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By Jeffrey D. Snyder, Esquire and Kevin L. Connors, Esquire
The Pennsylvania Supreme Court’s recent Decision in Bowman v. Sunoco, Inc., decided on April 25, 2013, validates an agreement that an employee had entered into, when initially hired by her employer, Allied Barton, under which the employee agreed that he/she would not bring a third-party claim or action against Allied Barton’s customers, in the event of a work injury which might otherwise have triggered consideration of third-party liability, predicated in a tort-based negligence action for personal injuries.
Thus, we are talkin to you!
Bowman involved a private security guard employed by Allied Barton Security Services, who had signed a workers’ compensation disclaimer, under which she had waived her right to sue Allied’s clients for damages related to any injuries that would otherwise be covered under the Pennsylvania Workers’ Compensation Act.
The disclaimer stated:
“I understand that state workers’ compensation statutes cover work-related injuries that may be sustained by me. If I am injured on the job, I understand that I am required to notify my manager immediately. The manager will inform me of my state’s workers’ compensation law as it pertains to seeking medical treatment. This is to assure that reasonable medical treatment for an injury will be paid for by Allied workers’ compensation insurance.
As a result, and in consideration of Allied Security offering me employment, I hereby waive and forever release any and all rights that I may have to:
- Make a claim, or
- Commence a lawsuit, or
- &nnbsp; Recover damages for losses
from or against any customer (and the employees of any customer) of Allied Security to which I may be assigned, arising from or related to injuries which are covered under the workers’ compensation statues”.
Falling on either snow or ice while providing security at a Sunoco refinery, the employee filed a workers’ compensation benefits claim, and then received workers’ compensation benefits pursuant to the Pennsylvania Workers’ Compensation Act.
She then filed a negligence lawsuit against Sunoco, under which she alleged that Sunoco had been negligent in failing to maintain and inspect its premises, resulting in the employee sustaining her work-related injuries.
In the course of discovery being conducted in the personal injury lawsuit, the employee’s disclaimer, entered into at her hiring by Allied Barton, was produced through discovery, evidencing the employee’s waiver of her right to file a personal injury claim against Allied Barton’s clients or customers, as well as evidencing her receipt of workers’ compensation benefits, with Sunoco filing a Motion for Judgment on the Pleadings, in support of which Sunoco argued that the employee’s negligence claim had to be barred by the employee’s voluntary disclaimer and waiver.
The employee argued that the disclaimer was void, claiming that it was contrary to public policy.
Specifically, the employee argued that the disclaimer violated the public policy considerations embedded in Section 204(a) of the Workers’ Compensation Act. Her argument was framed around the disclaimer allegedly improperly waiving a cause of action that had not yet accrued.
Section 204(a) of the WCA sets forth:
“No agreement, composition, or release of damages made before the date of any injury shall be valid or shall bar the claim for damages resulting therefrom; and any such agreement is declared to be against the public policy of this Commonwealth.”
At the trial court level, the disclaimer was not found to have violated the public policies articulated in Section 204(a), with the trial court granting Sunoco’s Motion for Judgment on the Pleadings.
The employee appealed the trial court Judgment to the Superior Court, with the Superior Court also agreeing that the disclaimer was not violative of public policy, reasoning that the employee had waived only her right to sue third-party customers for injury covered by workers’ compensation laws, and that the waiver/disclaimer was not an attempt to deprive her of rights under the Workers’ Compensation Act, nor was it intended to shield Allied from liability or to deprive the employee of compensation for any work-related harm or injuries.
Finding that the third-party release was not contrary to public policy, the Superior Court agreed with the trial court, affirming the Judgment against the employee and in favor of Sunoco.
The Supreme Court granted allocator to determine:
“Did the Superior Court, in a decision of first impression of state-wide substantial significance, disregard the public policy of the Commonwealth of Pennsylvania and the plain meaning of the Pennsylvania Workers’ Compensation Act when it decided that a third-party release in the form of a ‘Workers’ Comp Disclaimer’, signed in consideration for employment or receipt of compensation benefits, which further required the waiver and eternal release of any and all rights to make a claim, commence a lawsuit, or recover damages or losses not void against public policy when the language of the disclaimer openly conflicts with the language of Section 204(a) of the Pennsylvania Workers’ Compensation Act, which expressly renders such agreements as void against public policy?”
Before the Supreme Court, the employee argued that the disclaimer that she had signed, the same being a condition of her employment and initial hire, violated the first sentence of Section 204(a) of the Pennsylvania Workers’ Compensation Act, as that sentence reads:
“No agreement, composition, release of damages made before the date of any injury shall be valid or shall bar a claim for damages resulting therefrom; and any such agreements declared to be against public policy of this Commonwealth.”
Arguing that the sentence was plain and unambiguous, the employee asked the Supreme Court to invalidate the disclaimer that she had clearly consented to when hired. A second basis for invalidation was asserted by the employee, as she contended that the disclaimer clearly contravene the subrogation clause of Section 319 of the Pennsylvania Workers’ Compensation Act, claiming that it was absurd for an employer to forego an opportunity to recoup expenses spent on an injured worker, effectively arguing that the negation of subrogation resulted in economic harm to her employer, Allied.
