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.
One of the challenges for employers is determining when a fitness-for-duty examination can be required and when it cannot be. This issue sometimes flows from a workers’ compensation case following a long period of absence but also emerges in other situations unrelated to workers’ compensation. In Margaret Wright v. Illinois Department of Children and Family Services,798 F.3d 513 (7th Cir. 2015), the issue arose from conduct that the employer thought was grossly inadequate.
Margaret Wright worked as a caseworker at the Peoria Illinois Field Office for 25 years. In 2005 she became the caseworker for CPL, a 10-year-old ward of the Department, who resided at the Rice Child and Family Center. Following an incident at Rice, Dr. Costa interviewed CPL and determined that Wright had caused CPL to go into a frenzy because she told CPL that there were four foster families available to her in spite of the fact that CPL was not yet on the foster-care list due to her emotional problems. CPL then refused to take her medications and said she no longer had to listen to anyone because she was leaving Rice. CPL incited a riot in her unit during which children threw and broke furniture and attempted to attack the staff.
Dr. Costa concluded that Wright’s conduct posed a risk to CPL. He issued a medical order preventing Wright from having further contact with CPL and the Department removed Wright from the case. Wright filed a grievance and issues arose regarding Wright’s conduct over the years. Costa backed up his recommendations with a letter stating that he felt Wright’s mental health needed to be assessed. Rather than issue a reprimand, the Department chose to require the mental status examination, asserting that Ms. Wright had a history of defiance to all levels of management; she had been verbally abusive in the past and had an abrasive manner with foster parents. Wright refused to attend the fitness examination and filed a grievance. Eventually, she agreed to go to the examination but refused to answer the doctor’s questions. Instead she questioned the doctor on why an evaluation was ordered of her in the first place.
Wright was suspended and took vacation time. During the period of suspension, she contacted the State Employees’ Retirement System to determine the impact that quitting or being discharged would have on her pension. She learned that she was eligible to retire with a reduced pension. She then submitted her retirement effective September 30, 2007. After she retired, Wright sued her former employer for violating her rights under the ADA and for constructively discharging her.
After two lengthy trials, the case proceeded to the Seventh Circuit Court of Appeals. The Court first referred to EEOC Guidance stating that an examination is job-related and consistent with business necessity when an employer has a reasonable belief based on objective evidence that a medical condition will impair an employee’s ability to perform essential job functions or that the employee will pose a threat due to a medical condition. It said that fitness exams can be justified when an employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties, but it is not enough that an employee’s behavior is annoying or inefficient.
The Court decided against the Department in this case. “In our view, the district court correctly determined that the evidence submitted at trial was insufficient to establish, as a matter of law, that requiring Ms. Wright to undergo a fitness-for-duty evaluation was consistent with business necessity. The Court focused heavily on the different way in which Wright was treated from other employees who were required to attend fitness examinations. In those other cases, the employees were placed on desk duty pending the examination. In this case, when Wright was instructed on June 4, 2007 to attend a fitness examination, she was not placed on desk duty. In fact, she was assigned a new case which turned out to be a sensitive one. One department employee testified that it did seem contradictory to assign a new and sensitive case to someone whose mental status was being questioned.
The Court concluded, “The evidence presented at trial supports a finding that the Department did not believe that Ms. Wright posed a safety risk to the children with whom she worked and, instead, that it considered her competent to continue working with approximately two dozen children. Given this evidence, a reasonable jury could determine that Ms. Wright’s fitness-for-duty examination was not, in fact, consistent with business necessity.”
The case is important because it shows how courts will evaluate whether an employer has met the job-related and consistent with business necessity standard. The court will look at how the employer treated the employee in question during the time of the fitness examination and in relation to how other employees have been treated when required to attend fitness examinations. Since the basis for the examination of Wright was an alleged direct threat of harm to others, it made no sense that Wright continued to handle her cases and got a new and sensitive case to work on. While Wright prevailed on this aspect of her case, she lost her constructive discharge claim because the Court believed that she retired in the end mainly because she found out that early retirement was available to her, not because of the conduct of the Department.
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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 Clayton County School District in Atlanta, Georgia employed Edith Hill as a bus driver. During the school year 2009-2010 Hill was assigned a non-air-conditioned bus for special needs students. The temperatures inside the bus rose above 100 degrees and Hill found she was experiencing serious difficulty in breathing. She filed an “Employee Request for Reasonable Accommodation” on August 11, 2009 stating that extreme heat impaired her ability to breathe.
Hill attached two doctors’ notes, one from a pulmonologist who said she had an airway-related physical impairment that limited her breathing abilities. If she were provided with an air-conditioned bus she could do the job, according to the pulmonologist.
On August 13, 2009, the School District placed Hill on unpaid leave while it considered her request. On August 28, 2009, the School District sent Hill a letter denying her request because all air-conditioned buses had already been assigned to other drivers. The letter did not mention that the District was in the process of obtaining more air-conditioned buses.
There was a dispute at trial whether the School District offered Hill one of these new air-conditioned buses. Hill said it never happened; several employees of the School District said that the offer was made. Hill remained out of work through 2009 and into early 2010. The School District terminated her employment on March 2, 2010. Hill then sued under the ADA for discrimination.
