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.
NWCDN POLL ON EMPLOYER SET-OFFS AND LIEN RECOVERY RIGHT
By
Kevin L. Connors, Esquire
As the Pennsylvania Member Firm for the National Workers’ Compensation Defense Counsel Network, our Group, from time to time, provides national guidance to Employers, Insurers, and Third-Party Administrators, regarding how different states and jurisdictions deal with issues specific to the administration of workers’ compensation claims.
Recently, the NWCDN was asked by a client to poll its State Members, concerning Employer Set-Off, for alternative disability benefit sources, to include short-term disability benefits, long-term disability benefits, severance benefits, and unemployment compensation benefits.
Since some of you might be handling jurisdiction outside the four corners of Pennsylvania state lines, we are providing the NWCDN’s national service of how individual states deal with these issues.
Should you have questions about any individual state, please do not hesitate to contact us, as we can then serve as a conduit to connect you with a Member State’s defense counsel, as all Member State Firms maintain A+ rating with Martindale-Hubbell, as well as maintaining requisite certifications in individual states to specialize as workers’ compensation attorneys.
The Honor is Ours!
ConnorsO’Dell LLC
Trust us, we just get it! It is trust well spent!
We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania. We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.
Every member of our Workers’ Compensation practice group is AV rated. Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.
On March 1, 2019, the Alabama Supreme Court issued its opinion regarding the largest retaliatory discharge jury verdict ever recorded in Alabama. Notable facts from the underlying case are as follows:
The employee had a compensable workers’ compensation accident.
The authorized doctor assigned work restrictions that could not be accommodated.
The employee was on workers’ compensation leave for 4.5 months.
He received TTD during that time period.
While he was out, the employer hired another driver to replace him.
When the employee attempted to return to work, he was told that he was no longer needed.
The employer admitted that it did not follow its own return to work policies when it terminated the employee without making an effort at finding another position for him.
The employer was actively looking for drivers during the same time period that the employee was terminated.
Another employee was terminated for the same reason when he attempted to return to work.
In an e-mail, the employer admitted to improperly terminating both employees.
The employee was allowed to claim lost future earnings even though he was earning more with a new employer at the time of trial. This was because he was able to demonstrate that his higher earnings were due to his working longer hours (936 more hours per year) as opposed to his earning equal or higher wages.
At the close of the evidence, the jury returned a unanimous verdict in the employee’s favor in the amount of $1,259,451.52 (comprised of $314,862.88 in compensatory damages and $944,588.64 in punitive damages).
On appeal, the Alabama Supreme Court affirmed the judgment.
My Two Cents
Employees are certainly not insulated from termination simply because they have filed a workers’ compensation claim. However, employers should proceed with a high degree of caution when considering the termination of a claimant. At a bare minimum, all applicable handbooks/policies should be thoroughly reviewed and an attorney that is well versed in such matters should be consulted.
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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.
It is a remarkable coincidence that the three cases that best explain entitlement to permanent partial disability benefits in New Jersey all involve claimants with the last name of Perez. The most important of the three Perez cases is Perez v. Pantasote, 95 N.J. 105 (1984). This case addressed the key statutory definition in N.J.S.A. 34:15-36, which provides:
‘Disability permanent in quality and partial in character’ means a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs;
This case stands for the proposition that subjective complaints alone are not sufficient to meet the standard for an award of partial permanent disability. Hence the emphasis on objective tests such as MRIs, x-rays, EMGs, CT scans, pulmonary function testing and other similar studies. The Perez principle was next applied to psychiatric disability claims in Saunderlin v. E. I. DuPont Co., 102 N.J. 402 (1986). Even in psychiatric claims, the emphasis is on more than just recapitulating the complaints and statements made by the injured worker. The Supreme Court said that psychiatric experts should include observations of physical manifestations of the symptoms related by the injured worker.
The next two Perez cases dealt with the remaining aspects of the test outlined in N.J.S.A. 34:15-36. The first was Perez v. Monmouth Cable Vision, 278 N.J. Super. 275 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). This case focused on the following language in the statute:
Included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee’s working ability.
The Court rejected an interpretation of the above language which would require an injured worker to prove in every case a lessening to a material degree of working ability. The Court said that the claimant can obtain an award of permanent partial disability by proving either a substantial impairment of non-work activities or a lessening to a material degree of working ability. It is an either/or test. In this case the employee complained of loss of grip strength, pain in the wrist while playing with his children, diminished ability to play volleyball and not being able to do as much weightlifting as in the past. The Court held that these complaints were sufficient to meet the test of having an impairment of the ordinary pursuits of life. Petitioner did not need to prove work impairment to get his award.
Perez v. Monmouth Cable Vision is very important for two reasons: one, it shows that an employee with objective evidence of permanent partial disability who gets back to work doing the same job can still receive an award of permanency if he or she can prove a substantial impairment of the ordinary pursuits in life. Two, it shows that the threshold required by the employee for testimony about impairment of the ordinary pursuits of life is not particularly high.