Sunoco responded by arguing that Section 204(a) only applied to an employer’s attempts to limit its own liability for workers’ compensation benefits and claims, and that it had no application whatsoever to releases that might involve third parties, ones not governed by the well-muscled reach of the Pennsylvania Workers’ Compensation Act.
Further arguing that the employee had never argued that the disclaimer was a contract of adhesion, or that it resulted from mistake, duress, fraud, or that it was either ambiguous or unsupported by consideration, Sunoco sought validation of the disclaimer, as waiver of any claim by the employee against it for a fall of personal injuries.
Dissecting Section 204(a) of the Pennsylvania Workers’ Compensation Act, the Supreme Court, in a majority opinion authored by Justice Eakin, held that only the first sentence of Section 204(a) deals with public policy issues, as the remaining sentences primarily discuss various sources and funds that an employee might receive, that might impact on the employee’s receipt and entitlement to workers’ compensation benefits.
Initially conceding that the first sentence in Section 204(a) was not free from ambiguity, the Supreme Court then examined the inter-relationship between Article II of the Act, in which Section 204 is one of five Sections as that Article related to the Pennsylvania Workers’ Compensation Act as a whole, as Article II is entitled “Damages by Action and Law”. As had been observed by the Supreme Court in its 1999 DecisionFonner v. Shandon, Inc. fundamental premise of the Pennsylvania Workers’ Compensation Act is that the relations between the employee and the employer under the Act are essentially contractual in nature, as the employee embraced the right of exclusive remedy, and the employer embraced the right of statutory immunity, establishing a duality of purpose inuring to the benefit of both parties.
Interpreting legislative history, the Supreme Court determined that the legislature had originally intended that the provisions of Section 204(a) would only apply to agreements between an employer and employee that might bar an employee’s right to make a claim against their employer, and not, by extension, to bar claims against third parties.
Stripping away legislative ambiguities and contractual aversion, the Supreme Court held that the disclaimer and waiver entered into by the employee did not prevent the employee from receiving full and just compensation for her work-related injuries, and that its effective negation of Allied’s potential right of subrogation, was a business decision that only affected Allied, and that it was not a deprivation of the employee’s rights.
Another argument advanced by the employee was that the disclaimer/waiver contemplated actions that could only occur in the future, with the Court holding that the disclaimer was a condition of employment, under which the parties, both the employee and employer, and that it certainly contemplated that it would affect future causes of action, as the disclaimer dictated how claims for work injuries would be handled in the future.
Holding that the employee was never forced to sign the disclaimer, and that the disclaimer did not prevent her from receiving workers’ compensation benefits for her work-related injuries, the Supreme Court held that the disclaimer/waiver was merely a guarantee to Allied’s customers that they would not be held legally responsible or liable for injuries sustained by Allied’s employees.
Justice Eakin’s Opinion was joined in by Justices Castille, Saylor, Todd, and McCaffery.
A concurring Opinion was issued by Justice Saylor, with Justice McCaffery joining in that concurring Opinion.
The concurring Opinion posed a “modest reservation”, in the course of invoking the concept of a “double recovery”, and the public policy reasons behind subrogation, with Justice Saylor confessing to some circumspection as to whether an injured employee is ever able to fully recover in tort, where the recovery is diminished by compromise, settlement, litigation costs, and subrogation.
Justice Baer dissented, predicating the dissent on the first sentence of Section 204(a) of the Act being “clear and unambiguous”, resulting in Justice Baer concluding that the disclaimer/waiver at issue clearly was prohibited by the plain language of that sentence.
Practical Tips:
Does the Bowman Decision place employers who do not secure the Bowman-type disclaimer/waivers at a competitive disadvantage to employers who do not secure such a disclaimer or waiver?
Will these types of disclaimers raise questions as to the adequacy of consideration, a question that might arise, if someone already employed is asked to execute such a disclaimer/waiver, in the wake ofBowman?
Is it possible to argue that continued retention of employment is, in fact, adequate consideration for aBowman-type disclaimer/waiver?
What if an employee refuses to sign the disclaimer/waiver?
No less true, what if an employee is terminated for refusing to sign the disclaimer/waiver?
And where do we begin to analyze the definition of either a “customer or client” under the disclaimer/waiver?
Given what is at stake by application of the Bowman rule, additional litigation is clearly forecast in the future with this novel issue.
ConnorsLaw LLP
Trust us, we just get it!
It is trust well spent!
Defending liability-based lawsuits throughout Pennsylvania, on behalf of insurance carriers, third-party administrators, and self-insured businesses and corporations, our 100+ years of cumulative experience defending our clients against negligence and occurrence-based liabilities, empowers our Casualty Practice Trial Group attorneys to be entrusted to create the factual and legal leverage to expeditiously resolve lawsuits and claims, in the course of limiting/reducing/extinguishing our clients’ potential liabilities under Pennsylvania’s common law, trial practices, and rules of civil procedure.
