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.
An employee works regularly in Cherry Hill, N.J. but three or four times a year is required to work at the company’s north Jersey location in Parsippany. On the way to the Parsippany office, the employee is in a car accident and suffers serious injuries. The employer gets the claim and confers with the carrier and defense counsel. The question is was the employee on a special mission or is this accident barred by the going-and-coming rule, now known as the premises rule?
This issue arises quite frequently in New Jersey workers’ compensation. A technical reading of the law leads to the conclusion that the claim is barred. The employee is just on her way to work, even if it is not the normal place of employment. Counsel for the employee will argue that this does not seem fair at all, but as former Supervising Judge of Bergen County, The Honorable Ray A. Farrington, used to say, “Fair is a place where people come together to see who can grow the biggest watermelon. Let’s see what the law says.”
Here is what the statute has to say:
Employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer; provided, however, when the employee is required by the employer to be away from the employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer.
The key word in the statute as far as a special mission is concerned is “away” from the employer’s place of employment. In this case, the employee is not required to be away from the place of employment at all. It is just a different place of employment. An employer could have multiple places of employment where an employee goes to work from time to time, and if that is the case, the employee’s journey to these distant offices is not covered. It is only a special mission when the employee is required to be away from the place of employment.
This point was made by our Supreme Court in Novis v. Rosenbluth Travel, 138 N.J. 92 (1994). The petitioner in that case worked in the New Jersey office of the travel company but was sent to the branch office in Connecticut to work for a period of time. She stayed in a hotel in Connecticut and then commuted from the hotel to the branch office for several days. One of those days she got out of her car and slipped and fell on the sidewalk on property leading from the parking lot to the building containing the employer’s branch office. The employer did not own or control the parking lot and denied the claim.
Petitioner argued that this was a special mission. She worked in New Jersey almost all the time and was sent to the branch office in another state to work for a short period of time. The Supreme Court disagreed with petitioner. It analogized her hotel to her home and held that the drive from her hotel to the branch office was her normal commute to work. Therefore her injury was not compensable because she had not yet arrived inside the work premises of the branch office.
This is the leading case in New Jersey for multiple employer work sites, and practitioners have both this case and the statutory language above for guidance on this increasingly common issue.
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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.
Employers must carefully view job descriptions because ADA law suits often turn on the wording of those job descriptions. In Stephenson v. Pfizer, 2016 U.S. App. LEXIS 3863 (4th Cir. 2016), a long-time sales person for Pfizer developed vision problems which disqualified her from driving. Stephenson had been an extremely successful sales representative who had been inducted into Pfizer’s “Hall of Fame” for sales representatives. She would spend eight of her ten hours each day meeting with physicians in their offices to discuss the merits of certain pharmaceutical products. She had been doing this successfully since 1984, and Pfizer gave her a car to travel from her home to sales meetings.
In 2008 Stephenson developed a vision problem which caused her to lose 60% of the vision in her left eye. Nonetheless, she was able to drive without accommodations. However, in 2011 the condition afflicted her right eye as well, causing the loss of 60% of the vision in that eye and disqualifying her from driving. On October 27, 2011 Stephenson asked Pfizer to provide her with a driver to take her to sales meetings. She researched pricing estimates from potential drivers and shuttle services. Pfizer said that request was inherently unreasonable, and the company encouraged Stephenson to move to another position in the company which did not require driving. Stephenson declined that offer and brought suit under the ADA.
The Pfizer job description for sales representative did not specifically list driving as an essential job function. In spite of this, the district court granted summary judgment to Pfizer, ruling that driving was an essential function of the job whether or not it was included in the job description. The court rejected Stephenson’s argument that travelling was really the essential function.
On appeal the Fourth Circuit Court of Appeals noted that the job description for Stephenson’s position did not require that the sales rep have a driver’s license. Discovery showed that there were postings for seven other similar positions in 2014; five postings did not mention possessing a driver’s license while two did mention it.
The Appeals Court began by observing that the ADA does not require an employer to reassign any essential job function nor require the employer to hire another employee to make reasonable accommodation. However, the Court said that Stephenson was entitled to a trial in this case on the issue of whether driving was an essential job function. The Court said:
If driving is an essential function of her sales position, Stephenson – who cannot drive no matter the accommodation – is not qualified under the ADA and her claim fails as a matter of law. On the record before us, however, summary judgment is not warranted because there is a genuine dispute of material fact as to whether the essential function at issue is driving or travelling. That factual issue is for a jury to resolve.
