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.
By Kevin L. Connors, Esquire
Effective as of January 1, 2013, the Pennsylvania Bureau of Workers’ Compensation increased the maximum compensation payable rate, for temporary total disability benefits, to a weekly rate of $917.00.
This translates into yearly compensation benefits equaling $47,684.00.
This temporary total disability benefit rate is applicable to any pre-injury average weekly wage that equals or exceeds $1,375.90, representing sixty-six (66) and two-thirds (2/3) of the pre-injury average weekly wage.
Between a pre-injury average weekly wage of $1,375.50 and $687.76, the average weekly wage is multiplied by sixty-six (66) two-thirds (2/3), for the temporary total disability benefit rate.
For pre-injury average weekly wages between $687.75 and $509.44, the Bureau has assigned a temporary total disability benefit rate of $458.50 per week, yielding $23,842.00 in yearly compensation benefits.
For those earning $509.43 per week or less, the temporary total disability benefit rate will be determined at a ninety percent (90%) rate.
The 2013 maximum compensation payable rate represents a rate increase of approximately 3.265 percent over the 2012 rate.
For the last five (5) years, the maximum rates have been:
Access to Pennsylvania’s Bureau of Workers’ Compensation, now known as the Office of Adjudication, is available through the following link:
http://www.portal.state.pa.us.
ConnorsLaw LLP
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With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.
NC Risk Handling Hint -Necessity of Objection Before Deputy Commissioner; Admissibility of Surveillance Video
Clifton Bowman was a repair technician for Cox Toyota Scion. He alleged that he tripped over an air hose at work causing injury to his neck and low back. After the fall, Bowman reported the accident to his supervisor and showed several employees his alleged back injury before leaving work early. Cox Toyota Scion had installed an extensive security system in the building, including surveillance equipment that recorded footage in the area where Bowman allegedly fell. An executive with Cox Toyota Scion reviewed the surveillance footage after learning of Bowman’s alleged fall. This footage was also recorded onto several DVDs. Because they could find no evidence of a fall on the surveillance footage, Defendants denied Bowman’s claim.
At hearing, Plaintiff’s evidence consisted of his own testimony, medical evidence and testimony of two witnesses who testified that Bowman’s back was red and swollen after the fall. The Deputy Commissioner denied Bowman’s claim, concluding that he was not credible because the video surveillance did not corroborate his testimony. On appeal, the Full Commission reversed the Deputy Commissioner and found that he erred in admitting the surveillance since Defendants did not lay a proper foundation or authenticate the surveillance video.
On December 4, 2012, inBowman v. Cox Toyota Scion, the Court of Appeals first considered whether the Full Commission erred in concluding that Defendants’ surveillance video should not have been admitted into evidence when the reversal was based on an objection that Bowman did not raise before the Deputy Commissioner. Rejecting Defendants’ argument that the North Carolina Rule of Appellate Procedure which precludes a party who fails to obtain a ruling on an issue before the trial court from raising the issue on appeal applied, the Court noted that the Full Commission is not an appellate court and that this argument had already been rejected inJoyner v. Rocky Mount Mills, 92 N.C. App. 478, 374 S.E.2d 610 (1988). The appealing party’s Form 44 determines the issues properly before the Full Commission, and the fact that a particular issue was not objected to or raised before a Deputy Commissioner does not, in and of itself, prevent the Full Commission from deciding the issue.
The Court also addressed whether the Full Commission erred in concluding that Defendants had not laid a proper foundation or authenticated the surveillance video when Defendants had offered evidence that the surveillance cameras were working properly and that the video footage was unedited. The Court held that the Commission erred in excluding the video, noting that the Rules of Procedure and Evidence used by the Commission are required to be simpler than the Rules used in State Court. Video recordings are generally admissible when a proper foundation is laid and when the recording is authenticated, which is usually accomplished when there is evidence that the camera and taping system were properly maintained and operating when the video was made, the videotape accurately presents the events depicted, and there is an unbroken chain of custody.