The District Court ruled in favor of the School District and dismissed Hill’s law suit, but the Eleventh Circuit Court of Appeals reversed in favor of Hill on the disability discrimination issue. The Court first noted that there was conflicting evidence on whether the School Board ever made an offer to Hill about using one of the new air-conditioned buses. None of the School Board’s witnesses actually recalled making the offer to Hill. The Court added:
Even assuming the School District did make such an offer, there is still a dispute as to whether making Hill wait two months was reasonable. In its motion for summary judgment, the School District argued that providing an air-conditioned bus any earlier would have constituted an undue hardship, but does not provide sufficient evidence of what the hardship would be. All the School District said was that it would have had to upset its seniority-sensitive bus-allocation process.
The Court reviewed prior case law where employers had made employees wait a few months before making an offer of reasonable accommodation. It said that in all of the prior cases, the employer paid the employee during the waiting period before a decision was made on the offer or allowed the employee to work during the waiting period. The Court said, “Here, by contrast, two months was more than enough time for the School District to overcome any administrative hurdles in providing Hill with an air-conditioned bus.”
What this means is that Hill has an opportunity to present her case before a jury. The lesson in a case like this is that employers must act promptly when it comes to requests for reasonable accommodation. In this case it was hard for the School Board to argue that Hill had no right to the accommodation request. Hill had in years past driven an air-conditioned bus. The case also shows the importance of making a written offer of accommodation. Throughout the hearing process the parties fought over the issue of whether an offer of accommodation had been made, even though this could have easily been resolved by documenting this in a written offer letter. The case can be found atHill v. Clayton Sch. Dist., No.13-14951, (11th Cir. 2015).
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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 part one we examined the law surrounding New Jersey occupational disease claims and trends in our state (see last week’s blog). In this segment, we will explore strategies and tactics employers can take to win occupational disease claims.
Winning workers’ compensation claims depends more than any other factor on obtaining past medical history. Experience teaches us that the vast majority of claimants who file back, neck, shoulder, leg, respiratory, and stress claims have had symptoms and treatment in the past, but often this information does not emerge and is not discovered until too late. This is particularly true in New Jersey where depositions are not permitted except in rare cases on motion, and where interrogatories are only allowed in occupational disease claims – and the questions are pre-printed and often irrelevant. The single greatest reason that workers’ compensation benefits are overpaid is the failure to discover prior medical history. In occupational disease claims, an employer will overpay virtually every case if the employer does not know what the employee does outside work and has done in the past and does not have an accurate picture of the employee’s health before the claim was filed.
It is imperative for the employer to identify the prior family doctor and get his or her records going back as far as possible. That is true for all occupational orthopedic claims, respiratory claims, carpal tunnel claims and stress claims. As mentioned last week, the employer defeated the carpal tunnel claim inHuntoon only because respondent’s counsel insisted on obtaining prior family doctor records, which led directly to the statute of limitations defense.
Consider for a moment what the adjuster and defense attorney are looking for:
In respiratory claims, the family doctor records may contain the past smoking history, references to chronic cough or history of allergies.
In carpal tunnel cases, the family doctor records may reveal diagnoses of conditions which are known to cause carpal tunnel syndrome: hypertension or diabetes, for example.
In occupational orthopedic claims, the family doctor records may contain information about arthritic pain, joint pain related to weight gain, pain from over-exercising at the gym or in jogging, and treatment due to car accidents and slips and falls generally.
In cancer cases, the family doctor records often refer to family history of cancer.
In addition to obtaining prior family doctor records, the adjuster and defense counsel should be writing to claimant’s counsel or filing supplemental interrogatories asking about the following:
In respiratory claims: the name and address of allergists the claimant has seen in the past, plus skin testing results;
In occupational hand claims, the name and address of rheumatologists and surgeons who have seen the claimant in the past;
In occupational orthopedic claims, the name and address of any chiropractor whom the claimant may have seen in the past as well as location of any MRIs, EMGs or other objective studies.
In occupational stress cases, the name and address of all prior psychologists, mental health counselors and psychiatrists.
Most defense lawyers around the country believe that there is no level playing field for employers when it comes to workers’ compensation. As far as discovery goes, New Jersey’s system is seriously tilted against employers. While New Jersey has employer control of medical care, that fact is not of any consolation in an occupational disease claim because almost 100% of occupational disease claims are denied at the outset. There are seldom any authorized treating records available. So adjusters and defense counsel have to be creative in conducting informal discovery. Since the standard pre-printed form interrogatories do not focus on what employers need to know, adjusters and defense counsel must explore prior medical history informally, seek information about second jobs, prior and present hobbies, martial arts, sports and recreational activities, and inquire about hobbies like woodworking or crocheting in repetitive stress claims. When the claimant’s counsel will not cooperate, defense counsel should file a motion for supplemental interrogatories.
