NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
The Texas Board of Chiropractic Examiners took Dr. VanderWerff to a contested case hearing after a complaint was filed with the Board accusing him of providing excessive and unnecessary treatments to a patient. The Board issued an order in the case determining that he had violated the Chiropractic Act by engaging in grossly unprofessional conduct and assessed a fine against him. He couldn’t appeal the Board’s order directly because he missed his deadline to do so. He filed suit for declaratory and injunctive relieve against the Board instead. The Board then filed a plea to dismiss his suit for lack of jurisdiction. The trial court granted the plea and dismissed the lawsuit. The Austin Court of Appeals affirmed the trial court, stating that the Board was acting within its statutory authority in issuing its order, and that the lawsuit appeared to be an attempt to create a way to get around his failure to timely file a direct appeal of the agency’s order. The bottom line is that the Board’s order and its finding of grossly unprofessional conduct against Dr. VanderWerff is final. Dr. Eric A. VanderWerff, D.C. v. Texas Board of Chiropractic Examiners,WL 7466814 (Tex. App.–Austin)
DWC is reminding all employers without statutory workers’ compensation coverage that there are reporting requirements that apply to them. They must report every year that they elect to opt out of the regulatory system. They also must report work-related fatalities, occupational diseases and on-the-job injuries.
West Star Transportation, Inc. faces a $5.3 million dollar liability judgment. The company did not carry workers’ compensation insurance at the time of the near-fatal fall suffered by one of its workers. This was a case in which the worker sued the company for negligence– a suit which would have been barred by the exclusive remedy provisions of the Labor Code had there been comp coverage. The 7th District Court of Appeals affirmed the judgment both as to the finding of negligence and as to the amount of the verdict. The appeals court found that the company created an unusually precarious work environment and an unreasonable risk of harm to its employees. The Amarillo Court of Appeals issued its opinion in the case last Friday.West Star Transportation, Inc. v. Charles Robison, et al, No. O7-13-00109-CV (7th Dist.).
If you haven’t been able to get through using the numbers you are used to, it is because the field office phone system has been revamped. You can get an updated directory of field office personnel numbers by emailing Hugo Salazar athugo.salazar@tdi.texas.gov. Or contact us and we can send you a copy current as of December 16, 2014.
Surprise. DWC may be on the enforcement war path in regard to BRC exchanges required by Rule 141.4 (b). There has been a rule in effect since 1991 governing when parties to a dispute must exchange pertinent claim information with one another. The rule was tightened up in 2010 but to date has not been strictly enforced. We recently became aware that BROs are being asked to inform DWC of instances when the rule was not followed. Monitoring letters are now being issued. As carrier attorneys are aware, and most likely plaintiff attorneys as well, it can be logistically difficult (and sometimes impossible) to comply with the rule which requires all “pertinent” information in a party’s possession to be sent to DWC and the other parties to a dispute no later than 14 days before a BRC, or not later than 5 days before an expedited BRC. And, as we all know, time flies.
The rule does not expressly provide for punitive consequence to the parties for failure to timely exchange, but it does give the BRO the power to schedule a second BRC if she determines that pertinent necessary information necessary to resolve the dispute was not submitted or exchanged. But beware – a violation of any provision of the Labor Code or DWC rules can be the basis for a monetary penalty or other sanction.
There is a second part to the rule – Rule 141.4(c)(d). This part requires that whenever a party requests a BRC, it must send the opposing party all pertinent informationbefore filing a BRC request with the DWC. The responding party then has an obligation to send all pertinent information in its possession to the other party within 10 working days after receiving the BRC request.
Gov. Terry E. Branstad today appointed Joe Cortese Iowa’s Workers’ Compensation Commissioner. Cortese will replace Michelle “Miki” McGovern, who had been serving as the acting Commissioner since September 2014. A photo of Cortese can be found here.
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With over thirty years of experience in workers’ compensation, I’m confident Joe Cortese will serve as an independent and fair commissioner,” said Branstad. “I appreciate Miki’s service to the department and the state in the interim.”
The Workers’ Compensation Commissioner is the head of theDivision of Workers’ Compensation which is part of Iowa Workforce Development. Workers’ compensation has the responsibility of administering, regulating, and enforcing the workers’ compensation laws. Though the workers’ compensation commissioner’s office cannot represent the interests of any party, the agency provides information regarding the provisions of the Workers’ Compensation Law, the rights of the parties, and the procedures the parties can follow to resolve their disputes.
