State News

Shaun Conrath, a Burlington County College employee, was injured at work when he was attacked by a fan while coaching a basketball game.  He filed a claim petition, and Travelers Casualty Insurance Company of America (hereinafter “Travelers”) filed an answer on behalf of the College.  Travelers negotiated a settlement of $35,000 on behalf of the College on a Section 20 basis on February 3, 2012.  Three weeks after the settlement occurred, Travelers first became aware that it did not insure the College. 

            Nine months after the order was entered, Travelers moved to modify the award to reflect that Travelers was not the correct carrier for Burlington County College.  The College opposed the motion and argued that Travelers was bound by the settlement agreement. 

            The Judge of Compensation held that he did not have a statutory basis nor jurisdiction to reopen the settlement. Travelers disagreed and contended that the interests of justice required the Judge of Compensation to reopen the settlement and amend the order to name the correct carrier, which was the New Jersey Community College Insurance Pool as administered by Qual-Lynx.  Travelers appealed the decision of the Judge of Compensation to refuse to amend the order.

            The Appellate Division held that in certain cases of mistake or inadvertence, a record may be reopened.  However, in this case the Court concluded that the Judge of Compensationdid not have jurisdiction to reopen this matter:

Travelers, however, did not present sufficient cause to reopen the settlement to change the identity of the settling entity.  If Travelers is entitled to reimbursement for a settlement it mistakenly entered into, it must seek such reimbursement from the liable entity in another court.  As Travelers acknowledges, petitioner is not at blame nor should petitioner be involved in litigation seeking to modify the settlement.  Workers’ Compensation Court is not the proper forum for litigation between two insurers after a judgment has been entered and payment of that judgment made to petitioner.

The Court went on to say that the Division of Workers’ Compensation is the forum for deciding issues of compensability or appropriate benefits for work-related injuries but not for disputes between employers after a mistaken settlement occurs.  It said that the Division should not be involved in a post-judgment dispute between two insurers.  “The Judge of Compensation correctly determined that he lacked jurisdiction to entertain Travelers’ litigation against BCC to amend the judgment.  This is particularly true in light of the fact that Travelers waited until October 19, 2012 to move to correct the Judge’s February 3, 2012 judgment.  Travelers could have sought to be dismissed from the action prior to paying the judgment.”

            As practitioners know, it is a common problem in New Jersey that the wrong carrier is listed by the claimant on the claim petition.  This case underscores why it is important for carriers and third party administrators to work promptly to amend the pleadings before final orders get entered with incorrect information.

MISSOURI WORKERS’ COMPENSATION

CASE LAW UPDATE

April 2014 – June 2014

Retaliatory Discharge Standard Changed To “Contributing Factor”

Templemire v. W & M Welding, Inc., Case No. SC93132 (Mo. App. 2014)

FACTS: The claimant was injured when a fork lift fell and crushed his left foot. He later returned to work with restrictions. Upon returning to work, the claimant was placed on light duty.

According to the claimant, he did not speak with his boss on the morning of his discharge, but instead stated Mr. Twenter, his supervisor, advised him to wash a railing once it had been prepped. While the railing was being prepped for washing, the claimant performed other duties and around 2:00 pm he returned to the wash bay to treat the railing but first stopped to rest his foot. He was then confronted by his boss for not completing his tasks quickly enough and was then terminated.

According to the claimant’s boss, he spoke with the claimant on the morning of his discharge and advised that he was to wash the railing immediately and to disregard any other instructions. He then returned two hours later to find the railing unwashed and the claimant taking a break and he then discharged the claimant for insubordination.

Evidence showed that the claimant was yelled at by his boss for his work injury; his boss referred to other injured workers as “whiners;” former employees were belittled as a result of their injuries and did not receive work accommodations; one employee was terminated shortly after filing a claim; the claimant was regarded as a good worker who performed tasks efficiently; and adjuster notes showed that the claimant’s boss “went on a [tirade] about [the claimant] ‘milking’ his injury and that he can sue him for whatever reason that is what he pays his premiums for.”

The claimant filed a civil suit against his employer alleging that he was discharged in retaliation for filing a workers’ compensation claim. At trial, the jury was instructed that in order to find in favor of the claimant, they must find that his filing of the workers’ compensation claim was the “exclusive factor” in the employer’s decision to terminate him. The claimant appealed to the Missouri Court of Appeals, stating that the “exclusive factor” standard was erroneous. The Missouri Supreme Court granted transfer.

HOLDING: The Court began by stating that its decisions in the past have upheld the exclusive factor standard as the appropriate standard to be used in jury instructions for retaliatory discharge cases. However, the Court went on to note that nowhere in the Workers’ Compensation Statute do the terms “exclusive causal” or “exclusive causation” appear. Ultimately, the Court held that the appropriate standard in retaliatory discharge cases should no longer be whether the filing of a workers’ compensation claim was the “exclusive factor” in the discharge of the employee, but rather, whether the filing of the workers’ compensation claim was a “contributing factor” in the claimant’s termination.

Editor’s note: This represents a marked change in retaliatory discharge cases. Specifically, the “contributory factor” standard imposes a lesser burden on claimants and increases their odds of bringing a successful claim.

To Recover For Acts of Co-Employee Negligence Between 2005 and 2012, Claimant Need Only Show the Co-Employee Owed Him/Her a Duty of Care

Leeper v. Asmus, Case WD76772 (Mo. App. 2014)

FACTS: The claimant filed a civil suit when his co-employee was guiding a large pipe with a drilling rig when the cable became loose and the pipe broke free, crushing the claimant’s arm. The claimant alleged that his co-employee breached his personal duty of care owed to him when the defendant failed to perform his job duties in a safe manner. The Trial Court dismissed for failure to state a claim. The plaintiff appealed arguing that his Petition sufficiently plead a cause of action for co-employee negligence.

HOLDING: The Court noted that in the wake of the 2012 Amendment to §287.120.1, in order to state a cause of action, the claimant must show that they were injured as a result of the co-employee’s “affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” However, the Court noted that the incident and resulting injury occurred between 2005 and 2012, so the Court was required to apply the previous standard, which was that the claimant must show only that the co-employee owed him a duty of care. The Court went on to specify that under this previous standard, a co-employee violates their personal duty of care when the employer has performed its nondelegable duties, and an otherwise safe workplace is rendered unsafe due solely to the co-employee’s negligent act or omission. The Court found that the claimant’s amended Petition sufficiently alleged facts to support the existence of a personal duty of care, and therefore reversed and remanded the case for further proceedings.

