State News

Rayford H. Taylor
Of Counsel
Gilson Athans P.C.
980 Hammond Drive, Suite 800
Atlanta, Georgia 30328
770-512-0300 - Ext. 529
770-512-0070 - Fax
rtaylor@gilsonathans.com
www.gilsonathans.com

The Appellate Court found that the evidence supported the State Board

of Worker’s Compensation’s denial of benefits to the claimant

ABF Freight System, Inc. v. Presley

(Georgia Court of Appeals)

Employee not entitled to additional benefits because he could not establish he had sustained a “fictional new accident,” but rather had merely had a “change in condition.”

Summary

Employee had to prove right knee problems were a result of a fictional new injury, rather than a change in condition arising out of normal life.  He failed to prove a new injury, so not entitled to benefits.

Discussion

Mr. Presley worked for ABF Freight System, Inc. as a truck driver and dock worker.  He sustained a compensable injury to his right knee, had surgery, and received temporary total disability (“TTD”) benefits during his absence from work.  He later returned to work without restrictions or limitations and continued to perform his normal job duties.  However, his right knee pain worsened and he was diagnosed with arthritis in the knee and was advised that he would eventually need a right knee replacement.

Mr. Presley also sustained a compensable job-related injury to his left knee, had surgery and again ultimately returned to work without restrictions or limitations and resumed his normal duties.  His right knee pain continued to worsen following his left knee surgery.  He had apparently suffered a tear of the medial meniscus to his left knee but continued his normal job duties even as his right knee pain worsened.

After an additional year of continuing to work in his regular job duties following his left meniscal tear, the doctor informed Mr. Presley that a total right knee replacement was necessary.  Mr. Presley had the surgery and was placed on a “no work” status and sought payment of TTD benefits, arguing that he had sustained a fictional new injury.  ABF argued that it was a change in condition for the worse, and the right knee condition and it was not compensable.

Whether an employee suffers a fictional new injury or change in condition is a question of fact for determination by the administrative law judge (“ALJ”).  In this case, the ALJ denied benefits, finding that Mr. Presley did not suffer fictional new injury and that the two-year statute of limitation barred his claim since he had last received TTD benefits for his right knee more than years prior.  On appeal, the State Board adopted that decision.

The parties agreed that there was no singular specific incident creating an immediate need for Presley’s total right knee replacement.  Instead, the dispute was whether Presley’s total temporary disability arising from his right knee replacement should be characterized as a fictional new accident or a change in condition for the worse.

A fictional new injury, or aggravation of a pre-existing condition, occurs when a “claimant is injured on the job but continues to perform the duties of his employment until such time that he is forced to cease work because of the gradual worsening of his condition which was at least partly attributable to his physical activity in continuing work subsequent to his injury.” Central State Hospital v. James, 147 Ga. App. 308, 309, 248 S.E.2d 678 (Ga. App. 1978). 

A change in physical condition, on the other hand, occurs when a claimant sustains an injury and is awarded compensation during his period of disability.  Subsequent thereto, the employee returns to employment performing his normal duties or ordinary work.  Then as a result of the wear and tear, ordinary life and the activity connected with performing his normal duties and not because of any specific job-related incident, his condition gradually worsens to the point where he can no longer continue to perform his ordinary work. 

Ordinarily, the distinguishing feature that determines whether that disability is either “a change of condition” or a “fictional new accident” is the intervention of new circumstances.  Whether an employee suffers a fictional new accident or a change in condition is a question of fact to be determined by the ALJ.  In this case, the Appellate Court found that under the “any evidence rule” the findings of the State Board and the ALJ had to be affirmed.

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ABOUT THE AUTHOR

The article was written by Rayford H. Taylor, Esq., Of Counsel to Gilson Athans P.C., a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and all other liability and commercial matters.  Mr. Taylor is admitted to practice law in Florida and Georgia and is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive.  Taylor and Gilson Athans 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.

Rayford H. Taylor
Of Counsel
Gilson Athans P.C.
980 Hammond Drive, Suite 800
Atlanta, Georgia 30328
770-512-0300 - Ext. 529
770-512-0070 - Fax
rtaylor@gilsonathans.com
www.gilsonathans.com

Employee Entitled to receive Temporary Total Disability Benefits

Burns v. State of Georgia, Department of Administrative Services

(Georgia Court of Appeals)

Employee entitled to receive temporary total disability (“TTD”) benefits following termination because Employer was found to have terminated her because of her work-related injury.

Summary

LaVerne Burns was a receptionist for the State of Georgia, Department of Administrative Services.  She was injured when the chair she was sitting in collapsed.  She received worker’s compensation benefits in connection with the injury, but continued to work in her position until her employment was terminated.  She then sought TTD benefits.  An administrative law judge (“ALJ”) awarded Ms. Burns TTD benefits, finding the reasons the employer gave for terminating her employment were pretextual and she was terminated due to her work injury.  The State Board’s Appellate Division upheld the award of TTD benefits.

