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Claimant proceeded to Board Hearing on the issue of initial compensability of a 1/12/18 injury and seeking payment of a then recommended left knee arthroscopic surgery. The Board found his claim compensable, and awarded the surgery, but did not rule on total and/or partial disability benefits, because Claimant did not request same. Claimant proceeded with surgery on 4/10/19, and filed a Petition seeking total disability and/or partial disability benefits from the 4/1/18 date of termination from employment and ongoing.

The Board found that Claimant did not meet his burden of proof on the Petition for total and/or partial disability, because he did not conduct a good faith job search following his termination from employment on 3/31/18. He was terminated for simply stopping showing up at work. He unilaterally stopped communicating with Employer. He did not respond to calls or letters sent by Employer. He abandoned his job. Claimant was capable of working with restrictions for nearly all of the ensuing two years with the exception of 4-6 weeks associated with his surgery yet testified to the Board that he made absolutely no job search during this time without any justifiable excuse. He did not even apply to any of the 9 positions that his own vocational rehabilitation specialist identified 4 months before the Board Hearing. The Board also noted that at 62 years old, claimant was at normal retirement age. Therefore, considering the totality of the circumstances, his withdraw from the workforce was due to personal reasons, rather than the work injury.

Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

Jeffrey Legg v. Shurline Construction, IAB Hrg. No. 1472667 (Mar. 2, 2020).

NWCDN Case Summaries

Claimant worked as a flagger at a constructions site. She reported that a truck hit her in the back of the leg and hit her sign, causing it to hit her in the head. She told different versions of the incident to her coworkers and supervisor and did not seek medical treatment for two weeks. Respondents denied the claim and a full contest hearing took place. The ALJ denied and dismissed the case based on a review of the medical records that revealed claimant did not have any ongoing pain complaints. Claimant appealed and the ICAP panel affirmed the ALJ. Claimant appealed again to the Court of Appeals. Claimant alleged that the respondent-employer “cherry picked” the evidence used in the claim and that the ALJ did not consider certain evidence that she presented. However, the evidence and testimony in the records supported the ALJ’s factual and legal findings. An ALJ does not have to address all evidence in the record in his or her order and has discretion to consider whatever evidence he or she chooses. 

Lisa Martinez v. ICAO, Anytime Labor Colorado, LLC, and XL Caitlin Insurance (Co. App. No. 19CA0560, November 14, 2019) *unpublished

Claimant was working the night laundry shift when he thought he heard a noise coming from the washing machine. He thought he saw a soda bottle in the washing machine and tried to reach into the machine during the spine cycle to grab the bottle. Claimant did not use the emergency or stop switch before reaching into the machine. When reaching into the machine, a sheet wrapped around his arm, flipped him and severed his arm at the elbow. Claimant admitted to smoking black tar heroin in the employee restroom before the incident. Respondent employer admitted the claim, but took a safety rule violation and reduced claimant’s benefits. Claimant challenged the safety rule violation, but the ALJ and ICAO Panel agreed with the safety rule violation and benefit reduction (50% against indemnity benefits). Claimant appealed again to the Court of Appeals and argued that the ALJ improperly limited his testimony about the plausible purpose for violating the safety rule. Claimant’s testimony about mechanical issues with the safety switch was not allowed because respondents successfully objected, arguing that claimant was not qualified to testify about mechanical issues. However, the Court of Appeals held that nothing precluded claimant from testify about his experience with the safety switch and that it did not work, which was a different issue than the mechanical issue with the switch. As a result, the ALJ did properly limit claimant from testifying regarding his reason for violating the safety rule.

