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Just because an employer accepts an injury to a body member as part of an award does not mean that all future treatment to that body member will be found work related. That is the rule in Daniel v. United Airlines, No. A-1252-14, 2016 N.J. Super. Unpub. LEXIS 1816 (App. Div. August 2, 2016).
Petitioner, Ancelot Daniel, injured his neck and shoulder in November 2006 which led to a settlement of 22.5% for the neck. The award was increased to 30% credit 22.5% in 2010 for the neck along with a sprain and strain with labral tear of the right shoulder. Petitioner then filed a second reopener seeking surgery to the shoulder for the alleged labral tear. Petitioner next filed a motion for medical and temporary disability benefits leading to testimony by petitioner and two experts.
Petitioner, age 59 at the time of trial, described his job, which was quite physical. He loaded and unloaded passengers’ bags at a conveyor belt where the bags are stored in the airplane. He would go inside the aircraft, get on his knees, pick up bags and put them on a belt. He said his shoulder kept getting more painful as time went on. He also experienced numbness and tingling, which had not existed at the settlement of the first reopener in 2010. He said that he could no longer throw bags using his right hand and took over-the-counter medication daily. He kept working because no doctor recommended that he stop working.
Dr. Theodora Maio testified for petitioner that petitioner’s pain was more severe and persistent than the last time she saw petitioner. He had numbness radiating down the arm into his fingers. She agreed with Dr. Jaffe, petitioner’s treating surgeon, that shoulder surgery was necessary. Dr. Maio thought petitioner had a tear of the labrum and related it to the original 2006 accident. On cross examination she admitted that without an EMG she could not say whether the tingling and numbness were coming from petitioner’s neck or shoulder. She further admitted that shoulder surgery would not be indicated for the numbness and tingling.
The key to respondent’s case was the fact that United’s expert, Dr. Arthur Canario, performed an x-ray showing that petitioner had bursitis in the shoulder. When asked about bursitis, Dr. Maio conceded that petitioner might have bursitis, but she did not back off her opinion that he also had a tear. Dr. Canario testified that petitioner’s range of motion in the right shoulder was the same as in the left. He said that the shoulder MRI showed only a possible tear, but he maintained that all petitioner really had was a sprain of the shoulder and bursitis. His clinical examination found no evidence of a labral tear, notwithstanding the MRI showing a possible tear. Dr. Canario confirmed the bursitis diagnosis with x-rays done in his office, showing “a calcific bursitis.” He said that injections would be a first step but that bursitis generally happens spontaneously and idiopathically. There was no known cause in this case, and the bursitis was not related to the 2006 work injury.
The Judge of Compensation denied petitioner’s motion for medical and temporary disability benefits. The judge found that petitioner’s likely diagnosis was bursitis, not a tear, and that the bursitis was not work related. The judge also noted that the numbness and tingling were not from the shoulder, and more likely from the neck. It was significant that petitioner’s expert never saw the x-ray films done by Dr. Canario as it put Dr. Maio at a major disadvantage.
On appeal petitioner argued that the judge should have disregarded Dr. Canario’s opinion because he did not make a comparison between petitioner’s complaints in 2010 versus 2014. The Appellate Division rejected this argument because Dr. Canario was not testifying about whether there was an increase in disability, but only whether the need for surgery was work related. The court said those are two different issues. “That said, we point out the issue before us does not involve a determination on petitioner’s application for modification of the OAS; rather, the issue before us involves the denial of petitioner’s motion for medical and temporary benefits. Significantly, the motion was limited to petitioner’s attempt to obtain medical treatment for his right shoulder; it was not a claim for modification of the previous OAS based on increased incapacity caused by the compensable injuries to both his shoulder and cervical spine.”
This decision is a useful one for practitioners. The result could have been vastly different had petitioner brought in the actual surgeon who was treating the petitioner’s shoulder. The opinion of a treating doctor is given more weight than that of an examining doctor. Without the opinion of the treating doctor, the Judge of Compensation was left with an opinion from an IME physician who never saw the x-rays which revealed bursitis.
The case also underscores that a motion for surgery on a reopener may involve different issues than simply an application on a reopener to obtain a higher award. In this case, petitioner apparently thought he lost the right to proceed for a modification of his award when he lost the motion. “We note there appears to be some confusion among the parties as to whether the denial of petitioner’s motion for medical and temporary benefits somehow disposes of his application under N.J.S.A. 34:15-27 for the modification of a previous OAS. Absent considerations not apparent from the record before us, we fail to discern how that could be so.” The court clearly suggested that petitioner still had the right to proceed with a request for modification of his prior award, even though he lost the motion for treatment.
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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.
Josephine Lucciola appealed from an order denying her request to vacate a February 23, 2012 order establishing her social security offset. She contended that the order contained the wrong offset calculation and that she was being shorted tens of thousands of dollars by her employer, Home Depot. There was no dispute that Lucciola had been found totally and permanently disabled as a result of her eye injuries sustained in an accident in 2000. She received an award in 2006 of total and permanent disability at $308.55 per week based on an average weekly wage of $440.79 per week.