The Court explained that an employer must accommodate an employee with a disability who is qualified, which means one who is able to perform the essential functions of the job. So the threshold issue in this case came down to whether driving or travelling is an essential function. Had the employer included in Stephenson’s job description a statement that driving was an essential job function along with the possession of a driver’s license, there is no doubt that Pfizer would have won this case on appeal. Courts generally defer to the employer on what is or what is not an essential job function, but when an employer says one thing and the job description says another, that inconsistency hurts the employer’s position.
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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 February 15, 2017 Governor Chris Christie signed a new law requiring health insurance coverage for treatment of substance abuse disorders and certain restrictions on the prescription of opioids and other Schedule II drugs. The bill is touted as one of the most aggressive in the nation, and compensation practitioners are asking what will be the impact on New Jersey workers’ compensation?
There are several key provisions contained in this bill that will have an impact on workers’ compensation practitioners. First, the bill sets time limits for how long prescriptions may be written. This aspect of the bill will directly impact workers’ compensation physicians. The initial prescription for an opioid cannot exceed a five-day supply for acute pain. After the fourth day, upon consultation with the medical provider, the physician can issue a subsequent prescription up to a 25 day supply. The bill does not say whether “patient consultation” means an in-person visit or a telephone call. However, emergency regulations are being promulgated on a number of issues right now, and this is likely to be one area addressed in those regulations. It should be noted that the language of the bill focuses on “acute” pain patients, and it seems clear that this language does not apply to chronic pain patients.
The bill also requires the provider to take steps that many workers’ compensation pain management doctors in New Jersey already perform:
§ Taking a thorough medical history, including the patient’s experience with non-opioid medications and non-pharmacological pain management as well as substance abuse history;
§ Conducting and documenting a physical examination;
§ Developing a treatment plan focused on the cause of the patient’s pain;
§ Accessing the Prescription Monitoring Program, which is an invaluable resource that tracks all prescriptions for narcotics and opioids from all providers going back several years.
When physicians renew prescriptions beyond the five-day period, they must document the rationale for the issuance of the subsequent prescription. The bill recites that prior to the initial and the third prescription, the practitioner must discuss with the patient the risks associated with the drug being prescribed, including risks of overdosing, the reason why the prescription is necessary, and alternate modes of treatment.
Most New Jersey pain management physicians in workers’ compensation already have pain management agreements or contracts entered into between the patient and provider, setting forth the terms of treatment. The bill now requires such agreements to be executed at the time of the third prescription of an opioid drug. These pain management contracts are crucial because they establish what the patient must do to continue to obtain opioid medications and what must not be done. Urine samples and other measures are generally part of these pain management agreements.
The new bill creates staged and mandatory counseling with documentation designed to assure the public that pain medications are seriously evaluated by the prescribing physician. If the controlled dangerous substance or other prescription opioid is continuously prescribed for three months or more, the practitioner must, a minimum of every three months, review the course of treatment as well as any new information about the etiology of the patient’s pain and progress. Most importantly, the physician must assess prior to every renewal whether the patient is experiencing problems associated with physical and psychological dependence and then document the results of the assessment. The physician must consider stopping the use of the controlled substance, decreasing the dosage or trying some other drug or treatment modality to reduce dependency.
Workers’ compensation carriers and third party administrators can expect greater detail in reports generated by pain management physicians as a result of this legislation. These reports should focus on the standards outlined above, particularly whether the patient is at risk of or becoming dependent on opioids and whether some other modality should be used. Employers, carriers and third party administrators will certainly take note of those physicians who expend time thoroughly documenting these issues and explaining the rationale for their recommendations.
The bill also recites language from guidelines issued by the New Jersey Office of the Attorney General on March 1, 2010 regarding the limitation of Schedule II controlled dangerous substances to quantities which do not exceed a 30-day supply. That guidance is now incorporated in this bill and does allow a physician to issue multiple prescriptions for up to a 90-day supply with renewals on a 30-day basis.