In this case, the Court found that a supervisor from Cox Toyota Scion testified that a state-of-the-art security system was installed, that Cox Toyota Scion experienced no problems with its video surveillance, and that the cameras were in operation on the date of the alleged injury. The supervisor also testified that he followed the instructions for retrieving footage from the cameras. Based on this testimony, the Court concluded that Defendants laid a sufficient foundation for the video and that the Full Commission erred in excluding this evidence. The Court remanded the case back to the Full Commission for the entry of an Opinion and Award that considered the video surveillance. Notably, the Court also rejected Bowman’s argument that three seconds of the video surveillance was missing, which Defendants acknowledged might have coincided with the time at which Bowman claimed to have fallen, since that issue goes to the weight of evidence, not to its admissibility.
Risk Handling Hint:Bowman underscores the fact that the issues before the Deputy Commissioner are not necessarily the same as those ultimately considered by the Full Commission. An appeal to the Full Commission can also include newly received evidence in some circumstances. Risk managers are reminded to consider the Full Commission’s scope of review to address every aspect of a worker’s compensation claim.Bowman also establishes guidelines for the admission of surveillance evidence. Risk managers should ensure that the chain of custody for surveillance footage is carefully maintained, that all surveillance equipment functions properly, that the footage is unedited, and that a representative of the employer can testify as to the fairness and accuracy of the events depicted in the recording.
NC Risk Handling Hint -‘Arising Out Of’ and ‘In the Course Of’; Material Aggravation; Attorney’s Fees
Cynthia Mintz worked as a customercare representative for Verizon Wireless. She worked on the second floor of the building that Verizon occupied. Verizon did not own the building. Other businesses also occupied the building, however, all of the businesses provided services to Verizon’s employees and the general public did not have access to the building without permission. During Mintz’s required unpaid lunch breaks, she walked the hallways of the first floor where the cafeteria was located for exercise. During one of these walks, Mintz slipped on a piece of ice and fell on her knee as she was returning to her cubicle.
Mintz had a history of prior knee issues, including surgery. After the fall, she was diagnosed with a knee contusion. She continued treating for her knee condition with steroid injections and prescription medications.
Mintz’s treating physician testified that her fall at work materially aggravated the arthritis in Mintz’s knee. The Deputy Commissioner concluded that Mintz suffered a compensable injury and awarded benefits. The Full Commission affirmed and awarded attorney’s fees pursuant to N.C.G.S. § 97-88.
On November 20, 2012, inMintz v. Verizon Wireless, the Court of Appeals first considered whether the Full Commission erred in concluding that Mintz suffered a compensable injury by accident when she fell while walking for exercise at work during a required, unpaid lunch break. The Court concluded that there was no error and explained that “arising out of” means the accident occurred because of a condition or risk created by the job. According to the Court, the evidence that members of the public were generally not allowed in the building, supported the Commission’s finding that Mintz’s injury was incidental to her employment.
The Court also analyzed “in the course of,” noting that it relates to the time, place and circumstances under which the accident occurred. The “course of employment” begins a reasonable time before work and continues until a reasonable time after work ends. This time includes time during the day for rest and refreshment. Although Defendants argued that this element was not met because Mintz was on an unpaid lunch break, she was required to take the hour long break. With regard to the issue of “place,” although Defendants argued that Verizon did not own, control or maintain the building, the Court concluded that the evidence that all of the other businesses in the building provided services strictly to Verizon employees supported the conclusion that the accident occurred in an area subject to Verizon’s control. With regard to the “circumstances” element, the Court noted that it is met when an employee is engaging in an authorized activity which furthers the employer’s business. Rest and exercise furthered Mintz’s business by making her a more pleasant customer care representative, similar to cases which recognize the “personal comfort doctrine.”
In addition, the Court also considered the Commission’s findings that Mintz’s fall materially aggravated the preexisting arthritis in her knee. The Court rejected Defendants’ argument that the treating physician’s opinions were merely assumptions and reiterated that the Full Commission is the sole judge of credibility of witnesses and the weight of testimony. Mintz’s physician testified that his opinion that the fall materially aggravated her pre-existing condition was irrespective of prior flare-ups of Mintz’s knee condition.
