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.
Most employers put limits on light duty and do not allow permanent light duty. That was the case of the employer in the matter of Frazier-White v. David Gee, 2016 U.S. App. LEXIS 6318 (11th. Cir. 2016). Plaintiff Frazier-White worked as a community service officer for the Hillsborough County Sheriff’s Office (HCSO). She was responsible for security at a detention center. She was injured in a work-related accident on July 29, 2010, when a heavy metal door closed on her right arm, pinning her against a door frame. She was placed on light-duty status and temporarily assigned to a position as a records desk clerk. The HCSO policy limited light duty to 270 days in a two-year period.
During the period of time that plaintiff was on light duty from August 2010 to June 2011, she saw several doctors who found she was at maximal medical improvement and had no restrictions. Plaintiff sought another evaluation in March 2011. Her physician ordered an MRI of the neck, which showed degenerative abnormalities which the doctor thought were not caused by work but may have been aggravated by the work incident. He too put Frazier-White at MMI with no restrictions but he did recommend a neurosurgical consult.
The sheriff’s department wrote to plaintiff several times as she approached the 270-day light duty limit. In April 2011, plaintiff wrote to Gee saying she was still having problems with her neck and requested “an extension to continue to receive care.” She did not specify the length of time she would need; nor did she suggest any accommodations that would allow her to return to full duty by April 24, 2011.
The HCSO Risk Management Director Richard Swann wrote to plaintiff on April 11, 2011 advising her that she had been on light duty for 256 days as of April 11, 2011. He encouraged plaintiff to contact him about potential ADA accommodations that she may be requesting or to make applications for other civil service full-duty jobs. Plaintiff did not respond, leading HCSO to take disciplinary action. A hearing was scheduled once plaintiff passed the 270-day light-duty limit. By the time of the hearing, plaintiff had been on light duty for 299 days. Swann asked plaintiff in the hearing whether she would return to full duty within a reasonable period of time. Plaintiff replied that her most recent MRI showed serious spinal damage. Her doctor was recommending a spinal fusion surgery. She said she could not estimate when she could return to full duty. She did not request any accommodations that would allow her to perform the essential functions of her job, and she did not apply for any other full-time jobs. HCSO therefore terminated plaintiff’s employment as of June 20, 2011.
Following her termination, plaintiff sued under the ADA and the Florida Civil Rights Act alleging disability discrimination. The federal court granted summary judgment to HCSO. The Court of Appeals affirmed. First the Court said, “To the extent Plaintiff intended to request a permanent light-duty position, it is undisputed that no such position existed. SOP 213.00 provides that every HCSO employee is essential to its efficient operation, and that eligibility for light-duty status is thus limited to 270 days during a two-year period. Defendant was not required by the ADA to create a permanent light-duty position especially for Plaintiff.”
Plaintiff produced records showing numerous vacancies in the HCSO during the time she was on light duty. However, the Court pointed out that she never requested any of the positions. Further, the Court observed that plaintiff’s testimony was that she could not have physically returned to any full-time work given her serious neck problems. The Court concluded, “Plaintiff’s only response was to request an indefinite extension of her light-duty status, an unreasonable accommodation as a matter of law.”
This case is relevant for employers because most employers have policies that end light duty based either on a specific time limit or on reaching maximal medical improvement. Such policies must be flexible enough to consider requests for reasonable accommodation under the ADA or state civil rights law even after the time limit has ended. In this case HCSO wrote several times to the employee asking her if she was requesting accommodations or other positions that would allow her to return to work full duty. The plaintiff in this case, as is quite common, simply wanted an indefinite leave extension. Courts in just about every state believe that indefinite leave is simply an unreasonable request.
-----------------
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 most expansive discussion of confidentiality in workers’ compensation comes ironically from a civil law suit in the matter of Seymoure v. A.O. Smith Water Products Company, et. al., A-3967-14T3 (App. Div. May 11, 2016). The case arose from an asbestos law suit filed by Gwendolyn Seymoure, who sued several defendants, including Union Carbide Corporation (hereinafter UCC) for manufacturing, supplying or distributing asbestos products that led to the death of her husband from mesothelioma. Plaintiff Seymoure alleged that her husband was exposed to asbestos while making deliveries and pick-ups at UCC’s Bound Brook facility.
Seymoure filed a discovery request in 2013 seeking workers’ compensation records of other UCC employees. Eventually the Law Division judge ordered UCC to produce the records. UCC then moved for a protective order to limit disclosure of the files of other workers’ compensation claims to just this particular litigation. That request was denied. The judge required the following: 1) UCC must advise former/current employees of production of documents within seven days; 2) UCC may redact social security numbers only, but not names; and 3) UCC had to produce all documents within 14 days.
UCC appealed and contended that the court’s order violated privacy rights under the New Jersey Workers’ Compensation Act. The company argued that current and former employees have a reasonable expectation of privacy in their records. It relied onN.J.S.A. 34:15-128(a)(1) which prohibits disclosure of workers’ compensation records unless the information is provided in a way that makes it impossible to identify any claimant.
For his part, plaintiff’s counsel argued that he needed to use the records obtained in this law suit in other litigation against Union Carbide. He stated that he fully anticipated using the medical records from other employees in future litigation that he might file. Counsel also argued that N.J.S.A. 34:15-62 provides that all workers’ compensation hearings “shall be open to the public.”