Discussion

Following her employer’s termination, the claimant sought TTD benefits.  The employer challenged the request on the grounds that her employment was terminated for reasons unrelated to her injury and because she had not sought another job.  After the trial, the ALJ awarded Burns TTD benefits and specifically found she was a credible witness and “the reasons given by the employer to justify her termination were pretextual and that she was terminated due to her work injury.”  Because the real reason for the termination was the work-related injury and claim, the ALJ determined Burns had carried her burden of proving, by a preponderance of the evidence, entitlement to TTD benefits. 

As a general rule to obtain benefits, a claimant is required to show either that they have searched for another position or that they had been working in a restricted capacity when their employment was terminated.  The Supreme Court of Georgia inPadgett v. Waffle House, 269 Ga. 105, 498 S.E.2d 499 (Ga. 1998), clarified that showing a diligent but unsuccessful effort to secure employment following termination was a way of establishing the necessary element of causation.  However, in this case, by proving the work-related injury was the proximate cause of the termination, the claimant established the causal link between injury and her worsened economic condition.  Therefore, she did not have to establish she had searched for another position.  Finding the reasons for the termination were a pretext to avoid continued payment of benefits satisfied the proximate cause requirement. 

The Court said the issue was not whether Burns sought new employment or whether she was working under restrictions when the employer terminated her, but whether she demonstrated the necessary causal link between her work-related injury and her worsened economic condition.  The fact that the employer gave pretextual reasons for terminating her employment, which was due in part to Burns’ work-related injury, established the causal link.  The case was remanded back to address whether or not there was sufficient evidence to establish the finding of her termination based upon a pretext.

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ABOUT THE AUTHOR

The article was written by Rayford H. Taylor, Esq., Of Counsel to Gilson Athans P.C., a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and all other liability and commercial matters.  Mr. Taylor is admitted to practice law in Florida and Georgia and is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive.  Taylor and Gilson Athans 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.

NEWS

RITSEMA & LYON WEBINAR – MEDICARE SET ASIDES

Ritsema & Lyon is hosting a webinar on Medicare set asides.  The webinar is scheduled for Thursday July 23, 2015 from 9:00 a.m. - 10:30 a.m. MDT.  Delores Dafoe will be discussing the ins & outs of preparing and handling MSAs.  Check out the Events section of our website, www.Ritsema-Lyon.com, for more information and to register.  Please contact Jennie Smith atJennie.Smith@Ritsema-Lyon.com or 303.297.7275 with any questions.

22^nd ANNUAL SEMINAR

Ritsema & Lyon’s 22^nd Annual Workers’ Compensation Seminar will be held on Friday, August 28, 2015, at the Doubletree by Hilton Hotel in Denver. Full itinerary and invitation coming soon.  Contact Jennie Smith atJennie.Smith@Ritsema-Lyon.com or 303.297.7275 with any questions.

NEBRASKA UPDATE

NEW LEGISLATION PASSED

LB480, discussed in our May 2015 newsletter was passed.  The changes are as follows:

• Benefits can be denied when an employee knowingly and willfully made false statements regarding his or her physical or medical condition by acknowledging that he or she is able to perform the essential functions of a job based on the employer’s job descriptionwhen such misrepresentation caused further injury.

• Employers are not responsible for any finance charges or late penalty payments as a result of medical services rendered by a provider.

• The interest rate applicable to late payments is now 6 percentage points above the bond investment yield, as published by the U.S. Secretary of Treasury, which is currently 2.137 percent.

• Workers’ compensation trust investment rules were changed to expand investment options.

NEBRASKA OPINIONS

The case of Canas-Luong v. Americold Realty Trust, 22 Neb. App. 999 (2015), confirmed that an employee is not at MMI until all conditions are at MMI and no permanency is due for one condition until all conditions are at MMI.  The trial court found claimant was not at MMI for her psychological injury and awarded ongoing TTD, but also awarded PPD for an upper extremity impairment.  The Court of Appeals reversed the award of the member impairment, noting that not only was the employee not at MMI for all conditions, that impairment may be factored into her overall loss of earning capacity once she did reach MMI for all conditions pursuant toBishop v. Specialty Fabricating Co., 277 Neb. 171, 760 N.W.2d 352 (2009), andMadlock v. Square D Co., 269 Neb. 675, 695 N.W.2d 412 (2005).

TALES FROM THE TRENCHES

The Omaha office successfully defended an attempt by a plaintiff to strike a counterclaim filed by the employer.  Filing counterclaims is a useful procedural tool to ensure a hearing on the merits is had if either party believes one is necessary, and is very valuable.  A different trial judge recently struck a counterclaim, which created some question on whether the practice could continue.  The favorable ruling supports its use and stems the concern that the Court as a whole may shift to disallow it.

For more information regarding counterclaims contact Jennifer Caswell in our Omaha, NE office.

