State News

The case of Martin v. Newark Public Schools was the subject of an earlier blog on October 7, 2019.  At the time of that blog, the case had not been approved for publication.  On December 13, 2019, the Committee on Publications decided to approve Martin for publication.  It is now the only published decision in New Jersey workers’ compensation on this specific issue and therefore the leading case on requests for continued opioid use. 

The case involved a not uncommon situation where two physicians disagreed on the need for long-term opioid use. The treating physician, Dr. Patricio Grob, treated petitioner from 2011 to 2017 but then released petitioner in September 2017, writing one final prescription of Percocet as a courtesy to Mr. Martin. Dr. Grob felt that Percocet was poorly controlling Martin’s pain.  He also said that continued Percocet would “not manage petitioner’s radicular complaints . . . and could complicate his recovery.”  After six years of treating petitioner with Percocet, Dr. Grob concluded that prescription pain medication would never improve Martin’s condition. Dr. Grob recommended surgery but petitioner declined surgery due to an unrelated blood condition.

Martin next saw Dr. Harris Bram, an expert in pain medication, for a one-time evaluation.  Dr. Bram noted that petitioner had disc desiccation at L4-5 and L5-S1 and a disc herniation at L5-S1.  Dr. Bram recorded somewhat contradictory statements from petitioner.  In taking petitioner’s history, Dr. Bram said Martin reported opioid medication provided only “small pain relief.”  But he also self-reported in other records that Percocet abated his pain symptoms by approximately 60%.  Dr. Bram concluded that long-term use of opioids would be reasonable for petitioner.

Administrative Supervisory Judge, the Hon. Philip Tornetta, found that petitioner failed to prove continued Percocet treatment would reduce Martin’s pain or permit him to function better.  He commented that Dr. Bram did not provide medical evidence that long-term Percocet use would permit petitioner to function better.

The Appellate Division affirmed the dismissal of petitioner’s motion, first citing to an older case involving a motion for physical therapy.  In Hanrahan v. Twp. Of Sparta, 284 N.J. Super. 327, 336 (App. Div. 1995) the Court found that the claimant who was seeking further physical therapy was required to show the treatment would “probably relieve petitioner’s symptoms and thereby improve his ability to function.”  The Court applied this logic to the Martin case in respect to the request for long-term opioids:

Here, the judge found credible the testimony of Dr. Grob that continued prescribing of pain medication did not, and would never, heal petitioner or relieve his condition.  During the six years he treated petitioner, Dr. Grob concluded Martin’s pain had not been alleviated with therapy or medication.

The Court concluded, “We are satisfied there was sufficient, credible evidence in the record to support the compensation judge’s determination that further treatment with opioid medication would not cure or relieve Martin’s injury.”

The emphasis on this case at both the trial level and appellate level was on improvement of function.  The fact that the treating doctor had observed poor pain control from Percocet over six years posed serious problems for petitioner to overcome at trial.  The case must be seen in the context of the opioid epidemic in the United States.  It demonstrates that employers can actually do something about long-term opioid use under certain situations.  Just testifying in court that opioid medication makes one feel good will not suffice.  There must be medical evidence of improvement of function under this significant decision.

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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. 

We are in holiday season.  Many private and public entities have holiday parties this time of year, and inevitably there will be accidents either going to or from the party or perhaps slipping and falling on the dance floor.  What do employers need to know and what can they do to avoid such claims when they schedule weekend or after-work parties?

First, the employee must prove that the event is a regular incident of employment and that the purpose of the event was to promote an end greater than improvement of morale.  If it is all about morale, it is not compensable.  A fundraiser might be an example of an event whose purpose promotes something greater than morale. 

But even if the employee cannot meet this test, the employee will prevail if he or she can show that attendance was compulsory.  That which is required is considered to be work-related.  Now realistically, most employers do not send out invitations to holiday parties saying that attendance is compulsory.  But that is not the only way for an employee to prove attendance was compelled.  If the person in charge of the party says, “Hi Sam, I sure hope you are going to make the holiday party on Saturday,” Sam may testify at trial that he had a reasonable basis to believe that his attendance was compelled.  If the person in charge of the party keeps asking people whether they are attending, and then presses for explanations on why they are not planning to attend, or suggests that “the boss will be disappointed,” a Judge of Compensation may very well find that the employee had a reasonable basis to believe that attendance was compelled. So the test of compulsion is not whether the words “mandatory attendance” are on the invitation but whether the employee had a reasonable basis to believe he or she must attend.

When employers lose cases involving injuries going to or from holiday parties or slip and falls at the party, it is mostly because the injured employee can convince the Judge of Compensation that he or she felt compelled to attend.  If that is the case, the ride to the party and the ride home is covered by workers’ compensation.  Car accidents are the main cause of injuries, often very serious ones, and the risk of injury may be compounded by use of alcohol or wintry road conditions.   Unfortunately, the New Jersey law does not protect employers from injuries caused largely by intoxication because the current law requires the employer to prove that no cause – other than the use of alcohol – contributed to the accident.  So if you have someone who is intoxicated above the legal limit and the roads are slippery when the accident happens, the employer will lose because there is another reason for the accident besides intoxication, namely the slippery road conditions.  Needless to say, we are in December.