Benjamin Heien v. ICAO, DW Crossland, and Liberty Mutual Insurance (Co. App. No. 18CA2398, December 12, 2019) *unpublished

Claimant felt a sudden and sharp pain on his left arm and thought he was bitten by a bug. However, no bug was found after the alleged bite. A Notice of Contest was filed by the employer. Claimant was seen by an infectious disease specialist and tested positive for Epstein-Barr virus (EBV), an infectious disease, but the specialist was skeptical the EBV caused by the alleged insect bite. Claimant never received an official work-related diagnosis. The ALJ found the Claimant had not established a causal connection between his symptoms and his job. Claimant appealed and the ICAO panel affirmed the ALJ Order. Claimant appealed again to the Court of Appeals on four grounds: that the ALJ was not credible; the Order from the ALJ was inaccurate due to typographical errors; that he was not notified of the reason for the Notice of Contest that his workers’ rights and human rights had been violated. The Court of Appeals affirmed the Order again. The court found the evidence in the record substantially supported the ALJs decision. Further, the typographical errors were harmless, the employer is not required to provide a specific reason for a Notice of Contest and the claim that the ALJ was not credible was not sufficient to warrant setting aside the order. No evidence was presented regarding claimant’s allegations that his human and workers’ rights were violated.

James A. “Butch” Smith v. ICAO, City of Ouray and CIRSA (Co. App. No. 19CA0267, October 24, 2019) *unpublished

Summaries completed by Craig Campos, Esq. from the Fort Collins, CO office of Ritsema & Lyon.

On February 26 the Texas Supreme Court heard oral argument to determine whether the parents and sister of Fabian Escobedo, a truck driver who died from a rollover accident on the job, may sue the Employer. The Employer argued that recovery of benefits under the Texas Workers’ Compensation Act is the exclusive remedy for Mr. Escobedo and that the parents and sister could not bring a wrongful death action under the gross negligence exception in the Act because that exception authorizes actions only by a surviving spouse or heirs of the body of the deceased. The parents and sister pointed out that the supreme court has previously held that the Act does not bar a deceased’s cause of action forintentional injuries which survive to the estate under the Texas Survival Statute. Accordingly, at issue is whether Mr. Escobedo suffered personal injury prior to deathdue to the Employer’s intentional acts or omissions.

To support their claim, the parents and sister pointed to evidence in the record that (1) oil fields in West Texas and South Texas were booming and the Employer could not keep up with the demand for drivers, (2) drivers were required to work unsafe amounts of overtime, (3) the Employer required drivers to work illegal amounts of time, (4) the Employer required drivers to falsify their driver logs to cover up the illegal hours, and (5) a terminal manager warned a supervisor that a driver would be killed because of the unreasonable driving hours and the supervisor said “we will cross that bridge when we come to it.” 

The supreme court has previously held that the intentional failure to furnish a safe workplace does not rise to the level of intentional injury, except when the employer believes his conduct issubstantially certain to cause injury. Thus, in the present case, the task for the supreme court is to decide whether the evidence could support a finding that the trucking company believed its conduct was substantially certain to cause injury to Mr. Escobedo. If so, the parents and sister will be allowed to sue. 

The Corpus Christi court of appeals concluded that the evidence in this case could support such a finding. The supreme court’s decision is expected later this year.  MO-VAC Service Co. v. Primitivo Escobedo, et al. 
 

The Division of Workers’ Compensation has initiated a review of the “utility and sufficiency” of the standard form interrogatories for contested case hearings. The form interrogatories are sets of questions, prescribed by DWC, that parties may serve in discovery prior to a CCH. There are two sets of form interrogatories, which are Claimant’s Interrogatories to Carrier andCarrier’s Interrogatories to Claimant. They each contain 11 standard questions prescribed by DWC and allow the party to draft 5 additional questions.

The current interrogatories were adopted in 1991 and they are now widely viewed as inadequate. The DWC is requesting comments and suggestions from stakeholders regarding revisions, and it will hold a stakeholder meeting to discuss possible changes on March 31, 2020 at the DWC Metro building in Austin. 
 

The Division of Workers’ Compensation Appeals Panel has reversed an Administrative Law Judge’s finding that the worker was intoxicated when injured. The basis for the reversal is that the ALJ improperly concluded that a positive hair sample drug test created a presumption of intoxication.

