penalties are now $12,000 per violation and over $120,000 for repeat violations. Given the new rule is now in effect, we recommend that employers, if they have not already done so, take a fresh look at their drug testing policies.

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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 National Workers’ Compensation Defense Network (NWCDN) put on another great seminar

this month. The seminar was held at the Intercontinental Hotel on the Magnificent Mile in Chicago.

Seminar topics included traumatic brain injury, reducing/avoiding narcotics abuse, and negotiation

skills. Additionally, there was a regional break-out session to discuss medical issues specific to

different states. The seminar was sandwiched between two lively and engaging cocktail receptions,

and many attendees took the opportunity to see Chicago’s many sights, such as the John Hancock

Tower, museums, and the architecture boat tour.

The Division started work in September to convert a backlog of hard copy records to digital format.

The project apparently involves scanning 21,000 boxes of files– specifically, “millions of claim

files”. Once the project is complete, the Division hopes to see an improvement in data security, as

well as quicker and easier fulfillment of records requests.