The tactics that help employers win occupational disease claims vary depending on the nature of the allegations. Respiratory claims are particularly frustrating for employers because often they are brought like class actions with dozens of claimants filing petitions at once, almost none of whom have ever treated before for breathing-related complaints! New Jersey has always had its share of plant closing cases, and these cases typically involve respiratory claims. The good news is that employers can win the vast majority of these cases at trial. The reason employers have the edge is that respiratory claims are unique in having objective data to support the defense. Pulmonary function studies provide scientific information on lung function, and the tests are repeated to reveal if the claimant is not making a genuine effort to exhale or inhale. No matter what the claimant says of a subjective nature (short of breath, trouble sleeping, or coughing), pulmonary function studies provide reliable objective evidence which satisfies the standards ofN.J.S.A. 34:15-36.
When an employer has to fight respiratory claims, whether in a mass filing following a plant closing or in an individual claim, the employer needs to retain board certified pulmonologists who do more than just spirometry. The employer needs lung function and diffusion capacity studies in addition to spirometry because all of this information provides scientific proof of lung function. In 90% of plant closing respiratory claims, the pulmonary function testing turns out to be normal. Where the tests are abnormal, there is often an allergy history or cigarette smoking history. A claimant can complain in testimony of shortness of breath but if the FVC and FEV1 parameters are normal, that fact will carry the day with the judge because this is objective evidence. Awards must be based on objective evidence of restriction of function underN.J.S.A. 34:15-36. Many cases have been decided in the past few years in favor of the employer on respiratory claims solely because the employer retained the better medical expert, who did spirometry, lung volume testing, and diffusion capacity testing.
Employers who must defend respiratory claims following plant closings should try to procure photos of the work environment, preferably video of the work environment, so that the defense expert and judge can see first-hand what the conditions really were like. Claimants in plant closing respiratory claims tend to say the same things: “the atmosphere was dirty and dusty at all times, and I coughed a lot.” But the photos and videos of the work premises can rebut these allegations.
One little known fact is that mild bronchitis is excluded from compensation inN.J.S.A. 34:15-36. Many cases come down to complaints of a cough for which the employee has never treated. Arguably, if this complaint is true, it is a condition of mild bronchitis, which is not compensable by law.
In any type of occupational disease claim, social media plays a major role because many claimants post information on Facebook or other sites that contradict their assertions in the workers’ compensation claim. Ex: employee in an occupational knee claim posts photos of recent 5k runs, or employee in occupational back claim posts photo of himself lifting 400 pounds at the gym. Defense law firms often win many traumatic and occupational disease claims simply by doing social media searches.
Insurance carriers and third party administrators have access to ISO reports, and employers should re-run ISO searches periodically during the life of the case. An ISO report will often lead to other accidents or claims which may independently explain the reason the claimant has certain symptoms. In the case ofJackson v. Township of Montclair, No. A-2212-11T2 (App. Div. July 5, 2012), the employee denied any prior knee problems only for the adjuster to discover that one year before the workers’ compensation accident, the employee had injured his knee in a car accident and had the very same diagnosis at that time. The employer eventually pressed successfully for a dismissal based on workers’ compensation fraud.
Collaboration among the employer team (department supervisor, HR, plant manager, claims professional, defense counsel, and others) will almost always lead to valuable information about the claimant. For this reason, employers who actively get involved in the defense of claims have uniformly better results than employers who simply refer the entire defense to the carrier/TPA and defense counsel. This point cannot be emphasized enough: no one knows more about the work conditions and the claimants than the management team.
When all the discovery has been completed, the choice of independent medical examiner is dispositive. The entire investigation, prior medical information, surveillance or videos of the job must go to the expert along with an explanation of the legal standard under N.J.S.A. 34: 15-31. Not enough time is spent on choosing the right medical expert. Factors to consider include whether the medical expert supports his opinion with scientific articles or just generalizes on causation, whether the medical expert testifies well in court, and whether the medical expert is known to ask detailed past medical history and past hobbies/recreational activities. Occupational disease claims depend on science because the standard is whether the occupational disease is produced by causes that are characteristic of or peculiar to the occupation. Hence, Dr. Kenneth Peacock will provide medical literature to support his opinion that a given activity – typing, for example – has not been shown to be linked to the development of carpal tunnel syndrome. That sort of testimony is powerful both in the Division of Workers Compensation and in the Appellate Division. The claimant’s doctor may say simply that typing caused the carpal tunnel syndrome condition, but if he or she cannot back that theory up with research or medical literature, the assertion is nothing more than a net opinion. So clients and counsel should dialogue the choice of defense expert, and in that connection, the cheapest expert is generally the worst choice.
To sum up, occupational disease cases can be won consistently by the employer, particularly occupational respiratory and stress cases. The case law is favorable in both areas of the law. Respiratory cases can often be won just because the employer retained the best pulmonary expert in the region who does the full range of pulmonary function testing. Stress cases can be won because every employee is under stress generally, and generic stress is not compensable. Further, stress caused by merited criticism is not compensable. Occupational orthopedic claims involving the joints or upper extremities are more challenging for employers, but they can be won with strong collaboration among the defense team and with exhaustive past medical discovery.
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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.
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This is a two part analysis of the defense of occupational disease claims in New Jersey workers’ compensation. The first segment will focus on the proofs in occupational disease cases and why this practitioner believes that these kinds of claims will be filed increasingly in coming years. The second segment will focus on how employers can win occupational disease claims.