Jennifer.Caswell@Ritsema-Lyon.com or 402.505.4630

On June 26, 2015, the Alabama Court of Civil Appeals released its decision in Pat Tate as Administrator of the Estate of Michael Traffanstedt v. Liberty Mutual Insurance Company and Dover Corporation. In 2006, Traffanstedt entered into an agreement to settle his workers’ compensation claim against his employer, Dover Corporation. That settlement left future medical benefits open. In 2011, Traffanstedt and Dover entered into a second settlement agreement regarding his future medical benefits, but the trial court rejected the settlement. In 2013, Traffanstedt and Dover again entered into an agreement for the settlement of his future medical benefits, and scheduled a hearing before the trial court for approval. Dover’s insurance carrier, Liberty Mutual, issued a check in the amount of $70,000 for the settlement, contingent upon court approval. However, Traffanstedt died before the settlement hearing, and Liberty Mutual refused to honor the check. Tate, the Administrator of Traffanstedt’s estate, sued Liberty Mutual and Dover, alleging breach of contract. Liberty Mutual and Dover took the position that they were not bound by the settlement agreement because it had not yet been court-approved prior to Traffanstedt’s death. They also asserted that the exclusivity provisions of The Alabama Workers’ Compensation Act barred Tate’s claims for breach of contract. The Trial Court entered Summary Judgment in favor of Liberty Mutual and Dover, and Tate appealed.

In its analysis, the Court of Appeals noted that workers’ compensation settlements, including the one at issue, are handled differently under the law than other settlements, such as those involving tort claims. The Court also stated that workers’ compensation settlements were different even than settlements involving a minor, in that a settlement contract between a minor and insurer is voidable at the election of the minor, whereas workers’ compensation settlements for less than the amount of compensation provided for in the Act are contingent upon Court approval. Therefore, the Court held that workers’ compensation settlements are not valid for any purpose until approved by the Court.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

Intermittent leave can be extremely difficult for employers.  One important point for employers to realize is that an employee on intermittent leave who comes to work in between flare-ups may be held to all customary performance standards.  The case ofParks v. UPS Supply Chain Solutions, Inc. 2014 U.S. DIST LEXIS 13538 (E.D. Kentucky 2014) illustrates this concept.

Gene Parks worked for UPS since 1999 as a material handler.  He drove a forklift, moved boxes, picked products and controlled inventory.  He began taking leave for medical reasons in 2003, and he conceded that UPS never interfered with his leave during his early years with the company.

In 2009, Parks was transferred to a new account.  Parks began experiencing severe neck pain and applied for up to 12 weeks of intermittent leave.  The company granted this request.  In May 2010 the company issued a verbal warning to Parks for failure to meet standard productivity goals in either replenishment or picking.  The company noted that Parks had a record of poor quality in receiving, but Parks attributed his errors to a medical condition that affected his ability to concentrate.  The HR Director advised Parks that his current FMLA paperwork only authorized intermittent leave and indicated that he could perform all essential job functions between flare-ups.  She also spoke to him about additional training opportunities which Parks declined.  Parks countered that he himself had asked his doctor not to label him as disabled because he feared losing his job.  The HR Director suggested that Parks should update his FMLA paperwork; otherwise he would be held accountable for production expectations.

A few days later Parks received a first written warning for poor quality in picking.  By late 2010 the write ups became more frequent.  Parks was written up numerous times for errors.  He would put cartons away but record an incorrect location in the computer system or fail to enter their location in the computer system, or put boxes away upside down.  Parks told his supervisors that his medical condition was impacting his performance.  His supervisors advised him again that FMLA only covers missed time, not performance at work.  They recommended again that if he could not do his job for medical reasons, he should update his FMLA paperwork.

Parks next was issued warnings for conduct and behavior violations.  Around this period of time, Parks began a course of physical therapy and cortisone injections, but this treatment was also ineffective.  His doctor told him that he would need surgery some time in the future. He submitted an new FMLA certification in January 2011 stating that he would need continuous leave for neck surgery in the near future.  No specific date was given until a medical appointment in May when Parks’s doctor advised that the surgery date would be June 16, 2011.  Parks claimed he told his supervisors about the scheduled surgery at the beginning of his shift the following week.  The company denied being told any specific surgery date. Rather, they knew only that surgery would take place in the future.

On the same date that Parks says he told the company about his need for surgery on June 16, 2011, his supervisor discovered that Parks had logged an incorrect location in the computer system for a container.  Under the company’s progressive discipline system, Parks was already on a final written warning status for performance and conduct.  The company met with Parks at the end of his shift and terminated his employment.  They offered him COBRA information but Parks threw away the COBRA packet because he felt COBRA was too expensive. Parks then sued under the FMLA for interference and retaliation.  

The court noted the timing issue in this case between Parks’ alleged discussion about his upcoming surgery and his termination.  It said that the close timing between Parks’s request for leave and his termination established a prima facie case of FMLA retaliation, shifting the burden to UPS to explain a non-discriminatory reason for its actions.  UPS produced detailed information regarding the poor performance of Parks in the months leading up to his discharge.  The Court was impressed with the company’s detailed documentation:

Defendant has produced thorough documentation of Plaintiff’s performance issues at UPS.  Plaintiff received multiple written warnings for his sub-par performance, all of which indicated that he could face termination if his work did not improve.  Despite this admonition, Plaintiff declined additional training opportunities.  Although Plaintiff’s errors became more frequent as his neck condition worsened, Lovelace, Valdez and Welch repeatedly told him that, while his FMLA paperwork authorized time off to cope with his condition, it did not excuse poor performance.  As long as Plaintiff chose to work, he would have to meet the standards expected of all employees.  If Plaintiff felt that he could not do so, then he needed to update his paperwork again.  Defendant has not only demonstrated that Plaintiff had consistent performance issues, it has shown that Plaintiff failed to heed warnings or take advantage of opportunities for improvement, knowing full well that termination could result from continued errors.  Therefore, the Court finds that Defendant has articulated a legitimate, non-discriminatory reason for terminating Plaintiff, thus shifting the burden back to Plaintiff.