When the total award was entered, the parties considered the fact that Lucciola also received social security disability benefits. The order said that Lucciola would have to reimburse Home Depot for any workers’ compensation benefits she received “in excess of the statutory offset rate during the period of time Petitioner has received Social Security Disability benefits.” For reasons unknown, the Social Security offset rate was not calculated for several years. Home Depot withheld a portion of payments pending receipt of Social Security information and calculation of the offset.
Lucciola filed a motion in 2012 to enforce the terms of the order since her employer had been withholding part of her award. The Judge of Compensation then entered an order setting petitioner’s offset rate at $125.43. That meant that she would not receive $308.55 per week but would receive $125.43 per week. The order also referred to petitioner’s average current monthly earnings (ACE) at $855.20. It noted that her initial social security entitlement was $310. Petitioner sought a penalty for Home Depot’s delay in making payments.
Sometime thereafter petitioner challenged the offset calculations. She contended that there should be no offset at all, saying that the offset only applies to Second Injury Fund cases. On that point she was incorrect. She also argued that her prior lawyer had agreed to entry of the February 2012 order without her consent.
Following argument, the Judge of Compensation found that the $125.43 offset rate was correctly determined. Petitioner appealed pro se and argued among other things that the offset calculation was incorrect. The Appellate Division agreed with petitioner that the order setting the offset rate at $125.43 was incorrect. First it noted that 42 U.S.C.A. 424a(a) states: “If the total monthly benefits (i.e. the sum of the Social Security and workers’ compensation benefit) exceed eighty percent of the individual’s average current monthly earnings (ACE), then her Social Security benefit is to be reduced to the point where the combined monthly benefit does not exceed eighty percent of her average monthly earnings.” The court also cited to Wood v. Jackson TP., 383 N.J. Super. 250, 254 (App. Div. 2006).
Importantly, the Act exempts certain states like New Jersey that adopted laws that require a reduction in workers’ compensation benefits to account for the Social Security benefits. 42 U.S.C.A. 424a(d). New Jersey is such a state where employers can reduce in certain situations the workers’ compensation benefit rate under N.J.S.A.34:15-95.5. Instead of the Social Security Administration taking the offset, New Jersey employers get the offset in certain circumstances pertaining to total and permanent disability. The Second Injury Fund need not be involved. The New Jersey statute says:
Such compensation benefits shall be reduced by an amount equal to the [Social Security disability benefit}, not to exceed the amount of the reduction established pursuant to 42 U.S.C. 424a. However, such reduction shall not apply when the combined [workers’ compensation benefit and Social Security disability benefit] is less than the total benefits to which the Federal reduction would apply, pursuant to 42 U.S.C. 424a.
The Court explained the main mistake that was made in this case. “As noted above, the weekly Social Security benefit may be subtracted from the weekly 80%-ACE only if the weekly 80%-ACE is greater than the initial workers’ compensation award. In this case, the weekly 80%-ACE, which is $157.88 (not $196.82, as respondent asserts), is less than the $308.55 initial workers’ compensation award. Therefore, the effective workers’ compensation award should be calculated by subtracting the weekly Social Security benefit ($71.58) from the initial award ($308.55). The result is a weekly benefit of $236.97.”
Another mistake that respondent’s counsel made in this case was arguing that the $855.20 figure was the 80% ACE. The actual 80% ACE was $684.16 (80% of $855.20 equals $684.16), which is why the Court said above that the 80% ACE was $157.88, not $196.82.
What this means is that Home Depot was underpaying petitioner $111.54 per week for approximately 10 years. The Appellate Division remanded the case to enter the correct offset rate and require respondent to pay petitioner the amount owed. The Court also remanded for the Judge of Compensation to determine whether petitioner is entitled to a 25% penalty.
This case shows how complex calculating offsets can be when a claimant gets total and permanent disability in workers’ compensation and Social Security Disability benefits. There is an offset worksheet available online. Employers may contact the undersigned for the form. The case may be found at Lucciola v. Home Depot, A-3055-14T2, (App. Div. July 22, 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.
Workers’ compensation retaliation claims are rare birds in New Jersey, and the case ofRobinson v. Armadillo Automation, Inc. explains the standard for proving such cases. Spencer Robinson worked as a valve technician from May 2005 until August 2011. He alleged that when he was hired, he disclosed a prior low back condition, and he requested a stool to work while seated, a request which he said the company obliged. The defendant disputed almost everything Robinson asserted, including that Robinson disclosed a prior condition. The company asserted that in March 2011 it noticed Robinson was having problems standing and gave him a stool to use but not in 2005.
On April 29, 2011, Robinson felt pain in his neck while assembling a valve. He said he reported the injury to the company vice president. Robinson alleged that the VP refused to consider this an injury and would not take him to a doctor. So Robinson got treatment from two doctors on his own and presented a full release from his doctor effective May 12, 2011. Company records did show that the work injury was reported to the carrier.