With every member of our trial practice group being AV-rated, our partnership with the Pennsylvania Defense Institute and the Counsel on Litigation Management magnifies the lens through which our professional expertise imperiously demands that we remain dynamic and exacting advocates for our clients, the same being businesses, corporations, insurance carriers, seeking our trial and litigation acumen, to navigate the frustrating and liability-intensive minefield pervasive throughout Pennsylvania trial practice and procedure.
Questions concerning tort and/or contract liability that might arise in the context of casualty claims can be directed to Kevin L. Connors atkconnors@connorslawllp.com (Phone: 610-524-2100 Ext. 112).
By: Lisa A. Miller, Esquire
The Court affirmed the Decision of the Appeal Board which denied the Claimant’s Fatal Claim Petition because the death did not occur within 300 weeks of the date of the original work-injury as required by Section 301 (c)(1) of the Workers’ Compensation Act.
Pursuant to an NCP, the Employer recognized that the Claimant/Decedent sustained an injury in the course of her employment described as a “lumbar strain/sprain” on October 15, 2003. The Claimant/Decedent underwent two spine surgeries. On June 28, 2006, the WCJ granted the Claimant’s Review Petitions in accordance with the parties’ stipulation that the description of the work injury be amended to “lumbar strain/sprain and lumbar disc disruption L4-5, resulting in total disc arthroplasty at L4-5 level.”
On June 8, 2011, the Claimant filed a Fatal Claim Petition alleging that on June 13, 2010, the Claimant/Decedent died as a result of mixed drug toxicity from medications prescribed by her treating physician. Employer filed a timely Answer denying the allegations and asserting that the Petition must be dismissed because the Claimant/Decedent’s death did not occur within 300 weeks of her work injury (October 15, 2003) pursuant to Section 301 (c) of the Act.
The WCJ denied the Fatal Claim Petition holding that the Claimant/Decedent died more than 300 weeks after the date of her injury. As such, the WCJ held that the Fatal Claim Petition was barred under Section 301 (c) of the Act.
Claimant appealed and argued to the Board that Claimant/Decedent’s death arose from an additional “injury” that was accepted pursuant to the WCJ’s 2006 decision, the Claimant/Decedent’s death was within the 300 week time limitation.
The Board held that the 300-week period of Section 301 (c) applies to the Claimant/Decedent because she sustained a work-injury as opposed to an occupational disease. The Board citedShoemaker v. WCAB (Jenmar Corporation), 604 A.2d 1145 (Pa. Cmwlth. 1992), noting that “even in the case of an apparently consequential injury, arising subsequent to the date of the recognized injury, the 300-week period between a decedent’s work injury and death will be calculated beginning with the date of the original work injury.”
The Board also rejected Claimant’s argument that the reason for distinguishing between a work-injury and occupational disease does not apply to this matter because the Claimant/Decedent had an “additional insidious injury.” The Board explained that the Commonwealth court has concluded that when the condition arose from a work-injury as opposed to an occupational disease that the death must occur within 300 weeks of the original work-injury, without exception under Section 301 (c).
Citing Shoemaker, the Commonwealth Court affirmed the Board, noting that the Commonwealth Court has consistently held, without exception, that Section 301 (c) (1) denies benefits where more than 300 weeks has elapsed between the commencement of the compensable injury and the injury related death.
By: Lisa A. Miller, Esquire
The Court reversed the Order of the Appeal Board, which reversed the order of the WCJ suspending the Claimant’s benefits.
On June 11, 1996, the Claimant sustained an injury to his right knee in the course and scope of his employment as a first class body mechanic. The Claimant was working under permanent, light duty restrictions earning an average weekly wage of $825.91. SEPTA accepted the Claimant’s injury and disability through a TNCP, but issued a Notice of Compensation Denial (NCD) on July 17, 1996. Claimant filed a Claim Petition in August 1996, and a Penalty Petition in June 1997 alleging an unreasonable contest.
The Claimant returned to his pre-injury light duty work shortly after the June 11, 1996 accident. On July 7, 1996, the Claimant was involved in a non-work related car accident. In that non-work related motor vehicle accident he sustained injuries to his left knee, low back and left hand. The Claimant went out of work for the motor vehicle accident on July 12, 1996. Claimant underwent surgery for the right knee injury that he sustained at work in January 1997, and returned to his pre-injury light duty position in April 1997.
On December 27, 1998, the Claimant was struck by a vehicle and suffered injuries to his left knee, low back, left hand and left shoulder in a non-work related incident. The Claimant stopped working again, and began receiving sickness and accident benefits. Claimant unsuccessfully attempted to return to work during the week of December 26, 1998, but has not returned to work since then.
On June 6, 2000, following hearings on the Claim Petition the WCJ issued an order granting the Claimant’s Penalty and Claim Petitions. The Judge awarded total disability benefits for the period in which Claimant was disabled from the June 11, 1996 work injury, and not otherwise compensated up until the date of his Decision and indefinitely thereafter.