After the New Jersey Workers’ Compensation Act was reformed in 1979, occupational disease was defined in such a way that there are really four proofs that a claimant must make to prevail in compensation court, and language was inserted in N.J.S.A. 34:15-31 which provided some level of protection for employers. While some practitioners believe it is easier for a claimant to win an occupational disease claim than a traumatic claim, this argument ignores the fact that there are additional proofs in an occupational claim that do not exist in a traumatic claim.
Both types of claims must satisfy the following two standards:
1) An occupational disease as well as a traumatic injury must arise out of the employment;
2) An occupational disease as well as a traumatic injury must occur during the course of employment;
3) However, in an occupational disease claim, the claimant must also prove that the illness was produced by causes which are characteristic of or peculiar to the trade, occupation, or place of employment.
4) Further, the claimant must show that work contributed in a material degree (not a minor degree) to the illness.
The statute also says, “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.” If an employer can prove the condition is due to the natural aging process, the employer wins.
After the 1979 Amendments took place, employers began to test the new provisions of the law in response to an enormous number of occupational respiratory claims filed in the 1980s. These claims were often filed by pipefitters or shipyard workers and generally involved exposure to asbestos, leading to a variety of asbestos-related diseases. By the mid-1980s into the late 1990s, firefighters, police officers and factory workers around the state began to file thousands of occupational respiratory claims. These respiratory claims constituted the single largest group of occupational disease claims in the Division of Workers’ Compensation at this point in time.
Employers began to litigate these respiratory cases in the 1990s leading to fairly strong case law for respondents, particularly Laffey v. City of Jersey City, 289 N.J. Super. 292 (App. Div.), certif. denied, 146 N.J. 500 (1996). Laffey stressed that courts should not focus just on the petitioner’s own description of the work environment as dusty and dirty, but on evidence of articles, treatises, and medical studies that prove a link between exposure to fumes and dust to complaints of shortness of breath and coughing. Employers began to win a high percentage of trials, and the volume of such claims declined because the science often was not there to support the claim.
The next big wave of occupational claims occurred in the 1990s with occupational carpal tunnel claims. These claims have also recently tailed off in volume for different reasons: first, ergonomic changes in the workplace have created safer work environments for those who use their hands throughout the day. Secondly, the New Jersey Workers’ Compensation Act continues to undervalue hand injury claims such that a hand injury is worth 2.45 weeks per percentage while an injury to the trunk is worth 6 weeks per percentage.
The single most devastating case to occupational carpal tunnel claims was Huntoon v. Borough of Clementon, No. A-0956-09T3 (App. Div. July 28, 2010). That case barred the claim of a clerical worker who filed a claim petition in 2007 alleging carpal tunnel syndrome from continuing typing and paper work. The respondent’s attorney obtained prior family doctor records which showed in 2004 that petitioner already had a diagnosis of carpal tunnel syndrome. Even though she continued to allege exposures contributing to her illness through 2007, the Judge of Compensation held that the claim petition was time barred because petitioner did not file within two years from when she knew her condition and thought it was work related. The Appellate Division affirmed. Because of this case, the statute of limitations remains a powerful defense to many occupational disease claims.
Enter the most recent wave of occupational disease claims, which began to form in the past five years. Some law firms began fairly recently to market occupational disease claims or repetitive stress injuries through print and radio spots, specifically targeting older workers who may have problems with their shoulders, spine, legs and arms. These claims involve allegations that such medical conditions are a result of decades of repetitive work activities. Prior to 2010, these claims had been occasionally filed in New Jersey but in recent years, the filings are dramatically increasing. Clever law firms have recognized that employees are working later in life and longer than in the past. The so-called aging workforce is an enormous market in New Jersey and in other states for occupational disease claims of the upper extremities and spine. This trend is here to stay for economic reasons: folks are working later and longer because they have to in order to survive. One can expect that occupational disease claims for upper extremities and the spine will constitute an ever rising percentage of formal petitions in the coming years.
What is the main weapon that claimants use to advance occupational claims for the shoulder, spine, arms and legs? It is the MRI. The MRI study has probably cost employers nationally in workers’ compensation billions of dollars over the years because employers inevitably end up paying for normal age-related changes. The MRI is a study which provides a fairly accurate and clear picture of the body part: a partial or full tear, a herniated disc, a torn meniscus or ligament, etc. But it cannot date the finding or indicate whether the finding on MRI is age related or is the result of years of repetitive physical activity, whether at work or in the gym. As Dr. Kenneth Peacock has said, “One can look at an oak tree and know that it did not spring up overnight.” That is true, and employers know intuitively that they are often being asked to pay for normal age related changes on MRI, but the problem is that there is no medical science that can clarify when and why certain abnormalities are found in joints or disc spaces. One cannot simply argue to a judge of compensation that every bulging disc is preexisting and unrelated to physical exertion. Costs also limit the ability of respondents to counter a positive MRI. For example, seldom does a doctor treating a right shoulder claim for a partial tear order an MRI of the asymptomatic left shoulder to compare the findings in the shoulders. If this were done, one would often find that both shoulders have identical partial tears due to aging. But this would be expensive and problematic.