Replacement Crowns Considered Future Medical Not Disfigurement

Johnson v. City of Carthage, Case Nos. SD32936 & SD32958 (Mo. App. 2014)

FACTS: The claimant sustained an injury resulting in the loss of his front tooth. The Commission awarded the claimant past medical expenses, permanent partial disability, future medical care and disfigurement. The employer appealed arguing that the Commission acted without or in excess of its powers by awarding disfigurement, and also argued that the loss of a tooth does not qualify as disfigurement. The claimant appealed arguing that he should have been awarded disfigurement for the instant loss of his tooth and also for every time that the crown needs to be replaced.

HOLDING: In a brief Decision, the Court affirmed the Commission’s findings. The Court stated that the Statute provides disfigurement for the loss of a front tooth in an amount sufficient to cover the reasonable costs of artificial replacement teeth. Additionally, the Court stated that disfigurement is a separate and distinct benefit which may be awarded in addition to the other benefits. The Court also stated that while the claimant will need several replacement crowns in the future, the claimant is only entitled to an Award compensating him for these future medical expenses and is not entitled to an additional Award of disfigurement for each time the crown is replaced.

Pre-Existing Disability Should Be Evaluated Based on the Potential to Combine With Work Injury in the Future Rather Than Past Issues

Navis v. Premium Standard Farms, Inc. and Travelers Indemnity Co. and the Treasurer of the State of Missouri, Case Nos. WD76756 & WD76766 (Mo. App. 2014)

FACTS: The claimant was diagnosed with Legionnaire’s Disease, a type of pneumonia allegedly related to her work exposure. At a hearing, the ALJ found for the claimant, and determined that she was exposed to Legionella bacteria as a result of working for the employer, and that she was permanently and totally disabled against the Second Injury Fund as a result of the work injury and her pre-existing COPD. On appeal, the Commission affirmed the Award but reversed the ALJ’s Award of future medical treatment. In its sole point on appeal, the Fund argued that the Commission erred in finding that it was liable for the claimant’s PTD benefits because such a finding was against the weight of the evidence, and that the claimant was PTD as a result of the work injury alone. Specifically, the Fund argued that it should not be liable because the claimant’s pre-existing condition of COPD did not effect her ability to do her job before she contracted Legionnaire’s Disease.

HOLDING: On appeal, the Court affirmed noting that there is sufficient and competent evidence to support the Commission’s Decision. The Court stated that the Commission’s Decision was supported by testimony of the claimant’s expert that it was not unusual for patients to be unaware that they have COPD. Additionally, the Fund misplaced its argument by focusing on the lack of difficulties that the pre-existing condition caused in the past. The Commission noted that the focus should be on the potential that the pre-existing condition may combine with a work-related injury in the future so as to create a greater degree of disability than would have resulted in the absence of the condition.

SIF Has the Ability to Depose Its Own Experts

Lutes v. Honorable Lee B. Schaefer, Case No. ED100381 (Mo. App. 2014)

FACTS: In response to the Claim for Compensation, the Second Injury Fund hired a vocational expert, Mr. Dolan, to determine whether the claimant was totally disabled. Mr. Dolan performed a record review and then produced a report. The Fund sent a copy to the claimant and also sent the claimant a notice to depose Mr. Dolan. After receipt of the notice, the claimant filed a Motion to Quash the Deposition. Chief Judge Schaefer denied the claimant’s Motion to Quash and entered an Order permitting the Fund to depose Mr. Dolan. The claimant filed a Writ of Prohibition or Mandemus in the Circuit Court requesting that Chief Judge Schaefer be prohibited from denying claimant’s Motion to Quash the Deposition of Mr. Dolan. The Circuit Court granted the claimant’s Petition and ordered Chief Judge Schaefer to Quash. The Fund appealed arguing that the Statute vests an ALJ with the authority to grant the deposition of any witness, including non-physician experts.

HOLDING: The Court noted that if it were to permit claimants the ability to offer their own vocational expert testimony but deny the Fund such an opportunity, the Fund’s purpose would be obliterated. Thus, the Court determined that Chief Judge Schaefer did not exceed her authority in granting the Fund’s request to depose Mr. Dolan. However, the court did constrain its holding, noting that simply because Mr. Dolan could be deposed, it did not mean that his deposition would be admissible given that only facts admitted into a hearing are those that are reasonably calculated to lead to the discovery of admissible evidence.

Must First Look to Last Injury Alone to Determine Whether SIF or Employer is Responsible for PTD Benefits

Brandenburg v. Treasurer of the State of Missouri, Case No. SD32849(Mo. App. 2014)

FACTS: The claimant sustained injury to his back and neck. He settled his claim with the employer for 60% disability to the body. The claimant also had several prior injuries and filed a claim against the Fund, asserting that he was permanently and totally disabled. At a hearing, the ALJ determined that the claimant was permanently and totally disabled as a result of his pre-existing injuries and primary injury, and ordered the Fund to pay permanent total disability benefits. The Fund appealed. The Commission affirmed. The Fund again appealed, arguing that the Commission erred because it failed to consider whether the claimant’s disabilities from his work injury alone were sufficient to render him permanently and totally disabled.

HOLDING: The Court stated that the Fund’s argument was not supported by the record because the Commission’s Award explicitly stated that the Fund would not be liable if the last injury alone rendered the claimant permanently and totally disabled. Additionally, the Court held that the Commission correctly followed procedure by first determining the degree of disability from the last injury alone before considering any pre-existing injuries. Therefore, the Commission’s finding that the claimant was permanently and totally disabled as a combination of his pre-existing and work injuries was supported by competent and substantial evidence, and accordingly the Court affirmed.

Claimant Has Burden of Proving Jurisdiction

Franco-Lopez v. Martinez, Case No. WD76942 (Mo. App. 2014)

FACTS: The claimant worked for the employer on a contract basis. In November 2007, he went to a local home improvement store in Columbia, Missouri to purchase materials for a roofing project in Lawrence, Kansas. He later drove to Lawrence, Kansas by himself with supplies. While working on the roof in Kansas, the claimant fell off and sustained injury. At a hearing, an ALJ determined that Missouri lacked jurisdiction over the claim. The claimant appealed to the Commission, primarily arguing that jurisdiction existed because a contract was formed in Missouri. 

HOLDING: The Commission noted that the claimant failed to provide any receipts or records regarding the alleged purchases in Columbia, Missouri; failed to testify that the employer wanted the materials purchased in Missouri; was unable to provide the date that he drove from Missouri to Kansas; and could not even provide the exact date on which he began working on the Kansas project. In light of the claimant’s “cursory, vague, and disjointed” testimony, the Court found it was difficult to determine where the contract was formed. Therefore, it felt that the claimant had failed to meet his burden of proving that the contract was formed in Missouri and affirmed the decision of the Commission. 