Defendants denied ever refusing to take him to the hospital, saying the company approved plaintiff’s seeing the family doctor. The company also maintained that when Robinson returned to work in June 2011, he was having great difficulty standing and working on incoming valve orders. The President of the company asked Robinson to get an evaluation with his primary care doctor as to his fitness for duty. The company claimed that Robinson never produced the family doctor clearance note. The company also claimed that plaintiff’s production was dropping sharply.
For his part Robinson said that the company threatened for the first time to take away his stool when plaintiff tried to return to work after his work incident. Plaintiff also argued that after his work injury, the company president and vice president complimented him on how hard-working he was. He further averred that the company president and vice president spoke with him about retirement possibilities for the first time after his injury. Plaintiff further claimed that he got a note from the family doctor which the company refused to honor because they wanted to speak with the doctor. Robinson said he then signed a release permitting the company to speak directly to the family doctor, but that never happened. One fact that does not appear to be disputed in this case is that Robinson had not been written up during his employment until he failed to clock out in June 2011. The company advised plaintiff that his production had fallen off and that the company was observing Robinson’s problems on the job. The company also maintained that Robinson failed to clock out at lunch time six times. For his part, Robinson said that the clock out rule was not strictly maintained and the clock was not even working well. He admitted to not clocking out at lunch only one time.
Although virtually every statement in this case was disputed, one thing not in dispute was that the company did not give Robinson a raise on his anniversary date of May 28, 2011; he was suspended for five days on August 1, 2011; and then fired for declining productivity, failing to punch out at lunch, and failure to get a medical clearance note.
Robinson sued alleging that he was retaliated against due to filing a workers’ compensation claim. The trial court granted the employer summary judgment but the Appellate Division reversed. The Court adopted the McDonnell Douglas rule in a retaliation law suit requiring plaintiff to prove 1) membership in a protected class; 2) actual performance prior to termination; 3) termination from employment; and 4) the employer’s pursuit of someone to perform the same work after his termination. On the last point, plaintiff alleged that the company hired two people after he was terminated.
The employer gave non-discriminatory reasons for terminating Robinson, including poor performance, lack of productivity, failure to clock out and failure to get medical clearance. Robinson in turn argued that these were all pretextual. He argued that his production never dropped after he returned to work even though the company tried to take away his stool. He pointed out that he had never been disciplined until after he filed the workers’ compensation claim. He claimed he had gotten a note from his family physician and had not repeatedly failed to clock out at lunch. His contention was that the company simply retaliated against him for filing a workers’ compensation claim.
Given the dispute in facts, the Court held that plaintiff had offered sufficient proofs to get to a jury. “If plaintiff’s proofs are believed at trial, reasonable jurors can readily disbelieve defendants’ stated reasons for the adverse employment actions.” The case shows how problematic retaliation cases can be where the employer has no documentation or record of discipline before the work injury. Further, the company could have easily gotten its own fitness-for-duty examination in this case rather than debate whether the family doctor would approve plaintiff’s return to work. This was a small company with 30 employees and perhaps that explains why so little of what took place was documented in memoranda or letters, but clearly the absence of any documentation hurt the employer.
This case can be found at Robinson v. Armadillo Automation, Inc., A05927-13T3(App. Div. July 20, 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.
In Pulejo v. Middlesex County Consumer Affairs, A-3133-14T4 (App. Div. July 14, 2016), the petitioner, an investigator for the County, alleged that he worked along side a chain smoker four to five hours per day, five days per week, from 1976 to 1997. Mr. Pulejo was diagnosed in 2000 with lung cancer and underwent a bilobectomy. Mr. Pulejo did not file a workers’ compensation claim for years after his bilobectomy. Before working for the County, Mr. Pulejo received an award of 10% permanent partial disability against Johnson and Johnson for chronic obstructive pulmonary disease (COPD).
In 2010, nine years after his lung cancer surgery, when petitioner was 84 years old, he ultimately filed an occupational disease claim petition in the Division of Workers’ Compensation alleging that his cancer had been caused by second hand smoke at work. He said he himself had never smoked cigarettes, but he argued that the constant exposure to cigarette smoke caused his cancer to develop. In testimony at trial he admitted that he had engaged in conversations with his treating doctors about his cancer, and his oncologist had told him back in 2000 or 2001 that the likely cause of his cancer was cigarette smoke. Petitioner also recalled telling his doctors at the time of his lung surgery that he had been exposed to second hand smoke at work.
The experts retained by the parties disagreed on the cause of petitioner’s lung cancer. Petitioner’s expert said the cancer was work related due to second hand smoke, while respondent’s pulmonary doctor said there was no known cause. Both parties submitted legal briefs without addressing the statute of limitations issue. The trial judge, who is now the Chief Judge and Director of the Division, the Honorable Russell Wojtenko, asked for supplemental legal briefs addressing the occupational statute of limitations issue. After receiving supplemental legal briefs, the judge dismissed the petitioner’s claim on the basis of N.J.S.A. 34:15-34.