The court granted summary judgment to UPS and dismissed Parks’s law suit.  One important concept which this case demonstrates is that the FMLA provides only for leave. It does not insulate an employee or an exempt an employee from meeting performance standards while at work.  The employer has a right to assume that if an employee on intermittent leave comes to work, he or she will be able to meet work requirements.  In this case, UPS did an extraordinary job in documenting each and every performance issue, and this excellent documentation was the chief reason that the company prevailed.

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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.  

On June 26, 2015, the Alabama Court of Civil Appeals released its opinion in Todd Entrekin, Etowah County Sheriff v. Jerry Frederic Lasseter.  At the trial court level, the employee petitioned the court for an order compelling the employer to provide medical treatment for his lower back.  Treatment for the lower back had been provided by the employer prior to the settlement.  When the parties settled, however, the settlement agreement specified that future medical was to remain available for T-11 and T-8 levels of his back.  Despite this language, the trial court granted the petition and issued an order compelling the treatment.  On appeal, the Court of Appeals reversed the trial judge because the language in the settlement agreement specifically limited the employee’s right to future medical benefits to the two specified levels of his spine.

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About the Author

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

On June 19, 2014, the Alabama Court of Civil Appeals released its second opinion inGoodyear Tire & Rubber Co. v. Bush (). The first time around the Court of Appeals addressed several issues. On appeal the first time the Court of Appeals remanded the case to the trial court since it had not issued findings of fact and conclusions of law to support it’s finding that the employee’s knee injury affected the use and efficiency of other parts of his body. On appeal the second time, the only issue was whether or not the trial court’s ruling that the employee’s knee injury should be removed from the schedule, allowing for a permanent and total disability finding, was supported by substantial evidence.

At trial testimony from the authorized treating physician was presented that established the employee would ultimately need a knee replacement and would have continued discomfort. The doctor also testified that the knee injury resulted in the following restrictions: 1) no lifting, pushing or pulling over 20 pounds; 2) no bending at the waist, crouching, kneeling, stooping, or squatting; 3) no climbing stairs, ladders, or poles: and 4) avoid navigating unprotected heights since the right knee had reduced balance and stability. The doctor at no point testified that the right knee affected any other body parts. The doctor also did not testify that the restrictions issued arose from problems the employee was having with other body parts. The medicals records presented at trial also indicated that the employee complained solely of right knee pain and dysfunction during each medical visit. The physical therapy records noted hip flexion and extension of 4/5 and 4+/5 but did not state this was an abnormality nor did it state it was due to the right knee injury. The employee testified that he injured his back in 1978 and would still occasionally experience flare-ups and have to take nonprescription pain medication. He testified that the preexisting condition also caused him to limp prior to the on the job injury. In fact, evidence revealed that the employee told his vocational expert that his occasional lower back pain was not related to the right knee. The employee did testify that he now takes Lortab for pain but only for his knee pain. At no time did the employee testify that the right knee injury affected other parts of his body and, in fact, testified to the contrary. Finally, the evidence was undisputed that the employee could not return to his former occupation due to the permanent light duty restrictions placed on him by his doctor.

Based, on the above testimony the trial court found the employee had a preexisting back condition but now, as a result of the knee injury, he could no longer perform his duties. They also found that the doctor stated the knee injury affected his body as a whole. As such, the trial court found medial testimony sufficiently connected dysfunction to other body parts as a result of the knee injury. The trial court stated that the doctor had no reason to issues restrictions related to the other body parts because the restrictions issued for the knee would encompass the restrictions to the other body parts. Finally, the court supported its decision based on its observation of the employee limping and using furniture to steady himself as he walked around the courtroom.

The Alabama Court of Appeals disagreed with the trial court and found there was not sufficient evidence to remove the knee injury from the schedule. The Court of Appeals stated that the decision comes down to a question of medical causation: Is there substantial evidence that the effects of the injury to the scheduled member extends to other body parts and that those effects cause or contribute to pain, limitations, or other symptoms in those body parts.Boise Cascade Corp. v. Jackson. The Court of Appeals acknowledged that medical testimony was not required to prove medical causation on the issue of the injury affecting or extending to non-scheduled body parts. The Court of Appeals also pointed out that medical causation could be established on this issue based lay testimony and/or observations of the trial court. However, in this case the Court of Appeals found that the medical testimony established that the knee injury did not extend into other body parts and the fact that the doctor gave a rating to the body as a whole did not mean the schedule could be avoided.Ex parte Drummond Co. (Alabama Supreme Court specifically stated an impairment rating to the body as a whole does not remove an injury from the schedule). The Court of Appeals noted that the doctor testified that the restrictions issued were for the right knee only.