Claimant Found PTD as a Result of His 2004 Injury Despite the Fact that He Continued to Work and Had a Subsequent 2005 Injury

Sage v. Talbot Industries, Case Nos. SD32901, SD32906, SD32907 (Mo. App. 2014)

FACTS: The claimant sustained an injury in February 2004 to his back while pulling wire. He underwent treatment in October 2005 for an L5-S1 disc herniation, after which the claimant stated he was “doing pretty good, [and] didn’t have any problems.” The claimant continued to work for employer through December 2005, at which time he was transferred to maintenance to disassemble parts, because the wire-drawing division was being closed. While working in maintenance, the claimant fell and re-injured his back. He worked for the employer for only five more days following the second accident because the wire-drawing division was closing. Following the 2005 injury, the claimant stated he immediately started having the same kind of pain he experienced from his 2004 injury, but magnified. In 2006 the claimant underwent a total disc replacement at the L5-S1 level. Dr. Koprivica, the claimant’s expert, stated that the claimant was PTD as a result of his 2004 injury alone, due to his need to lie down throughout the day for pain relief. The ALJ found Dr. Koprivica’s testimony to be credible and determinative, and therefore, found the employer responsible for PTD benefits. The employer appealed. The Commission affirmed. The employer again appealed, arguing amongst other things, that the liability to pay the claimant’s PTD benefits lies with the Fund because the Commission erred in finding that the claimant was PTD as a result of the 2004 work injury alone, since it did not first determine the degree of disability resulting from the claimant’s 2005 injury.

HOLDING: The Court noted that the employer sited no case, nor was the Court aware of any case, that supported the employer’s position. The Court stated that when multiple claims are involved, the injury is evaluated within each claim and each claim is considered in order of occurrence. Therefore, the Commission and the ALJ acted properly in determining the disability resulting from the 2004 claim first. 

The Commission Determines Credibility of Experts 

In McLeary v. Arvin Meritor, Injury No. 05-123810, the claimant was injured on December 1, 2005 when a large industrial plastic bin crashed into her left side and knocked her into an adjacent bin, causing injury to her back and neck. The claimant’s expert, Dr. Musich, and the employer’s experts, Dr. Kitchens and Dr. Cantrell, all agreed the claimant had suffered a work-related injury but disagreed as to the amount of disability.

At a hearing, the ALJ found that the claimant lacked credibility and credited the employer’s medical experts over the claimant’s medical expert. Specifically, the ALJ found that the claimant was not credible because her primary care physician did not consistently note her back and neck complaints.

On appeal, the Commission modified the Award of the ALJ, concluding that the claimant and her expert were more credible than the employer’s experts. First, the Commission noted that while the claimant was not a perfect historian, the visits to her primary care physician and the records tended to focus solely her unrelated diabetes. The Commission stated that the primary care physician’s occasional silence as to the neck and back when he was seeing the claimant for unrelated illnesses did not cast any material doubt on the claimant’s testimony.

Second, the Commission noted that the employer’s experts were not entirely credible. Regarding Dr. Kitchens, the Commission found his testimony flawed because his opinion was based on the erroneous assertion that the claimant was struck only in the left side, thus failing to account for trauma to the claimant’s right side that occurred when she was knocked into the adjacent bin. Regarding Dr. Cantrell, the Commission noted that his medical opinion of March 7, 2006 pre-dated the claimant’s May 30, 2006 cervical MRI and consequently deserved little weight.

Finally, the Commission turned its attention to Dr. Musich’s testimony, who diagnosed the claimant with several injuries and found she was PTD as a result of the primary injury. The Commission noted that it need not adopt each expert’s opinions and may reject any part of an opinion that it does not find persuasive. The Commission noted that while it found Dr. Musich most persuasive on the issue of causation, it did not agree that the claimant was PTD as a result of the work injury, because she returned to work full duty (including over-time) for over a year following her work injury. Ultimately, the Commission determined that the claimant suffered 50% disability to the body resulting from her work injury.

The Commission Need Not Adopt Every Aspect of an Expert’s Testimony

In Yount v. Circle K, Injury No. 10-026805, the claimant injured her right ankle. Her expert, Dr. Volarich, assessed 50% PPD of the right ankle, while the employer’s expert, Dr. Krause, assessed 0% PPD, based on his assertion that the claimant had “returned to normal.” At a hearing, an ALJ found that the claimant suffered 7.5% PPD of the ankle as a result of the work injury. The claimant appealed. 

On Appeal, the Commission modified the nature and extent of PPD in light of the fact that the claimant’s medical records suggested she continued to suffer from pain and swelling when she returned to work, and that she presented uncontested and credible testimony that her doctors informed her at the time of her release that her right ankle would never be the same. Therefore, the Commission modified the Award and found that the claimant suffered 25% PPD of the ankle.

Additionally, in an interesting piece of dicta, the Commission noted that the parties asked the ALJ to address the issue of whether medical causation is a fact that is deemed admitted if the claimant alleges it in the Claim and the employer files a late answer. The Commission noted that the ALJ disposed of the issue by concluding that medical causation is a question of law and not fact, but the question was not in issue when the claimant filed an application with the Commission. However, the Commission, on its own initiative, stated that should the claimant have alleged medical causation and the employer’s answer been untimely, medical causation would in fact be deemed admitted. 

If the Claimant Settles a Third Party Claim Before the Workers’ Compensation Claim the Dollar-For-Dollar Credit Applies to Future Benefits Not Past Unpaid Benefits 

In Huff v. Jones Financial Companies, LLP, Injury No. 06-080670, the claimant was injured in a car accident.  She suffered a brachial plexus injury that affected the thoracic nerve resulting in chronic severe pain.  While the employer/insurer initially authorized medical treatment, they stopped after her first few medical visits, causing her to incur $238,471.93 in unpaid unauthorized medical bills. The majority of these unpaid unauthorized medical bills were used for pain treatments that could not improve the claimant’s ability to function, and only attempted to relieve her pain symptoms. 

The claimant had a third party civil suit, which she settled prior to settling her workers’ compensation claim, for $580,000.00. By the conclusion of her civil suit, the claimant had incurred $235,479.33 in attorney’s fees and expenses. Therefore, the claimant personally recouped $344,520.67. It was determined that the claimant was 32% responsible for her third party injury. At the time of the settlement, the employer-insurer had paid medical and TTD to the claimant in the amount of $23,200.19. Therefore, pursuant to Ruediger, the employer-insurer was entitled to a subrogation interest of $7,992.91. The claimant then pursued a workers’ compensation claim against the employer and insurer.