The worker was injured when he fell from a scaffold. A hair sample collected from him three days after the accident tested positive for cocaine. The ALJ concluded that the positive test result created a rebuttable presumption under Labor Code section 401.013(c) that the worker was intoxicated and did not have the normal use of his mental or physical faculties at the time of his injury. The Appeals Panel disagreed. It noted that section 401.013(c) does not say that any drug test creates a presumption of intoxication. Instead, that section refers only to a blood test or urinalysis. Accordingly, the Appeals Panel held that testing of a hair sample three days after the accident may be sufficient to raise the question of intoxication but it does not create a presumption of intoxication under section 401.013(c). APD 192062, decided January 21, 2020. 

-  Copyright 2020,David Swanson, Stone Loughlin & Swanson, LLP

The February 21, 2020 edition of the Houston Chronicle featured the plight of Stephanie Albers, a 54-year-old flight attendant who suffered a neck injury on the job. The headline was gripping:
 

In crippling pain from on-the-job injury, Houston flight attendant finds getting help ‘impossible’

The accompanying story was a scathing indictment of the Texas workers’ compensation system and, more particularly, workers’ compensation insurance companies. The problem? It's grossly misleading.

Albers was injured when air turbulence threw her into the air and back to the floor, reportedly damaging nerves in her neck. She recounts an exhausting, two-year struggle to obtain necessary treatment which, she says, has been routinely and improperly denied by her comp carrier. According to her husband, Dwight Albers:
 

She’s in pain every single day, and they’re dragging their feet, doing this dog and pony show, all this administrative stuff  . . . In the meantime, she’s not getting any better.

According to the Chronicle, Albers’ experience is all too common:
 

In Texas  . . . injured employees who file claims through the [workers’ compensation] system enter an endless maze of denials and appeals that blocks their treatment, recovery, and return to work. For many, the process is so exhausting that they rue ever filing a workers’ compensation claim.

The Chronicle neglects to mention that preauthorization is not required for most pain medication or treatment and, therefore, the insurance company could not “block” treatment even if it wanted to do so. TheChronicle does not explain that, even where medication or treatment requires preauthorization, the decision to approve or deny it is fast-tracked and must be made within three days, nor does it mention that the preauthorization decision must be based on evidence-based treatment guidelines adopted by the TDI-DWC, not the whim of the carrier. TheChronicle does not explain that if the carrier denies preauthorization the worker is entitled to review by an independent review organization. TheChronicle does not acknowledge that insurance companies have a disincentive to block a worker’s recovery and return to work because to do so would increase their exposure for income benefits. And theChronicle cites no evidence whatsoever for its assertion that “for many, the process is so exhausting that they rue ever filing a workers’ compensation claim.”

It gets worse. According to theChronicle, an injured worker who has a dispute with her insurance carrier may as well just give up because changes in the law “have left a workers’ compensation system that makes . . . fighting against insurance companies effectively impossible.” Although the Chronicle acknowledges that the TDI-DWC provides a dispute resolution system to resolve benefits disputes, it dismisses that system as being rigged in favor of carriers:
 

But experts say the dispute resolution process is hopelessly stacked against workers, leaving them with only one real option: Don’t get hurt at work.

The Chronicle does not identify the so-called “experts” on whom it relied for that indictment of the dispute resolution system, nor does it cite to any statistics or other evidence to support it. TheChronicle also does not mention that injured workers are routinely represented by legal counsel at Benefit Review Conferences and Contested Case Hearings, and it neglects to note that ombudsmen from the Office of Injured Employee Counsel are available to assist injured workers at no charge in those proceedings.

We don’t have a subscription to theHouston Chronicle, but if we did we would cancel it.
 