The best way for employers to insure that they do not have to pay for holiday party accidents is to make it crystal clear that attendance is optional.  Put that language all over the invitation.  Make it clear that there will be no names taken of attendees, and non-attendees, and do not pester people who have no plans to attend.  High level employees should not be walking around asking employees why they are not coming to the party.   This may make it harder to guarantee a number of attendees for the restaurant, but that is far better than having to pay a death claim for someone who is tragically injured driving home from a holiday party.

Bear in mind that holiday parties during work hours are a completely different subject.  These parties where people are actually at work and getting paid during normal work hours are almost always covered.   So if there is a party at lunch at Lincoln Company in the cafeteria, and someone slips and falls on the floor while grabbing an egg nog, that injury will be held to be compensable because on-premises injuries are compensable unless they constitute a deviation from employment.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

On December 6, 2019, the Alabama Court of Civil Appeals released its opinion inJames Brooks v. Austal USA, LLC. The undisputed facts were that while the Complaint was filed prior to the expiration of the Statute of Limitations, the Complaint was not served on the employer for seven months, during which time the Statute of Limitations expired. The Court of Appeals held that to commence an action for Statute of Limitations purposes, a Complaint must be filedand there must be an intent to have the Complaint immediately served; and held further that if the employee performs all of the tasks required to effectuate service at the time of filing, that the action has commenced. In this case, the employee attempted to serve the Complaint at the time it was filed, albeit to an outdated registered agent. While it took several months after the failed attempt for the Complaint to be served, the Court of Appeals determined that there was an attempt to serve at the time of filing. For this reason, the case was reversed and remanded.

About the Author

This article was written by Karen E. Cleveland, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Defense Network (NWCDN). If you have any questions about this submission, please contact Cleveland by emailing her atkcleveland@fishnelson.com or by calling her directly at 205-332-1599.

On December 6, 2019, the Alabama Court of Civil Appeals released its opinion inColby Furniture Company v. Belinda Overton.  In Overton, the employer sought the termination of the employee’s right to future medical benefits.  The employee injured her neck in 1994 and received pain management treatment for over 22 years.  In 2005, she was given a panel of four pain management doctors from which she selected a new doctor thus burning the one panel owed to her per statute.  In 2015, she was dismissed from pain management for violating the narcotic agreement entered into with her doctor.  The employer subsequently filed a motion for summary judgment asserting that the employee already burned her panel and, in the alternative, that she forfeited her right to benefits due to her own misconduct under an unclean hands theory.  The Judge denied the motion and the matter proceed to an evidentiary hearing.  The Judge subsequently issued a Final Order which required the employer to provide another panel of four from which no appeal was taken.  The employer then undertook to comply with the Order by offering several panels.  Despite its best efforts, none of the selected doctors were willing to accept the employee as a patient.  The employer then filed a Motion for Additional Instructions outlining its efforts at complying with the Order and seeking further guidance from the Court on what could be done.  The Judge then issued a second Order requiring either that a panel of four be offered (presumably from which the employee could select a doctor that would accept her as a patient) or, in the alternative, that the employer negotiate a settlement of the employee’s future medical benefits.  The employer then filed a Motion to Alter Amend or Vacate that Order which was subsequently denied by operation of law.  The employer then appealed the second Order.

On appeal, the employer raised several issues including the fact that the employee was only entitled to one panel per the statute and the doctrine of unclean hands.  The Court of Appeals noted that the first Order which was conclusive and binding on the issues was not appealed.  The Court further noted that, in its Motion for Additional Instructions, the employer did not assert that only one panel was owed or that the employee was guilty of unclean hands.  Therefore, neither issue was deemed to be properly before the Court on appeal.  For that reason and only that reason was the trial Judge’s Order affirmed.

My Two Cents:   

This is one of those situations where no good deed goes unpunished.  The employer clearly tried to bend over backwards to comply with the trial Judge’s wishes.  In doing so rather than immediately appealing the ruling, it was forever precluded from seeking appellate relief.  One point of interest is that the second Order gives the employer an option.  It can either provide a panelOR negotiate a settlement of medical benefits.  This begs the question as to whether in electing to go with option #2, it could simply not provide a panel.  In the usual case, withholding medical benefits while attempting to settle medical benefits would immediately invite a cause of action for outrageous conduct (egregious settlement tactics).  In this case, it would seem that the court’s second Order would insulate the employer from such a lawsuit. 

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About the Author

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

Pursuant to Minn. Stat. 176.238, a Notice of Intention to Discontinue Benefits (NOID) can be filed for a number of reasons; most commonly an employee’s return to work. However, there are numerous other reasons to file a NOID. Remember, when an employee returns to work, compensation may be discontinued the day he/she returns to work and the NOID can be filed within 14 days the Employer and Insurer receive notice of such. However, if the reason for the discontinuance is other than an employee’s return to work, the liability of the employer and insurer to make payments of compensation continues until the copy of the NOID and attachments have been filed with the division.