At a hearing, the ALJ determined the claimant was permanently and totally disabled.  The employer/insurer argued that it should not have to reimburse the claimant for the unpaid unauthorized medical expenses because they were not necessary to “cure and relieve” the effects of the injury.  In response, the ALJ noted that while these medical visits would not improve the claimant’s ability to function and therefore, did not cure the claimant, they did attempt to relieve the claimant’s pain symptoms.  Therefore, the ALJ determined that the employer/insurer were liable for the expenses.

The employer/insurer also argued that because some of the claimant’s medical bills were paid by her healthcare provider they should be entitled to a credit.  Specifically, the employer/insurer argued that because those healthcare payments were made through its own self-insured medical plan, they should be entitled to a credit.  However, the ALJ noted that the claimant was required to pay a premium for her coverage and therefore, the medical plan did not qualify as fully funded.  Thus, the ALJ denied the employer/insurer a credit. 

Finally, the employer/insurer argued that they were entitled to a dollar-for-dollar credit in light of the fact that the claimant settled her civil suit prior to settling her workers’ compensation claim. They alleged that the amount they were entitled to was $228,838.87. This amount was calculated by taking the amount the claimant received in her civil suit, $344,520.67, and subtracting the employer’sRuedigersubrogation interest, $7,992.91 and then taking 68% of that amount in light of the claimant’s comparative fault, pursuant to statute. The ALJ further noted that this $228,838.87 was insufficient to cover the $238,471.93 which was the amount she awarded to the claimant for past unpaid medical expenses, travel expenses, past PTD benefits, and disfigurement. Therefore, the ALJ ordered the employer/insurer to pay an additional $9,633.06 to cover the difference. The claimant appealed arguing that  the ALJ improperly allocated the credit to the past unpaid benefits. 

On appeal, the Commission agreed with the claimant that the credit was improperly allocated.  Specifically, the Commission noted that the $228,838.87 credit did not apply to past medical expenses, but was rather an advance on future medical expenses, and that the employer/insurer owed the claimant an additional $238,471.93 to compensate for past unpaid medical expenses. Once the $228,838.87 was exhausted, the employer would then owe future PTD benefits. 

Employer Responsible For PTD Benefits After Claimant Sustained Hand Injury

In Gonzales v. Butterball, LLC, Injury No. 09-059326, the claimant worked in the evisceration department cleaning and separating gizzards.  The claimant was operating machinery used to sort gizzards when the machine became stuck. While there were no guards or safety warning labels on the machine, the employer had an established safety policy that employees were to call their supervisor if gizzards became stuck rather than trying to correct it on their own. Despite being educated on the safety policy, the claimant attempted to fix the machine and sustained injury to his dominant right hand.  Following the injury, the claimant attempted to return to work but was unable to perform his duties and was terminated because he was unable to use his right hand. The claimant was subsequently denied by potential employers because of inability to pass employment tests. Evidence showed the claimant left school in 3^rd grade; had not obtained a GED; spoke limited English; and all of his past employment involved physical, hand intensive duties. 

The ALJ heard testimony from multiple experts and determined that the claimant was permanently and totally disabled and found the employer responsible for benefits. The ALJ reduced the claimant’s PTD payment by 25% as a safety penalty for failure to follow the employer’s safety protocol. Specifically, the ALJ noted that the claimant attended safety training regarding the machinery, should have been aware of the safety protocol, and most other employees followed said protocol. The claimant appealed.  On appeal, the Commission summarily determined that the ALJ’s findings were supported by competent and substantial evidence and affirmed.

Extension of Premises Doctrine Still Alive

In Viley v. Scholastic, Inc., Injury No. 10-050708, the claimant slipped and fell on the employer’s ice covered parking lot sustaining injury. The employer was leasing the premises and the lease stated that all “common facilities” are subject to the exclusive management of the landlord. Additionally, the lease stated that the landlord agreed to perform some responsibilities regarding the parking lots including snow removal. However, the employer had the power to direct persons to remove their vehicles from the lot and the power to modify the way the landlord cleared the lots. Despite the lot having been plowed for vehicles to pass through, snow and ice remained and rendered it an unsafe condition, upon which the claimant slipped. The ALJ determined that the accident did not arise out of and in the course of employment. The claimant appealed.  

On Appeal, the Commission reversed and found that the claimant was injured in the course and scope of his employment. The Commission began by noting that because the landlord granted exclusive use of the parking lot to the employer, those lots were not “common facilities.” The Commission then stated that the Extension of Premises Doctrine permits recovery of benefits for injuries sustained by workers going to or coming from work if: A) The injury producing accident occurs on premises which are owned or controlled by the employer; and B) That portion of such premises is a part of the customary, expressly or impliedly approved, permitted, usual and acceptable route or means employed by workers to get to and depart from their places of labor and is being used for such purposes at the time of the injury. In this case, the Commission determined that since the employer directed persons to remove their vehicles from the lot and contacted the landlord to request maintenance for the lots, the employer did control the lot. Also, testimony established that the claimant was walking his customary route when injured. Therefore, the claimant was injured within the course and scope of his employment.

In Scola v. Miller Multi Plex, Injury No. 08-054336, the claimant was a 52-year old welder and given that his hands were full during work, he would jerk his neck in order to close his welding mask. He was eventually diagnosed with osteoarthritis of the neck, spondylosis, degenerative disc disease and disc expansion. The claimant’s expert, Dr. Volarich, opined that the claimant’s injuries were an aggravation of underlying cervical spondylosis, and that his work activities were the prevailing factor in his neck condition. In contrast, the employer’s expert, Dr. Howard, noted that the claimant had significant degenerative disc disease in the cervical spine and concluded that the claimant’s problems were the result of a degenerative condition and not work-related. The ALJ determined that the claimant failed to prove that his occupational disease was the prevailing factor in causing his disability. The claimant appealed. The Commission summarily affirmed.

Shoulder Injury Compensable Despite Only One Record Two Weeks After the Injury Noting Shoulder Pain

In Moseley v. Elite Stucco, Injury No. 07-115559, the claimant sustained injuries to his right shoulder and back due to a fall on November 16, 2007. The claimant testified that he fell on his right shoulder while working from a scaffolding and experienced immediate pain. The employer’s expert, Dr. Strege, stated that the claimant’s right shoulder problems were not a result of the work accident because his medical records did not note any complaints of right shoulder pain. The claimant’s expert, Dr. Paul, found the work injury to be the prevailing factor of the claimant’s right shoulder problems. The  ALJ determined that the claimant’s right shoulder injury was not caused by his work injury, that the claimant sustained a lumbar strain resulting in 10% PPD of the body, and that the claimant was not PTD, and therefore not entitled to any benefits from the Second Injury Fund. Both the employer and the claimant appealed.