On August 28, 2006, the Employer filed a modification and/or suspension petition alleging that as of April 12, 2006, the Claimant failed to respond in good faith to jobs referred to him that were within his physical and vocational capacities. During the course of the litigation, on January 30, 2007, the Employer filed a second modification/suspension petition alleging that the Claimant was able to return to work as of November 9, 2005, but for his December 1998 non-work related injuries.
Employer presented Dr. Bernstein, who opined that the Claimant’s work-related right knee injury had sufficiently recovered such that the Claimant was capable of performing sedentary work as of November 9, 2005, and that the only cause of the Claimant’s continuing disability was the non-work related December 1998 accident.
Employer also presented the testimony of a vocational expert, Michael Smychynsky who conducted a vocational evaluation of the Claimant. Mr. Smychynsky testified that he located four open and available positions that would have provided Claimant with wages up to $400.00 per week. According to Mr. Smychynsky’s testimony, the Claimant went to each of the interviews, but only put his name and telephone number on the applications, and at the conclusion of two of the interviews, began “swearing” and “threatening” people.
Claimant presented the testimony of Dr. Greene, his treating physician. Dr. Greene testified that Claimant was not capable of returning to work due to his work-related right knee condition. However, Dr. Greene acknowledged that he had not reviewed Claimant’s treatment records from four previous surgical procedures on the Claimant’s right knee or any records in connection with the Claimant’s December 1990 accident.
The Claimant also presented the testimony of Donald Jennings, a licensed psychologist and certified vocational expert, who testified that Claimant’s limited reading, writing and spelling abilities accounted for his minimal responses on the employment application. However, on cross-examination, Mr. Jennings acknowledged that the only reason the Claimant stopped working for employer was the December 1998, non-work related accident.
The WCJ found Dr. Bernstein’s testimony more credible than the testimony of Dr. Greene, and concluded that employer met its burden of proving that Claimant’s work related injury had resolved to the point where he could perform sedentary work, but for his non-work related injuries, which rendered him incapable of all possible work activities. The WCJ determined that employer notified Claimant of his release to sedentary work and referred four open and available positions to the Claimant which were within his vocational and physical capabilities which would have paid $400.00 per week, but the Claimant failed to pursue the positions in good faith. As such, the WCJ granted the modification petition and reduced Claimant’s benefits for the period of April 12, 2006 to January 26, 2007. In addition, the WCJ found that the Claimant’s non-work related injuries rendered him incapable of all possible work activity, and suspended the Claimant’s benefits as of January 26, 2007.
The Claimant appealed, and the Board affirmed the WCJs decision to modify Claimant’s benefits. The Board agreed with the Claimant that the Judge erred in suspending Claimant’s benefits because employer failed to establish the availability of a job equal to or greater than Claimant’s pre-injury average weekly wage of $825.91.
On appeal to the Commonwealth Court, SEPTA argued that it was not required to demonstrate job availability given that Claimant’s non-work related injuries are totally disabling. The Court agreed and noted that a suspension of benefits is governed by Section 413 of the Act. The Commonwealth Court affirmed the decision of the Supreme Court inSchneider, Inc. v. WCAB (Bey), 560 Pa. 608, 747 A.2d 845 (2000), in which the Supreme Court held that an employer was not required to show job availability where the Claimant was totally disabled by non-work related conditions. InSchneider, the Claimant suffered a work-related injury to his head and neck. While he was receiving temporary total disability benefits, the Claimant was involved in a non-work related incident and suffered severe brain damage and paralysis, leaving him permanently unable to work in any capacity. The Court considered the Claimant’s serious non-work related injuries prevented him from returning to work and the court concluded that it would be unreasonable to require the employer to present evidence of job availability. The Court explained that requiring the employer to “show that a sedentary or light-duty position is available to the Claimant would be an exercise in futility by virtue of the Claimant’s physical condition, and we can see no valid point in requiring such a show.”
The Employer argued that Schneider applies to this matter. The Claimant’s injuries are not as severe as the injuries inSchneider, but the evidence supported the WCJ’s finding that the Claimant’s non-work related injuries rendered him incapable of all possible work activities. Like the Claimant inSchneider, the Claimant was involved in a non-work related accident that left him totally disabled.
Significantly, in this case, Claimant had successfully returned to his pre-injury position 20 months earlier. Thus, the records amply support the WCJ’s conclusion that the Claimant’s work injury had resolved where he could perform sedentary work, but for his non-work related injuries. Under the circumstances, where Claimant’s non-work injuries rendered him incapable of all possible work activity, we believe that it would be unreasonable to require employer to present evidence of available jobs.
Two years away from the one-hundredth anniversary of the enactment of the Pennsylvania Workers’ Compensation Act, Governor Thomas Corbett has proposed several reforms to the Pennsylvania Workers’ Compensation Act, including provisions that would reform the following:
As is clear, the proposed reforms primarily deal with six areas:
REFORMS PROPOSED BY THE PENNSYLVANIA CHAMBER OF
BUSINESS AND INDUSTRY
In addition, reforms have also been proposed by the Workers’ Compensation Executive Committee of the Pennsylvania Chamber of Business and Industry. The Chamber has indicated that it plans to make reform of workers’ compensation procedures and policies a priority in 2013. The Chamber is supported by an Employer base, with 75% of Pennsylvania Employers supporting workers’ compensation reform.