This bill may have the effect of enhancing the use of pain management physicians who eschew the use of opioids and prefer instead to do interventional modalities, such as injections and blocks. There are a variety of pain management doctors in New Jersey, and not all of them prescribe opioids or Schedule II controlled dangerous substances. Some prefer other modalities precisely because of problems associated with opioids.
One other central aspect of this bill pertains to health insurance carriers which now must provide coverage for treatment of those with substance abuse disorders. That aspect will not have much impact at all on workers’ compensation because employers, carriers and third party administrators have been paying for many years for reasonable and necessary care of those with work-related substance abuse disorders (usually from addiction to authorized prescriptions of opioids and prescription narcotics). Many workers’ compensation cases involve workers who have become addicted to opioids used in connection with worker injuries, requiring admission to licensed programs designed to wean them off narcotics.
For health insurance carriers, this new coverage provision is important because it mandates payment of benefits for the first 180 days per plan year of inpatient and outpatient treatment of substance abuse disorders, if such treatment is deemed medically necessary by the covered person’s physician, licensed psychologist, or psychiatrist.
Without a doubt, this legislation highlights a growing problem in the State of New Jersey in connection with high numbers of patients who have become addicted to and dependent on opioids to function in their lives. Without intending to do harm, some pain management doctors have in the past effectively traded acute pain relief for long term dependency and addiction. That is less likely to occur in the future on account of this legislation.
The undersigned will keep readers posted as the new emergency regulations emerge on this important legislation. The effective date of this legislation is May 16, 2017. My thanks to our librarian Francine Viden for her assistance on research of this and prior legislation.
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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.
Injured workers continue to attempt to sue their employers in civil court for bodily injury no matter how often our courts make clear that such suits are barred unless intentional harm can be proved. For every successful claimant who meets the intentional harm standard, there are thousands whose cases are dismissed on summary judgment. Such is the case of Madkiff v. Frazier-Simplex, Inc., A-1328-15T1 (App. Div. February 23, 2017).
Mr. Madkiff worked for Frazier-Simplex and was injured on January 15, 2010 while he and other workers were trying to demolish a glass furnace at the Alcan Glass plant. Jackhammers were being used to break up a dense fire brick material that lined the glass furnace. The jackhammering process created debris the size of boulders. The workers were using a mechanical hoist to remove the boulders, but it was taking more time this way. So the foreman told the workers to stop using the hoist. Plaintiff Madkiff and others complained to the foreman that “somebody is going to get hurt lifting these boulders.” The foreman said “do it or we will get somebody else to do it.”
Plaintiff began trying to manually remove the debris. He lifted a boulder and felt sudden pain in his neck and back that incapacitated him from working. He said that he knew the boulder weighed between 150 and 200 pounds but thought he could lift the boulder. When asked if he thought the foreman was intending to injure him by telling him not to use the mechanical hoist, plaintiff said “I don’t know.”
Mackiff brought a workers’ compensation claim and also sued his employer contending that the employer’s action met the exception under the exclusive remedy rule in New Jersey because it constituted intentional conduct. The trial court dismissed his suit, and plaintiff appealed. The Appellate Division explained that plaintiff’s claim would be barred unless he could prove that his employer had the subjective intent of injuring him, or engaged in intentional conduct with a substantial certainty that plaintiff would be injured.
The Court distinguished between reckless conduct and intentional conduct. “Plaintiff cites his testimony that he and some co-workers told the foreman ‘somebody is going to get hurt’ lifting boulders and that the foreman told them to do it anyway. That did not show the foreman deliberately intended to injure plaintiff.” The Court said that mere knowledge of a strong possibility of a risk does not prove substantial certainty. The Court said, “Plaintiff proffered no evidence, expert or otherwise, that it was virtually certain he would be hurt, let alone that the foreman or defendant was aware of that virtual certainty.”
For his part, plaintiff argued that the foreman’s instructions to stop using the mechanical hoist amounted to intentional removal of a safety device. But the Court did not buy this argument. “The mechanical hoist was not a ‘safety device’ on a dangerous machine. Rather, like a pulley, lever, shove, or forklift, it was a tool used by workers to accomplish their tasks.” In the end the Court said that “it was a common fact of life for laborers in the construction and demolition industry to injure their necks and backs when lifting heavy objects.” Plaintiff could not show that his injury was “more than a fact of life of industrial employment.”