The Appellate Division ruled, “As the judge’s protective order fails to adequately protect the privacy interests of UCC”s former employees, we are remanding this matter for the entry of a more comprehensive protective order. Both N.J.S.A. 34:15-128 and N.J.S.A. 34:15-128.3(a) prohibit disclosure of workers’ compensation records unless all personal identifying information has been removed. Thus, a protective order would require the redaction of all personal identifying information of the employee.”
The Court also observed that requiring hearings to be public is not the same thing as giving third parties not involved in the workers’ compensation case access to medical information of other claimants. The Court concluded, “Finally, the interest that plaintiff’s counsel has in expediting other asbestos litigation against UCC does not outweigh the privacy interests the former employees have in their medical records. Unless the former employees specifically consent to the use of their unredacted medical records beyond this litigation, the use will be limited to this matter.”
This case deals with provisions of the New Jersey Workers’ Compensation Act that seldom, if ever, draw mention from courts. It is noteworthy that hearings in the Division are open to the public by statute. Yet that does not mean that third parties can access medical information of claimants. Only the parties to the case, such as the judge, carrier, third party administrator, treating doctor, experts, and counsel have access to medical information of the claimant. There is no right of access, however, to medical information of other claimants not involved in the litigation. Had the decision in this case gone the other way, there would be no way to protect medical information of claimants in the Division.
-----------------
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.
This is the second article devoted to fitness-for-duty examinations and Functional Capacity Exams (FCE) in workers’ compensation. The first segment focused on how such examinations can lead to significant cost savings for employers and common mistakes that are made by employers. This segment will focus on when to order a fitness exam or FCE and how to avoid conflict with the FMLA and ADA.
A fitness-for-duty examination must be job-related and consistent with business necessity according to the relevant EEOC Guidance. When an FCE is ordered by a physician as part of a workers’ compensation case, it is generally related to medical care or to determining return-to-work status. When a physician requests an FCE, more often than not, it is because the physician is not sure that the injured worker can perform light duty or full duty work. Under those circumstances, the FCE is job related.
Many employers also request FCEs or fitness-for-duty examinations on their own when an employee has been out of work for a lengthy period of time, usually following surgery. This is particularly true where the employee has a physical job, like maintenance, custodian, construction or the like. An employer’s request would meet the job-related standard if the employee has certain restrictions imposed by the treating physician, or if the employee has requested accommodations at work. Employers should be aware, however, of one limitation on such exams: namely those that occur during the 12-week FMLA period. All workers’ compensation lost time cases are generally FMLA events, and most employers designate the absence from work as FMLA leave. They run FMLA time concurrent with workers’ compensation absences. The FMLA does not permit second opinions on return to work. So if the treating doctor issues a return-to-work note, stating that the employee can perform the functions of his or her job, there is no right to a fitness exam within the 12-week FMLA period.
After 12 weeks when FMLA has expired, an employer has more leeway in requesting an FCE or fitness examination. The employer must still show that there is a job-related need for the FCE or fitness examination. That could be satisfied by observations that the employee is having problems walking or getting around. Alternatively, the employee may speak to supervisory staff indicating that he or she is not sure about being able to perform the essential job functions. The employee may ask for assistance in doing certain essential functions should he return to work or request that certain functions be eliminated. All of these reasons justify a fitness-for-duty examination or an FCE.
It is very important to make sure that the physician who is performing a fitness-for-duty examination is familiar with the essential job functions. The same is true of physical therapists who are performing FCEs. Functional job descriptions are of great value to doctors and physical therapists. The examination should be tailored to the injury that the employee has and should not be focused on long-standing medical conditions that have nothing to do with the work injury. The physician should address the ability of the employee to perform essential job functions as well as the direct threat standard.
Sometimes employees do not recover adequately from work injuries to be able to return to work and perform their job functions safely. Before making such a determination, the employer should carefully review the FCE or fitness assessment and then meet with the employee to engage in an interactive dialogue with the employee. Because the ADAAA so widely expands ADA disability coverage, it is better to assume that the injured employee following surgery or significant injuries is potentially covered under the ADA. In that meeting, the employer will be able to hear first-hand whether the employee is requesting reasonable accommodations that would allow the employee to perform the essential functions of the job. It is the employee’s responsibility to make the request for the accommodation, not the employer’s job to guess what they might be. However, it is the employer’s obligation to decide which accommodation would work best and whether the accommodation poses an undue hardship.
Sometimes treating doctors give short shrift to the return-to-work process and issue full clearance notes without the benefit of an FCE. The result is that many employees in New Jersey who have had some serious injuries with lasting complaints of pain and limitations may struggle with work duties. When an employer has job-related reasons to require a fitness examination of an existing employee, the employer should utilize the FCE or fitness-for-duty process. If an employee in a factory setting with very physical job duties comes into work limping and in pain, the wrong thing to do for the supervisor is to walk past the employee and bid him or her a good day. That is exactly the circumstance that may justify a fitness-for-duty examination.
Employers should also take note that when a workers’ compensation case is settled in the Division, the employee has to provide his or her complaints on the record to support the award of disability. The only time this does not happen is when the settlement is under N.J.S.A. 34:15-20. All orders approving settlement with percentages of disability are premised on proof by the employee of either a substantial limitation in working ability or a substantial impact on non-work activities — or both. Seldom are employers in court to hear these complaints but the defense lawyer should provide details in the closing letter to the client so that the employer is aware that an employee may be complaining of physical problems in doing the essential job functions. If that is the case, the employer has a right to obtain a fitness-for-duty examination. An employer can also ask for a copy of the transcript of the testimony before the Judge, as this is sworn testimony.