The proposed reforms are supported by the Chambers’ 2012 Economic Survey, with Pennsylvania Employers indicating that the Pennsylvania workers’ compensation system should be improved through legislative reforms, specifically directed at the medical costs associated with workers’ compensation claims, as Employers were reporting a workers’ compensation insurance premium increase, with only one percent of Pennsylvania Employers noting a decrease in workers’ compensation insurance premiums, with 34% responding that there had been no change in their workers’ compensation costs, and 52% indicating premium rate increases for workers’ compensation insurance.
The Pennsylvania Chamber is in support of reforms to improve efficiency, provide necessary updates to the Pennsylvania Workers’ Compensation Law, and to address deficiency that the Chamber has identified as being conducive to abuse.
Specifically, the Chamber had advocated for legislation (HB 808), introduced in the 2011-2012 session of the General Assembly, that would have extended the period during which an injured worker would be required to seek treatment through a Panel of medical providers established by the Employer, expanding the 90 day period currently required under the 1996 Reforms to the Pennsylvania Workers’ Compensation Act, most often referred to as Act 57, to a 180 day period, with the Chamber indicating that both Employers and Employees consistently reported that injured workers treating with Panel Providers were more satisfied with the quality of care and often returned to work faster, than injured Employees who treated with non-Panel Providers.
The legislative reforms currently proposed by Governor Corbett and the Pennsylvania Chamber of Business have very strong opposition from several lobbying groups, to include the trial lawyers and physician/medical provider groups, that oppose limitations on managed care, fee schedules, utilization review, and prescription reimbursements.
The proposed legislative reforms remain in committee, with no clear legislative directives as to enactment.
Opponents of the proposed reforms claim that proposals limit access to reasonable and necessary medical care, and otherwise conflict with the humanitarian and remedial public policies forming the legislative basis for workers’ compensation legislation.
ConnorsLaw LLP
Trust us, we just get it! It is trust well spent!
Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting 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’s Workers’ Compensation Act.
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.
Of what significance is it when a claimant who has been treating with a cardiologist for decades files a pulmonary claim but never produces the cardiologist to testify? That was the key issue inDonato v. Jersey City Municipal Utilities Authority, A-5984-11T4 (App. Div. August 21, 2013).
John Donato worked for the JCMUA from 1961 to 1974 and again from 1986 to 1999. He worked both as a clerk and a vehicle maintenance supervisor supervising the maintenance of cars, trucks, dump trucks, and vacuum trucks. He was exposed to soot and whatever else workers brought back from the sewer plant as well as diesel fumes and dust. In addition, the property where petitioner worked had apparently been contaminated during the ownership of a prior owner with chromium and was now being monitored by the Department of Environmental Protection.
In 2004, petitioner was diagnosed with pulmonary disease. He produced an expert, Dr. Malcolm Hermele, who said petitioner had a 75% partial permanent disability for probable bronchitis, restrictive pulmonary disease, small airways disease and COPD. He said overall petitioner was totally disabled. He could not distinguish whether petitioner’s breathing problems were due to pulmonary or cardiac causes.
Petitioner had been treating with a cardiologist for 23 years. He himself testified that he thought his breathing difficulties were related to his heart condition. He admitted that he had never treated with a pulmonary doctor even though he noticed that his breathing problems were worsening since 1988.
Dr. William Kritzberg testified for respondent. He said that the pulmonary function testing he performed on petitioner did not reveal a mild obstruction in pulmonary capacity. He felt that petitioner’s pulmonary symptoms were due to heart surgery, drugs used for his heart, and his body weight. He also said that any chromium exposure would not affect pulmonary performance.
The Judge of Compensation noted that respondent’s expert was board certified in internal medicine but petitioner’s expert held no board certifications. She also said that she drew an adverse inference from the failure of petitioner to produce the certified copy of the records of the treating cardiologist, have Dr. Hermele review them, or produce the cardiologist to testify.
Said records would have reflected any complaints petitioner had concerning his breathing. It is quite simply implausible that petitioner has the conditions Dr. Hermele diagnosed and that petitioner’s treating cardiologist never referred petitioner to a pulmonologist for treatment (petitioner repeatedly testified that he never received any pulmonary treatment). Certainly, petitioner’s treating cardiologist of 23 years was in the best position to opine as to whether Donato’s symptoms were due to his severe heart condition or due to a pulmonary condition. That petitioner’s cardiologist never referred petitioner for pulmonary treatment or prescribed pulmonary medicine leads the court to conclude that petitioner’s complaints are not ‘due in a material degree’ to his occupational exposure at the JCMUA. He was sent to Dr. Hermele by his attorney for a permanency evaluation, not for treatment.