Employers will continue to win suits like this for intentional harm because the New Jersey legislature fully intended to make workers’ compensation the exclusive remedy for workers who suffer injuries arising out of and in the course of employment with only truly rare exceptions.
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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.
The Fraternal Order of Police and certain police officers challenged the City of Camden Police Department for allegedly retaliating against certain officers who complained about city policies. One of the allegations involved the Family and Medical Leave Act. The city initiated a policy called “directed patrols” in 2008. That policy required officers to engage with city residents who were not suspected of any wrongdoing with the goal of obtaining information about the community and becoming more visible in the community. Contact with individuals on directed patrols was tracked and recorded.
Several officers complained about the policy and alleged that they were then placed on a low-performer list for failure to comply with the policy. Some were allegedly reassigned to regular patrol duty with a resultant pay decrease. The City responded that it expected a minimum of 27 directed patrols per shift for officers on supplemental patrol and 18 for officers on regular patrol. The City argued that it did not require an impermissible quota of arrests or citations, just a permissible quota for interactions with the public.
One officer whose performance lagged in the directed patrol policy claimed that he was approved for FMLA leave to care for his seriously ill mother in May 2009 but reprimanded for using too much time on May 27th . Then on June 17th he received a letter from a Lieutenant stating that he was being placed in the “Chronic Sick Category.” The officer also complained that Camden staff visited him at home while on leave. He argued that the City was interfering with his rights to use FMLA leave.
The City conceded that there was an internal miscommunication between one branch of the department, which knew the officer had approved FMLA leave, and another branch which did not. The City contended that it was not trying to deter the officer from using his FMLA rights.
The Third Circuit Court of Appeals held, “Camden officials only visited Officer Holland once while he was on leave, and we agree that this was minimally intrusive.” The Court added, “Although we are sympathetic to Officer Holland’s family situation, there is no right in the FMLA to be ‘left alone.’” It added, “Camden’s actions may have been insensitive, but they were not beyond the limitations the FMLA places on employers attempting to manage their workplaces.”
The Court went on to state that it found no particular harm done to Officer Holland. It cited the case of Shtab v. Greate Bay Hotel, 173 F. Supp. 2d 255 (D.N.J. 2001). “Shtab does not support Officer Holland’s claim that reprimands such as those he alleges can, on their own, support relief under the FMLA. Rather, they must occur in tandem with actual harm. Officer Holland does not allege he was actually denied FMLA leave. In fact, he concedes that he was able to take time off to care for his mother.” The Court therefore affirmed the dismissal of the FMLA claim.
This case can be found at FOP v. City of Camden, 842 F.3d 231 (3d Cir. November 17, 2016). The holding is consistent with other federal cases that have held that while someone is on FMLA, the employer has a right to require that employees call in and follow employer policies. The Court here found that one visit to the employee probably to make sure the employee was not abusing FMLA leave was certainly not intrusive.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
New Jersey employers know that they have a right to subrogate against the party who caused injury to their employee to recover workers’ compensation benefits paid, but they must wait one year before taking any action. After one year, if the injured worker has not pursued a third party action, the employer must make a written demand on the injured employee giving the employee 10 days to pursue such action, or else the employer will file it in his or her name. But what if the employer neglects to send the 10 day letter and then tries to bring suit?
That was the precise issue in Hartford Underwriters Insurance Company v. Jacquelin Salimente, A-3687-14T2 (App. Div. February 6, 2017). A Hartford insured employee, Mishkoff, had been injured in a work-related accident by Salimente, who had lost control of her vehicle, causing injuries to Mishkoff. But Mishkoff never filed suit against Salimente. On the last day that the statute would have run, Hartford filed suit (failing to sue in Mishkoff’s name) against Salimente to protect its lien of $16,332.79 for workers’ compensation payments it had made to Mishkoff. However, Hartford failed to provide proof that it had issued a 10-day notice. Salimente’s carrier moved to dismiss the case for failure to comply with the statute under N.J.S.A. 34:15-40. The trial judge dismissed Hartford’s suit, and Hartford appealed.