In this practitioner’s opinion, the reason there are so many re-injuries in New Jersey is that there is not enough attention to the issue of fitness for duty. Unlike other states where employees settle their cases and agree as a condition of settlement not to return to work, almost every employee in New Jersey returns to the former job because New Jersey is a functional loss state in contrast to Pennsylvania, which is a wage loss state. Re-injuries are expensive and often lead to much higher awards and sometimes total disability awards costing the employer millions of dollars. The cost of an FCE or a fitness examination, by contrast, is very modest but that well-timed examination may save the employer tens or even hundreds of thousands of dollars down the line.
-----------------
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
We have all seen this situation: an employee with a physical job has major surgery and is given restrictions by the treating doctor, who issues an MMI note (maximum medical improvement). When temporary disability benefits are stopped, the employee immediately calls to see about returning to work. The employer indicates that it cannot take the employee back with such heavy restrictions. The next day the treating doctor issues a note clearing the employee to return to work with no restrictions. One month later the same employee reinjures his back at work severely, leading to another surgery and hundreds of thousands of dollars or even total and permanent disability. The hit to the employer’s workers’ compensation budget becomes astronomical.
What went wrong?Why does this sort of thing happen so often? This is the first of a two-part series on the critical importance of fitness-for-duty exams and functional capacity evaluations in the New Jersey workers’ compensation system. In this blog, we will focus on mistakes employers make and why fitness exams can result in enormous savings for employers. The next blog will focus on how to do fitness exams correctly and how to avoid law suits when arranging fitness exams.
Every insurance adjuster in the state can tell you about a claimant with 10 or even 20 claim petitions against the same employer over a period of many years. Employers throw up their hands and ask, “How can the judge let this guy return to work after all these accidents?” The answer is that the Judge of Compensation has nothing to do with the decision to allow an employee to return to work. That decision is made by the employer and is outside the realm of workers’ compensation. Many times the person handling the workers’ compensation case for the company is not in touch with Human Resources, with the result that the return-to-work issue may be missed entirely.
Most of the problem cases stem from injuries that result in surgery to the spine, shoulder, knee and hand, which comprise the majority of orthopedic claims in New Jersey. The dynamic that frustrates the employer is that the employee will give a host of complaints to the IME doctors and the Judge of Compensation in support of a high partial permanent disability award, but then turn around and tell the employer or supervisor that there are no problems doing the job.
For example, a DPW worker has fusion surgery followed by pain management, and eventually he reaches MMI. There is no fitness exam requested by the doctor or employer, and the employee returns to work. Now the comp case continues: the petitioner’s attorney sends the employee to his or her IME, and the respondent’s attorney does the same. At the IME the petitioner complains about severe pain lifting anything over 15 pounds, difficulty bending or lifting at work, trouble getting dressed, throwing a ball or the like. The job requires regular lifting over 50 pounds. The case settles for 40% of partial total or $111,360, and at the time of settlement the employee is asked by the Judge of Compensation for his or her complaints at work and outside work. The employee says that work is very painful, and at times, others have to help him get through the day. He adds that there are many tasks that the employee can no longer perform. All the while, the employer has no idea that the employee is complaining about problems on the job or telling the IME doctors about difficulties doing routine work tasks. Shortly thereafter this employee performs a relatively minor task on the job when he experiences incapacitating pain in the back leading to a long period of work absence followed by another award in workers’ compensation court.
You can see from these scenarios what the major mistakes are:
1) Employers seldom request fitness-for-duty exams and FCEs before returning the injured employee to work, perhaps because they do not know they can do this, or because they mistakenly think the workers’ compensation third party administrator or carrier will do this for them. Adjusters do not handle employment issues.
2) The carrier or defense attorney does not send the IME report or the summary of testimony at the settlement to the employer to review. Instead it just goes to the adjuster without a copy to the actual employer. So the employer never realizes that their employee is complaining about having problems on the job.
3) The workers’ compensation manager in the company may not be familiar with employment issues. Workers’ compensation may be a separate silo from HR, so no one really analyzes the question of whether the employee can safely perform the job functions.
4) Treating doctors are often too eager to return a patient to work when asked by the patient for a full-duty clearance rather than deal with what could become an angry patient.
If a fitness-for-duty examination or an FCE is done properly and timely, the employer will have the opportunity to make an informed decision on whether to return the employee to work with or without accommodations. If there is an ADA issue, the fitness process will help address it. If the employee cannot perform the essential job functions, that employee may have to be terminated or reassigned to a position within the restrictions. When that happens, the risk of reinjury is much lower, and workers’ compensation costs are greatly reduced. For this reason, it is quite fair to think of fitness-for-duty examinations and FCEs as powerful cost-saving tools in workers’ compensation. Employers with dozens of workers’ compensation claims could save hundreds of thousands of dollars, if not millions, by doing timely fitness examinations. Unfortunately, however, fitness examinations and FCEs are grossly underutilized.
There was a time in 1979 when workers’ compensation rates amounted to $40 per week for permanency. An award of 50% of partial total was $12,000. Those days are long gone. Now a 50% award amounts to $174,300. An award of 70% amounts to $341,460 in tax free dollars. Every large employer has multiple employees at work who have such high awards where the employee has given a plethora of complaints about work and non-work activities in workers’ compensation court.