On Appeal, the Commission modified the Award of the ALJ. The Commission noted that the claimant had no right shoulder complaints before the work injury and first complained of shoulder pain on December 4, 2007, two weeks after his injury.  Specifically, the Commission found that the claimant’s right shoulder injury was work-related and that the absence of medical records connecting employment as a source of the injury did not prevent them from finding Dr. Paul’s causation opinion more persuasive. Additionally, the Commission modified the Award to find that the claimant was PTD as a result of his pre-existing injuries and current injuries, and therefore, in light of the fact that the claimant was not rendered PTD as a result of the work injury alone, liability against the Second Injury Fund was appropriate.

Under Strict Construction Principal Place of Business Can Only Be One Place

In Jansen v. Jackson County, Missouri, Injury No. 12-024808, the claimant worked as a supervisor for the employer and supervisors were sometimes required to respond to after hour emergencies. Therefore, the employer allowed supervisors, including the claimant, to drive employer owned vehicles to and from work. The employer had many offices but the majority of them were located in Kansas City, Missouri. However, the claimant worked at the employer’s office in Lees Summit, Missouri, and was injured in a motor vehicle accident while driving from his home to his designated office in Lees Summit. An ALJ determined that the claimant was traveling from his home to his office, and therefore, his injuries were not compensable. The claimant appealed.

On Appeal, the Commission noted that according to the ALJ’s reasoning, the employer’s principal place of business would be where an injured worker customarily worked. However, the Commission stated that precedent has established that a principal place of business, under the rules of strict construction, can be only one location, which in this instance was the office in Kansas City, Missouri. Therefore, the claimant was not traveling to his employer’s principal place of business when he was injured and is not barred from compensation. Thus, the Commission reversed.

Unexplained Fall Not Compensable

In Gleason v. Ceva Logistics and the Second Injury Fund, Injury No. 07-072826, the claimant was on a rail car performing his job duties when he fell and sustained an injury. He did not remember the circumstances leading up to the fall, the fall itself or the three days afterwards, and no witnesses saw the fall. An ALJ denied compensation. The claimant appealed.

On Appeal, the Commission noted that there was simply no evidence on the record to establish why the claimant fell. The Commission then went on to state that the claimant’s inability to explain why he fell was fatal to his claim, as they were unable to discern whether or not the hazards or risk were related to employment. Therefore, the claimant failed to meet his burden of establishing that his injury arose out of and in the course of his employment and affirmed the decision of the ALJ.

Claimant Lacked Credibility and Failed to Meet his Burden

In Frazier v. Sullivan County Sheriff’s Office, Injury No. 12-064760, the claimant was assigned the task of converting an old storage room into a new evidence room. Upon taking the stairs to complete this task, the claimant alleged that a radio transmission came across which caused him to turn his head, at which time he missed a step and fell backwards. An ALJ determined that the claimant did not meet his burden of proof. Specifically, the ALJ stated that the claimant was not a credible witness; the vocational expert testified that the claimant never told her that he slipped as a result of listening to a radio transmission; and the Report of Injury, initial medical records, and the Claim for Compensation did not mention a radio transmission. The ALJ determined that the claimant was walking up the stairs and simply fell, and therefore his injury did not arise out of and in the course of his employment. The claimant appealed. The Commission summarily affirmed.

Only Need to Show Future Medical Treatment is Reasonably Required to Cure and Relieve the Effects of the Injury

In Barnhart v. Eldon Nursing and Rehabilitation Center, Injury No. 11-072406, the claimant sustained an injury to her lumbar spine when lifting a resident off of a toilet. She underwent extensive treatment and it was noted that pain killers provided little to no relief. The claimant’s expert, Dr. Volarich, noted that she continued to experience ongoing difficulties as a result of the injury and would require future medical treatment to cure and relieve the effects of her work injury. At a hearing, the employer argued that based on the treatment of Dr. Norregaard, the treating neurosurgeon, there was no medical proof that a narcotic medicine regimen would be of any value in treating the back pain. An ALJ found the claimant and Dr. Volarich credible and awarded 20% PPD of the body related to the lumbar spine. Additionally, the ALJ noted that the claimant needed only show that future medical treatment is reasonably required to cure and relieve the effects of the injury, and that the employer would be liable for future prescriptions or pain medications, as well as any future treatments recommended by Dr. Volarich. The employer appealed.

The Commission affirmed, but noted that practically speaking, they did not anticipate that the employer would be required to provide all of the modalities identified Dr. Volarich, although they did believe that the claimant was entitled to any or all of the modalities that she chose to pursue and that any doctor contemporaneously recommends.

Beginning July 1, 2014, the maximum worker’s compensation payable was raised to $794 per week and the minimum was raised to $218 per week. This change was based on the Commissioner of Labor’s determination that the State’s average weekly wage was $794.27, and the change is effective for any injury occurring on or after July 1, 2014.

Beginning July 1, 2014, the maximum TTD/PTD rate will be $861.04 per week and the maximum PPD rate will be $451.02 per week.  The mileage allowance for travel expenses will be 53.0 cents per mile.

With Tennessee implementing its new administrative system this week, Alabama is now one of the only states left to use state courts to adjudicate its workers’ compensation cases. For that reason, if more than one venue is proper, it is still possible to gain a strategic advantage in Alabama by filing the lawsuit first.

Case in point, the Alabama Court of Civil Appeals released its opinion in Ex parte Blair Logistics, LLCon June 27, 2014. In Blair, the Court considered a situation where the plaintiff filed a complaint for workers’ compensation benefits in Jefferson County. A little over 7 months later, the employer filed a motion to have the venue transferred to Chilton County. The employer claimed that it was entitled to the transfer based on the doctrine of forum non conveniens which allows for such transfers for the convenience of the parties and witnesses or if it betters serves the interests of justice.

In support of its motion, the employer pointed out that the plaintiff was living in Chilton County at the time of the accident and at the time the complaint was filed. It also noted that the plaintiff received some medical treatment in Chilton County including the initial treatment following the accident. Finally, the employer stated that the accident occurred at the plaintiff’s home in Chilton County and that it intended to call as witnesses certain Chilton County residents such as the plaintiff’s wife and some medical service providers.