The Appellate Division reviewed old case law indicating that the 10-day notice can be waived, particularly where the carrier notified the injured worker of his right to sue. Hartford produced two letters, one to Mishkoff two months after the accident and then other to Mishkoff’s counsel 18 months afterward. In the first letter, Hartford informed Mishkoff of its subrogation rights and asked him whether he intended to pursue a third-party action. In the second letter, Hartford asserted its subrogation rights, and it requested that Mishkoff advise whether he was pursuing a third party action. Unfortunately, these letters were not produced by Hartford at the time of the initial hearing in Superior Court. Had they been timely produced, perhaps the trial judge would not have dismissed Hartford’s case.
The Appellate Division considered Hartford’s motion to reopen the record and agreed that the case should not have been dismissed because the purpose of the 10-day letter is to inform the injured worker of his or her rights to pursue a third party action. The letters that Hartford wrote to Mishkoff satisfied this purpose. Therefore the Appellate Division allowed Hartford to pursue the third party claim on behalf of Mishkoff.
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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.
Most aspects of the New Jersey Workers’ Compensation Act are considered favorably by employers since the law gives employers the right to control medical care and allows termination of temporary disability benefits and medical benefits at maximal medical improvement. One aspect, however, of New Jersey law invariably frustrates employers: reopener claim petitions. These kinds of claims are not common in other states, and many employers are understandably perplexed at the sheer volume of reopeners in New Jersey. The fact is that a high percentage of awards containing a substantial percentage of disability will be reopened for additional benefits.
Technically, the correct term for a reopener is a modification of an award but most practitioners refer to these petitions as reopeners. Here are some basic questions and answers that clients often ask this practitioner.
Question #1: Is it true that only petitioners can file reopeners?
Actually either party can seek modification of a prior award. N.J.S.A. 34:15-27 states that an award may be reviewed on the ground that the disability has diminished. This practitioner has filed on several occasions a petition to modify an award for total disability where the claimant was found working while receiving total disability benefits. Generally, though, reopeners are filed by claimants seeking more medical, temporary or permanent disability benefits.
Question #2: How long does a claimant have to file a reopener?
The claimant has two years from the last payment of indemnity benefits or the last date of authorized treatment, whichever is later, to reopen the award. A period of insanity tolls the statute.
Question #3: What is the legal standard to prove entitlement to further permanency payments?
The claimant must show objective proof that his or her condition has materially worsened since the last award. That kind of proof is the same as proof required in any claim for partial permanent disability such as MRI or x-ray evidence of an impairment, but in a reopener the proofs involve a comparison between those offered at the initial hearing and those at the time of the settlement of the reopener petition. Respondents take the view that mere complaints of increased pain do not satisfy the legal standard for a higher award because pain is subjective. It is important for employers to obtain the transcript created at the time of the initial settlement and then compare those complaints with current complaints. If they have not changed, there may be no basis for additional compensation.
Question #4: When can the respondent resolve a reopener on a Section 20 basis?
Most employers prefer that a reopener claim resolves on a Section 20 because that ends the case and prevents any additional reopener petitions. There is technically no limit to how many times a claimant can reopen a case. A Section 20 in a reopener requires the same standards as any other case for a Section 20: namely, proof of a genuine issue regarding causation, liability, jurisdiction or dependency. Respondent’s counsel will take the position that if its doctor finds no objective change from the prior award, then there is a legitimate issue of liability for a Section 20. Another possible ground for a Section 20 is a subsequent accident since the time of the last award because the current complaints may be from the new accident, not the original accident. Judges of Compensation will generally permit a Section 20 on a reopener if one of the statutory bases has been met and if the claimant lacks evidence of objective changes since the time of the prior award.
Question #5: What should an employer do when the claimant’s attorney files a reopener petition and requests additional treatment?
This is a complicated issue about which there is some difference of opinion. Claimants’ counsel know that without any additional treatment since the prior award, it may be hard to persuade a Judge of Compensation that there is objective worsening. Most reopener petitions contain a request for treatment in spite of the fact that the claimant often has not treated at all since the filing of the petition. Certainly, if the claimant has received substantial authorized treatment following the award but prior to the reopener being filed, the petitioner should almost always be sent back to the treating physician to determine if there is a need for additional causally related treatment.