Some common examples of reasons to file a NOID other than an employee’s return to work are listed on our website. You can find the full article athttps://cwk-law.com/wp-content/uploads/2019/11/Practice-Pointer-Reasons-to-file-NOID.pdf

 Practice Pointers are provided by CWK Attorney Parker Olson.

The State of Minnesota Department of Labor & Industry has proposed expedited rules governing the treatment of posttraumatic stress disorder (PTSD), known formally as treatment parameters. This action was compelled by the legislative amendments in Minn. Stat. §176.83, Subd. 5(b)(8). The proposed treatment parameters were published in the State Register on November 12, 2019 and are currently open for public comment. The period for public comment ends December 12, 2019. 

The entire summary can be found here: https://cwk-law.com/state-of-minnesota-moves-to-adopt-treatment-parameters-for-posttraumatic-stress-disorder-ptsd/ 

This summary has been provided by CWK Attorney Michael Johnson. 

Natalie Lund and Elizabeth Cox recently attended the national workers’ comp and disability conference and expo in Las Vegas. This is the largest industry conference and trade show in the nation. While in Las Vegas, Lund and Cox represented CWK at functions sponsored by the premier defense network, the National Workers’ Compensation Defense Network (NWCDN).

The NWCDN will be holding a regional conference in Charlotte, NC on May 29, 2020 with a cocktail reception on May 28,2020. The conference will be held at the Charlotte Marriott City Center, 100 West Trade Street, Charlotte, NC. For more information contact Sheri Mead, NWCDN Executive Director, Sheri@meadandco.com. or CWK’s Tom Kieselbach, NWCDN President,Thomas.Kieselbach@cwk-law.com.

The NWCDN will hold its annual national conference in Philadelphia on October 30, 2020 with the cocktail reception on September 30, 2020. Mark this on your calendar.

 We are pleased to announce that Andrew Carballo and Steven Halloran have joined the firm as associates. Carballo and Halloran will be practicing in the area of Workers’ Compensation defense. Both were judicial law clerks prior to joining the firm and graduated from the University of St. Thomas School of Law. They will be excellent additions to the firm. 

Whitney Teel authored a chapter in “Workers’ Compensation Emerging Issues” 2019 Edition (WCEIA). Whitney analyzed the 2019 trends in Minnesota Workers’ Compensation.

WCEIA is for sale at lexisnexis.com/WCEIA.com or 1-800-223-1940. This is an excellent treatise and an essential tool for risk managers and insurance professionals. The focus is on national and local issues involving Workers’ Compensation.

LexisNexis partners with the National Workers’ Compensation Defense Network (NWCDN) in the creation and publication of this book. NWCDN is a national consortium of firms dedicated to protecting the interests of employers and insurers in Workers’ Compensation cases. CWK is the Minnesota representative for NWCDN. LexisNexis is a premier publisher of textbooks and treatises for lawyers and judges. 

On November 27, 2019 the Alabama Supreme Court released its opinion in Ex parte Dow Corning Alabama, Inc., et al.  In this case an employee was injured while working for Alabama Electric Company, Inc.  The injury occurred at Dow Corning Corporation.  Dow Corning sought to enforce an indemnification agreement that it alleged it had with the employer, Alabama Electric Company, Inc.  Also involved in this matter was Alabama Electric Company’s insurance carrier, National Trust Insurance Company, Inc.  Prior to the settlement the Dow defendants demanded a defense and indemnification from Alabama Electric and National Trust.  Alabama Electric ultimately refused the demand.  The Dow defendants then settled the case with the employee and, approximately one month after the settlement, Alabama Electric and National Trust filed a declaratory judgment seeking a ruling that they were not responsible for the defense cost incurred by the Dow defendants in the personal injury settlement nor were they responsible for the settlement proceeds.  The Dow insurers later filed a counter claim seeking reimbursement for defense costs and settlement funds that were paid to the Alabama Electric employee in the personal injury action.  During the declaratory judgment action Alabama Electric sought to depose a Dow representative and in the deposition notice requested documents related to the decision to settle, which would include the Dow attorney’s evaluation and recommendations for the defense and settlement of the claim.  The Dow defendant’s asserted that said information was privileged and protected by the attorney client privilege and/or the work product doctrine.  American Electric asserted that the Dow defendants waived the protection by seeking indemnity and made the reasonableness of the settlement an issue. 

The Alabama Supreme Court ultimately determined that the Dow attorney evaluation and recommendations were still privileged and did not have to be produced despite the fact that the issue of whether or not the settlement was reasonable and made in good faith was to be determined.  The Alabama Supreme Court held that American Electric had access to the facts and evidence, and other non-privileged information, that could be used in determining whether or not the evaluation and settlement was reasonable.  This would include experts which both parties had intended to use to review this information and determine the reasonableness of the settlement.  Therefore, the Court held that the Dow attorney evaluation and recommendations were to remain privileged and did not have to be turned over.  As a result, the Court granted Dow’s Petition for Writ of Mandamus and directed the trial court to vacate its discovery order which was going to require the Dow defendants to produce their attorney evaluations and recommendations.  The Court further held that an appropriate protective order was to be entered. 

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.  Mr. Holden can be reached at jholden@fishnelson.com or (205) 332-1428.