Since the medical testimony did not support removing the injury from the schedule the Court of Appeals next examined the lay testimony. The Court of Appeals pointed out that the trial court can find medical causation without direct expert medical testimony, so long the other evidence, lay and circumstantial, is sufficient to support that finding. The Court of Appeals stated that this is to be determined on a case-by-case basis. The Court of Appeals ruled that, in this case, the lay testimony actually established that the knee injury did not affect other parts of the employee’s body and that the knee injury had not worsened the preexisting back injury. The employee himself testified that the knee injury did not affect other body parts or worsen his back condition.

The Court of Appeals next addressed the trial court’s observations, which it used to support its decision. The Court of Appeals pointed out that case law does allow a trial court to consider its own observations when determining extent of disability, to include how the employee ambulates during trial. However, the Court of Appeals stated that nothing in the case law allows the trial court to make a finding of medical causation solely on its own observations without any other supporting evidence, much less when the finding is disputed by other evidence as it was in this case. The Court of Appeals stated "a trial court may not rest a finding on speculation or conjecture, even if arising from its observations, that contradicts the positive evidence in the record."

Finally, the employee argued the Court of Appeals should reconsider its holding that vocational evidence cannot be used to circumvent the schedule. The Court of Appeals stated that this court has applied in past case the rule, which was issued by the Supreme Court in Ex parte Drummond Co., that a trial court cannot consider vocational disability as a factor in determining the exclusivity of the schedule. Therefore, the trial court’s ruling that the employee is permanently and totally disabled cannot be supported by the employee’s inability to return to his former job as a result of the scheduled knee injury.

My Two Cents

The Court of Appeals again established that this is not a chicken or egg situation, since you must first establish that an injury is removed from the schedule before evidence of vocational loss can be considered. As a result, simply not being able to return to work is not an exception to the list of scheduled injuries.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden 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.

TO NOTICE OR NOT TO NOTICE  UNDER THE PENNSYLVANIA WORKERS’ COMPENSATION ACT

By Kevin L. Connors, Esquire

“Just because I don’t care, doesn’t mean I don’t understand”, brilliantly drooled by Homer Simpson.

In the School District of Philadelphia v. the WCAB, in a Decision issued by the Pennsylvania Supreme Court on May 26, 2015, authored by Justice Baer, the Supreme Court was asked to decide whether Section 306(b)(3) of the Pennsylvania Workers’ Compensation Act requires an Employer to provide an injured Employee with a written “Notice of Ability to Return to Work”, utilizing the State Form, identified as LIBC-757, before offering alternative employment where the injured Employee has yet to file a Claim Petition, and, therefore, has never formally proven entitlement to workers’ compensation.

Collectively holding our compensable breaths, the Supreme Court has unanimously held that the Notice provisions of Section 306(b)(3) requiring an Employer seeking to modify the workers’ compensation benefits of a Claimant based on medical evidence establishing that the injured Employee is able to return to work in some capacity, does not require the Employer to provide an injured Employee with Notice of their ability to work when offering alternative employment, when the compensability of the claim has not been established, either through acceptance of the claim, or through the Claimant filing a Claim Petition in the course of seeking workers’ compensation benefits.

This issue arose when the Claimant, Shirley Hilton, employed by the School District of Philadelphia, working as a second grade Teacher, in a School where the Claimant was routinely exposed to misbehavior, which included profanity and physical violence, forcing the Claimant to attempt to teach effectively by speaking louder than the classroom noise that she was attempting to talk over.

Completing an assignment on March 3, 2009, the children in the Claimant’s classroom became unruly, vandalized the room by knocking over desks and chairs, tore down educational charts, and ripped down a window shade.

These events were disturbing to the Claimant, who felt dizzy, could not eat, developed tension headaches, heart palpitations, and nausea.

Concluding school that day, the Claimant then went to a regularly-scheduled appointment with her primary care physician, Dr. Baugh, with the Claimant telling Dr. Baugh of the symptoms she experienced at School that day, also indicating that the anxiety that she was experiencing when working was more than she could bear (no relation to Justice Baer).

Dr. Baugh’s office then called the School District and advised that the Claimant would not be returning to work, due to her overly stressful environment.

Shortly thereafter, the Claimant was evaluated by the Employer’s work physician, Dr. Burke, who concluded that the Claimant could return to work at a regular job, at the School where she was working.  The Claimant did attempt to return to work, but only lasted four days, claiming that she could not continue to work under the stress that she experienced.

A Notice of Compensation Denial was then issued by the School District, denying the Claimant’s injury as being work-related, with the denial issued on May 29, 2009.

In June of 2009, the Claimant was then assigned to teach at a different School in the next Fall Semester.  The Claimant met with the Principal of that School, toured the facility, and found that the new School would be much less stressful, as the Students were quieter, and the Teachers were apparently able to teach the children effectively.

When the job was offered to the Claimant for the Fall Semester of 2009, the Claimant had not filed a Claim Petition, challenging the claim denial by the School District.