Workers’ compensation medical costs have risen much faster than the rise in permanency costs. A two-hour fusion procedure may result in a payment of $40,000 to the surgeon, plus fees for the assistant, hospital/surgery center and anesthesiologist. So the employee who gets back to work but who cannot safely perform the job duties only to be reinjured can cost the employer quite literally half a million dollars in no time at all, considering the medical, temporary disability and permanency costs.
It goes without saying that an employee who cannot safely perform the job duties should not be on the job. The ADA does not require removal of essential job functions. An employee must be able to perform the assigned job duties with or without reasonable accommodation. The fitness assessment must be made only with medical analysis usually informed by functional capacity examinations, which compare the physical abilities of the injured worker with the actual job duties. A good FCE will provide tremendous guidance for employers in determining how much an employee can lift, bend, kneel, push or pull. There are talented New Jersey physicians who do many fitness-for-duty assessments and are quite adept at helping employers decide whether the employee can perform safely the essential job functions.
Consider this advice: employers should rethink the way their workers’ compensation programs function if injured workers who simply cannot do the job any longer routinely get back to work doing the very same job that caused their initial injury without having undergone a fitness examination. In the next blog, we will discuss the basic rules for doing fitness examinations and traps to be avoided.
-----------------
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.
It can be difficult to predict the outcome of appeals where the issue before the Judge of Compensation is credibility of witnesses as opposed to pure legal issues. InFrank Hodson v. C. Abbonizio Contractors, Inc., A-2083-14T3 (App. Div. May 2, 2016), Mr. Hodson said that while working as a laborer on May 9 and May 10, 2013, he threw a traffic barrel and “felt a small click-like pop in his back.” He finished his shift and did not notify his supervisor, Dan Trainer, of the injury because he was distracted when he was informed that a “crash truck” was hit by a vehicle, requiring him to respond immediately.
Hodson said he was sore while driving home that night and was in a lot of pain. But he continued to work the next week. Not until May 26, 2013 did he admit to notifying his employer. He said his co-worker, Ray Batot, saw him limping on May 26, 2013 and asked him what was wrong. Hodson said that he injured his back. Hodson also said that he spoke with Tom Abbonizio and Trainer on May 26, 2013, informing them of his back injury. Hodson saw a personal physician who provided him with two epidural injections after the accident. He also was taking 10 milligrams of Percocet.
When his doctor took him out of work, Hodson called Human Resources and was informed that he could not collect workers’ compensation benefits because no incident report was filed. Hodson was told to seek unemployment benefits. He filed for those benefits through his family doctor, who certified that his injury was not work related. Later petitioner filed a claim petition against Abbonizio and against his previous employer for a 2012 injury to his back and legs.
There were some inconsistencies that were brought up in trial. Hodson admitted having Trainer’s cell phone number but said he did not call him because of the crash truck incident that was more pressing. He also said he did not know that there were two hospitals he was permitted to go to in the event of a work injury, but he admitted that his co-worker Batot had been taken to one of those two hospitals on May 10, 2013 for Batot’s own work injury involving the crash truck.
Perhaps the most glaring discrepancy concerned prescription medications. On direct examination, petitioner denied taking any prescription medications before the date of the alleged injury. On cross examination he conceded that he was taking Lyrica for pain as of May 10, 2013, and he was also taking Percocet before May 10, 2013. He had had prior back injuries and prior workers’ compensation claims. Hodson then maintained that heincreased his medications after May 10, 2013.
Petitioner contended that he told his family doctor, who treated him after the alleged incident on May 9 or May 10, 2013 that he injured his back throwing barrels. However, Dr. Winfield put on the TDB application that his injury was not work related. There is no indication in the record of this case that Dr. Winfield testified at trial.
Petitioner offered corroborating testimony from his co-worker, Batot, who said he was working with petitioner and saw him moving barrels on the day petitioner claimed to have hurt himself. Batot also said he spoke with Tom Abbonizio about petitioner’s back issue. Batot said he was injured on the same night as petitioner (Batot was driving the crash truck) but that earlier in the day he saw petitioner limping.
Two other lay witnesses testified at trial. Ms. Carmen Ferrillo, HR Manager, said that petitioner told her the injury took place on May 14, 2013 (not May 10th). She spoke with Trainer and was told petitioner never mentioned a work injury. She denied telling petitioner to file for unemployment benefits. For his part, Trainer said that he did not see petitioner move any barrels on May 10, 2013. He said petitioner never informed him of a work injury.
One medical witness testified, Dr. Joseph Zerbo. He said he saw petitioner on July 23, 2014. Dr. Zerbo compared prior MRI films from 2011 with those of June 2013. He said that there was a “worsening of the disease process” which the doctor attributed to the alleged work injury.
The Judge of Compensation, the Hon. Audrey Kernan, ruled for petitioner, requiring the payment of medical and temporary disability benefits, based primarily on her assessment of petitioner and Batot as being more credible than the other witnesses in this case. She also credited the testimony of Dr. Zerbo. The Appellate Division affirmed on the basis that there was sufficient evidence to support the credibility findings of the Judge of Compensation. While there was a potential dispute in this case between prior employers for previous back injuries and Abbonizio Contractors, the court left that issue for the future when the permanency issue should be reached.
The case demonstrates the difficulty respondents have when there is really no legal or medical issue in the case and the dispute centers on conflicting testimony of various witnesses. Based on this record, a judge of compensation could have made a convincing argument that the claim was not work related and never happened at all. There was a plethora of inconsistencies and perhaps outright misrepresentations (such as not using pain medications before the accident) which would have formed a solid basis for denial. But there was also strong testimony from a co-worker supporting the petitioner.