Alabama State Representative Wes Kitchens (R-Arab) recently introduced House Bill 77, which would require employers and state agencies to use the guidelines specified by the Internal Revenue Service in order to determine whether a worker is an “employee” or an “independent contractor” for the purposes of employment benefits and tax liabilities.  HB-77 would specifically require the use of the IRS’s guidelines when determining eligibility for workers’ compensation benefits. 

Under current Alabama law, an employee seeking workers’ compensation benefits must prove the existence of contract for hire (either express or implied).  Under current Alabama law, the worker may be considered an employee if the person to whom he provides services has reserved the right to control the manner in which those services are performed. Griffith v. Adams, 674 So.2d 556 (Ala.Civ.App. 1995). The Alabama Courts have recognized that a reserved right of control can be inferred from a test which considers four basic factors: (1) direct evidence which demonstrates a right or exercise of control; (2) the method by which the individual receives payment for his or her services; (3) whether equipment is furnished; and (4) whether the individual has the right to terminate the relationship at any time. See, Wheeler v. Wright, 668 So 2d 779 (Ala.Civ.App. 1995); Martin v. Lawrence County, 628 So.2d 652 (Ala.Civ.App. 1993);Miller v. Mayfield Timber Co., 624 So.2d 185 (Ala.Civ.App. 1993); Lacey v. American Shell Co.,Inc., 628 So.2d 684 (Ala.Civ.App. 1993); Ex parte Curry, 607 So.2d 230 (Ala. 1992).  However, if HB-77 is passed and signed into law, it would significantly expand the definition of “employee” for purposes of workers’ compensation benefits.  Alabama courts would also have to consider many other factors, including: whether the worker must follow instructions; whether training was provided; whether the worker’s services were rendered personally; whether the worker hires, supervises, or pays assistants; the duration of the relationship; whether the work is performed on the premises of the firm paying the worker; the frequency of payment for the work; and whether the worker must provide regular reports.

The full text of HB-77 can be found here.  The IRS guidelines can be found here.  We will monitor the status of HB-77 as it makes its way through the Legislature, and will provide updates on this blog.

ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related matters, as well as matters involving OSHA and FMCSA compliance.  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.

Many readers of this blog have inquired recently about the potential impact of the novel coronavirus on workers’ compensation claims.  Should a surge of serious coronavirus illnesses occur among New Jersey workers, would such claims be considered compensable under the law?

The answer to this question depends on whether one is or is not a public safety worker. Most New Jersey workers would not meet the test of a public safety worker.  For non-public safety workers, the likelihood of successfully maintaining an occupational disease claim under N.J.S.A. 34:15-31 would be very low.  The reason is that a claimant must show that the medical condition, for instance pneumonia, is more likely than not produced by causes which are characteristic of or peculiar to one’s occupation in a material degree.  This test is hard to meet because it is next to impossible to identify the source of the virus.  Many people who do not even know they have Covid-19 and are not yet symptomatic may be infecting large numbers of individuals in all sorts of locations.  For an infected employee, it would be hard to know whether one was exposed to the virus at work, in a store or some other places of human contact.  It would almost always be pure speculation where the exposure occurred.

Public safety workers, on the other hand, will have a strong argument for compensability.  The legislative intent of the Twenty First Century First Responders Protection Act was to protect public safety workers.  That law became effective in New Jersey on July 8, 2019.  This landmark legislation observes that “public safety workers are required by necessity to take great personal risks of serious injury, illness and death in their duties to protect the people of New Jersey from the dangers of catastrophic emergencies, including, but in no way limited to, terrorist attacks and epidemics.”  Unfortunately, the coronavirus has the potential to reach epidemic levels in the USA just as the virus has in China and other nations.

N.J.S.A. 34:15-31.4 defines a public safety worker broadly to include not just fire and police officers, but also “a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, or a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident. . .”  There are likely to be thousands of public safety workers in New Jersey who will be part of state efforts to contain any potential rapid spread of this virus.