The third case is Perez v. Capitol Ornamental, 288 N.J. Super. 359 (App. Div. 1996). The petitioner in this case suffered a herniated disc. He worked as a farm laborer in Puerto Rico before doing landscaping and construction in the U.S. After he had his laminectomy surgery, he continued to have back problems and applied to the Division of Vocational Rehabilitation for job training. He was out of work for years and could not find work. Respondent’s evaluating physician estimated 12.5% permanent partial disability but stated at trial that he did not consider petitioner’s employment problems when he provided his estimate.
The Judge of Compensation awarded 32% permanent partial disability, which was much less than what the petitioner thought he was entitled to. The Judge wrote, “ . . . the award which I presented in my opinion was determined on a basis and with the purpose of being consistent with similar injuries previously presented to me for disability determination.” The Appellate Division took this comment to mean that the Judge of Compensation had not really considered the difference between a person with a spine surgery who gets back to work and a person with spine surgery who cannot return to work. It reversed the decision because the percentage of the award to Mr. Perez should have taken into account the severe impact on petitioner’s working ability.
Perez v. Capitol Ornamental makes an important contribution to the workers’ compensation formula for permanent partial disability by establishing a principle that cases should be valued higher where the injury causes a career change or career loss as compared to cases where no such career loss occurs.
Together the three Perez cases delineate the basic requirements for an award of permanent partial disability: 1) objective medical evidence of restriction of function; plus either 2) a substantial impairment of non-work activities or 3) a lessening to a material degree of working ability.
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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 please to announce that Cousineau, Waldhauser, & Kieselbach's Target Corporation team received the highest rating nationally for Workers' Compensation for the fourth quarter of 2018. The team graded at 3.92/4.00.
Jennifer Fitzgerald,Tom Kieselbach, andParker Olson make up the team. Congratulations to the team for their excellent work.
Natalie Lund, Shareholder at Cousineau, Waldhauser, & Kieselbach has been asked to be the defense co-chair for the 2019 Workers’ Compensation Institute on April 24 and 25, 2019, sponsored by Minnesota CLE.
The Institute provides a complete update on all the workers’ compensation developments over the last year in Minnesota, with featured guest and attorney speakers. This is the premier Minnesota workers compensation seminar.
We congratulate Natalie for being selected as the co-chair.
On February 25, 2019, the New Jersey Legislature voted to send to the Governor’s desk Senate Bill No. 1967. The Senate passed the bill on October 29, 2018 and the General Assembly passed it on February 25, 2019. The Governor is expected to sign the bill shortly.
The original bill was intended to provide a cost of living (COLA) for all workers rendered totally and permanently disabled, or to the dependents of workers, who died as a result of a workplace injury after December 31, 1979. The stated purpose of the legislation was to mirror the Special Adjustment created in the 1979 amendments for that same class of workers injured or killed before December 31, 1979, (RS. 34:15-95.4). The bill was amended to limit the payment to Public Safety Workers or their dependents in the case of work-related death from workplace injury.
The legislation defines Public Safety Workers in paragraph 4(e): “For the purpose of this section, ‘Public Safety Worker’ means a member, employee, or officer of a paid, partially-paid or volunteer fire or police department, force, company or district, including the State Police or a first aid or rescue squad.” Note that this definition does not include hospital EMTs or private fire departments at large plants operated by the private sector.
Funding for the special adjustment comes from an increase in the assessment for the Second Injury Fund which is levied on insurance premiums payable by private employers for their workers’ compensation policies. A like assessment is made on self-insured companies. These assessments affect only private sector employers. The State of New Jersey and its subdivisions are not liable for the Second Injury Fund assessment. Therefore, the funding is collected from the private sector for which the benefits do not apply. This results in the bill having no fiscal impact on the state or local budgets, but it will have a fiscal impact on private employers.
Those covered by this bill will be eligible for the special adjustment as of July 1, 2019 but not retroactive to the date of the award of Total Permanent Disability or death of the “Public Safety Worker.” Going forward, the public employer shall identify those eligible and report them to the Office of Special Compensation. The public employer will continue to pay at the rate set at the time of the award of permanent disability. The Second Injury Fund, Office of Special Compensation will pay the amount sufficient to bring the total award to the same percentage to maximum rate for the current year.
Example: Police officer is injured and deemed totally and permanently disabled as of July 1, 2002. The officer is earning wages of $900 per week and the maximum rate for permanent total disability is $629 per week in 2002. The officer receives an award payable at $629 per week for 450 weeks and continuing so long as the officer is permanently disabled under the terms of N.J.S.A. 34:15-12b. (Officer’s salary is sufficient for the maximum rate in 2002). Effective July 1, 2019, the officer will be paid $629 per week by the employer and will receive $292 per week from the Second Injury Fund by way of the Special Adjustment bringing the officer to the maximum rate for 2019. Because the officer qualified for the maximum rate at the time of the award, the officer is eligible for the maximum rate in the year of the special adjustment.