The lesson in cases like this is that the Judge of Compensation controls on credibility findings. Appellate courts will not reverse unless there is insufficient evidence to support the decision of the Judge. That is a high standard for either party to overcome on appeal.
-----------------
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.
Those who do not remember the past are doomed to repeat it, wrote George Santayana. In workers’ compensation, those who do not know the past are doomed to pay for it. Winning in workers’ compensation in almost every state comes down to developing past information about injuries, car accidents, chiropractic care, sports activities, second jobs, pain management and the like. But New Jersey poses one overwhelming problem for employers and carriers: there is next to no discovery sanctioned by the rules of the Division. Once litigation occurs through the filing of a claim petition, it is generally too late for the employer to get the information it needs on causation and credits for prior disability. Claimant’s counsel will only provide what the rules require, which is very little.
Here is what an employer does not get in litigation in the New Jersey’s workers’ compensation system:
1. Depositions (except in exceptional cases)
2. Interrogatories (except in occupational claims with pre-printed questions only)
3. The right to demand prior family doctor records
4. The right to demand prior chiropractic history
So how can an employer win or reduce costs if a claimant does not have to reveal anything at all about one’s past medical history during the course of litigation? This is the essential question that all employers, carriers and third party administrators must answer. After all, only a relatively small portion of accidents are clear-cut and witnessed. Many are not witnessed and often involve mechanisms of injury that do not seem to correlate with the physical complaints. Without getting a detailed past medical history, employers time and again pay for prior non-work or age-related health conditions masquerading as workers’ compensation injuries.
The solution to this dilemma for employers in New Jersey and most states is to get detailed information about past history of injuries, past treatment, past pain management, prior hobbies and car accidents at the outset of the claim before the case goes to litigation. This can be accomplished by detailed incident or accident report forms filled out by the employee, or by recorded statements taken by insurance professionals.
When the employer, third party administrator or carrier refers the case to medical professionals for treatment, the medical office should also take its own detailed past medical history, and that information needs to be included in the medical reports that go to the third party administrator or carrier. Causation is the overriding issue in most workers’ compensation cases because so many claimants have a prior history of back, neck, shoulder, knee and other conditions. Occupational clinics which do not obtain or provide to the employer/carrier this sort of detailed past medical history are costing employers enormous sums of money. Unfortunately, employers do not get the history forms that most of the occupational clinics use so they do not realize until too late how inadequate the past medical history really is in some of our occupational centers.
When it comes to litigation, less history is more beneficial for the injured worker. The less past medical information provided to the employer or carrier, the better for the claimant because all present medical conditions can then be ascribed to the work injury, whether or not the condition is really work related or just age related. For the employer the opposite is true: the more past medical history is obtained, the less the employer will ultimately pay in workers’ compensation costs. New Jersey allows a credit underN.J.S.A. 34:15-12(d) for previous disability. But that presupposes that the employer can get the information about previous disability in the first place.
For example, if the injured employee had a prior herniated disc diagnosed in 2001 from a car accident, and now has a new injury to the same level, the credit for the 2001 condition could save the employer $25,000 to $30,000 – if the employer discovers it to begin with. The best time to get that information is either by reviewing prior post-offer medical examinations at the time or hire or by reviewing initial accident history forms filled out by the employee at the time of the alleged work injury. As mentioned above, when the case goes to litigation, the rules are not favorable to employers in terms of prior discovery. There no bills pending in the Legislature to provide more discovery to employers. Meanwhile, rates are rising considerably with an award of 35% amounting to well over $85,000 at 2016 rates. Just ten years ago, the same percentage award was worth $67,000. The only thing that has not changed in this 10-year period is that employers have next to no discovery in the formal litigation process.
So self-help remains the best solution for employers. Frankly, the choice of physicians and clinics that regularly obtain good past medical information is the single most important decision that a third party administrator or carrier can make. You need physicians who are skilled and qualified, but you also need physicians who understand that past history bears directly on causation. There are some physicians in the state who take a thorough past medical history and some occupational clinics as well, but they are in the minority. Employers need to confer with counsel to identify those medical professionals who will ask about prior car accidents, prior chiropractic treatment, prior sports injuries, pain management and second jobs. Otherwise when the case gets to court, the Judge of Compensation will have very little information to help assess causation. It is true that running an ISO is helpful, but practitioners know that the ISO only captures reported insurance claims. It will not capture the injury in the gym, the long-term back and neck problems treated by chiropractors, the secondary employment which may be linked to the physical symptomatology, and the history of prior pain medications.
If employers triage their workers’ compensation cases in the first 48 hours, and work on getting detailed past medical and recreational information at the outset, the savings will be enormous because the non-work and prior conditions will not be passed through the workers’ compensation system.
-----------------
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.
Pain management has become a major health issue and cost driver in most state workers’ compensation programs with the proliferation of prescription opiates and consequential addictions arising from workers’ compensation injuries. One of the central problems that practitioners face in file handling and in court is the absence of any clear standards to decide whether opiates are reasonable and necessary. The Centers for Disease Control and Prevention (CDC) took a significant step forward on March 18, 2016 with the release of the “CDC Guideline for Prescribing Opioids for Chronic Pain.”
The study is available online and any practitioner of workers’ compensation will find its conclusions to have practical applications to the daily problems employers, third party administrators and carriers have with cases involving prolonged use of opiates. The focus year for the study was 2012. In that year alone, family doctors and internists wrote 259 million prescriptions for opioid pain medications. This number does not include the number of prescriptions that pain medicine specialists and other physicians wrote. The CDC said it was focusing on family physicians because they tend to write about half of all opioid prescriptions.