The plaintiff supported his objection to the motion by noting that the employer’s principal place of business was in Jefferson County and that the depositions of the employer representatives and the plaintiff had already taken place in Jefferson County. Further, the plaintiff pointed out that all of the relevant medical treatment had occurred in Jefferson County. Finally, the evidence revealed that there existed an employment contract that provided that all disputes be resolved in Jefferson County.

Based on the above facts, the trial court denied the employer’s motion and the employer filed a petition for a writ of mandamus. Such a petition is an extraordinary remedy and will only be granted if the trial court clearly abused its discretion.

The Court of Appeals noted that it was conceded by the parties that both venues were proper. It further noted that the employer had the burden of proving that the inconvenience and expense of defending the action in Jefferson County was so great that the plaintiff’s right to choose the venue should be overcome. In other words, the employer had to prove that Chilton County was significantly more convenient than Jefferson County.

With facts obviously supporting the convenience of the parties and the interests of justice for both counties, it could not be said that the trial court abused its discretion in denying the motion. As such, the employer’s petition was denied.

MY TWO CENTS:

When you have multiple proper venues, it is a good idea to look at the pros and cons of each venue early on. The Alabama Workers’ Compensation Act provides that either party can file the lawsuit. Since the party seeking a venue transfer has the burden of proving that another venue is significantly more convenient, it is better to be the party that initially filed the lawsuit. In the above case, had the employer filed in Chilton County, the plaintiff (or in that case, the defendant) would not likely have been successful in having the case transferred to Jefferson County. In fact, in either scenario, had the trial court granted the motion to transfer venue, the Court of Civil Appeals would likely have granted a petition for writ of mandamus and ordered the trial court to reverse its decision since, at least based on the above facts, it is unlikely that either party could have satisfied its burden of proof.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-1448.

Telecommuting is a trend that is rapidly growing in the United States, and telecommuting requests are also on the rise as a potential reasonable accommodation under the ADA.  A recent Sixth Circuit Court of Appeals case,EEOC v. Ford Motor Company, 2014 U.S. App. LEXIS 7502 (6^th Cir. 2014) illustrates how difficult it can be for an employer to oppose a request for telecommuting.

Jane Harris was hired in 2003 by Ford as a resale buyer, serving as an intermediary between steel suppliers and “stampers,” which are companies that use steel to produce parts for Ford.  Her job was to respond to emergency supply issues to ensure no gap in steel supply to parts manufacturers. The most important part of the job was group problem solving, requiring that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.

Harris suffered from IBS, an illness that caused her fecal incontinence.  Some days she could not drive to work or stand up from her desk without potentially soiling herself.  She took intermittent leave when severe symptoms occurred.  In 2005 her supervisor allowed her to work from home on a flex-time telecommuting schedule on a trial basis.  The company did not view the trial period as a success. She continued to work occasionally from home doing remote work, including on evenings and weekends.  However, Ford did not credit Harris with the time she spent working during non-“core” hours and marked the days she stayed home because of her illness as absences.  The company stressed that core business hours were important because that was the time when employees do team problem solving. 

On occasion Harris submitted a purchase order with incorrect pricing information because she could not immediately access the supplier on a weekend to obtain updated quotations. This caused problems with co-employees and suppliers.  Under Ford’s system of marking absences, Harris was absent in the first seven months of 2009 during core hours more than she was present. 

In 2009, Harris requested that she be permitted to telecommute on an as-needed basis as a reasonable accommodation.  Harris felt that she could get most of her work done by computer or telephone.  Ford had a telecommuting policy but not for all jobs. Harris’s supervisors did not feel that her position was suitable to telecommuting and denied the request.  Instead, the company suggested that it could move her cubicle closer to the restroom or she could seek an alternative position within Ford that would be more suitable for telecommuting. 

Harris filed a charge of discrimination with the EEOC.  Eventually Ford terminated Harris for poor performance.  In 2011 the EEOC filed a complaint alleging that Ford violated the ADA by failing to accommodate Harris’s disability. The district court followed precedent that indicated an employer should not second guess the employer’s assessment of the essential functions of the job and ruled against Harris. The Sixth Circuit Court of Appeals  reversed.

The Circuit Court noted that Ford believed physical attendance at the workplace was critical to the group dynamic of the resale-buyer team.  The Court did not defer to Ford’s description of the essential job functions:

While Ford has provided substantial evidence of its business judgment and the experience of other resale buyers, the EEOC has also offered evidence that casts doubt on the importance of face-to-face interactions at Ford.  Harris’s own experience over several years as a resale buyer indicates that in-person interaction may not be as important as Ford describes: Even when Harris was physically present at Ford facilities, the vast majority of communications and interactions with both the internal and external stakeholders were done via conference call.

The Court noted that Ford did allow other resale buyers to telecommute, albeit on a more limited basis than the request Harris was making.  The Court moved away from a previous position in prior cases that telecommuting is not a reasonable accommodation, saying that telecommuting may be reasonable when someone can perform all the essential functions at home. 

Ford also argued that it made two alternative accommodations to Harris, as noted above, but Harris rejected those accommodations.  The Court said that moving her cubicle closer to the restroom would not relieve Harris of the “humiliation of soiling herself on a regular basis in front of her workers, merely because she could use Depends to contain the mess or bring a change of clothes to clean herself up after the fact.”   It said that allowing her to apply for another job was not adequate because there was no guaranty that such a position would be available.

The Court said that because the EEOC provided evidence that Harris was qualified for her position with a reasonable telecommuting accommodation, the burden shifted to Ford to show an undue burden on the company.  “Although setting up a home workstation for Harris might entail some cost, considering Ford’s financial resources and the size of its workforce, this cost is likely to be de minimis. Indeed, Ford has created a written policy in which it pledges to absorb these costs for all employees approved to telecommute.”

The case shows that telecommuting is inevitably going to be viewed as a reasonable accommodation, no matter that earlier cases on the ADA did not find it to be.  Employers that have telecommuting policies will be hard pressed to deny requests for accommodation where there is evidence that the employee can perform the essential job functions at home. 

On June 13, 2014, the Alabama Court of Civil Appeals issued its opinion in Alabama Forrest Products Industry Workmen’s Compensation Self Insurer’s Fund v. Harris. In 1990, Harris sustained a severe work-related injury to his pelvis and right leg. As a result of his injuries, Harris was permanently and severely limited in his lifting, bending, stooping, squatting, climbing, and walking. Those limitations allegedly prevent him from performing ordinary activities of daily living without assistance. Since his injury, Harris’s daughter had been assisting him in getting in and out of bed, using the bathroom, bathing, dressing, administering his medications, and preparing meals. In the fall of 2011, Harris sent notice to his employer’s insurer, Alabama Forrest Products, that he wanted his future son-in-law to replace his daughter as his designated care giver. However, Alabama Forrest Products later discovered that the future son-in-law was employed full time in another town, and stopped paying him to take care of Harris. Harris then filed a declaratory judgement action, requesting that the trial Court order Alabama Forrest Products to reinstate the payments.