This statute provides that “where a claimant knew the nature of the disability and its relation to the employment, all claims for compensation for compensable occupational disease except as herein provided shall be barred unless a petition is filed . . . within two years after the date on which the claimant first knew the nature of the disability and its relation to the employment.”
The Judge of Compensation rejected petitioner’s argument that he did not know his lung cancer was work related until he was examined by his expert, Dr. Hermele, in 2012. That made no sense since the claim petition alleging work-related cancer had been filed in 2010 two years before petitioner saw Dr. Hermele. Additionally, petitioner had spoken with his doctors in 2000-2001 regarding the link between smoking and lung cancer. The Judge held that petitioner should have filed his claim petition no later than January 2003, two years after portions of his lung had been removed.
The Appellate Division affirmed the decision of the Judge of Compensation. The Court rejected the argument of petitioner that the defense waived the statute of limitations defense by not raising it until well after trial. This was a pivotal aspect of the case and addressed a central question: can an employer waive the statute of limitations? The answer is no. The Appellate Division ruled that the statute of limitations is jurisdictional. The word “jurisdictional” means that filing a claim on time relates to the power of the Division of Workers’ Compensation to hear the claim. If a claim is not filed on time, the Court has no power to hear it. Even if the defense wants to waive the statute, it does not matter: the court cannot hear an untimely filed claim.
The Appellate Division also agreed with the Judge of Compensation that petitioner could not switch the nature of his claim petition at trial to argue for the first time that that his COPD condition had been worsened as a result of working for the County. Counsel for petitioner argued that even if the cancer claim is barred, his client ought to receive an award for aggravation of the prior COPD condition. The Court noted that this was a new argument and that “Dr. Hermele (petitioner’s expert) never quantified the proportion of lung disability attributable to the exacerbation of Pulejo’s pre-existing COPD.”
This case is important for New Jersey practitioners because it focuses on a little understood provision of the law, namely the time limits for filing occupational disease claims. New Jersey really has a “discovery” rule for filing an occupational disease claim petition, and it is focused on the knowledge of the claimant as to the nature of his or her illness and relationship to work.
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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.
Anthony Mazzeo provided technical and sales services to customers in Florida and southern Georgia for Color Resolutions International LLC. He was diagnosed with a herniated disc in his low back in 2007. His employer was aware of his condition. Between January and March 2009 Mazzeo had three discussions with his supervisor regarding possible back surgery which he said would take him out of work for two weeks. His supervisor, Mr. Boyd, said that it would more than likely take him out of work for eight weeks. On February 25, 2009, Mazzeo advised Boyd that the surgery was set for the second week of March. The very next day Boyd began preparing job termination papers for Mazzeo. Boyd handed the termination papers to Mazzeo two days before the scheduled surgery.
Mazzeo sued under the Americans with Disabilities Act alleging disability discrimination. The company responded that it let him go because of declining sales revenue over a period of several years in the territory. A young college graduate was hired by the company shortly after the termination of Mazzeo to help in a different territory for someone else who was retiring. Mazzeo contended that he had previously asked to merge his territory with the retiring sales person’s territory but had been refused on the ground that his territory was very busy.
The district court dismissed Mazzeo’s claim and held that his herniated disc condition did not meet the test of disability. The Eleventh Circuit Court of Appeals disagreed with the district court largely because of the impact of the Americans with Disabilities Act Amendments Act. The Court noted that Congress intended in passing the ADAAA to avoid extensive analysis on whether a medical condition meets the test of disability. Mazzeo’s doctor said that his herniated disc condition impacted his ability to walk, bend, sleep and lift more than 10 pounds. His pain would increase with more sitting and standing. The Court also said that the relevant time to focus on whether someone is covered under the ADAAA is when the decision is made to terminate, not years later after surgery. When Mazzeo was deposed much later he said that his back problems only affected his ability to play golf and have sex. But Mazzeo had major physical complaints during the time period before his surgery when he was let go from the company.
The Court also commented that the term “substantially limits” when applied to an impairment was redefined under the ADAAA. Someone meets that test if he or she has “an impairment that is episodic or in remission . . . if it would substantially limit a major life activity when it is active.” EEOC regulations state that an “impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” When his back acted up, Mazzeo had intermittent problems with walking, standing, lifting and sitting, all of which are considered major life activities.
Based on this interpretation of the Americans with Disabilities Act, the Court reversed the dismissal of Mazzeo’s case and permitted him to proceed with his law suit. It also allowed Mazzeo to proceed on his age discrimination claim as well. For workers’ compensation practitioners, the case is interesting because so many workers’ compensation claimants have problems with neck and back conditions. These individuals may have covered disabilities under the ADA. The case shows how much easier it is to meet the test of disability under the ADAAA than the former ADA. When an employer is considering possible termination of an employee who has a workers’ compensation claim, it is always important to analyze whether the employee may be covered under the ADA. The timing in this case could not have been worse for the employer in laying off Mr. Mazzeo within days of his having advised of his upcoming back surgery. Readers may find this case at Mazzeo v. Color Resolutions Int’l, LLC.746 F.3d 1264 (11th Cir. 2014).
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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.