On the other hand, respondents often consider whether the request for treatment is in connection with what appears to be a “calendar” reopener, one which gets filed just before the two year statute of limitations runs. In that situation, if there has never been any request for treatment for almost two years, and then suddenly a reopener petition is filed with a request for treatment, many respondents will simply decline any request for treatment and set up a permanency exam with the same IME doctor who evaluated for permanency at the time of the original injury. This approach suffices in cases like this because the permanency evaluator can comment on both issues: whether there is a need for additional treatment as well as whether there is additional permanency.
Question #6: Is there any requirement that the respondent send the petitioner back to the treating doctor as opposed to the IME doctor who assessed permanency?
There is no statutory requirement to return the claimant to the treating doctor but it often makes more sense when the medical condition is serious and there has been intermittent post-award treatment. The opinion of a treating doctor is given more weight than that of a one-time IME doctor in respect to many issues, particularly the need for additional treatment. On rare occasions, the IME doctor may also have been the treating doctor. The reason this does not happen very often is that few treating doctors are familiar with New Jersey permanency estimates, and few IME doctors who perform permanency exams have active treating practices.
Question #7: When does it make more sense to return the claimant to the original IME doctor instead of the treating doctor?
Most defense IME doctors in New Jersey workers’ compensation excel at taking a detailed past medical history as well as a history of second jobs, recreational activities, motor vehicle accidents, and other potential causes of injury. The point in time between the entry of the initial award and the reopener petition is a crucial interval period. IME doctors understand what reopeners are about and tend to focus their attention on personal activities, new injuries, or stressors that may be relevant during this interval period of time. So if there are issues of causation regarding other possible injuries during the interval period, an IME doctor may be the better choice than the treating doctor. But if there really is no issue of causation, and genuine issues of treatment do exist, the treating doctor is most often the better choice. Once the treatment issue is resolved, then the employer should send the petitioner to the previous IME doctor to assess whether there is any additional partial permanent disability.
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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.
Sometimes activities that would otherwise be non-compensable are covered under the Mutual Benefit Doctrine. That doctrine covers certain activities when there is “a clear and substantial benefit” to the employer by reason of the permitted activity. Daus v. Marble, 270 N.J. Super. 241 (App. Div. 1994). An example might be an injury to an employee when one employee spills hot coffee on another employee during an impromptu on-premises coffee break. Employees who gather around the coffee machine during work hours to exchange personal news or to joke around are not technically working, but this sort of coffee break provides a mutual benefit to both the employer and the employee. Therefore an incident involving a coffee burn to an employee would be covered.
An older case Saintsing v. Steinbach Company, 1 N.J. Super. 259 (App. Div. 1949) illustrates the point. In that case the personnel director proposed to the store manager a vaccination service for employees to guard against a smallpox epidemic which had begun in New York City. A notice was delivered to all employees stating, “On April 22, 1947, we will provide free inoculation to all those who choose to be immunized against smallpox. We are sure that everyone is aware of the current spread of smallpox and we strongly urge that you take advantage of this service, which we are glad to provide in the interest of your health.”
Most employees were vaccinated but petitioner, Mary Saintsing, developed a bad reaction which caused temporary and permanent disability. She brought a workers’ compensation claim. The carrier denied the claim and argued that this program was voluntary. Not everyone agreed to be inoculated. The personnel director testified on behalf of the injured employee that the company wanted to avoid absenteeism because that would disrupt its business. The court reviewed conflicting decisions in other states and held, “The employees, although not compelled, were strongly urged to submit to the vaccination and, in natural response, most of them did. . . . We have concluded that the activity was mutually beneficial, that the risk was reasonably incident to the employment and that the petitioner’s injury resulted from an untoward event or accident arising out of and in the course of her employment. . . “
New Jersey later amended its statute in 1979 to make clear that recreational and health activities whose intended purpose is to promote health and morale (and not something more than health and morale) are not compensable. But that provision of the statute in N.J.S.A. 34:15-7 did not invalidate the Mutual Benefit Doctrine. If the employer derives some benefit beyond mere health and morale, the social or recreational activity is compensable.
