Mark Richardson worked for the Chicago Transit Authority as a Bus Operator from 1999 to 2012.  He took an extended medical leave from work and attempted to return to his job in September 2010.  The Authority sent plaintiff for a fitness exam, and the doctor cleared Richardson to return to work. He was next required to submit to a safety assessment, which he contended turned out to be different than the normal safety assessment required of bus operators.

The Authority eventually rejected Plaintiff’s request to return to work.  Plaintiff then filed a charge with the EEOC, stating that the Authority discriminated against him based his disability, namely severe obesity.  After the parties were not able to resolve the charge, plaintiff sued in federal court.

Defendant Transit Authority moved to dismiss the case right away before doing any discovery by arguing that the plaintiff’s complaint was fatally flawed.  The Authority argued that obesity is not a disability unless it is due to a physiological disorder and further contended that since plaintiff never alleged that there was a physiological basis for his obesity, his complaint must be dismissed.

The Court noted that the Americans with Disabilities Act Amendments Act of 2008 expanded coverage under the ADA.  The Court reflected on 42 U.S.C. 12102(3)(A), which states:

An individual is ‘regarded as having such an impairment’ if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.

The Court also reviewed conflicting decisions nationally on the question of whether a plaintiff must prove a physiological basis for obesity to establish a disability.  It observed that there is a split among Circuit Courts on what is required for obesity to be considered a covered disability.  Some Circuit Courts have required proof of a physiological basis for obesity while others have not.

In this case the Court did not decide which approach was right, but it said that “[e]ven if Plaintiff is ultimately required to prove that his obesity was caused by a physiological disorder, he was not required to allege the same.”  In other words, plaintiff’s complaint was sufficient to allow him to move forward with discovery and to attempt to prove his case.

The case can be found at Richardson v. Chicago Transit Authority, 2016 U.S. Dist. LEXIS 143485 (N.D. Ill. 2016).  It is an interesting case because obesity claims are likely to become a major area of litigation given both the near epidemic levels of obesity in the United States and the expansion of coverage of disability under the ADAAA.

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

Jimmy Mathis worked as a laborer for the City of Red Bank in Tennessee. Eventually he rose to the position of Assistant to the Director of Public Works. Initially he would inspect for building code violations, handle animal control problems, oversee street projects and handle citizen requests. A written job description described his duties, which also included exposure to temperature extremes during outdoor work.

In 2011 a new Public Works Director required of Mathis more code inspections, which meant more outdoors work. The level of outdoor work continued to rise in 2012 when Mathis’s desk was moved from City Hall to the Public Works Garage. He was no longer responsible for much of his former administrative work, and those duties moved to other employees.

By 2012 Mathis began to have skin problems and saw a dermatologist, who diagnosed Lupus. He took FMLA leave and his dermatologist, Dr. Susong, noted that Mathis needed to be indoors. Mathis next sought an indefinite leave, which lasted six months. During that time, the Department continued to restructure its workflow. A code enforcement officer was hired, and the position of Assistant to the Public Works Director was eliminated.

Preparing to return to work from leave, Mathis met with the Public Works Director and City Manager. There was a dispute whether they told Mathis his job would mainly involve code work. The reality is that his job continued to evolve into outdoor work. Mathis did not request an accommodation at this juncture. He bought protective clothing and was permitted to wear ultraviolet light protective shirts. He paid for them himself, but the City eventually bought him other such shirts.

By 2013 it was clear that the protective clothing was not reducing Mathis’s symptoms. He requested a new FMLA leave. His job at this point was described mainly as mowing grass and weeding. Dr. Susong wrote a certification stating that Mathis must avoid sunlight. Asked to clarify whether Mathis could not work outside, Dr. Susong said emphatically that he must work indoors.