Ever since the decision in Dever v. New Jersey Mfrs. Ins. Co., No. A-3102-11T2, (App. Div. Oct. 23, 2013), plaintiffs’ counsel have been arguing that respondents do not have a lien for medical bills paid in workers’ compensation from a work-related car accident where the plaintiff had PIP coverage. But civil courts have not been following Dever, and workers’ compensation carriers won another big decision on this issue in Talmadge v. Burn, No. A-3160-14T1 (App. Div. June 22, 2016).
Tina Talmadge was injured while working for Child and Family Services, Inc. She was driving her own car when her vehicle was struck by a car driven by Ms. Burn. Plaintiff underwent a cervical fusion procedure, and The Hartford Insurance Company (workers’ compensation carrier) paid $127,000 in medical and indemnity benefits. The Hartford sought reimbursement of two thirds or approximately $84,500 and intervened in the civil case from which plaintiff recovered $250,000 as damages. Plaintiff conceded that she owed two thirds of the indemnity benefits but argued that The Hartford had no right to a lien on medical benefits because as a no-fault insured, she herself could not recover medical benefits from the other no-fault insured Burns. She contended that if she could not make a recovery of medicals in her law suit, The Hartford could not either as its rights are derivative of her own rights.
Both the trial judge and the Appellate Division rejected plaintiff’s arguments. The Appellate Division initially observed, “When an employee suffers an automobile accident while in the course of employment, workers’ compensation is the primary source of satisfaction of the employee’s medical bills, as provided by the collateral source rule, N.J.S.A. 39:6A-6, which ‘relieves the PIP carrier from the obligation of making payments for expenses incurred by the insured which are covered by workers’ compensation benefits.'”
The Court went on to discuss how the PIP statute interacts with the workers’ compensation statute. “In instances where an employee, as a result of a work related automobile accident injury, also has a claim for recovery against a third party, the Legislature overcame the possible ‘inequity of double recovery’ by including section 40, which requires an injured employee to refund paid workers’ compensation benefits once recovery is obtained from the tortfeasor, thereby avoiding duplication of the workers’ compensation benefits by the tort recovery.”
The Appellate Division concluded, “The employer’s workers’ compensation carrier’s lien, which includes medical expenses paid, must be satisfied from plaintiff’s $250,000 recovery from Burn.” It did not matter that plaintiff could not recover the medicals from the other party in her law suit. The Court made clear that this was still a double recovery. In this practitioner’s opinion, the Appellate Division got it right in Talmadge.Dever is an outlier case because the workers’ compensation carrier was not even a party to that decision. The dispute in that case involved the UIM carrier, and the comments in Dever regarding the workers’ compensation lien were what is known as “dicta,” the expression of an opinion that went beyond the facts before the court.
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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.
Lois Scafuri filed three workers’ compensation claims alleging occupational exposures as a sales assistant caused her severe neck pathology. She worked at the Short Hills Mall for two employers: Sisley Cosmetics and Neiman Marcus Group. She later worked for Bloomingdale’s/Macy’s in the same capacity. All three employers denied her claims asserting that her neck pathology was simply the result of the natural aging process.
Scafuri did actually have a truamatic accident on August 3, 2005 when she slipped in the stockroom and struck her head on a metal shelving unit. She did not, however, file a workers’ compensation claim and obtained treatment on her own. She claimed that she was afraid she would be fired had she filed a claim at that time. An MRI done five months after the fall revealed cervical spondylolisthesis and a disc protrusion at C3-4 with compression of the spinal cord at C4-5. She had a cervical fusion at C4-5 and C5-6.
In November 2006 she was diagnosed with myelomacia, which is a softening of the spinal cord. Six months later she left Sisley Cosmetics and Neiman Marcus Group to work for Bloomingdale’s/Macy’s, and she only worked there until November 2007. Her neck continued to worsen and she had another fusion surgery in December 2007. She filed for and received Social Security Disability benefits.
Not until June 2008 did she bring her occupational claims against her three employers, but by then it was too late to file for the specific accident in 2005. She claimed that doing make-up applications, facials, packing and unpacking boxes, and lifting boxes containing small cosmetics caused or aggravated her neck condition. Respondent Bloomingdale’s produced witnesses from the same department disputing the physical nature of the job. The Judge of Compensation ruled that her work activities did not contribute to her disability under N.J.S.A. 34:15-31, the occupational provision of the New Jersey statute. The judge also did not accept petitioner’s testimony that she would do overhead lifting in violation of her doctor’s orders.
Petitioner appealed and the Appellate Division reviewed the testimony of the experts as well as the lay witnesses. The Court noted that Dr. Alexander Vaccaro did give an opinion favorable to petitioner but also conceded that petitioner had a progressive disability. Although petitioner at first denied having prior neck problems, she admitted that she filed a workers’ compensation claim for her neck against Macy’s in 1993 and had lumbar spondylosis since age 19. The Court also deferred to the Judge of Compensation in finding that Dr. Charles Effron’s testimony for respondent was more credible than that of Dr. Vaccaro for petitioner in stating that there was nothing petitioner did at work that was any different that what she would do outside work. Dr. Effron insisted that petitioner’s condition was age related.