So for example in High v. Rose, 2011 N.J. Super. Unpub. LEXIS 2026 (App. Div. July 26, 2011), the Court affirmed a decision of a Judge of Compensation finding that an accident in a parking lot long after school ended was compensable based on a mutual benefit. The plaintiff, High, was employed at Montclair Kimberley Academy as a nurse. She remained late at school to assist another teacher for an hour and a half. The defendant, Rose, remained late at school after teaching her class and then completing her instructional work. Then at 4:15 she picked up her son who attended the school’s pre-kindergarten after-school care program. Both employees of the Academy backed their cars out at the same time and their cars struck each other, causing injuries to plaintiff High.
The plaintiff argued that Rose was not in the course of her employment because she stayed after school primarily to pick up her child from the pre-kindergarten program. The plaintiff clearly wanted to proceed in a civil suit against Rose, but the carrier for Rose argued that the plaintiff’s only remedy was workers’ compensation. The Judge of Compensation held that just because Rose stayed late to pick up her child from the pre-kindergarten program did not remove her from employment. Having the child in the program at the school provided a mutual benefit to the school and the employee. Since High and Rose were still on school premises when the accident happened, the Judge of Compensation found the accident to be compensable. The Appellate Division agreed and barred High’s civil suit against Rose. The Court noted, “The child was attending the after-school program so that defendant could complete her teaching duties.”
The Mutual Benefit Doctrine, like its close cousin, the Comfort Doctrine, is not written into the New Jersey statute. These doctrines exist in case law handed down over the years. Without these doctrines many claims would be found non-compensable. For example, employees need to use the restrooms during the day. If a slip and fall occurs in a restroom, it might not be covered without the Personal Comfort Doctrine because technically the employee is not working. These doctrines make sense because they avoid a hyper-technical look at every activity which employees engage in during the course of a day. The Personal Comfort Doctrine embraces activities that are basic human needs, and the Mutual Benefit Doctrine embraces activities that benefit the employer and employee equally. However, the Mutual Benefit Doctrine has its statutory boundaries as noted above under Section 7 such that an activity whose purpose is just to improve health and morale is not compensable.
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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.
Mark Richardson worked for the Chicago Transit Authority as a Bus Operator from 1999 to 2012. He took an extended medical leave from work and attempted to return to his job in September 2010. The Authority sent plaintiff for a fitness exam, and the doctor cleared Richardson to return to work. He was next required to submit to a safety assessment, which he contended turned out to be different than the normal safety assessment required of bus operators.
The Authority eventually rejected Plaintiff’s request to return to work. Plaintiff then filed a charge with the EEOC, stating that the Authority discriminated against him based his disability, namely severe obesity. After the parties were not able to resolve the charge, plaintiff sued in federal court.
Defendant Transit Authority moved to dismiss the case right away before doing any discovery by arguing that the plaintiff’s complaint was fatally flawed. The Authority argued that obesity is not a disability unless it is due to a physiological disorder and further contended that since plaintiff never alleged that there was a physiological basis for his obesity, his complaint must be dismissed.
The Court noted that the Americans with Disabilities Act Amendments Act of 2008 expanded coverage under the ADA. The Court reflected on 42 U.S.C. 12102(3)(A), which states:
An individual is ‘regarded as having such an impairment’ if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.
The Court also reviewed conflicting decisions nationally on the question of whether a plaintiff must prove a physiological basis for obesity to establish a disability. It observed that there is a split among Circuit Courts on what is required for obesity to be considered a covered disability. Some Circuit Courts have required proof of a physiological basis for obesity while others have not.
In this case the Court did not decide which approach was right, but it said that “[e]ven if Plaintiff is ultimately required to prove that his obesity was caused by a physiological disorder, he was not required to allege the same.” In other words, plaintiff’s complaint was sufficient to allow him to move forward with discovery and to attempt to prove his case.
The case can be found at Richardson v. Chicago Transit Authority, 2016 U.S. Dist. LEXIS 143485 (N.D. Ill. 2016). It is an interesting case because obesity claims are likely to become a major area of litigation given both the near epidemic levels of obesity in the United States and the expansion of coverage of disability under the ADAAA.
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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.