Alabama Forrest Products took the deposition of Harris’s authorized treating physician, who stated that Harris continued to require assistance with activities of daily living. The doctor also testified that although the attendant care provided by Harris’s daughter in the past had not improved his underlying physical condition and further attendant care would not improve his condition, it did allow and would continue to allow Harris to maintain his function and prevent deterioration of his condition. The doctor further testified that without in home attendant care provided by his family, Harris would have to be admitted into a skilled nursing facility. Based on the testimony of Harris’s family members and his doctor, the trial Court ordered Alabama Forrest Products to reinstate the payments, and Alabama Forrest Products appealed.

On appeal, Alabama Forrest Products argued that an injured employee has no right to payment for attendant care based on the holdings inOsorio v. K & D Erectors, Inc. and Ex parte City of Guntersville, which previously held that employers were only responsible to reimburse an employee for services designed to improve his condition. Harris argued that the case ofEx parte Mitchell overruled Osorio, in that it held that preventive and functional aids aimed at preventing the deterioration of an employee’s condition or improving his function are also compensable.

In its analysis, the Court of Appeals noted that Alabama Administrative Code Rule 480-5-5-.30 provides that authorized services by non-professional family members may be reimbursable when certain conditions are met. Based on this, the Court of Appeals upheld the trial Court’s decision and ordered Alabama Forrest Products to reinstate payment to Harris’s family for his in-home care.

MY TWO CENTS

Given the potential impact this decision on the cost of workers’ compensation claims, I expect that Alabama Forrest Products will petition the Supreme Court for review. If this decision stands, it could increase the costs of many workers’ compensation claims by over $21,000 per year (based on current minimum wage). One possible end-around that the Court of Appeals mentioned, but did not address (because the issue was not raised), would be to challenge the Department of Labor’s authority to promulgate and enforce the provisions of Rule 480-5-5-.30. The Alabama Workers’ Compensation Act does not explicitly provide for non-medical treatment such as the services at issue in this case, so the question is whether the Act gives the Department of Labor the authority to require benefits that were not specifically enumerated by the legislature in the Act.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson 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.

Guyoungtech USA, Inc. v. Dees

On June 6, 2014 the Supreme Court of Alabama issued a lengthy opinion covering many issues related to a Retaliatory Discharge case tried in Conecuh County Circuit Court.

Dees, the employee, was injured on March 14, 2011, 4 months after she was hired. Shortly before hiring Dees HMMA reduced its orders from Guyoungtech. In November of 2010 Guyoungtech laid off 300 employees and then another 212 in May of 2011. Dees was one of the layoffs in May of 2011. As a result Dees filed the retaliatory discharge claims alleging she was fired because of her workers’ compensation in violation of § 25-5-11.1 of the Alabama Workers’ Compensation Act. The jury order Guyoungtech to pay $1,000,000.00 in compensatory damages and $2,500,000.00 in punitive damages. The Trial Judge remitted the damages to $300,000.00 in compensatory damages and $900,000.00 in punitive damages. Dees accepted the remitted amounts and Guyoungtech appealed the decision.

Guyoungtech argued that Dees was part of a corporate layoff and not terminated, but was definitely not terminated as a result of her workers’ compensation claim. Dees argued that Guyoungtech used the layoff as a mask to conceal the wrongful termination. Dees pointed to the proximity in time and a safety director denying knowledge of her injury which seemed implausible. The Supreme Court noted that mere proximity of time is typically not enough to establish sufficient evidence in a retaliatory discharge claim. However, the jury could have found the safety director’s testimony that she/he did not know about the injury was not credible. That, in addition to the proximity was sufficient for the jury to find liability and the Supreme Court stated they were not in a position to substitute their judgment for the jury.

However, the errors as it related to the damages resulted in the Supreme Court reversing liability and ordering a new trial.

In regards to the lost wages component of the compensatory damages, the Supreme Court pointed out that no expert testified as to Dees’ lack of employability, or restricted access to the labor market, as a result of her termination. They stated that Dees’ testimony that she was under treatment and restrictions and hampered in looking for work does not provide evidence that the discharge itself rendered her less employable. The Supreme Court stated that the extent of her disability and its effect on her ability to work was part of the workers’ compensation trial, which was severed from the discharge trial, and not at issue in the discharge case. The Supreme Court then pointed out that Guyoungtech had given her a letter stating she was laid-off, and not fired, so there was no stigma of being terminated when she went to secure employment. Therefore, no evidence was present to show the termination caused Dees to be less marketable in the work force.

As to the mental anguish component of the compensatory damages, the Supreme Court pointed out the broad discretion given to the jury in determining mental anguish. However, the Supreme Court pointed to two other decisions where the employee presented evidence of mental health medication, mental health treatment, divorce, loss of home and/or inability to pay bills where one employee was awarded $30,000.00 for mental anguish and the other was award $75,000.00. The Supreme Court stated that Dees only presented evidence of concern for the stability of her marriage. Dees did not present evidence that she had lost her home, could not pay bills, or that she required mental-health treatment.

The Supreme Court also opined that the trial court erroneously admitted Mortality Tables into evidence. Guyountech argued that Dees life expectancy was not relevant to the discharge claim, as Dees offered no evidence she could never work again. The Supreme Court pointed out that Mortality Tables are admissible when there is evidence that the plaintiff suffers from permanent personal injury.Drummond Co. v. Self, 622 So. 2d 336, 337 (Ala. 1993). The Supreme Court stated that the trial court was in error when it instructed the jury to use the mortality tables if they were reasonably satisfied that the injuries were permanent when there was no expert medical testimony that the injuries were permanent.

The verdict form did not itemize the compensatory damages and both, lost wages and mental anguish, were infected by the error of allowing the mortality table into evidence. As such, the error constituted grounds for reversal.