The Appellate Court affirmed the Judge of Compensation on the dismissal of all three claim petitions as well as petitioner’s claim petition against the New Jersey Second Injury Fund. This was a significant ruling because petitioner would certainly have been found totally disabled had she prevailed on her occupational aggravation claim. The case shows the importance of a key provision in Section 31, which states: “Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.” It also shows how important it is for respondents to produce their own witnesses at trial and not just allow petitioner to constitute the only lay witness in the case. This case can be found at Scafuri v. Sisley Cosmetics, USA, Inc., A-2065-14T3 (App. Div. June 24, 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.
Michael Cannon applied for a job with Jacobs Field Services (hereinafter JFS) as a field engineer for a Colorado mining site. The company made him a job offer conditioned on his passing a post-offer medical examination. During the post-offer exam, Cannon revealed to the doctor that he had an inoperable rotator cuff tear and had taken Ultram (a brand name version of the opioid Tramadol). He said he still had the prescription but was no longer taking it. In fact, he passed the drug test portion of the post-offer examination. The doctor cleared Cannon provided that JFS offered accommodations of no driving company vehicles, no lifting, pushing, or pulling more than 10 pounds and no working with his hands above shoulder level.
Less than two hours after receiving the doctor’s report, the company’s technical operations officer at the mining project wrote that the job offer should be rescinded because a field engineer must be capable of driving and lifting. Ladder climbing was an essential function of the job. Further, the job site was located in the mountains with rocky terrain over several miles, so driving was essential. This decision to revoke the job offer was not communicated immediately to Cannon. A Human Resources Manager later contacted Cannon, expressing concerns about his ability to perform the essential functions of the job. Cannon offered to contact the Occupational Health Department to address concerns that he was still taking Ultram (he said he was not). He also brought a note from his doctor stating that he could climb ladders by maintaining three point contact with either arm.
Two days after the examination, Cannon submitted the doctor’s note to JFS. But the company revoked his job offer and never discussed the doctor’s notes he submitted. Cannon still tried to prove JFS was making a mistake by offering a video of him climbing a ladder while maintaining three point contact, using his non-injured shoulder. When all efforts failed, he contacted the EEOC, which concluded that JFS had engaged in disability discrimination. Cannon then sued under the ADA.
At the federal court level, the company prevailed. The district court found that Cannon’s rotator cuff injury did not render him disabled under the ADA. Cannon then appealed to the Fifth Circuit Court of Appeals. The Appeals Court observed that the ADA Amendments Act made it easier for people with disabilities to obtain coverage under the ADA. “There is ample evidence to support a conclusion that Cannon’s injury qualifies as a disability under the more relaxed standard. Although the district court concluded otherwise, the ADA includes ‘lifting’ in its list of major life activities.” The Court said that Cannon could prove that he was substantially limited in lifting because he was unable to lift his right arm above his shoulder and had considerable difficulty lifting, pushing, or pulling objects with his right arm.
But even if he had a substantial limitation in lifting, Cannon still had to prove that he could perform the essential functions of the job. Cannon insisted that he did not need any reasonable accommodation at all. He said that by using his left arm effectively, he compensates for his right arm limitations. He also said he was not taking Ultram and would therefore not be in violation of the company’s policy that “employees who are taking narcotics are not permitted to operate company vehicles.” Cannon’s doctor said that his patient was still being weaned off Ultram, while Cannon asserted he was off the drug and noted that he passed the company drug test. He still had the prescription but was not using it. The Court said that the jury should decide whether Cannon was or was not still taking Ultram.
As for the climbing aspect of the job, Cannon agreed with JFS that this was an essential function but insisted that the video he presented to the company showing him climbing was proof he could manage it by use of his left arm in keeping three point contact with the ladder. Cannon’s doctor submitted a note stating that his patient could climb despite the shoulder injury. The company argued that in the video Cannon raised his injured right arm above his shoulder in violation of his doctor’s orders. JFS argued that the ADA does not require an employer to permit an employee to perform a job function that the employee’s doctor says is forbidden. The Court felt that there was enough evidence to go to a jury on the question of whether Cannon could perform the essential job function of climbing a ladder. The Court was somewhat critical of the company in stating that the company could have questioned Cannon or his doctor at the time he submitted the video or asked Cannon to actually demonstrate that he could climb a ladder.
Perhaps most importantly, the Fifth Circuit Court of Appeals said that the company failed to engage in the interactive process that the ADA requires. The Court seemed to feel that the company jumped the gun in deciding within two hours that the applicant could not perform the essential job functions without engaging in any interactive dialogue.
The case drives home a number of points for practitioners. For workers’ compensation practitioners it is important to reflect that shoulder injuries, particularly rotator cuff tears, abound in all states. Employers should consider that under the ADA Amendments Act, coverage can easily be found for such shoulder conditions with the expanded definition of disability. Secondly, the post-offer process is not exempt from the requirement that employers engage in an interactive dialogue with applicants who may have covered disabilities. Employers should err on the safe side and consider that the medical condition may be covered under the ADA and then engage in the interactive dialogue.