When School was ready to begin in September of 2009, the Claimant indicated that she could not begin employment at the new School, as she maintained that she was unable to return to teaching, because she was still under treatment for the symptoms that had arisen while she was working at the more-stressful School in March of 2009.

One month later, the Claimant filed her Claim Petition, alleging that she had developed stress from an abnormal working condition, and that she had sustained work-related injuries on March 3, 2009, to include a vocal cord injury, as well as aggravation of pre-existing lupus, and a heart murmur.  She claimed that her injuries rendered her totally disabled.

In response to the Claim Petition, the School District filed a timely Answer, denying all of the allegations in her Petition.

During the course of hearings before the Workers’ Compensation Judge, the Claimant testified to the events that caused her anxiety and stress, and she presented the testimony of her treating physician, Dr. Baugh.  The Employer presented the testimony of a medical Expert, Dr. Lamprakos.

Considering the evidence presented in support of and in opposition to the Claimant’s Claim Petition, the Workers’ Compensation Judge accepted the Claimant’s testimony regarding the conditions of her work environment at her old School, with there being no evidence presented to contradict the Claimant’s testimony regarding the behavioral problems of the Second Graders at that School. 

The WCJ also credited the Claimant’s testimony that the stressful work environment caused her physical symptoms, to include the heart palpitations, headaches, dizziness, and nausea, as well as reducing her voice to a whisper.

The WCJ also accepted the testimony of her treating physician, Dr. Baugh, that the Claimant was exposed to a stressful work environment, and that she had developed an exacerbation of her pre-existing lupus, as well as developing oral ulcers, nasal ulcers, and increased hyperpigmentation of her face.

However, the Workers’ Compensation Judge accepted the Employer’s Expert’s testimony that the Claimant’s stressful work conditions did not cause an exacerbation of her fibromyalgia.

In reliance upon the testimony of Dr. Baugh, the Claimant’s treating primary care physician, the WCJ concluded that the stress that the Claimant had been exposed to when teaching the misbehaving Second Graders resulted in the Claimant sustaining physical injuries, to include the exacerbated lupus, the vocal cord injury, and that those injuries rendered the Claimant totally disabled as of March 3, 2009.

So concluding, the Workers’ Compensation Judge awarded her benefits, although the WCJ found that Dr. Baugh’s testimony did not establish that the Claimant was generally disabled from working as a Teacher, but only that she was disabled from working in a classroom with children with significant behavioral problems, like those in the class that she had been teaching on March 3, 2009.

The WCJ then accepted the testimony of the Claimant, that she had been offered a position at a less-stressful School, suspending the Claimant’s compensation benefits as of when the Claimant could have begun working there under the School District’s job offer.

The Claimant then appealed the WCJ’s Decision to the Appeal Board, which affirmed in part, and reversed in part.  The Appeal Board reversed that portion of the WCJ’s Decision, which suspended the Claimant’s compensation benefits as of September 30, 2009, the date on which the Employer had provided the Claimant with a Notice of Ability to Return to Work, LIBC-757, pursuant to Section 306(b)(3) of the Act.

Section 306(b)(3) sets forth:

If the insurer receives medical evidence that the Claimant is able to return to work in any capacity, then the insurer must provide prompt written Notice, on a form prescribed by the Department, to the Claimant, which states all the following:

(i)                 The nature of the Employee’s physical condition or change of condition.

(ii)               That the Employee has an obligation to look for available employment.

(iii)             That proof of available employment opportunities may jeopardize the Employee’s right to receipt of ongoing benefits.

(iv)             That the Employee has the right to consult with an Attorney in order to obtain evidence to challenge the insurer’s contentions.

In reliance upon Section 306(b)(3) of the Act, the Appeal Board held that the Employer’s obligation to issue the Notice of Ability to Return to Work Form was mandatory, and that the School District’s failure to comply with the Notice provisions of Section 306(b)(3) during the pendency of the litigation of the Claimant’s Claim Petition precluded the WCJ from suspending the Claimant’s compensation benefits.

In essence, the Appeal Board concluded that there was insufficient evidence to establish that the Employer had provided the Claimant with the requisite Notice to meet the Employer’s threshold burden to modify the Claimant’s compensation benefits, in the form of suspending her benefits based upon available alternative work.

No surprise, the School District appealed the Appeal Board’s Decision to the Commonwealth Court, which, like the Appeal Board, affirmed in part, and reversed in part.

The Commonwealth Court affirmed the Appeal Board’s affirmation of the Claimant being awarded workers’ compensation benefits, although the Commonwealth Court held that the WCJ had properly suspended the Claimant’s compensation benefits because:  (1) Claimant established disability only until September 30, 2009, when the job at the new School was made available to her; and (2) The School District had no duty to issue a Section 306(b)(3) Notice to the Claimant under the facts presented.