Finally, the Court upheld the Commission’s award of attorney’s fees pursuant to N.C.G.S. § 97-88, rejecting Defendants’ argument that the imposition of attorney’s fees was premature because attorney’s fees would not be allowed if theCourt of Appeals reversed the Full Commission.
Risk Handling Hint: Although a unique fact scenario, Mintz establishes that the “personal comfort doctrine” will be extended even in circumstances where an employer does not own or maintain the business premises. Risk managers should be aware of the possibility of liability in such circumstances even though an employee is technically “off the clock.”Mintz is receiving national attention in the worker’s compensation arena and may generate additional claims under similar fact scenarios.
The SD Department recently issued a ruling that the employee bars responsibility for making sure medical bills were sent to the correct entity.
South Dakota has a three year statute of limitations from the last payment of benefits on an accepted claim (subject to an exception for a change in condition). The claimant was treating with a chiropractor who was billing the claimant's health carrier instead of workers' compensation. Claimant sought payment of those bills and the Department held the bills were barred since it had been more than three years since the insurer paid any benefits on the claim.
The Department reasoned that only claimant could have corrected this situation as claimant would have received EOBs and presumably had co-payments or paid on a deductible. Therefore, the employer and insurer were entitled to partial summary judgment on all claims barred by the three year limitation period. This decision is subject to appeal.
If you have questions, please contact Charlie Larson atcalarson@bgpw.com or 605-336-2424. Thanks.
The Nebraska Supreme Court held that illegal aliens are covered under the Nebraska Workers' Compensation Act. An award of permanent total disability is not precluded by a claimant's illegal status, even if they choose to stay in the US illegally. A prior case held that vocational rehabilitation could not be awarded to a claimant who was not authorized to work in the US yet intended to stay. However, the Court distinguished indemnity from vocational rehabilitation benefits, noting that there is no statutory priority that must be satisfied regarding ability to return to work as a predicate to an award of indemnity, as there is for vocational rehabilitation. The Court also reasoned that denying indemnity to illegal aliens would give an unfair advantage to employers who broke the law by employing the injured worker, because they would not have to pay indemnity. Finally, the Court upheld the finding that claimant's right foot injury (with CRPS) caused injury to his back, and thus he sustained a body as a whole injury. The Court noted that older cases on the issue hinted that there must be some extraordinary circumstance for such a finding. However the recent trend is to allow a finding of injury to the body when the effects of the member injury extend beyond the member itself, if expert opinion supports the claim.
Moyera v. Quality Pork International, 284 Neb. 963 (2013).
The South Dakota Supreme Court has recently, and repeatedly, rejected what it calls the "temporal sequence" opinion. This opinion was accepted for years and all it contained was a statement from the treating doctor that the problems were work related because the problems did not start until after the injury.
The court recognized that just because symptoms start at work doesn't mean the underlying cause was work related. This has been a huge help in defending causation claims in South Dakota and helps with settling claims as it forces claimant attorneys to actually work up a file.
Please let me know if you have any questions. Charlie Larson - calarson@bgpw.com or 605-731-0228
Kelly Queen, plaintiff, worked as a police dispatcher for the City of Bridgeton. On October 16, 2006, she experienced a racing heartbeat and left work. Her family doctor referred her to a cardiologist. He diagnosed her with a mitral valve prolapse condition which may have been responsible for tachycardia and dyspnea. She also underwent a cardiovascular stress test.
Plaintiff returned to her family doctor on November 6, 2006. The doctor recommended no return to work until January 2007. She saw he doctor again on January 4, 2007 and January 25, 2007, and she was cleared to return to work on February 18, 2007. She never had any similar heart racing during her absence. She was able to return to work and continue in her job.
During her absence, plaintiff exhausted her 10 sick days as well as her FMLA leave. She therefore requested access to the City’s donated leave program referred to as “sick bank.” That policy was negotiated under a collective bargaining agreement in 2003.
The purpose of the sick bank policy was to allow City employees to donate earned sick time and/or vacation time to another City employee who was suffering from a catastrophic health condition or injury expected to require a prolonged absence from work. The policy provided that the employee seeking access to the sick bank must contact his or her department head, who in turn must require medical documentation concerning the nature, severity and duration of the medical emergency.