The Guideline addresses long-term opioid therapy, which is defined as use of opioids on most days for more than three months. Here are some of the key findings in the Guideline:
Concurrent use of opioids and benzodiazepines might put patients at greater risk for potentially fatal overdose
Patients who do not experience clinically meaningful pain relief early in treatment (within one month) are unlikely to experience pain relief with longer-term use
No evidence shows a long-term benefit of opioids in pain and function versus no opioids for chronic pain with outcomes examined at least one year later
These observations are particularly relevant to workers’ compensation practitioners, who know intuitively that it does not make sense to continue to prescribe opiates for patients for many months or years when they do not seem to be improving in function or experiencing a diminution in pain. Even after prolonged use of opiates, many workers’ compensation patients will complain of a pain level of 10 on a scale of 10. Such prolonged use of opiates often leaves injured workers with even greater problems from dependency and addiction.
The authors of the Guideline have provided some valuable advice for physicians:
One theme that permeates the Guideline is that physicians should set a benchmark when they prescribe opiates, and that benchmark should be to achieve both improvement in pain as well as improvement in function. The Guideline also advises that physicians should not start patients on extended-release opioids. This would seem like common sense but many physicians leap to prescribe extended release opioids like oxycodone, hydrocodone, and morphine before trying shorter acting opioids. The lowest possible dosage should be the starting dosage – again, a rule that is often violated in workers’ compensation cases.
Workers’ compensation practitioners can now draw on the CDC Guideline in asking physicians for a treatment plan and specific timelines. The CDC suggests evaluating benefits and harms with patients within one to four weeks after starting opioid therapy for chronic pain. The authors suggest that physicians should periodically review the patient’s history of controlled substance prescriptions using the PDMP (Prescription Drug Monitoring Program). New Jersey is one of the states that utilizes the PDMP. Our office has found any number of cases where a claimant’s name has been run through the PDMP only to discover that the claimant is already getting multiple prescriptions for the same opiate that the pain medicine physician was about to prescribe.
One comment from the lengthy Guideline that should resonate with workers’ compensation practitioners, employers, third party administrators and carriers is this one:
“Regarding duration of use, patients can experience tolerance and loss of effectiveness of opioids over time. Patients who do not experience clinically meaningful pain relief early in treatment (i.e., within one month) are unlikely to experience pain relief with longer-term use.” Most pain medicine physicians appreciate the points made in this Guideline but there are many who seem to be ignoring the sensible conclusions contained in this report.
-----------------
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 employers have some recreational or social activities throughout the year, and unfortunately, injuries tend to occur at these events. There used to be so many of these kinds of claims that the New Jersey Legislature enacted new legislation in 1980 under N.J.S.A. 34:15-7, which provides that recreational and social activities do not arise from the employment “unless such recreational or social activities are a regular incident of employment and produce a benefit to the employer beyond improvement in employee health and morale.”
So under this rule a volunteer firefighter who was injured playing softball for the fire department team was not covered for workers’ compensation because his participation in the softball game was not required and was purely for morale purposes. Dowson v. Borough of Lodi, 200 N.J. Super. 116 (App. Div. 1985), certif. denied. 103 N.J. 455 (1986). Similarly, a supervisor asked one of his employees if he would like to arm wrestle the supervisor, and the two men arm wrestled during work hours with injuries resulting to the employee. The court also found this case not compensable as a recreational claim involving only morale. Quinones v. P.C. Richard & Son, 310N.J. Super. 63 (App. Div. 1998), certif. denied. 156 N.J. 384 (1998).
But what about the situation where a teacher engages in a volleyball game with students and parents on school premises and the event has been advertised by the school, asking for volunteers to participate in the event? These kinds of activities occur at many schools in New Jersey and in other states on a regular basis. Often the event is an annual one, which tends to satisfy the clause above beinga regular incident of employment. There are often notices about the event throughout the school and teachers are encouraged to participate. Suppose a teacher is later injured and brings a workers’ compensation claim, seeking medical treatment, temporary disability benefits and an award of partial permanent disability? The question is this: does this activity involve a benefit to the employer beyond improvement in health and morale or is it just about morale?
There are no published decisions on this particular issue but these types of injuries happen frequently. The main reason for the absence of published decisions is that most practitioners and judges believe these kinds of injuries involving teachers in parent/faculty/student events are compensable. So the cases tend to be accepted from the outset. The advertised parent/faculty/student volleyball game on school premises is not just about promoting health and morale. That is definitely part of it, but counsel for the injured teacher will successfully argue that the activity is really about improving the relationship among parents, students and teachers, with the ultimate goal being a better learning environment. The goal of education and student enrichment goes well beyond merely promoting health and morale. If the activity promotes a benefit beyond improving health and morale, the activity is compensable. Raising funds for the employer would be another example of something that is beyond improving health and morale. p
Contrast this with a situation where a teacher steps into the gym to shoot a few baskets on the way to his or her next class with a student he knows and then falls, fracturing an arm. This sort of activity is spontaneous, unplanned, and more about morale than anything else. Judges would likely find this sort of injury not compensable.