Examining Section 306(b)(3) of the Pennsylvania Workers’ Compensation Act, to determine whether an Employer is required to provide a Claimant with a Notice of Ability to Return to Work prior to offering alternative work, when the Claimant was not receiving workers’ compensation benefits at the time that the job was offered, the Supreme Court held that the plain language of Section 306(b)(3) reveals that the focus of the provision is upon the Employer’s receipt of medical evidence of a change in the nature of the Claimant’s physical condition and the Employer’s duty to apprise the Claimant of such evidence, but that this Notice prerequisite presumes that the work-related injury has caused a disability, and that the Claimant is receiving ongoing benefits for that compensable injury, in the course of which the Employer seeks to utilize medical evidence that it has obtained of a change in the Claimant’s physical condition enabling the Claimant to work in an order to reduce its existing liability by decreasing the amount of benefits that it might have to pay, absent work being available.

Concluding that it would be illogical to require an Employer to issue a Section 306(b)(3) Notice before an Employer has conceded the occurrence of a compensable injury, or a Claimant has proven his/her entitlement to workers’ compensation benefits, the Supreme Court held that “we agree with Employer that it does not have an obligation to disclose evidence of a change in Claimant’s physical condition at a time when her physical condition had yet to be determined.”

Moreover, the Court held that “to require Section 306(b)(3) Notice of the facts presented would place an unreasonable burden on Employers in cases where disability is contested and a Claimant has not yet established his/her entitlement to benefits.”

Characterizing its analysis of the legislative history behind Section 306(b)(3) as having been intended to speak to an Employer’s burden in a suspension proceeding, where the Employer seeks to suspend a Claimant’s compensation benefits based upon the Claimant having the ability to return to work, at work within the Claimant’s physical capabilities being available, the Supreme Court held that the Section 306(b)(3) Notice provision is not meant to impose a requirement upon Employers in all circumstances where alternative employment is being offered to an injured Employee. 

Distinguishing the Commonwealth Court’s Decision in Hoover v. WCAB, 783 A.2d 886 (Pa. Cmwlth. 2001), the Supreme Court held that theHoover Decision was not relevant to the issues before the Court, asHoover involved the Employer denying liability for the alleged work-related injury, but then offering the Claimant a light-duty position after the Claimant filed a Claim Petition, but prior to the Claim Petition being adjudicated, with the Commonwealth Court in Hoover having found that the Employer had failed to satisfy the Notice requirements under Section 306(b)(3), as the Commonwealth Court held that a Notice of Ability to Return to Work was required to have been issued prior to a suspension of compensation benefits, although the Hoover Court provided no analysis as to why it drew that conclusion, with the Supreme Court declining to adopt theHoover Court’s application of Section 306(b)(3) where an Employer has not accepted liability for the claim, and the Claimant has yet to prove entitlement to benefits.

Is this a distinction with a difference?

Absolutely yes!

It is relevant because the Supreme Court has now held in School District of Philadelphia v. WCAB that the Notice requirements of Section 306(b)(3), requiring an Employer to notify an injured Employee that their physical condition will allow them to return to work in some capacity, only comes into play when there has been a determination that the Claimant’s alleged disability is, in fact, work-related, which would require either an acceptance of the claim by the Employer, and/or an adjudication of the claim by a WCJ, establishing compensability of injury, and related disability.

Since neither had been established in the factual record presented to the Supreme Court inSchool District of Philadelphia v. WCAB, the Supreme Court held that the School District had no responsibility to issue the Section 306(b)(3) Notice of Ability to Return to Work, and that the evidence before the WCJ supported a suspension of the Claimant’s workers’ compensation benefits as of the date that the Claimant had been offered alternative work by the School District, being September 30, 2009.

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.

Governor Walker, as part of his budget bill that was released on February 3, 2015, proposed removing the Worker’s Compensation Division from the Department of Workforce Development (DWD) and moving the functions to the Department of Administration – Office of Hearings and Appeals (DOA) and to the Office of Commissioner of Insurance (OCI). There has been a lot of commotion within the worker’s compensation community regarding what effect, if any, these proposed changes would have on our current system - the day-to-day handling of claims, hearings and settlements.

Many groups have formed on both sides of this issue to lobby their legislators to either pass or shut down these proposed changes. Professional lobbyists have been hired by some groups and many legislators have been flooded with letters and requests for meetings in an attempt to educate them as to how the proposed changes may change the worker’s compensation system, either for the better or the worse. It is rumored that the initial proposal underwent some revisions and is now being considered by the legislators, however nothing has been confirmed to date.

The Governor had stated that he would like the budget bill to be resolved by June 1, 2015, but to date it has not been approved.  We continue to monitor this issue closely and will provide an update once a decision has been confirmed as to whether the proposed changes are being passed in whole, in part, or not at all.

In 2014 an important appellate court decision was decided on whether all cases involving the interpretation of employee status must be referred to the Division of Workers’ Compensation.  On June 11, 2015, the New Jersey Supreme Court reversed the Appellate Division in Estate of Myroslava Kotsovska v. Saul Liebman (A-89-13) (073861). 