Plaintiff submitted notes from her doctor but not actual medical records. The City therefore denied the request finding the condition did not meet the test of a catastrophic event. Plaintiff filed a grievance, which was settled as follows:
The parties agree to settle the above grievance based upon permitting the grievant to invoke the procedures of Article 7 of the [CBA] without interference relative to donated medical leave if the employee’s treating physician documents a catastrophic health condition or injury as specified in the [CBA].
Plaintiff was given a second chance to provide medical documentation showing a catastrophic health condition but failed to do so. Instead, she sued alleging disability discrimination under the New Jersey Law Against Discrimination. She argued that the City failed to make reasonable accommodation to her by not approving her sick bank request.
The City proved that prior recipients of the sick bank had high risk pregnancy that required complete bed rest, Guillain-Barre Syndrome, breast cancer, a stabbing injury and esophageal cancer, and prostate cancer. One woman had been denied sick bank access who had been recuperating from pregnancy and had high blood pressure. Two men had been denied sick bank access who suffered from a back condition and from a heart condition. The Court contrasted this case with other suits alleging discrimination based on disability.
Unlike the typical claim, wherein an employee seeks an accommodation that would facilitate her return to work, maintain her employment, or remedy her condition, plaintiff here demands just the opposite, namely a monetary benefit that would permit her continued absence from work, and which defendants have no recognized legal duty to provide. Indeed, plaintiff never established that she was able to work with or without any accommodation.
As to the sick bank itself, the Court held there was no “blanket mandate” that an employer provide donated sick leave as a matter of right to anyone with a disability. The Court said that plaintiff failed to show that the City acted arbitrarily in restricting access to the sick bank to those who have catastrophic injuries. In the end, the Court said that plaintiff simply did not qualify for the sick bank.
This case can be found at Queen v. City of Bridgeton, 2012N.J. Super. Unpub. LEXIS 2425 (App. Div. October 29, 2012).
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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.
New Jersey is a state with relatively few retaliation law suits arising from workers’ compensation. For that reason, the decision in Peralta v. Joule Staffing Services, Inc., A-1004-11T3, A-1005-11T3 (App. Div. January 3, 2013) is drawing attention from practitioners.
Ronald Peralta, a native of Peru, worked as a forklift operator for Joule Staffing Services from 2003 to 2007 at 12 different work sites. On December 5, 2007, he was in a forklift accident at a warehouse owned by a co-defendant Customized Distribution Services, Inc. (hereinafter CDS). After the accident, one CDS supervisor requested that Peralta fill out an incident report. That did not occur, plaintiff alleged, because another supervisor said he would take care of this detail.
The failure to fill out an incident report and the failure to undergo post-accident drug testing became an issue. Plaintiff alleged he had back pain after the work injury and missed his next shift for that reason. CDS claimed that plaintiff did not even say anything about being injured. The next day the Operations Manager at CDS advised his assistant to inform Joule not to send Peralta to their site any longer because he failed to comply with post-accident procedures following his accident, including drug testing.
Joule’s Safety Transportation Manager also filled out an incident report on December 7, 2007 stating that Peralta was in an accident but had not been injured; nor did he fill out the post-accident report or submit to drug testing. Peralta was thereafter suspended by Joule. The Branch Manager also advised Peralta to set up a meeting with the Safety Transportation Manager. At that meeting Peralta asked the Branch Manager if he could make a claim and was told to do it through the Safety Manager, who was not able to make the first meeting.
Peralta tried a second time to meet with the Safety Manager. When that failed he sought counsel, who contacted Joule on January 7, 2008 requesting treatment. On January 17, 2008, Peralta filed a workers’ compensation claim and was treated or examined by five doctors. Eventually he received $5,000 in a workers’ compensation award.
Peralta was medically cleared to return to work commencing January 24, 2008. However, he never received any further work assignments from Joule. Thereafter he sued in civil court contending that he was terminated in retaliation for filing a workers’ compensation claim. He also alleged a violation of the New Jersey Law Against Discrimination. Joule countered that it did not terminate Peralta’s employment. Rather, he received no more assignments because of a downturn in the economy.