So how does a doctor tell the difference between a joint problem that is caused by a worker who repetitively does a physical task and a joint problem that is caused by the natural aging process? If technology cannot solve the problem, then defense counsel must step in with the help of strong expert witnesses who can provide good medical literature and studies. Discovery is crucial for employers, and it remains this practitioner’s belief that employers can win occupational disease cases only if they perform aggressive prior discovery. In the next segment, the focus will be on the steps employers must take to successfully defend such cases, beginning with getting prior family doctor records from as far back as possible. Without such records it is next to impossible to determine whether the medical condition is preexisting or produced by non-work activities or age-related changes. Defending occupational disease claims without prior discovery is like picking horses at the race track based on names: you will only win by accident.
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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.
Cases in the Third Circuit Court of Appeals have great importance for New Jersey employers in connection with the FMLA. The case ofHansler v. Lehigh Valley Hosp. Network, 790 F.3d 499 (2015 U. S. App. LEXIS 10444) (3d Cir. June 22, 2015) is worthy of study. It involved a technical partner who was hired in 2011 and began to have shortness of breath, nausea, and vomiting in 2013. The cause of these symptoms was unknown at the time she submitted her medical certification for intermittent leave under the FMLA. The medical certification form requested intermittent leave at a frequency of two times weekly starting March 1, 2013 and lasting for a probable duration of one month – or until April 1, 2013.
Hansler was unable to work on March 13, 14, 23, 24 and 25. Lehigh Valley terminated her employment at the end of her shift on March 28, 2013 for excessive absenteeism. The hospital did not seek further information about the medical certification submitted on March 13th. Hansler protested that she had requested FMLA leave but the hospital advised her that her request was denied. However, Hansler was unaware of this until she got a letter around the last day of her absences. This letter stated that he leave request was denied because her condition did not qualify as a serious health condition. In early April 2013 Hansler was diagnosed with diabetes and high blood pressure. She alleged in her law suit that these previously unknown diagnoses were the cause of her absences.
In her law suit for interference with her FMLA rights, Hansler argued that she had a chronic serious health condition and the hospital failed to allow her seven days to cure the vague certification she submitted. Lehigh Valley countered that a chronic condition must continue over an extended period of time, and one month is not enough. The District Court agreed with Lehigh Valley but the Third Circuit Court of Appeals reversed in favor of Hansler. It said there is a difference between a negative medical certification and an incomplete or vague certification in that the latter requires the employer to allow the employee seven days to cure.
The Court gave an example of a negative certification as one in which the medical certification flatly says that the employee is not incapacitated from working. There would be no need to ask the employee to cure this sort of certification. But in this case, the court found:
In short, we hold today simply that when a certification submitted by an employee is ‘vague, ambiguous, or non-responsive’ (or ‘incomplete,’ for that matter) as to any of the categories of information required under 29, U.S.C. 2613(b), the employer ‘shall advise the employee . . . what additional information is necessary to make the certification complete and sufficient’ and ‘must provide the employee with seven calendar days . . . to cure any such deficiency.’ 29 C.F.R. 825.305(c). The plain and mandatory language of the statute and regulations requires no less.
The Third Circuit presented the following rationale for its holding: “Rather, because a ‘sufficient certification’ for intermittent leave under 29U.S.C. 2513(b) must address both ‘the expected duration of the intermittent leave’ and the ‘probable duration of the condition,’ and because the certification here failed to specify whether the ‘probable duration of the one month’ referred to the duration of the leave request, the duration of the medical condition, or both, the certification was not a ‘negative certification,’ but was instead ‘vague, ambiguous, or non-responsive,’ meeting the definition of ‘insufficient.’” In short, the Court felt that the certification was vague in regard to the meaning of duration: was it the duration of the leave request or the medical condition?
The Court said that Lehigh Valley should have advised Hansler that the certification was insufficient and stated in writing what additional information was required. In addition, the hospital should have allowed her an opportunity to cure or clear up the ambiguity. The Court was also critical of Lehigh Valley for not advising Hansler right away that her request had been denied. The Court concluded, “Faced with nascent symptoms from a yet-to-be diagnosed condition, an employee’s physician may need some additional time to provide the required elements of a certification.”
This case is important because it focuses on a situation where an employer tends to jump the gun in termination decisions. If in doubt, the employer should allow the seven days to cure unless it is absolutely clear from the certification that the employee is not incapacitated from working and therefore does not have a covered serious health condition.
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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 case of Jose Moreira v. Carlos Peixoto, et. al., A-5741-12T1 (App. Div. September 10, 2015) presents a complex tale of insurance fraud that ends with an important clarification about the lien rights of an employer and the potential challenges to lien calculations by employees.
Jose Moreira was injured working privately on a house owned by a manager of Macedos Construction Company, Inc. (Macedos). The company (Macedos) fraudulently reported to its workers’ compensation carrier, Virginia Surety Company (VSC) that Moreira was a full-time employee of the company. In addition to this misrepresentation, Moreira signed a written statement to VSC’s adjuster stating that he was a full-time employee of Macedos who had been hired and injured on the same day, namely October 1, 2005. Moreira also filed a claim petition asserting that he worked for Macedos when he was injured. Based on these misrepresentations, VSC paid $260,864 in workers’ compensation benefits for Moreira.