Jimmy Mathis worked as a laborer for the City of Red Bank in Tennessee. Eventually he rose to the position of Assistant to the Director of Public Works. Initially he would inspect for building code violations, handle animal control problems, oversee street projects and handle citizen requests. A written job description described his duties, which also included exposure to temperature extremes during outdoor work.
In 2011 a new Public Works Director required of Mathis more code inspections, which meant more outdoors work. The level of outdoor work continued to rise in 2012 when Mathis’s desk was moved from City Hall to the Public Works Garage. He was no longer responsible for much of his former administrative work, and those duties moved to other employees.
By 2012 Mathis began to have skin problems and saw a dermatologist, who diagnosed Lupus. He took FMLA leave and his dermatologist, Dr. Susong, noted that Mathis needed to be indoors. Mathis next sought an indefinite leave, which lasted six months. During that time, the Department continued to restructure its workflow. A code enforcement officer was hired, and the position of Assistant to the Public Works Director was eliminated.
Preparing to return to work from leave, Mathis met with the Public Works Director and City Manager. There was a dispute whether they told Mathis his job would mainly involve code work. The reality is that his job continued to evolve into outdoor work. Mathis did not request an accommodation at this juncture. He bought protective clothing and was permitted to wear ultraviolet light protective shirts. He paid for them himself, but the City eventually bought him other such shirts.
By 2013 it was clear that the protective clothing was not reducing Mathis’s symptoms. He requested a new FMLA leave. His job at this point was described mainly as mowing grass and weeding. Dr. Susong wrote a certification stating that Mathis must avoid sunlight. Asked to clarify whether Mathis could not work outside, Dr. Susong said emphatically that he must work indoors.
The City met with Mathis, who inquired about possible indoor work but he was advised that he was not qualified for the two open jobs, lacking computer skills and a CDL. On account of the strongly worded note from Dr. Susong and the absence of any vacant positions, the City terminated Mathis’s employment. Mathis sued under the ADA alleging failure to make reasonable accommodation.
The City prevailed at the federal court level, and Mathis appealed to the Sixth Circuit Court of Appeals. The Appeals Court observed that Mathis must show that he can perform the essential functions of his job with or without accommodation, but Mathis failed to do that. Mathis said he wanted to be returned to his pre-2011 work, but even that job required some outdoor work. There were days even in his pre-2011 job when Mathis would be outside four to five hours. The Court said that Dr. Susong’s note disqualified Mathis from any outdoor work.
During the course of litigation, Mathis changed his position and argued that he could handle limited sun exposure with protective clothing. After the City’s motion for summary judgment was filed, Dr. Susong watered down his initial certification which prohibited any outdoor work. The Court said that these after-the-fact changes in Mathis’s position were irrelevant. The City had the right to base its decision on the note that Dr. Susong prepared in 2013 prohibiting any outdoor work. The Court commented that essential functions of a job can and often do change. The changes in this case occurred well before Mathis’s diagnosis of lupus.
The Court concluded, “Mathis’s reasonable accommodation claim fails most plainly because the need for an accommodation was not apparent until mid-2013, when his limitations would not have allowed him to perform his desired job’s essential functions. But it also appears that no accommodation would have been available even if Mathis had requested one in early 2012, because the job he desired no longer existed.”
Mathis also argued that the City failed to engage in the interactive process. But the Court responded that before that process commences, the worker must inform the employer that a reasonable accommodation is needed. 29 C.F.R. Pt. 1630, App. In the end, the Court explained that the City really had no options once Dr. Susong wrote his note saying that Mathis could not have any outdoor exposure because Mathis was not qualified for any available indoor job.
This case points out the importance of having a good job description and the fact that jobs can and do change, adding and sometimes subtracting essential functions. The case also demonstrates the power that doctors have when they prepare medical certifications regarding restrictions at work. In this case Dr. Susong’s restriction against any outdoor work boxed the plaintiff out of his job. A late attempt by the doctor to amend his opinion during litigation but after the job termination was properly rejected by the court. What matters is what information the employer has at the time it makes its employment decision, and in this case, the doctor’s report was crystal clear in stating that Mathis could have no outdoor exposure. This case can be found at Mathis v. City of Red Bank, 2016 U.S. App. LEXIS 19423 (6th Cir. 2016).
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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.