Cortese practices workers’ compensation law at Huber, Book, Cortese & Lanz, where he is a partner. He has been with the firm, formerly Jones, Hoffman & Huber, since 1981. He has been a partner since 1985. He received his Bachelor’s degree from Indiana University and earned his J.D. with honors from Drake Law School. He is a member of the Iowa State Bar Association, Polk County Bar Association, Iowa Association of Workers’ Compensation Attorneys, Iowa Defense Counsel Association, Defense Research Institute and a founding member of the American Academy of ADR Attorneys.
Cortese will assume the role of Commissioner effective February 16, 2015. His appointment is subject to Iowa Senate confirmation.
Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100. We’d be happy to help, whether it be a quick or a complex issue!
West Virginia Legislature May Put the "Deliberate" Back In Deliberate Intent Claims
by Alexander Macia, James S. Crockett, Jr., and David A. Bosak
January 23, 2015
House Bill 2011 was introduced in the West Virginia legislature by the new Republican majority on the first day of the legislative session. This same bill was introduced in the Senate as Senate Bill No. 11. The purpose of HB 2011/SB 11 is to impose narrower and more stringent requirements upon deliberate intent litigation, as well as overrule contrary case law from the West Virginia Supreme Court of Appeals.See McComas v. ACF Industries, LLC, Case No. 12-0548 (Oct. 17, 2013). TheMcComas case currently stands for the proposition that an employer may not use lack of actual knowledge as a defense to a deliberate intent action when the employer willfully ignores an unsafe working condition (or safety regulatory requirement) to prevent actual knowledge from occurring.
HB 2011/SB 11 narrows the scope of the regulatory bases for deliberate intent litigation by requiring that the statute, rule, regulation or standard be specifically applicable to the work and working condition involved and intended to address the specific hazards presented by the alleged specific unsafe working condition. To enforce this requirement, HB 2011/SB 11 also seeks to impose a requirement that a governmental agency confirm, in writing, the existence of all elements of deliberate intent pursuant to W. Va. Code § 23-4-2(ii).
HB 2011/SB 11 also seeks to eliminate from deliberate intent litigation the concept of “actual knowledge” being presumed via “constructive knowledge” imposed on the employer (as provided for in McComas), instead requiring that actual knowledge beproven by the employee. By strictly requiring the employee to prove actual knowledge, HB 2011/SB 11 intends to eliminate employers being targeted by deliberate intent litigation simply because there were relevant safety regulations in place.
Nevertheless, HB 2011/SB 11 will face significant opposition from various interest groups, most predominantly the West Virginia Association for Justice (“WVAJ”). The WVAJ emphasizes that HB 2011/SB 11 would eliminate an employee’s ability to force employers to disclose certain information that may support a deliberate intent action, because the governmental agencies that are required to find all elements of a deliberate intent action lack the subpoena power necessary to discover all relevant facts. Opponents to HB 2011/SB 11 also note that workers’ compensation in West Virginia is generally insufficient to compensate an employee for a lifetime of lost wages.
While both HB 2011 and SB 11 were referred only to the Judiciary Committees in their respective chambers, neither bill has been taken up as of yet. The West Virginia Legislature adjourns on March 14, 2015, and all bills must complete the process by midnight on that day.
If you have any questions about this issue, or any other deliberate intent issue, please contact ourDeliberate Intent Practice Group. For more information, please contact:
Alexander Macia
304.340.3835
and
James S. Crockett, Jr.
304.340.3824
and
David A. Bosak
304.720.4091
Robin Williams was injured working for Ready Pack on May 18, 2006 and May 22, 2006. A settlement was approved for 10% of partial total for the left shoulder on August 11, 2008. Thereafter, Williams moved to Philadelphia and left the employment of Ready Pack.
On August 10, 2008, petitioner filed a reopener application alleging that her condition had worsened and seeking additional treatment. She failed to appear for an appointment with respondent’s expert on August 25, 2011. On September 2, 2011, she was murdered. Ready Pack was not aware of the petitioner’s demise and scheduled two more appointments.
On December 5, 2011, the Judge of Compensation was advised of the death of petitioner. The hearing on that date was adjourned till March 19, 2012. Because nothing was happening with respect to the case, respondent filed a motion to dismiss, which was granted on September 24, 2012.
In September 2013 counsel for Williams filed a motion to restore the case. That motion was heard on October 28, 2013. The Judge of Compensation denied the motion to restore with prejudice on the ground that petitioner failed to show good cause to reopen the case.
The issue in this case centered on the meaning of “good cause shown” under N.J.S.A. 34:15-54. The Judge of Compensation noted that all petitioner’s attorney had done in nearly 11 months was write two letters in an attempt to find petitioner’s representatives. The Judge noted that Williams left no surviving dependents, so the purpose of the workers’ compensation statute had been fulfilled.