Astonishingly, Moreira next filed a civil law suit against Macedos, alleging that he was a “business invitee” of Macedos on the day of his accident and not an employee. He settled this case for $3.7 million against Macedos. VSC filed a counterclaim against Macedos alleging that the company committed fraud under the Insurance Fraud Prevention Act and under the New Jersey Workers’ Compensation Fraud Act. The jury in the fraud trial exonerated Moreira of fraud, but the jury did find Macedos guilty of fraud under both Acts. For reasons that are unclear, the jury awarded VSC no damages for the fraud violations. However, the judge awarded VSC $1,031,330 for counsel fees and trebled that amount under the Insurance Fraud Prevention Act.
Next VSC pressed its subrogation rights against Moreira since he recovered $3.7 million dollars in his settlement with Macedos. Even though Moreira had filed a claim petition asserting that he was an employee, he raised a rather bold defense. He contended that since he was not in fact an employee of Macedos, the workers’ compensation lien did not apply. The judge ruled that Moreira could not have it both ways, stating that since “Moreira was believed to be an employee of Macedos and actually received the workers’ compensation benefits, the lien was valid even though Moreira was not an employee.” This meant that VSC would be entitled to reimbursement of two thirds of its payments or about $172,877.
On appeal to the Appellate Division, Moreira argued both that he was not an employee and should not have to pay back the lien. Further, he argued that VSC failed to prove that the medical costs were reasonable and necessary. The Appellate Division rejected flatly the non-employee argument:
Here, Moreira held himself out as an employee of Macedos when he submitted the written statement to VSC’s adjuster and applied for workers’ compensation benefits. Although the jury found he did not act fraudulently, he still received workers’ compensation benefits on his representations. Thus, permitting Moreira to retain the workers’ compensation benefits paid by VSC would allow him to obtain a double recovery to which he had no more right than if he was a legitimate employee of Macedos. Accordingly, we conclude that VSC has a valid lien on the settlement proceeds.
The next issue which the court considered related back to an important case,Raso v. Ross Steel Erectors, 319N.J. Super. 373 (App. Div.),certif. denied, 161N.J. 148 (1999). That case focused on what payments are lienable underN.J.S.A. 34:15-40 and held that ordinarily rehabilitation nursing expenses are only lienable if the employer can prove the care benefited the employee and was reasonable and necessary. Moreira argued that the judge improperly included in the lien calculations non-reimbursable payments made to VSC’s claims administrator and a medical case management company.
The Appellate Division made a key distinction at the outset between care selected by the employee and care selected by the carrier. “Moreira cannot argue that the workers’ compensation payments VSC made directly to him or to health care providers he selected were not reasonable and necessary to cure or relieve his injuries.” Having said this, the court went on to discuss the differences between care chosen by the employee or by the employer/carrier:
Because N.J.S.A. 34:15-15 addresses the different issue of what an insurer can be forced to pay, and because an employee should not be able to select treatment providers and accept treatment and then claim it was unnecessary, we decline to extendRaso beyond insurer-selected medical providers. Moreover, we do not require the insurer to carry its burden regarding insurer-selected providers until the plaintiff provides some evidence, such as a medical report or medical witness as inRaso, that the treatment was unnecessary, which Moreira did not do here.
In essence, the court held that as to care selected by Moriera, those bills could not be questioned at all regarding reasonableness and necessity. As to care selected by the carrier, Moreira must first offer evidence that the treatment was not necessary before he can challenge the reasonableness and necessity of the care.
Lastly, the court remanded the case for a determination of whether VSC included non-reimbursable payments made to VSC’s claim administrator and a medical case management company in calculating the lien amount. The court cautioned, “Just as ‘medical expenses’ under N.J.S.A. 34:15-40(b) should not include the salaries an insurer pays its employees for administrative work, it also should not include the fees the insurer pays an outside entity to do outsourced administrative work.”
This case is important for many reasons, and it is regrettable that it has not been published. It offers one of the few serious discussions of theRaso case in regard to when an employee can challenge the reasonable and necessary standard with respect to lien inclusion. It sets a new distinction between care chosen by the employee and care chosen by the carrier. The case also provides a warning to employers to be careful not to include administrative charges in lien calculations. For this reason, claimants’ and plaintiffs’ counsel routinely ask for a breakdown of the lien calculations to make sure the lien numbers are valid. The case is also helpful in discussing two parallel fraud statutes, namely the Insurance Fraud Prevention Act and the New Jersey Workers’ Compensation Fraud Act.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
Employers always struggle with this dilemma: if a claimant receives an award for knee surgery related to a repair of a torn meniscus, does that mean that future knee treatment for arthritis in the knee must be the responsibility of the employer? This issue arises often when the subject at issue is a possible total knee replacement. The case ofWake v. Township of Toms River, A-5876-13T2 (App. Div. September 16, 2015) provides guidance.
The petitioner, Jan Wake, received an award for the knee following a surgery to remove the posterior horn and the entire middle portion of the lateral meniscus. Petitioner had preexisting arthritis in the knee. The award that was entered in court referred to the work accident causing an “acute exacerbation of bi-compartmental degenerative joint disease.” Several years later the petitioner reopened the case seeking further treatment related to arthritic problems in the knee.