The Appellate Division agreed. It said,
Given petitioner’s more than two-decade history of heart disease, those records and the opinions of the treating cardiologist in relation to petitioner’s claim that his pulmonary condition was causally related to the workplace, rather than his heart disease, were highly relevant and probative. It was petitioner who bore the burden of presenting the requisite proofs to establish his claim. . . . Thus, the fact that petitioner’s treating cardiologist, as a witness, or his cardiologist’s treatment records may have been equally available to both parties did not preclude the judge from ‘making a negative inference from the fact that petitioner never produced a certified copy of the records from his treating cardiologist or had Dr. Hermele review said records as part of his evaluation.’
On a separate, but equally important issue, the Appellate Division disagreed with the petitioner’s argument that respondent violatedN.J.S.A. 34:15-64 by compensating Dr. Kritzberg far in excess of the statutory maximum of $400 for his evaluation and $400 for his trial testimony.
We construe the language of the statute as limiting the fees that may be charged by an evaluating or treating physician in order to maximize the recovery on behalf of an injured worker. Therefore, the limitation on chargeable fees is intended to protect petitioners. Moreover, even if we were to construe the statute as limiting fees chargeable by medical experts as applying to respondents’ experts, as well as petitioners’ experts, any violation should not result in the exclusion of the report on that basis alone. Petitioner presented absolutely no evidence before the compensation judge to support his contention that if there are no limitations placed upon fees charged by respondents’ experts, respondents will be able ‘to afford to bring a more qualified expert to court to offer opinions.’
This case is one that practitioners should turn to when trying occupational disease claims. The rules for discovery in the Division of Workers’ Compensation are somewhat lacking, and this case points out the importance of getting prior treating records, even if there is no particular rule that requires prior records to be produced. The outcome of this case turned on a complete failure of discovery in obtaining prior cardiology records and forwarding them to the experts.
September 5, 2013
Commission Keeps Claimant's Counsel and Recording Devices out of Employer's Medical Evaluationsby Merrilee Harrell
A recent decision of the Alaska Workers’ Compensation Appeals Commission concluded that claimant’s counsel may not attend and record an employer’s independent medical evaluation (EME) unless the examining physician consents. InASRC Energy Services, Inc. v. Kollman, AWCAC Decision No. 186 (August 21, 2013), the Commission reversed an interlocutory decision of the Alaska Workers’ Compensation Board that injured worker Jeffrey Kollman may record an EME and have a witness present despite the objection of the employer’s physicians. Kollman v. ASRC Energy Services, Inc., AWCB Decision No. 13-0076 (June 27, 2013). The Board had relied onLangfeldt-Haaland v. Saupe Enterprises, 768 P.2d 1144 (Alaska 1989), which held that a civil litigant had a right to record a court-ordered Rule 35 medical evaluation and have his attorney present during the evaluation. On appeal, the Commission noted that Civil Rule 35 is significantly different from AS 23.30.095(e) of the Alaska Workers’ Compensation Act. AS 23.30.095(e) states that “The employee shall... submit to an examination by a physician or surgeon of the employer’s choice...” which, the Commission noted, leaves the choice of EME physician exclusively with the employer. A Rule 35 medical evaluation, in contrast, may be ordered by a judge “only on motion for good cause shown and upon notice... to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”
The Commission also noted that Langfeldt-Haaland was a 3-2 decision that explicitly limited its holding to Civil Rule 35 medical evaluations. The majority had argued the importance of allowing counsel to “observe shortcomings and improprieties during the examination which could be the subject of inquiries on cross-examination at trial; and ... [to] object to questions posed to the plaintiff during the examination that concern privileged information.” The dissenting judges pointed out that “adopting such a rule could have a chilling effect on otherwise reputable physicians performing medical examinations.” The Commission found the dissent’s position more persuasive, and also took into account a survey of SIME physicians that showed a significant percentage of the physicians surveyed would decline to perform evaluations if they were required to allow the evaluation to be witnessed and recorded. Requiring EME evaluations to be witnessed and recorded would thus have a chilling effect on the employer’s choice of physician if the employer’s choice was limited by such a requirement.
The commission emphasized that the plain language of AS 23.30.095(e) gives the employer the exclusive choice of EME physician, noting that the statute “does not say that the choice of an EME physician is exclusively the employer’s, provided that the employer chooses a physician who would allow witnessing and recording of the EME.” The commission concluded that such a restriction would interfere with the employer’s choice of physician as contemplated by AS 23.30.095(e). Kollman has appealed the Commission’s ruling to the Alaska Supreme Court.
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========RWGB seeks to provide the latest information on workers' compensation law in Alaska. The information provided above is based upon the decision of the Alaska Workers' Compensation Appeals Commission and is subject to change on appeal. RWGB will issue an updated newsletter should the Alaska Supreme Court overrule the Commission's decision.
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Mary Patterson worked for The Atlantic Club as a personal trainer, training clients from 6:00-7:00 a.m., from 8:00-11:00 a.m., and from 12:00-3:00 p.m. She was injured at 11:15 a.m. when she tripped and fell, breaking her wrist on the premises. The Atlantic Club denied the claim asserting that she was not in the course of her employment at that specific point in time.