This case may be found at Cannon v. Jacobs Field Services, 813 F.3d 586, U.S. App. LEXIS 531, (January 13, 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.
An important ADA decision has come from the Court of Appeals in the Eighth Circuit inMorriss v. BNSF Railway Company, 817 F.3d 1104 (8th Cir. 2016). The case stems from a post-offer medical examination. Melvin Morriss applied for a machinist position and received a conditional offer of employment. He was required to undergo a medical review because the position was safety sensitive. He noted on the medical questionnaire that he weighed 270 pounds and stood 5’10” tall. He was not currently a diabetic and did not have any health concerns. He noted no limitations in daily activities.
BNSF doctors examined Morriss and noted that he weighed 281 pounds and had a body mass index of 40.9 in the first exam and 40.4 in the second exam. Because his BMI exceeded the company’s qualification standards, the company’s medical department advised Morriss that he was not currently qualified due to significant health and safety risks related to Class 3 obesity, which entailed a BMI of 40 or greater. BNSF then revoked the job offer, and Morriss sued alleging discrimination under the ADA.
Morriss lost in the district court, which noted that Morriss had denied suffering from any medical impairment on BNSF’s medical questionnaire. His personal doctor said he did not suffer from any medical condition which caused his obesity. He had no limitations at all. The court therefore dismissed his case and Morriss appealed.
The Court of Appeals focused on whether Morriss had an impairment under the ADA. Morriss argued that Congress stated in the ADAAA (Americans with Disabilities Act Amendments Act) that whether an impairment exists should not demand extensive analysis. The Eighth Circuit rejected that argument and extensively analyzed the history of the definition of impairment going back to the original ADA guidance and statutory language. It considered the EEOC Interpretive Guidance on physical impairment:
It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. The definition of the term ‘impairment’ does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder. The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.
The Court held that plaintiff had to prove both that his weight falls outside the normal range AND that it is due to a physiological disorder. Plaintiff challenged the Court’s interpretation by arguing that when Congress passed the ADAAA it specifically intended to construe the law in favor of broad coverage. The Eighth Circuit answered by noting that Congress accomplished this broader coverage by adopting a far more generous definition of “substantial limitations of major life activities.” It said, “Notably, Congress did not express any disagreement with judicial interpretations of the term ‘physical impairment.‘” In this way the Court overcame the argument that the ADAAA required a more expansive interpretation of obesity as an impairment. “Thus, because the ADAAA did not alter that definition, pre-ADAAA case law holding that obesity qualifies as a physical impairment only if it results from an underlying physiological disorder or condition remains relevant and persuasive.”
The Court said “weight is merely a physical characteristic — not a physical impairment — unless it is both outside the normal range and the result of an underlying physiological disorder.” The Court said that even for morbid obesity, the same test must be met. For much the same reasons, the Court rejected plaintiff’s alternative argument that BNSF violated the ADA by regarding him as being disabled. It said that the ADA only prohibits an employer from discriminating against an individual on the basis of a physical impairment. “But the ADA does not prohibit an employer from acting on some other basis, i.e., on its assessment that although no physical impairment currently exists, there is an unacceptable risk of a future physical impairment.”
In very clear language the Court emphasized, “The ADA does not prohibit discrimination based on a perception that a physical characteristic — as opposed to a physical impairment — may eventually lead to a physical impairment as defined under the Act.”
This case is very important to employers who do post-offer medical examinations and have similar standards for hiring in safety sensitive positions. Employers must distinguish between physical characteristics as opposed to actual physical impairments. Making decisions based on physical characteristics that are not now impairments is not discrimination under the ADA according to the Eighth Circuit Court of Appeals. The key in this case was that Morriss himself said he had no physical impairment, as did his own physician. Plaintiff was never able to show that he had a current impairment under the ADA, and the employer had a right to make decisions focused on physical characteristics that may eventually lead to physical impairments.
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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 New Jersey Division of Workers’ Compensation has thousands of medical reimbursement claims in various stages of negotiation and litigation. Few cases actually get tried because most medical providers do not want to come to court to defend their charges. The vast majority of cases get settled through negotiations. One recent case, however, involved testimony by a trauma surgeon to obtain reimbursement at the 95th percentile of his charges in the matter of University Physicians Associates v. Transport Drivers CP# 2013-18665. The case was decided on March 17, 2016.
The case arose from a serious injury to the hip of Mr. Manuel Bonilla who received a workers’ compensation award. Dr. David Livingston, the Chief of the Trauma Division of University Physicians Associates (UPA), came to court to testify that the insurance carrier, Patriot Risk Services, unreasonably reduced his charges. He said he performed diagnostic tests and determined that Mr. Bonilla suffered a dislocated hip, crush injury and left acetabular fracture in a 2012 work accident. He repaired the dislocated hip under conscious sedation without surgery on an emergency basis. He documented his care as CPT code 27250 and the rate of $9,391. He was paid $3,188.75 and claimed that Patriot Risk owed him $6,202.25. CPT Code 27250 reads, “closed treatment of hip dislocation, traumatic without anesthesia.” He said that during 2012 he performed three procedures under this code and got paid in full by two different PIP carriers for $9,391. Dr. Livingston also charged $952 for his consult under CPT Code 99245 with modifier code 25 (meaning considerable time was expended). He was paid $500.23 and sought the balance of $451.77.