N.J.S.A. 34:15-31.5 provides a presumption of compensability in subsection a. if a public safety worker can demonstrate exposure at work to “the excretions, secretions, blood or other bodily fluids of one or more other individuals or is otherwise subjected to a potential exposure, by the other individual or individuals, including airborne exposure, to a serious communicable disease, or is otherwise determined to be infected with or at significant risk of contracting the serious communicable disease. . . “ Readers should focus on the language “or is otherwise subjected to a potential exposure” in the preceding sentence.  The language does not say definite or proven exposure but rather “potential” exposure.  Public safety workers, by the nature of their work, are highly likely to have such potential exposures to those who are infected with coronavirus.

These new provisions of New Jersey’s occupational disease law demonstrate that public safety workers who may contract coronavirus will have a strong case for compensability given the presumption provided for in the statute.  Having a presumption of compensability is powerful.  When there is presumption of compensability, the burden of proof shifts to the employer to show that the exposure is not work related.  Just as I said earlier that it is hard for a non-public safety worker to prove exposure, so too it would be very hard for an employer to prove that a public safety worker more likely than not was infected through non-work exposures.  The employer will have no idea when the disease was contracted, and it would be speculation to say that the exposure was not work related.  So the presumption in a public safety worker scenario will almost certainly lead to compensable awards.

The statute drives this point home:  “If it is ascertained that the public safety worker has contracted a serious communicable disease or related illness under the circumstances set forth in subsection a of this section, there shall be a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable under the provisions of R.S. 34:15-1 et seq.” 

The CDC has concluded that it is just a matter of time before the coronavirus is considered a pandemic and before it spikes in parts of the United States.  If the CDC is right, New Jersey public safety workers run a high risk of contracting the illness in the course of their employment.  While slightly more than 80% of coronavirus patients have had mild symptoms, the remaining percentage has had serious symptoms.  Sadly, a small percentage of deaths is related to the coronavirus.  It is true that the percentage of deaths from coronavirus may not be any higher than the percentage of deaths from the flu each year in the USA, but there is a difference: there is no current vaccine for this virus and it has proven thus far to be highly contagious.

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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. 

Alabama’s Workers’ Compensation Act has an exclusivity provision that shields employers from tort claims resulting from injuries, or death, caused by an accident or occupational disease that is related to workers’ employment. This is a fundamental principle of the Act, which is premised on employers’ accepting a duty to provide certain benefits and coverage to employees in exchange for employees being barred from asserting tort claims, like negligence or wantonness.

On February 28, 2020, the Supreme Court of Alabama released its decision in the case ofEx parte Drury Hotels Company, LLC, Montgomery Circuit Court, CV-18-902336, in which the Court confirmed the burden of proof an employer must meet to prevail on a Motion to Dismiss that asserts the employee cannot prevail on a tort claim because the injury alleged is covered by the exclusivity provision of the Workers’ Compensation Act. The Court held that for an employer to prevail, the defense must be clear from the face of the Complaint.

Here, the Court determined that, based on the Complaint, a determination could not be made on whether the injuries alleged were related to the employment, or instead were the result of a personal attack, and that additional fact-based inquiry was needed. Because injuries determined to be the result of a personal attack are not covered by Alabama’s Workers’ Compensation Act, the Court was not able to confirm that the exclusivity provision applied.

About the Author

This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.

Regardless of whether a workers’ compensation settlement is finalized before a Circuit Court Judge or an ADOL Ombudsman, the ADOL Workers’ Compensation Division, must receive a completed WC-4 Claim Summary Form that identifies the county where the settlement was finalized.  This is a non-issue for court approved documents since they always reflect the county of filing.  However, for ombudsman settlements it is also required that the county be reflected on the WC-4.

Forms are to be sent to: 

Earlene Holland:             earlene.holland@labor.alabama.gov

Phone or FAX   334-956-4031

Christine Dunn:              Christine.dunn@labor.alabama.gov

Phone or FAX 334-956-4032

About the Author

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