The petitioner appealed and argued that good cause had been shown. The Appellate Division said the following:
The phrase ‘good cause’ has been interpreted as ‘a substantial reason that affords legal excuse for the default.’ . . . N.J.S.A. 34:15-54 ‘is intended to bring a compensation case to an end regardless of the merits in the event the claimant does not diligently prosecute his petition. ‘Good cause,’ therefore, is concerned not with the merits alone but as well with the excuse for the delay.
The Court added that the judge’s “concern regarding counsel’s failure to promptly address William’s lack of response and to attempt to keep the court informed is warranted.” Nonetheless, the Court reversed the Judge of Compensation stating,“It is tempting to affirm the JWC’s order because, other than her death, counsel does not identify another factor in her favor. Death is, however, a quite substantial factor. The JWC’s discretionary ruling obviously prejudiced the substantial rights of Williams’s estate and her beneficiaries.” The Court said that it would be inequitable to bar the door to Williams’ heirs if she was entitled to a recovery.
What this case shows is that the language of Section 54 requiring a case that has been dismissed to be reinstated within one year for “good cause shown” is a very low bar indeed. If a motion to reinstate is filed within one year from the dismissal date, the case will almost certainly be reinstated, no matter how weak the reasons for reinstatement. The case can be found atWilliams v. Ready Pack, A-1689-13T2 (App. Div. January 23, 2015).
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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.
Wal-Mart Stores, Inc. and American Home Assurance Corp. AIG v. Larry Plummer, Court of Appeals of Iowa, No. 14-0417
The Claimant, Larry Plummer, alleges two separate injuries while working at Wal-Mart. The first injury occurred on January 21, 2010. The Claimant worked the third shift, which ended at 6 a.m. After he completed the shift, he clocked out and spent approximately thirty minutes shopping. On his way out, he and a coworker assisted a customer. While providing the assistance, the Claimant slipped and fell. He completed an incident report designated for customers rather than employees. The Claimant sought workers’ compensation benefits for an injury to his back.
A deputy workers’ compensation commissioner concluded the injury did not arise out of and in the course of employment because, at the time he fell, the Claimant was no longer on the clock. On intra-agency appeal, the commissioner reversed the decision and ordered Wal-Mart to cover the medical expenses associated with the Claimant’s physician’s visit. Wal-Mart petitioned for judicial review. The district court affirmed the agency decision and this appeal followed.
The Court of Appeals found that the commissioner’s determination that the “in the course of” requirement was satisfied was not irrational, illogical, or wholly unjustifiable, even though there was a lapse of time between the Claimant’s completion of his shift and the fall. The Court noted that the Iowa Supreme Court has stated, “[w]hat constitutes a reasonable amount of time depends ‘not only on the length of time involved but also on the circumstances occasioning the interval and the nature of the employee’s activity.’” Bailey v. Batchelder, 576 N.W.2d 334, 340 (Iowa 1998) (citingCarter v. Volunteer Apparel, Inc., 833 S.W.2d 492, 494 (Tenn. 1992)). The lapse of time between the Claimant’s completion of his shift and the fall was only thirty minutes, and the Claimant had essentially acted as an employee when he stopped to assist the customer.
The second alleged injury occurred on July 17, 2010 when the Claimant was attempting to remove a broken pad on a floor-scrubber and felt a pop in his back and sudden pain in his left and right legs. Wal-Mart contends the commissioner failed to consider the deputy commissioner’s findings that the Claimant and his expert witness were not credible. The Court of Appeals found that the commissioner’s findings were supported by substantial evidence. The commissioner had acknowledged the credibility issues but rejected the deputy commissioner’s “overly negative” view of the Claimant and instead adopted the opinion of the Claimant’s expert because of the expert’s knowledge of the Claimant’s prior medical history.
Wal-Mart also contends that the Court should reverse the award of sanctions against Wal-Mart and its counsel because the Claimant failed to preserve this issue for appeal and because the commissioner's ruling violates Iowa law and Agency precedent. Wal-Mart raised an error preservation concern based on the Claimant’s failure to raise the sanctions issue before the deputy commissioner. The Court of Appeals found that the commissioner has authority to impose sanctions whether or not a deputy commissioner has previously ruled on the issue. The commissioner had concluded Wal-Mart failed to comply with the deputy commissioner’s order for treatment and evaluation. The Court of Appeals found that the commissioner did not abuse its discretion in imposing sanctions on Wal-Mart and its counsel.
Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100. We’d be happy to help, whether it be a quick or a complex issue!
Do not forget to submit your 2015 Membership Application. Applications must be postmarked by February 27th in order to attend the Spring Conference at no charge. If you want to pay your membership fee via credit card, simply indicate that fact on the application and you will be contacted by the AWCO treasurer. See our 1/6/15 blog post (below) for more information on how to join.
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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.