Petitioner argued that the language of the prior order in referring to an “acute exacerbation of bi-compartmental degenerative joint disease” required the Township to accept future knee treatment because the language meant that the underlying condition of arthritis had been worsened. Petitioner’s expert said that the removal of the posterior and lateral meniscus removed all of the shock absorbers between the two arthritic bones. That materially exacerbated petitioner’s preexisting arthritis.
Respondent’s expert disagreed. He said that the petitioner’s need for knee treatment is causally related to the prior degenerative arthritic condition and not the work related injury. The expert further said that petitioner “would be suffering from the same symptomology had the work-related injury not occurred.”
The Judge of Compensation, the Honorable Ronald Allen, held that petitioner’s knee condition was degenerative in nature and agreed with respondent’s expert that the deterioration in the knee was due solely to advancing arthritis unaffected by the meniscal repair surgery. The Judge dismissed the claim petition and petitioner appealed.
The Appellate Division affirmed the dismissal of the case:
It is well settled that a worker seeking benefits based upon increased incapacity bears the ‘burden of proving by a preponderance of the evidence not only the fact of increase but also that it is causally related to the original accident and resulting injury.’
The Appellate Division found that there was sufficient credible evidence to support Judge Allen’s reasoning.
This case is important for employers and defense practitioners because it is widely assumed that if someone with an arthritic knee has work-related surgery to repair a meniscal tear, this automatically means the employer must pay should the knee condition decline and require a total knee replacement. But total knee replacement is generally due to severe arthritic conditions, not meniscal tears. Petitioner has the burden of proving that the surgery to repair the meniscus in some way contributed to the worsening of the arthritic condition. In this case, the language of the prior award did not help the employer because it referred to an acute exacerbation of bi-compartmental degenerative joint disease. Nonetheless, the employer won no doubt in part to solid testimony from its expert.
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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 the past month three clients have asked what they should do when there is a third party award larger than the comp award and the adjuster needs to pay a permanency award. For example: the claimant recovers $750,000 in a third party law suit. The total medical and temporary disability benefits are $150,000, and the permanency award is 50% of partial total at 2013 rates or 300 weeks at $551 per week for a total of $165,300. The claimant has already repaid $100,000 minus $750 for costs of suit to resolve the lien on the medical and temporary disability benefits. Now only the permanency award needs to be paid. Does the adjuster pay the permanency award over 300 weeks or does the adjuster pay one lump sum to the claimant?
This situation happens quite frequently, and the answer to the question can be found in the case ofOwens v. C&R Waste Material, 76 N.J. 584 (1977). That case involved an award in workers’ compensation for total and permanent disability benefits; however, the third party recovery was higher than the total workers’ compensation payments. The employer argued that the payments for permanency should be made over 450 weeks. The employee argued that the adjuster should pay one third of the permanency amount due in one check.
First, the New Jersey Supreme Court made clear that in a situation where the third party award is larger than the total workers’ compensation benefits,the employer is relieved of all liability to the claimant, other than to pay the employer’s share of the attorney’s fee in the third party case. That percentage is usually one third. That point must be emphasized because it means that the employer is not really paying workers’ compensation benefits in this situation: the employer is just reimbursing petitioner for counsel fees.
Next, the court dealt with the argument that it is unfair to require the employer to accelerate the permanency payments in one lump sum because the employee might die during the period of the payments of total and permanent disability. The employer further argued that if the employee should die during the period of permanency payments and not be survived by dependents, then all the employer would have to pay is a contribution to funeral expenses.
The Supreme Court rejected the employer’s argument:
We disagree and conclude that the legislative intent as expressed in N.J.S.A. 34:15-40 is that the computation of the employer’s pro rata share of the attorney’s fee in the third party recovery should be based on the potential compensation liability from which it has been released and does not depend on the happenstance of whether such liability were to terminate prematurely.
The Court added, “Since the obtaining by the employer of this tangible benefit coincides with the third-party recovery, it follows that the obligation to share legal expenses attributable to that recovery should be satisfied at the same time those expenses are borne by the employee.”
So, let’s go back to the initial example above. Does the employer pay $551 per week over 300 weeks reduced by two thirds or does it just issue one lump check in the amount of $55,100, which is one third of $165,300? Under the rationale ofOwens, the answer is the employer pays one lump sum check for $55,100. It does not make the payments over a period of 300 weeks.
While it is true that Owens was a claim for total and permanent disability, the rationale should be the same whether the award is for partial or total permanent disability. The point is that the employer is not paying the employee workers’ compensation benefits. It is reimbursing the employee for its share of counsel fees, and the Supreme Court felt that this should be done
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
New Jersey has a statute of limitations for occupational disease claims. In Rajpaul v. McDonald’s Corporation, A-4681-13T4 (App. Div. August 28, 2015), the proper application of the statute became the issue on appeal.
In this case, the petitioner worked as a maintenance person from August 1995 until November 2005 at McDonald’s. He began to have pain in his shoulders, wrists, and elbows in 1999. He sought medical treatment at Somerset Family Practice and was referred to Somerset Orthpedic Associates where he was diagnosed with bilateral bicipital tendonitis in 2001.
For the next four years petitioner continued to work at McDonald’s. In June 2005, he returned to Somerset Family Practice for treatment of his left shoulder. In November he left McDonald’s to work elsewhere. In June 2006, petitioner was diagnosed with a left shoulder rotator cuff tear and underwent surgery to repair the tear.