There were various facts in dispute, but the parties agreed that Patterson’s 11:00 a.m. client did not show up for her training session. Further, the parties agreed that Patterson was not wearing her uniform at the time of her injury, namely a black trainer shirt. She said she had taken it off due to the heat. Patterson claimed that she was returning exercise bands which she planned to use for her 11:00 a.m. client when she tripped and fell. Her employer argued that she was working out when she was injured.
There was conflicting evidence on whether petitioner punched out at 11:00 a.m. A time card entered into evidence showed that Patterson punched out at 11:00 a.m. However, petitioner’s former manager testified that he altered Patterson’s time card, at the employer’s request, to indicate that she had punched out and was not working at the time of her injury. The Judge of Compensation found this evidence to be unreliable for a number of reasons. First, the former manager had been fired some time after this event for submitting time cards for compensation for personal training sessions with a person who was deceased. Further, the time card was shown not to have been changed for about two weeks.
The general manager of the health club, Kathy Guibord, testified that Patterson may not have punched out at the time of the accident. However, petitioner told Guibord that she was working out on her own and was not training anyone when she was injured. Guibord noticed that petitioner was in her workout clothes at the time of her injury.
The Judge of Compensation viewed the issue of punching out on the time card as insignificant. He instead focused on the detail that petitioner was out of her uniform. “[S]he changed out of her uniform and into her personal clothes because she was on her personal time and no longer working.” The Judge of Compensation dismissed the case, holding that petitioner failed to prove her injury occurred during the course of work.
The Appellate Division affirmed the dismissal of this case:
Patterson has simply not met her burden. . . . She was not wearing the required uniform while she alleged she was waiting for her client. Guibord testified Patterson told her immediately after the incident that she had been working out on her own when she fell and broke her wrist. Given the judge’s credibility findings, which we review deferentially, his ultimate conclusion does not appear to be arbitrary, capricious, or unreasonable.
Petitioner made an interesting argument on appeal. She maintained that there was a mutual benefit to her employer in her working out even if it was for herself. She contended that employees were affirmatively encouraged to work out at the club in order to increase the employer’s business. Unfortunately for petitioner, this issue had not been raised in the trial in the Division of Workers’ Compensation. Seldom will an appeals court address an issue not raised in the original trial. Furthermore, the witnesses Patterson relied on to establish this point were found by the Judge of Compensation to be lacking in credibility.
This case is useful for practitioners in that it shows that not all injuries at work are compensable. The holding here was that the activity which led to petitioner’s injury was personal and not part of her job duties. The case can be found atPatterson v. The Atlantic Club, A-0657-12T1 (App. Div. July 11, 2013).
Winning on summary judgment on fact sensitive ADA cases can be quite difficult as seen inCroy v. Blue Ridge Bread, Inc. d/b/a Panera Bread, 28 ADA Cases 414, (W.D. Va. No. 3:12-cv-00034, July 15, 2013).
Mark Croy worked for Blue Ridge Bread (hereinafter BRB) as a café worker. In 2008 he received a promotion in the marketing department. He received a formal write-up on March 14, 2009 for failing to properly prepare for an in-store event and a second write-up on May 21, 2009 for failing to update a store’s Facebook page in a timely manner. He received a third write-up on December 28, 2009 for using an inappropriate tone in a phone call with his supervisors. He also repeatedly failed to submit Product Request Forms which led to shortages in product.
Notwithstanding these deficiencies, Croy had a performance review in 2009 that resulted in a “meets expectation” assessment. He also claimed that he was told in 2010 that his performance was excellent and he would be getting a large bonus.
In February 2011, Croy began to experience flu-like symptoms and needed time off to see a doctor. He worked reduced hours for several days. He was given a preliminary diagnosis of HIV on March 10, 2011. He sent a Facebook message that same day to one of his supervisors stating that he went to an infectious disease specialist and there were strong indications that he had a virus like HIV. He said that over the next few weeks he had numerous conversations with two supervisors advising them of his HIV diagnosis.
On March 14, 2011, Croy returned to his regular schedule. He said his supervisor asked him to provide a doctor’s note stating that he was physically able to return to work. However, on March 24, 2011, Croy applied for a disability insurance policy through BRB. On March 25, 2011 Croy presented a note from his doctor stating that he was able to return to work full-time without any restrictions. The note said nothing about his medical condition.
BRB denied that it was aware of the HIV diagnosis. At most the company said it had been made aware of the possibility of such a diagnosis.
On March 29, April 4, and April 8, Croy once again failed to submit Product Request Forms. Croy admitted his mistake: “No questions . . . I screwed it up. I am just at a lost at [sic] my mind the past few weeks. Too much going on I guess and too much distraction . . . I am sorry to let you and the department down like this, but I view it as a temporarily distracted and worried time in my life that will not be repeated.”
Pursuant to the company’s three strike policy, Croy’s employment was terminated. The company claimed that after the termination in mid-April 2011, Croy then for the first time advised that he was HIV positive. Crow sued under the ADA claiming the BRB terminated his employment because of his HIV positive status.
