State News

For years our firm and its attorneys have been honored by our peers for excellence. In 2017, Jim Waldhauser, Tom Kieselbach, Mark Kleinschmidt, Dick Schmidt and Tom Coleman were once again included inBest Lawyers in America. Our Workers’ Compensation practice group at Cousineau McGuire (now Cousineau, Waldhauser & Kieselbach, P.A.) was selected as a Tier one practice group byU.S. News and World Reports/Best Law Firms in America.

We are proud of our years of quality service and thank our peers for recognizing our firm and attorneys.

Injured workers continue to attempt to sue their employers in civil court for bodily injury no matter how often our courts make clear that such suits are barred unless intentional harm can be proved. For every successful claimant who meets the intentional harm standard, there are thousands whose cases are dismissed on summary judgment.  Such is the case of Madkiff v. Frazier-Simplex, Inc., A-1328-15T1 (App. Div. February 23, 2017).

Mr. Madkiff worked for Frazier-Simplex and was injured on January 15, 2010 while he and other workers were trying to demolish a glass furnace at the Alcan Glass plant.  Jackhammers were being used to break up a dense fire brick material that lined the glass furnace.  The jackhammering process created debris the size of boulders. The workers were using a mechanical hoist to remove the boulders, but it was taking more time this way.  So the foreman told the workers to stop using the hoist.  Plaintiff Madkiff and others complained to the foreman that “somebody is going to get hurt lifting these boulders.” The foreman said “do it or we will get somebody else to do it.”

Plaintiff began trying to manually remove the debris.  He lifted a boulder and felt sudden pain in his neck and back that incapacitated him from working.  He said that he knew the boulder weighed between 150 and 200 pounds but thought he could lift the boulder.  When asked if he thought the foreman was intending to injure him by telling him not to use the mechanical hoist, plaintiff said “I don’t know.”

Mackiff brought a workers’ compensation claim and also sued his employer contending that the employer’s action met the exception under the exclusive remedy rule in New Jersey because it constituted intentional conduct.  The trial court dismissed his suit, and plaintiff appealed.  The Appellate Division explained that plaintiff’s claim would be barred unless he could prove that his employer had the subjective intent of injuring him, or engaged in intentional conduct with a substantial certainty that plaintiff would be injured.

The Court distinguished between reckless conduct and intentional conduct.  “Plaintiff cites his testimony that he and some co-workers told the foreman ‘somebody is going to get hurt’ lifting boulders and that the foreman told them to do it anyway.  That did not show the foreman deliberately intended to injure plaintiff.”  The Court said that mere knowledge of a strong possibility of a risk does not prove substantial certainty.  The Court said, “Plaintiff proffered no evidence, expert or otherwise, that it was virtually certain he would be hurt, let alone that the foreman or defendant was aware of that virtual certainty.”

For his part, plaintiff argued that the foreman’s instructions to stop using the mechanical hoist amounted to intentional removal of a safety device.  But the Court did not buy this argument.  “The mechanical hoist was not a ‘safety device’ on a dangerous machine.  Rather, like a pulley, lever, shove, or forklift, it was a tool used by workers to accomplish their tasks.”  In the end the Court said that “it was a common fact of life for laborers in the construction and demolition industry to injure their necks and backs when lifting heavy objects.”   Plaintiff could not show that his injury was “more than a fact of life of industrial employment.”

Employers will continue to win suits like this for intentional harm because the New Jersey legislature fully intended to make workers’ compensation the exclusive remedy for workers who suffer injuries arising out of and in the course of employment with only truly rare exceptions.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

SLS is the Texas member firm of the National Workers’ Compensation Defense Network.  We are sponsoring the NWCDN National Conference to be held in Atlanta, Georgia at the Ritz-Carlton, Buckhead hotel on Thursday, October 19, 2017.  Plan ahead and mark your calendars.  The conference is for clients of NWCDN members and their invited guests.  If you would like an invitation, please emailjstone@slsaustin.com.  The conference fills up quickly, and registration has begun.

Richard Fulcher, former manager of the Dallas Field Office, passed away on January 26, 2017.  He was 83.   Mr. Fulcher was known to be dedicated to making a difference in claimant’s lives, and those of us who knew him remember him fondly.  He is survived by his wife and two children. 

The Division has revised several forms by removing or limiting Social Security numbers (SSNs). In an effort to better protect confidential information and streamline processes, the Division’s revisions resulted in either removing the SSN field completely, or requesting only the last four digits of the SSN. Updated forms are available on the Division’s website.  

A federal court has reigned in Medicare’s overambitious reimbursement demands.  Medicare sought reimbursement of entire medical bills where there were mixed diagnosis codes, some for the workers’ compensation injury and some which were unrelated.  The court held that once non-work related diagnoses were identified, it became Medicare’s burden to show that the charges were related to the workers’ compensation injury. The case was decided under California law after the court held that Medicare Secondary Payer Act does not preempt state law.  While the court’s holding is not binding in Texas, it relied on a decision that is. CIGA v. Burnwell, 2017 U.S. Dist. Ct. LEXIS 1681. 

An attorney was denied coverage under their professional liability (PL) policy for failing to provide notice to the carrier.  The attorney was sued after he failed to timely appeal a workers’ compensation claim (despite being instructed to appeal by the client), and he sought defense under the PL policy.  The attorney had answered ‘no’ in the application and subsequent renewal applications for the PL policy as to whether he had knowledge of any circumstances that could result in a professional liability claim (ignoring the potential suit for his failure to timely appeal).  The court found that his answers were material misrepresentations and declared the policy rescinded. Liberty Mut. Underwriters, Inc. v. Wolfe, 2017 WL 481468.

David Mattox has been appointed by Governor Abbott to continue serving as Commissioner of Insurance through February 1, 2019.  He has been serving in that role since January 12, 2015.  Before the Texas Department of Insurance, Mr. Mattox was with the Office of the Attorney General.    

The 85^th Texas Legislature is in session, and many of our representatives have an eye on issues affecting the world of workers’ compensation. 

Commissioner Brannon has recommended that the Division’s Fraud Unit be granted authority similar to that of the TDI’s Fraud Unit.  There are two broad proposals: (1) an assistant district attorney employed and funded by the Division that local district attorneys would be able to authorize to operate in their county; or (2) establishing a special prosecutor in Travis County.  The Commissioner also seeks authority to investigate workers’ compensation fraud and to share the results with other agencies without the fraud investigation being subject to open records requests. 

It is also recommended that the Legislature clarify a party’s duty to file any proposed judgment or settlement with the Division in judicial review actions.  Specifically, the Commissioner seeks clarification that agreed judgments, voluntary dismissals, summary judgments, and judgments on the merits must all be filed with the Division for approval.  The Division would also like a description of the terms of any settlement or agreement to be filed, including any anticipated payments and how the Division’s decision would be reversed, affirmed, or modified.

Not to be left out of the action, the Office of Injured Employee Counsel would like to eliminate the requirement that ombudsmen have at least 1 year of workers' compensation experience.  They would also like the authority to request causation opinions from physicians for which the insurance carrier would be obligated to pay, and Senate Bill 1035 would amend section 408.0273 of the Labor Code to provide for the causation reports.

New back pain guidelines from the American Academy of Physicians counsel against prescribing pain medications.  Chronic back pain should be treated with OTC medication and regular activity, not prescription pain meds.  This is refreshing news for those of us on the front lines of the opioid epidemic.  The study also confirmed what many of us already suspected . . . steroid injections provide little, if any, therapeutic help, and diagnostic MRIs are virtually useless to identify disc pathology caused by a work injury. The new guidelines have yet to be adopted.