Following the closed reduction, another surgeon at UPA performed an open reduction and internal fixation to repair the acetabular fracture. This surgeon, Dr. Adams, did not testify in the case. He documented his care under CPT Code 27228 at a rate of $71,374 and was paid $24,234.50. He sought the balance of $47,139.50.
The trial consisted of testimony by Dr. Livingston, Simi Bakshi, the Chief Financial Officer of UPA, and Sandra Corradi (Certified Professional Coder) for respondent. Dr. Livingston emphasized that he was the Chief of Trauma at a Level One Trauma Hospital, the only one in the northern part of the state. He said that the New Jersey Department of Banking and Insurance approved a modifier entitled “TS” (trauma service) exclusively for use on PIP charges, but he offered no evidence to prove this point. He also admitted that CPT Code 25250 is reimbursed at a rate of $150.48 by Medicare. The remainder of usual and customary rates in New Jersey range from the 50th percentile with payment of $2,376 to the 95th percentile with payment at $9,391 (the amount he contended he should have been paid).
Ms. Bakshi testifed for UPA but admitted that she is not credentialed as a professional coder. She had no information in court regarding allowed billings by PIP, Medicare or Medicaid. She stressed that UPA always bills at the 95th percentile of allowed amounts. The Honorable Nilda Hernandez, Judge of Compensation, did not find her testimony to be helpful on the issues in the case. However, Judge Hernandez did credit the testimony of Sandra Corradi as a Certified Professional Coder since 1995. Corradi said that she utilizes her certification in her job as Vice-President of bill review, responsible for operating and overseeing about 85,000 workers’ compensation claims. She said that her job with MCMC, a vendor company that reviews workers’ compensation medical claims, requires review of the applicable codes to determine the appropriate amount of payment. MCMC uses Fair Health Solutions for value guidance in states that do not have fee schedules (New Jersey, for example). Fair Health Solutions provides information by geographic region based on zip codes for charges billed and paid.
Judge Hernandez noted that the New Jersey statute requires that reasonable charges must be “based upon the usual fees and charges which prevail in the same community for similar physicians’, surgeons’ and hospital services.” N.J.S.A. 34:15-15. In this case, Ms. Corradi’s company forwarded their assessment to Patriot Risk, which paid the UPA doctors at the 75th percentile. She also noted that any claim in excess of $25,000 requires review by a nurse, who compares the CPT codes billed against the correlating documentation. Here the charges were compared with other similar services in the Newark, N.J. zip code.
On cross examination, Ms. Corradi was asked whether her company’s agreement with Patriot Risk contained any incentives for reducing payments. Ms. Corradi indicated that there were no such incentives. Her company was paid $8.50 per reviewed submitted bill.
Judge Hernandez rejected the argument of UPA that the decision should turn on only those payments by other commercial carriers with Medicare and Medicaid being disregarded. She relied on Coalition for Quality Healthcare vs. New Jersey Department of Banking and Insurance, 358 N.J. Super. 123 (App. Div. 2003) for the proposition that paid fees are a more accurate measure of value than billed fees. “So far as this is applicable to workers’ compensation, I accept that it is appropriate to use paid fees rather than billed fees to make a determination as to the usual and prevailing fees in billing.” Judge Hernandez was persuaded by the testimony of Ms. Corradi and her expertise. The Judge noted that UPA failed to provide expert testimony to the contrary. She also found that there is no use of modifiers for physicians’ credentials to warrant a higher amount of payment. She dismissed the claim with prejudice.
This case is of great importance to practitioners, employers, medical professionals, and carriers because it provides a very useful template for how to handle trials on medical reimbursement claims. One key element in this case was the use of expert testimony. Patriot Risk wisely produced an expert in coding, while UPA did not. Another key aspect of this case is that the Judge of Compensation did not buy the argument that a doctor’s credentials justified an enhanced percentile or modifier. In this case, Dr. Livingston emphasized his credentials at trial, noting that in addition to being the Director of the Trauma Center, he was a Full Professor at Rutgers School of Medicine. He contended that these credential justified his practice of always billing at the 95% percentile. The Judge did not accept that there was any legal standard requiring a use of modifiers based on physician credentials. The use of a modifier is based more on additional time expended.
What this case shows is that trials on medical reimbursement claims require thought and planning. One does not just submit bills into evidence and make a request of the judge for payment. Detailed testimony is required. The party with the better expert will likely prevail. For employers the take-away should be that when large amounts are at stake, parties should retain appropriate experts. In this case, Patriot Risk paid not a cent more after trial than it originally paid.
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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.