The company made a motion for summary judgment and argued that Croy had repeatedly been written up for violations, particularly in 2009, and repeatedly failed to submit Product Request Forms. According to the company, this was the sole reason for his termination. The Court did not accept this position. “While Croy admits to some performance errors during his nearly five-year tenure with BRB, he was never told he was in danger of losing his job until the March 28, 2011 write-up. His most recent performance review indicated that he was meeting expectations, and he had recently been told that he was doing an excellent job and would be receiving a substantial bonus in the coming year.”
In a key point of the decision, the Court noted that the company had never formally disciplined Croy until close in time to his diagnosis. “By the defendant’s own admission, Croy had made similar mistakes numerous times in the past and had never been formally disciplined. Additionally, Croy reports that a number of his co-workers, including his supervisors Jackson and Perpetua, also failed to properly submit PRFs and were not disciplined for their mistakes. The court believes that Croy has at least established a genuine question of fact as to whether he was meeting BRB’s expectations.”
The Court observed that Croy had not been perfectly clear regarding his diagnosis. In fact, he had denied in one place on his disability application having had any diagnosis of HIV in the past seven years. Nonetheless, the Court said that there was a significant dispute whether Croy had told his two supervisors about his diagnosis before he was fired. “Although the defendant can dispute this version of events at trial, it cannot do so at summary judgment where the plaintiff’s testimony must be credited. Moreover, it is undisputed that, at the very least, Croy told his supervisors of a preliminary diagnosis of HIV, as documented in the March 10, 2011 Facebook message he sent to Jackson.”
It is important to understand this decision merely allowed the case to proceed to trial, meaning that a jury could ultimately conclude either that the company terminated Croy for purely performance reasons or that the company improperly terminated him on account of his HIV status. In analyzing what went wrong for BRB, the case shows why a
company not only needs to document deficiencies on the job but also take progressive discipline if the problem recurs. The failure of the company to put Croy on notice that his job was in danger when he made repeated mistakes in prior years came back to hurt the company’s chances in its motion for summary judgment.
Beginning July 1, 2013, the maximum TTD/PTD rate will be $853.08 per week and the maximum PPD rate will be $446.85 per week. The mileage allowance for travel expenses will be 53.5 cents per mile.
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
Reid v. Metropolitan Atlanta Rapid Transit Authority ("MARTA")
(07/16/2013, Georgia Court of Appeals)
Georgia Court of Appeals rules that claims seeking only alleged past due benefits or penalties are not subject to the two-year statute of limitations. Employee allowed to pursue claim for alleged past-due penalties on late-paid indemnity benefits eight years prior.
Mr. Reid was injured at work in October, 1999, and filed a claim for benefits with the State Board of Workers' Compensation. MARTA did not controvert the claim and began paying him temporary total disability ("TTD") benefits, and ultimately made a total of 32 payments. It was undisputed that 12 of those payments were untimely or late. The claimant returned to work on June 10, 2002, at which time the payment of TTD benefits was suspended.
In May, 2010, Mr. Reid's attorney sent a letter to MARTA requesting it pay the statutory penalty due on the 12 late TTD payments. MARTA declined, asserting that demand for payment was barred by the applicable statute of limitations. The matter went to a hearing on the payment of statutory penalties. The administrative law judge denied Mr. Reid's request, finding the claim constituted a "change in condition" and was therefore barred under the two-year statute of limitations. The ALJ's ruling was affirmed by the appellate division of the State Board, which was also affirmed by the Fulton County Superior Court. The Georgia District Court of Appeals reversed the ruling that the two-year statute of limitations was applicable, as the employer/insurer had failed to pay the late payment penalties nearly ten years earlier. The Court found that since the employee was not seeking to recover statutory late payment penalties because of his physical or economic condition, but because the penalties constituted benefits due him under the law. Therefore, the two-year statute of limitations did not apply.
This opinion appears to contain two important issues. One is that the two-year statute of limitations may not apply in any case in which an employee is seeking to recover all benefits "due," rather than additional benefits due as a result of either the accident or a change in condition. This would arguably encompass late payment penalties, missed TTD checks, correct calculation of AWW or TTD rate, even if a substantial period of time (in this case, ten years) had passed since the last payment. Whether or not this decision allows for the resurrection of any "unsettled" or "unresolved" claim based upon the failure of the employee to receive the benefits or penalties is not clear. It should also be noted that Mr. Reid's initial indemnity claim with the State Board remained pending and was not closed. In the future, such claims should proceed to hearing, or be dismissed to minimize the potential for extremely old claims being reasserted.
The other interesting issue is whether or not payment or an award of the late payment penalties somehow resurrects the two-year statute of limitations for an additional "change in condition" claim.
In reaching its conclusion, the Appellate Court indicated that under the statute's current language, an employer is precluded from asserting the statute of limitations as a defense to any subsequent attempt by an employee to recover payment of compensation which has accrued and owed him as a matter of law but which was wrongfully withheld by the employer. The Court also noted that applying the statute could lead to some results which may be considered absurd. However, that absurdity needed to be addressed by the Legislature, rather than by the Courts.
At this point, it should be assumed an effort will be made to get the Supreme Court of Georgia to take this case for review. If it is presented to the Supreme Court for consideration, the ruling could have far-reaching effects on the system here in Georgia.