The COLA will be reduced for beneficiaries to the extent necessary to ensure that inflation adjusted benefits do not cause a reduction of Federal Social Security disability benefits. COLA benefits are also to be reduced by the original amount of any Social Security benefits (but not the amount of any Social Security disability benefits and any subsequent cost-of-living increase in Social Security benefits), Black Lung benefits, or the employer’s share of disability pension payments received from or on account of an employer.
The COLA will be denied to an otherwise eligible Public Safety Worker who is also eligible for SSD but will not apply. In virtually all cases, the Public Safety Worker will be eligible for an Accidental Disability Pension, and the Division of Pensions and Benefits will take the offset.
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Prior to joining Capehart Scatchard as Of Counsel, Judge Hickey III (Ret.) served as the Compensation Administrative Supervisory Judge for the State of New Jersey from 1991 to 2009. Previous to his judgeship, he served as a Prosecutor in Gloucester County, New Jersey from 1986 to 1991.
The FDA recently approved the "EyeBox," an eye-tracking test device to help diagnose concussions. The company that makes the device, Oculogica, Inc., touts that this technology brings in a new era for diagnosing concussion and managing patients. It is marketed to be the first objective diagnostic test for concussion. In referenced studies the company claims that the EyeBox had high sensitivity to the presence of concussion and that a negative EyeBox result was consistent with lack of concussion. We expect to hear more about this given that allegations of traumatic brain injury are common in the workers’ compensation arena. The Oculogica websitehttp://www.oculogica.com/ emphasizes that the results of the test “cannot be influenced or ‘gamed’ by the patient.
- Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.
There are several pieces of legislation under consideration that affect workers’ compensation. Senate Bill 163 would require every construction contractor that does business with state government to carry workers’ compensation insurance. As usual, business interests oppose the legislation.
House Bill 2143, while only affecting Police or Fire Persons, would expand coverage to PTSD claims where the condition is not alleged to be caused by a single event, but also by exposure to multiple events—a cumulative exposure concept.
House Bill 1005 would require insurance carriers who have issued a PLN denial related to causation based on a medical opinion to also pay for a medical opinion on causation from the claimant’s treating provider or from a doctor to whom the treating provider “previously” referred the claimant.
Senate Bill 934, championed by OIEC, would change the deadline for filing a suit for judicial review of a DWC decision from 45 days to 60 days in order to give the claimant more time to locate an attorney willing to take the case to district court.
Senate Bill 229 would require the notices OIEC now sends to claimants describing their rights and obligations to also include a statement informing the claimant that he has the right to choose a doctor who is a doctor of medicine, osteopathic doctor, optometrist, dentist, podiatrist or chiropractor who is licensed and authorized to practice.
- Copyright 2019, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.
The case of New Hampshire Insurance Company v. Rodriguez, No. 08-15-00173-CV, recently decided by the El Paso Court of Appeals, may have a huge impact on workers’ compensation insurance carriers’ subrogation lien rights to plaintiffs’ recoveries in 3rd party lawsuits. The case involved two potential employers, only one of which had workers’ compensation insurance which paid almost $2 million dollars in workers’ compensation benefits to the catastrophically injured worker. The worker sued both companies, and a jury apportioned the liability among the two companies and the worker. So far, so good. But then the trial judge found that the workers’ compensation insurance carrier’s right of subrogation against the total judgment had to be reduced by the dollar amount the jury attributed to the insured employer’s negligence. The court of appeals affirmed this methodology which, if the Texas Supreme Court allows this to stand as precedent, would mean that a carrier’s statutory lien interest would be reduced or extinguished altogether whenever a jury apportions negligence on an employer, even if the worker were to be awarded 100% of his damages. The greatest impact will be in the employee leasing context where there are often two potential entities who could be the employer of the injured worker for purposes of a personal injury claim.
- Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.
With the demise of “bad faith” in workers’ compensation we are seeing a lot of attempts by plaintiff attorneys in 3rd party lawsuits to try to work-around the exclusive remedy defense in order to hold an employer vicariously liable for damages. The core issue is always whether an individual was an employee or an independent contractor of a company at the time of the accident. Many times there will be a contract between an individual and a company where both agree that the individual is not an employee. It seems like this would be enough, but the Houston Court of Appeals recently decided that even where there is a clear agreement between the parties, there must still be an analysis of evidence regarding who has the right to control the details of the individual's work. Because this is a fact question, even a clear agreement cannot be the basis of a summary judgment. Stevenson v. Waste Management of Texas, No. 14-17-00433-CV, 02/21/19.
- Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.