The Supreme Court then pointed out that for a jury to award punitive damages there must be compensatory damages.Life Ins. Co. of Georgia v. Smith, 719 So. 2d 797, 806 (Ala. 1998). Based on the reversal of the compensatory damages the punitive damages were due to be reversed as well. However, the Supreme Court offered guidance to the trial court upon remand as to the issue of punitive damages. At the trial level Dees’ argument for punitive damages was based on Guyountech’s failure to report some smaller workers’ compensation claim despite Dees’ claim being properly reported. The Supreme Court stated that punitive damages for the purpose of punishing a defendant for harm it did to others, not the plaintiff, is not supported by case law.Philip Morris USA v. Williams, 549 U.S. 346, 354, (2007). As a result, the Supreme Court pointed out that punitive damages must be based on harm to Dees, not potential harm to other individuals not a party to the litigation.

As a result of the error involving the compensatory and punitive damages a new trial was necessary because the question of damages and liability were too intertwined for the jury to just consider the issue of damages.

MY TWO CENTS

It is always important to sever your workers’ compensation trial from the discharge trial to assure there is no confusion that the disability, or inability to work due to the disability, should not be considered when determining damages in the discharge trial. Even if the judge instructs the jury not to consider the disability you can almost be sure that it will factor in if they are allowed to hear it. This will help keep the focus of the damages in the discharge trial on the termination only.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, 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.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

New Jersey has a strong fraud statute, and it applies both to employees and employers.  Most of the cases that have been highlighted in this blog have concerned employees.  However, in a recent development, a Spring Lake, New Jersey man, was sentenced to 180 days in jail, 150 days of community service, and three years of probation, for workers’ compensation fraud.  He was also ordered to pay full restitution for his participation in third degree insurance fraud.

Charles Kelcy Pegler Sr., 56, was the President of a roofing company called Roof Diagnostics, Inc. (“RDI”), which was located in Wall Township, N.J. As president of the company, which employs nearly 400 people, Pegler indicated in his application for insurance to New Jersey Casualty Insurance Company that RDI was not a roofing company, that RDI did not employ roofers, and that its employees did not engage in the repair or maintenance of roofs.  The facts were otherwise.  Between June 11, 2003 and October 5, 2009, RDI paid $265,044 less in workers’ compensation insurance premiums than the company would have paid had Pegler accurately represented the nature of the business.

Additionally, Pegler falsely represented the nature of RDI’s business to USF Insurance Company, currently named Atain Insurance Company, claiming that all roofing services performed by RDI were carried out by subcontractors. RDI thereby avoided $134,087 in general liability insurance premiums that it legally owed to USF.

Pegler was charged on December 19, 2013 in a State Grand Jury indictment and entered a guilty plea on April 17, 2014 before the Honorable Anthony J. Mellaci of the Superior Court of New Jersey. The Acting Attorney General, John J. Hoffman, made the following comments:

This defendant had a legal and moral obligation to provide full and adequate workers’ compensation insurance coverage for his employees. By failing in this duty, Mr. Pegler defrauded not just his employees and his insurance company, but also honest, hard-working New Jerseyans who are forced to pay increased premiums to cover the costs of the fraud.

New Jersey’s Acting Insurance Fraud Prosecutor Ronald Chillemi warned. “The jail time imposed upon this defendant should act as a deterrent to anyone who fails to provide adequate and lawful workers’ compensation insurance.”  He added, “Such frauds will not be tolerated and will be investigated and prosecuted to the fullest extent of the law.”

This case serves as a clear reminder to employers that misrepresenting the nature of one’s business to lower workers’ compensation costs constitutes fraud and will be strongly penalized.

Beverly Ballard worked for the Chicago Park District.  Her mother, Sarah, who lived with her daughter, was diagnosed with end-stage congestive heart failure in 2006 and began receiving hospice support.  Beverly acted as the primary caregiver for her mother, cooking her meals, administering insulin and other medications, draining fluids from her heart, and bathing and dressing her.

            Sarah met with a Horizon Hospice social worker in 2007 and discussed Sarah’s end-of-life goals.  Sarah said that she had always wanted to take a family trip to Las Vegas.  Through the Fairy-Godmother’s Foundation, the six-day trip was scheduled.

            Beverly sought unpaid leave from the Chicago Park District to accompany her mother to Las Vegas.  The District ultimately denied the request, but Beverly said she was not informed of the denial prior to the trip. The two women then traveled to Las Vegas and participated in typical tourist activities.  Beverly continued to serve as her mother’s caretaker during the trip.  Once she drove her mother to the hospital when a fire  prevented them from reaching their hotel room.

            The Chicago Park District months later terminated Ballard for unauthorized absences accumulated during her trip to Las Vegas, prompting Ballard to sue under the FMLA for interference with her FMLA rights. 

            In the law suit, the Park District argued that the trip to Las Vegas was not related to a continuing course of medical treatment.  The Park District lost at the District Court level and appealed to the Seventh Circuit Court of Appeals. The issue on appeal was whether “care” in the context of an away-from-home trip is limited to services provided in connection with ongoing medical treatment.

            The Court noted that “the FMLA does note define ‘care,’ so perhaps there is room to disagree about whether Ballard can be said to have cared for her mother in Las Vegas.”  The Court also observed that there are various sections of the FMLA that refer to care in connection with treatment, but one section  2612(a)(1)(C) speaks in terms of “care” not “treatment.”  Additionally, the Court said, “Another problem is that the FMLA’s text does not restrict care to a particular place or geographic location. For instance, it does not say that an employee is entitled to time off ‘to care at home for’ a family member.”

            In attempting to resolve confusion over the legislative intent in defining “care,” the Court examined the Department of Labor’s regulations, which read as follows:

What does it mean that an employee is ‘needed to care for’ a family member?

The medical certification provision that an employee ‘is needed to care for’ a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc.  The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.

In the end, the Court was persuaded by the statement in the regulations that care includes psychological assistance and that there is no specific geographic limitation. “Sarah’s basic medical, hygienic, and nutritional needs did not change while she wasin Las Vegas, and Beverly continued to assist her with those needs during the trip.”  The Court rejected the argument of the Park District that care must be connected to medical treatment because the regulations never use the word “treatment” in their definition of care.

The Seventh Circuit acknowledged that its decision was counter to decisions in the Ninth and First Circuit Courts of Appeal.  The Court was impressed by an inherent inconsistency within the FMLA:  “If Beverly had sought leave to care for her mother in Chicago, her request would have fallen within the scope of the FMLA. So too if Sarah had lived in Las Vegas instead of with her daughter, and Beverly had requested leave to care for her mother there.”

            The case may be found at Ballard v. Chicago Park District, 741F.3d 838 (7^th Cir. 2014).  Employers need to reflect on the judicial philosophy in their own circuit and should always try to obtain medical certifications from the physician treating the family member to see what care the physician thinks is necessary.