The trial court granted summary judgment to Joule and Peralta appealed. First, the Appellate Division held that retaliation claims in workers’ compensation should be analyzed under the “burden shifting” approach ofMcDonnell Douglas Corporation v. Green, 411 U.S. 792, 93S. Ct. 1817, (1973). The Court said that Peralta must prove that he made a claim for workers’ compensation benefits and was discharged in retaliation for making that claim. The Court said that under McDonnell Douglas, once Peralta establishes a prima facie case, there is a presumption of retaliation. The burden then shifts to the employer to rebut the presumption by offering a legitimate reason for its treatment of the employee. The Court said, “Although the reported cases under the WCA (Workers’ Compensation Act) do not specifically refer to theMcDonnell Douglas burden-shifting framework, the logical underpinnings of the WCA’s antidiscrimination provisions make it sensible to apply such an evidential framework to WCA-based retaliation claims.”
Using this approach, Peralta argued he made out a prima facie case because he was injured, filed a compensation claim, and thereafter never got any more work assignments. That shifted the evidentiary burden to Joule. The Court ruled that Joule successfully rebutted Peralta’s proofs by showing that it had a legitimate, non-discriminatory reason for not sending Peralta more assignments. The company reduced its business during the recession years and eventually closed the Passaic, New Jersey office where Peralta had worked.
In addition, the mere fact that plaintiff failed to receive more work assignments after his injury at CDS and the filing of his compensation claim does not furnish a sufficient basis to infer that unlawful discrimination or retaliation occurred. Temporal proximity alone is generally insufficient to support an inference of a causal connection as part of a prima facie case of discrimination, unless the timing at issue is ‘unusually suggestive.’
The Court said that Peralta had not been able to rebut the legitimate reason offered by Joule for not sending Peralta back to CDS or giving him further assignments. Therefore, the Court affirmed the dismissal of Peralta’s case.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
Daniel Cordiero owned Danny’s Construction Company, which did masonry and concrete work. The company employed eight or nine employees. Cordeiro purchased an investment property in Asbury Park, New Jersey. He listed Danny’s as the repair and renovation general contractor on the construction permits. As general contractor, Danny’s hired plumbing and electrical subcontractors and paid the going rate for their work.
On June 17, 2010, Cordeiro drove two of his employees to a jobsite where they were supposed to perform concrete work. Due to jobsite conditions, the work they intended to perform could not be done. Cordeiro then decided to drive the two workers to the Asbury home where he and one of his co-workers climbed the roof to install a skylight. While doing cutting work, Cordeiro fell through the roof onto the concrete floor below. He suffered paraplegia from a spinal cord injury as well as multiple fractures and respiratory failure. The parties agreed that he was totally and permanently disabled from the fall.
The insurance company, Sentinel, denied the claim and asserted that Cordeiro’s injuries resulted from his personal activities in his own home. The company also produced an underwriter who identified herself as an employee of The Hartford. She said that the workers’ compensation insurance policy only covered the installation of concrete slabs for residential homes. However, there was no specific policy language confirming such a policy limitation.
The Judge of Compensation ruled for petitioner and Sentinel appealed. In a fairly brief opinion, the Court affirmed the award of 100% permanent total disability to petitioner. The Court conceded that Danny’s employees generally performed concrete and masonry work, noting that some of the renovation work done on Cordeiro’s property was beyond the usual scope of work performed by Danny’s. In this case, Danny’s employees did pour the concrete floor in the room where Cordeiro was injured.
The reasoning of the Court was that Cordeiro should be covered under workers’ compensation because, as an employee of the company, he was performing a task assigned by the employer. The Court noted that “[t]he language of the [Act] must be liberally construed in favor of employees,” citingCannuscio v. Claridge Hotel, 319 N.J. Super. 342, 249 (App. Div. 1999). The holding in this case is not surprising because there are few if any published cases in New Jersey where the defense has been accepted that the activity that the company engaged far exceeded the specific terms of the application of insurance. The Court rejected the argument that petitioner’s claim should be barred because Danny’s employees only worked more than three feet above ground level doing concrete work.
This case can be found at Cordeiro v. Danny’s Construction, A-2714-11T3 (App. Div. December 13, 2012).
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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.