In 2004 an important decision came down from the New Jersey Supreme Court which added a new dimension to the equation. That case isLozano v. Frank Deluca Const., 178 N.J. 513 (2004). Mr. Lozano was seriously injured driving a go-cart on the property of a customer where the company was doing masonry work. Lozano was a skilled mason who was picked up by his boss in the morning and taken to the homeowner’s large property where they worked all day. After work the boss asked permission from the homeowner to drive one of the go-carts on his private track. The homeowner and the boss drove their go-carts around the track. Then the boss asked the claimant if he wanted to take a spin. Mr. Lozano reminded his boss that he had no driver’s license and did not know how to drive, so he refused. The boss then told Lozano to get in the go-cart and drive. Lozano did just that and proceeded to drive the go-cart into a parked truck, suffering serious injuries. At trial, Lozano said he felt that he had to follow orders from his boss, but he did not want to drive the go-cart in the first place.
The Supreme Court announced a sensible rule that when an employer compels activity that would ordinarily be barred as a social or recreational one, that activity becomes compensable. TheLozano rule has been followed by courts in many other decisions. What it means for an employer is this: if the employer pressures employees to attend holiday parties or participate in otherwise barred recreational activities, any injuries flowing from those activities will be found to be compensable in workers’ compensation based on the element of compulsion. Hence the adage: if you have to do it, what you are doing is likely compensable under workers’ compensation.
-----------------
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 alarming statements made at work justify a fitness examination. In the case ofBarnum v. The Ohio State University Medical Center, 2016 App. LEXIS 2957 (6th Cir. 2016), the plaintiff worked as a Certified Registered Nurse Anesthetist. In 2011, she was having issues at home due to a divorce and other family matters. A co-employee advised her supervisor that Barnum said, “…maybe I’d be better off (if) I wasn’t here, maybe I should just put a gun to my head, maybe I should just not be here.”
An anesthesiologist at the hospital also became concerned about Barnum’s ability to concentrate on taking care of patients. A surgeon had to ask her twice to raise a patient’s operating table because Barnum was not paying attention. When the surgeon got her attention, Barnum said words to the effect that “I’m not worth anything or I’m worthless, what good does it do or what difference does it make, why should I even be here, maybe I should do everybody a favor and not be around.” For her part, Barnum denied ever having this specific conversation with this doctor, but she did admit to being unable to adjust the height of the operating table and becoming frustrating and tearful.
Several doctors at the hospital became concerned about possible suicidal risk, leading the hospital to place Barnum on sick time leave for one to two weeks in October 2011. The hospital requested a fitness-for-duty examination with a psychiatrist. Barnum was concerned about doing this in part because her husband worked as a case manager for the OSU mental health department and he might see the medical records. Eventually Barnum saw a psychiatrist, Dr. Masterson, on November 16, 2011. The hospital wanted to make sure that this psychiatrist spoke with one of the physicians from the hospital who was aware of some of the comments that had been made at work.
Dr. Masterson prepared her report, which Barnum delivered on February 22, 2012. In that report the doctor stated that Barnum was fit for duty and always had been. However, the doctor had not spoken with the key physicians at the hospital, so the hospital would not allow Barnum to return to work. Barnum filed a Charge of Discrimination with the Ohio Civil Rights Commission in April 2012 because she was not being permitted to return to work. Eventually, Barnum signed an authorization allowing Dr. Masterson to speak with two doctors at the hospital about her behavior and comments at work. On July 31, 2012 Barnum presented a second medical report from Dr. Masterson stating that the conversations with the doctors did not change her opinion: Barnum remained fit for duty.
On November 9, 2012, Barnum was reinstated to her position. She then sued for discrimination on the basis of disability. She argued that OSU violated the Americans with Disabilities Act by requiring her to undergo a medical examination that was not job related. The Sixth Circuit Court of Appeals disagreed:
An employer may request a medical examination when ‘there is significant evidence that could cause a reasonable person to inquire as to whether the employee is still capable of performing her job… The burden is on the defendants in this case to show that the required mental-health evaluations were ‘job-related and consistent with business necessity.’
The Court said that in this case there were numerous and legitimate concerns about whether Barnum could perform job tasks and concentrate at work. The hospital had been informed that Barnum had made a comment suggesting suicidal thoughts. “These circumstances constitute significant evidence that would cause a reasonable person to inquire whether the employee is still capable of performing her job.” The Court therefore dismissed plaintiff’s law suit.
-----------------
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.
Permanent partial disability awards are often mysterious, partly because New Jersey compensation is so different from our neighboring states. For those who are used to the laws in Pennsylvania and New York, permanency awards in New Jersey can make no sense. Here is a sample of common questions about our system in New Jersey:
Question:How can someone who is back to his or her job doing full duty receive an award for permanent partial disability?
Answer: Unlike most states whose compensation systems focus on lost wages, New Jersey has two indemnity payments. The first, temporary disability benefits, depends on actual lost wages. They are similar to payments in other states. These benefits end at maximal medical improvement or return to work, whichever occurs first. But permanency payments are based onloss of function, not directly related to lost wages. The loss of function need not arise at work; it can be loss of function in non-work activities, like sports, hobbies, home activities or the like. Someone who is back to work doing the same job following surgery will still get an award of partial permanent disability.
For example, if an employee has rotator cuff repair surgery and returns to work performing the same job duties as before the accident, the employee is still eligible for a permanency award if he or she has lost function in the activities of daily living.
Question: What kind of testimony does a Judge of Compensation need to hear to decide to make an award of permanent partial disability?