On December 14, 2006 petitioner filed a claim petition against McDonald’s alleging that occupational duties over 10 years caused his rotator cuff tear. McDonald’s moved to dismiss and argued that petitioner had failed to file within two years from when he knew the nature of his condition and thought that it was due to work. The Judge of Compensation granted the motion, and petitioner appealed.
On appeal, petitioner argued that the two-year statute of limitations should not have run in his case because he did not know he had a rotator cuff tear until 2006. While he did know he had shoulder problems as far back as 2001, he was never told he had a rotator cuff tear. Respondent argued that his condition was simply a progressive one due to tendonitis.
The Appellate Division sided with petitioner. “We agree with the compensation judge that petitioner knew of his prior diagnosis of tendonitis as early as 2001. Even so, we disagree with the compensation judge’s determination that petitioner had sufficient knowledge of a torn rotator cuff, based on previous treatment for tendonitis, to trigger the statute of limitations under N.J.S.A. 34:15-34.”
The Court in this case felt that the statute cannot run on a rotator cuff tear condition via a prior diagnosis of tendonitis because these are two completely different medical conditions. The case is helpful for practitioners in deciding when there is a valid statute of limitations defense. At a minimum, the medical condition at issue must have been diagnosed sometime in the past, and it must be the same medical condition that is presently at issue for the employer to win a statute of limitations defense.
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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.
Charlesetta Jennings worked as a Support Services Assistant (SSA) at Womble Carlyle, a 500 lawyer firm based in North Carolina. Her job required performing a wide variety of tasks, including managing supplies, delivering or picking up packages, copying and scanning documents, setting up conference rooms, filing for receptionists, operating copy and scanning machines, and binding documents.
Jennings took FMLA leave in 2008 when she was diagnosed with breast cancer and intermittent leave during periods of chemotherapy. In November 2009, she noticed tenderness and swelling in her left arm, a condition diagnosed as lymphedema related to the breast cancer treatment. Jennings continued to work but devised ways to avoid doing heavy lifting such as lifting packages or boxes of paper.
In June 2010, Jennings suffered a work injury occasioned by heavy lifting. She was working alone at the Liberty Plaza location of the office and had to tape up and move about 14 boxes weighing 32 to 38 pounds in addition to moving some paper boxes weighing 50 pounds. Her doctor then restricted her to lifting no more than 10 pounds.
The law firm met with Jennings and broke down the duties which Jennings could no longer perform. There were two or three times more duties that she could not perform than the ones she could perform within the 10 pound restriction. She could still copy and scan documents and deliver light weight envelopes as well as fill in for receptionists on breaks. The law firm continued to accommodate her for six months on light duty because it had a large scanning project going on. After the scanning project ended, the law firm could only keep Jennings busy 20% of the time.
On February 1, 2011 Jennings provided an updated doctor’s note allowing her to lift permanently no more than 20 pounds. However, there were still many tasks which Jennings could not perform with a 20 pound restriction. The law firm therefore placed her on a medical leave of absence effective February 9, 2011 and when the leave ran out, the firm terminated her employment in August 2011.
Jennings sued under the ADA and contended that Womble Carlyle failed to make reasonable accommodation. The EEOC brought the suit on behalf of Jennings. The District Court dismissed the law suit, holding that even with reasonable accommodation, Jennings could not lift more than 20 pounds. The Court of Appeals for the Fourth Circuit affirmed.
The Court of Appeals rejected the EEOC’s argument that Womble Carlyle could not consider job tasks that Jennings had not performed for quite some time. It said, “That an employee may typically be assigned to only certain tasks of a multifaceted job ‘does not necessarily mean that those tasks to which she was not assigned are not essential.’” (citations omitted). The Court pointed out that many of the tasks of an SSA required lifting substantially more than 20 pounds. When Jennings had tried to life more than 20 pounds, she had in fact injured herself in 2010.
To be sure, Jennings was able to devise ways to do some tasks, but she remained unable to do many more. She could not work alone at Liberty Plaza or Winston Tower or on Saturdays, assist with office moves, deliver or pick up packages from offsite or among any of the three Womble Carlyle buildings, set up conference rooms, or any of a number of tasks. Thus, even though Jennings’ work-around methods enabled her to perform a small subset of the job’s responsibilities, the ability to lift over 20 pounds was inextricably tied to the vast majority of them.
The Court concluded that Jennings was not a qualified individual under the ADA because she could not perform the essential job functions, even with accommodations. The Court also said it would be unreasonable to require the law firm to reallocate essential functions and noted that the ADA does not require such reallocation. See 29 C.F.R. pt. 1630 app. 1630.2.(o).
This case is helpful for practitioners because it focuses on a fairly common situation where an employer temporarily accommodates an employee for a period of time until permanent restrictions are issued. The mere fact that the employer temporarily made accommodations does not require the employer to permanently make those accommodations if the employee cannot perform the essential functions of the job with or without reasonable accommodation. Nor must the employer ignore other essential functions of the job that the employee has not performed in quite some time. The case may be found atEEOC v. Womble Carlyle Sandridge & Rice, LLP, 31AD Cases 1349 (4th Cir. 2015).
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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.