The facts were tragic.  Saul Liebman was living alone after the recent death of his wife in September 2008.  He was 89 years of age.  His daughter attempted to find someone who could help her father in his home and take care of his meals and daily activities. Myroslava Kotsovska, a 59-year-old Ukranian woman, was referred to Liebman. She met with Liebman through her son-in-law, who interpreted for her, and she agreed to do laundry, cooking, light housekeeping, and assisting with general tasks in exchange for $100 per day in cash.  She had no social security number and no checking account.  There were no discussions about whether she would be considered an employee or an independent contractor.  There were no formal agreements drafted and the only discussion of medical benefits was that the son-in-law would take care of any necessary medical bills.

On December 8, 2008, Liebman and Kotsovska ran some errands and stopped at the Millburn Diner for lunch.  Kotsovska exited the car and stood on the sidewalk while Liebman pulled into the parking space on front of her.  Liebman accidentally pressed the accelerator, causing the car to lurch over the parking block and onto the sidewalk where Kotsovska was standing.  The force of the car pinned Kotsovska against a low wall, severing her leg.  She died from the injuries within an hour.

The estate of Kotsovka filed a wrongful death action against Liebman in Superior Court. The estate never filed a workers compensation claim.  Liebman argued that the civil suit must be referred to the Division of Workers’ Compensation because the Division had exclusive jurisdiction over the issue of employee status.  The homeowner’s carrier stipulated that the accident arose from the decedent’s employment. 

The trial judge ruled for the estate and awarded it $300,000 for the decedent’s pain and suffering and $225,000 for her wrongful death.  The Appellate Division reversed, stating that the matter should have been transferred to the Division of Workers’ Compensation on the issue of whether Kotsovska was an employee or an independent contractor.  The New Jersey Supreme Court then reversed on June 11, 2015 in favor of the estate.

In ruling that the Superior Court has jurisdiction over employee status, the Supreme Court first distinguished several cases that seemed to suggest that this issue should be resolved in the Division of Workers’ Compensation.  The Court said that what makes this case different from prior cases is that the estate of Kotsovska never filed a workers’ compensation claim. The only claim that was filed was a wrongful death action. “Moreover, petitioner did not file a petition for workers’ compensation with the Division.  Thus, as the trial court noted, there was no claim pending before the Division over which it could assert jurisdiction.  Under these circumstances, we conclude that the Superior Court had jurisdiction to decide the question of decedent’s employment status.”

In ruling in favor of the estate, the Supreme Court did not reject the concept that the Division of Workers’ Compensation has primary jurisdiction on issues of compensability and related employment matters.  However, it said there is a four-part test that must be considered to determine if the Division has primary jurisdiction.

1) whether the matter at issue is within the conventional experience of judges; 2) whether the matter is peculiarly within the agency’s discretion, or requires agency expertise; 3) whether inconsistent rulings might pose a danger of disrupting the statutory scheme; and 4) whether prior application has been made to the agency.

On the second part of this test, the Supreme Court surprisingly said, “. . . theCompensation Court is in no better position to make the threshold determination of a worker’s employment status than the Superior Court.”  It also again noted that there was no risk of a conflicting decision between the Superior Court and Division of Workers’ Compensation in this case because the estate of Kotsovka only filed in Superior Court.  It upheld the decision of the trial judge that Kotsovska was not an employee but an independent contractor in spite of the apparent control over Kotsovska’s activities that Liebman had and the economic dependency that Kotsovska had on Liebman.  In the portion of the decision dealing with jury charges, the Court said, “A worker’s economic dependence upon the employer is a factor to be considered when a worker performs a function that constitutes a part of the employer’s business.”  It said in this case that Kotsovska’s employment was not in furtherance of Liebman’s business.

One is left to wonder what the result would have been had the estate of Kotsovska filed both a workers’ compensation claim and wrongful death action simultaneously.  Many lawyers do this to protect the statute of limitations from running in both actions.  If the Superior Court were to find employee status, the timely filing in workers’ compensation court would protect the rights of the employee.  There is certainly language in this decision suggesting that if the claimant files both a workers’ compensation claim asserting employee status and a civil claim for wrongful death, the Division should have primary jurisdiction to decide the employment status issue.  On the other hand, the Supreme Court also said that the Judge of Compensation is in no better position to decide on a worker’s employment status. 

What practitioners are likely to do in situations like this where it is unclear whether the worker is an independent contractor or an employee is to file in superior court and defer any filing in workers’ compensation until just before the statute of limitations should run. The most important comment from this Supreme Court decision is that the Superior Court is equally competent in making employment status determinations. 

The stakes are higher in civil law suits and that will favor filings in superior court over workers’ compensation, and the emphasis on social legislation which pervades workers’ compensation decisions may not play such a large role outside workers’ compensation court.  In this writer’s view, the decision inKotsovka will likely lead to a divergence in legal analysis on independent contractor status emerging from workers’ compensation and the superior court.  In the workers’ compensation arena, a finding of independent contractor status is very rare because using both the “control” test and the “relative nature of the work test” favors employee status.  For instance, babysitters who come to a home fairly regularly are found to be employees, and Kotsovka would likely have been found to be an employee in compensation court, contrary to the analysis used in the Superior Court decision.  In the last analysis, the rule now is that when it comes to the initial employee status interpretation, the Division does not have primary jurisdiction if the plaintiff only files suit in Superior Court.

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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.