Answer: The New Jersey Supreme Court said inPerez v. Pantasote, 95N.J. 105 (1984) that an employee must provide both objective evidence of impairment in the body member plus either evidence of a lessening of working ability or a substantial impact on non-work activities. The first part of this test is easy to prove if there is a positive MRI or surgical record given that this would be considered objective medical proof of impairment. The second part of the test depends on the testimony of the claimant in court. The claimant will describe the impact of the injury on work or non-work activities, discussing activities that he or she can no longer perform or have had to curtail. If there are no complaints about work activities, the Judge will focus on statements that the claimant makes about hobbies, household chores, and basic daily activities like sleeping that have been affected by the work accident.
Question: Does a claimant who has had surgery ever not receive an award for permanent partial disability?
Answer: There are many claimants who never file for permanent disability awards who have had surgery. One is not eligible for such an award unless he or she files a claim petition in the Division of Workers’ Compensation. Almost every claimant who has surgery and who files a claim petition will receive an award of permanent partial disability because there will almost always be testimony that the surgery has left the claimant with a substantial impairment of work or non-work activities. The only exception would be a claimant who came to court and testified that the work injury and surgery had no impact at all on work or non-work activities. The undersigned has never encountered this in his practice.
Question: How does an adjuster reserve a case following surgery? Is there a particular formula that a judge uses to determine an award?
Answer: There is no cheat sheet or document that New Jersey judges use to make awards. Unlike almost every state, New Jersey doesnot follow the AMA Guidelines to Impairment. Every case must be assessed on its own merits, and the Judge must factor in the objective evidence and the testimony regarding the impact of the injury on work and non-work activities. Both sides obtain permanency evaluations, and the judge reviews all of these reports. The permanency evaluators are generally far apart in their assessment of disability.
As a general rule, operated cases are worth more than unoperated cases on the theory that if a medical condition requires surgery, it is probably more serious than one that does not require surgery. For most operated cases involving one surgery to the back or shoulder, for instance, a practitioner knows that the loss of function which may ultimately be awarded may be around 25% of partial total, give or take a few percentages points. An award of 25% of partial total means that the worker has lost about a quarter of his or her function. So an operated rotator cuff case with no serious complications may be reserved around 25%. The ultimate award will depend on the objective medical evidence and the testimony before the particular judge who is hearing the case. Experienced adjusters and defense counsel have a sense of how to reserve for operated and unoperated cases.
Question: Have disability award percentages changed over the 36 years since the 1980 Amendments?
Answer: Not really. The big change since the 1980 Amendments has been the escalation in theamount of the award, not the percentage of the award. An operated herniated disc surgery without complications in 1980 would generally be reserved for 25%, as it is today, give or take a few percentage points. However, the dollars have dramatically increased. For example, in 1979 before the amendments took effect, an award of 50% permanent partial disability was valued at $12,000. Today in 2016, an award of 50% permanent partial disability would be valued at $
One kind of injury where percentage awards have increased are head injuries. Medicine and science have revealed a great deal more about head injuries and concussions in the past 10 years, resulting in much higher awards than in the 1980s.
Question: Why are finger injuries often put in terms of the hand and not the schedule for fingers?
Answer: New Jersey has scheduled awards and unscheduled awards. Fingers and hands have their own schedules. They are not like partial total awards for parts of the body not on a schedule, such as the back, neck shoulder, hip, trunk, and internal injuries. Scheduled awards are valued lower than unscheduled awards. A loss of function of 25% of the index finger is paid over 12.5 weeks. A loss of function of 25% of the hand is paid over 61.25 weeks. By comparison, an award of 25% for a back injury is paid over 150 weeks. Claimants argue that the loss of function of the finger impacts the function of the hand and therefore contend that they should receive an award in terms of the hand, not the finger.
In the end, the Judge of Compensation has to decide whether the finger injury impacts the hand to such a degree that the award should be converted to a hand injury. If the finger injury only impacts the function of the finger, then the award is in terms of the finger. The Judge reviews the evaluation reports submitted by counsel for guidance. Sometimes the judge will convert the weeks for the finger to the exact same number of weeks in the hand, meaning no dollar increase in the award; other times, the judge may award a percentage in the hand that is somewhat higher than the weeks for the finger schedule.
There is general recognition that finger and hand awards are very low in New Jersey relative to unscheduled losses. There are bills being proposed to raise such awards. For instance, an award of 50% of the hand amounts to $ at 2016 rates; an award of 50% of partial total for the back amounts to $ .
Question: How can an employer produce evidence that may result in lower permanency awards?
Answers: There are a number of things employers and carriers can do to reduce the percentage of the award.
1) Credits for previous disability reduce awards, so that if an employer can show that the claimant had the same condition in the past or a related condition, the judge will consider awarding a credit to the employer. Credits are dollars that come off the award. This is why employers should furnish post-offer medical exams to defense counsel, as these exams often reference a condition that existed at the time of hire. This is also why defense counsel review ISO reports, DMV reports and prior family doctor records.
2) Employers who are aware of social or athletic activities or second jobs that employees currently participate in should transmit this information to defense counsel. This information is directly relevant since it bears on the impact of the accident on work or non-work activities. So if the employer is well aware that the employee seeking a permanency award is actively golfing and playing basketball but that employee has told his medical evaluator that he can no longer do these activities, this information needs to get to defense counsel. In one case the undersigned had an employee with two surgeries to her leg who said that she could no longer golf as a result of the surgeries. The employer obtained a tip from a newspaper that the employee was an active member of a golf club and had one a best ball event. Our office contacted the golf club, which furnished the number of rounds that the employee played each week, and the Judge of Compensation reduced a very large award to a minimal award.
-----------------
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.