The City met with Mathis, who inquired about possible indoor work but he was advised that he was not qualified for the two open jobs, lacking computer skills and a CDL. On account of the strongly worded note from Dr. Susong and the absence of any vacant positions, the City terminated Mathis’s employment. Mathis sued under the ADA alleging failure to make reasonable accommodation.

The City prevailed at the federal court level, and Mathis appealed to the Sixth Circuit Court of Appeals. The Appeals Court observed that Mathis must show that he can perform the essential functions of his job with or without accommodation, but Mathis failed to do that. Mathis said he wanted to be returned to his pre-2011 work, but even that job required some outdoor work. There were days even in his pre-2011 job when Mathis would be outside four to five hours. The Court said that Dr. Susong’s note disqualified Mathis from any outdoor work.

During the course of litigation, Mathis changed his position and argued that he could handle limited sun exposure with protective clothing. After the City’s motion for summary judgment was filed, Dr. Susong watered down his initial certification which prohibited any outdoor work. The Court said that these after-the-fact changes in Mathis’s position were irrelevant. The City had the right to base its decision on the note that Dr. Susong prepared in 2013 prohibiting any outdoor work. The Court commented that essential functions of a job can and often do change. The changes in this case occurred well before Mathis’s diagnosis of lupus.

The Court concluded, “Mathis’s reasonable accommodation claim fails most plainly because the need for an accommodation was not apparent until mid-2013, when his limitations would not have allowed him to perform his desired job’s essential functions. But it also appears that no accommodation would have been available even if Mathis had requested one in early 2012, because the job he desired no longer existed.”

Mathis also argued that the City failed to engage in the interactive process. But the Court responded that before that process commences, the worker must inform the employer that a reasonable accommodation is needed. 29 C.F.R. Pt. 1630, App. In the end, the Court explained that the City really had no options once Dr. Susong wrote his note saying that Mathis could not have any outdoor exposure because Mathis was not qualified for any available indoor job.

This case points out the importance of having a good job description and the fact that jobs can and do change, adding and sometimes subtracting essential functions. The case also demonstrates the power that doctors have when they prepare medical certifications regarding restrictions at work. In this case Dr. Susong’s restriction against any outdoor work boxed the plaintiff out of his job. A late attempt by the doctor to amend his opinion during litigation but after the job termination was properly rejected by the court. What matters is what information the employer has at the time it makes its employment decision, and in this case, the doctor’s report was crystal clear in stating that Mathis could have no outdoor exposure. This case can be found at Mathis v. City of Red Bank, 2016 U.S. App. LEXIS 19423 (6^th Cir. 2016).

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

The Alabama Court of Civil Appeals recently released an opinion dealing with venue statutes and their applicability to claims sought under the Alabama Worker’s Compensation Act. In the case ofEx parte Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch, and Good Hope Contracting, Inc. (In re:Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch v. Lynn Harding), the Court held that the §6-3-7, Ala.Code 1975, was the proper statute to govern venue for worker’s compensation lawsuits, regardless of the initial filer.

Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch ("AGC") filed a lawsuit against Lynn Harding ("Harding"), seeking a declaratory judgment under the Alabama Worker’s Compensation Act.

Harding filed a Motion to Dismiss for Improper Venue, or in the Alternative, Motion to Transfer Venue, relying on the venue statute governing actions filed against an individual, §6-3-2, Ala.Code 1975. Plaintiffs responded to Harding’s motion, relying on the Alabama Workers’ Compensation Act and §6-3-7, Ala.Code 1975, the venue statute that governs where a corporation can be sued. The trial court granted Harding’s motion, and ordered that the case be transferred. Plaintiffs filed a Petition for Writ of Mandamus seeking relief from the Order.

The Alabama Court of Civil Appeals granted the petition. The rationale being that per the Worker’s Compensation Act, venue is proper if filed where a tort action would be properly filed. Case law provides that venue is proper where an employee’s grievance against his employer would be heard. Ex parte Adams. The proper venue statute to govern where an individual can sue his employer is §6-3-7, Ala.Code 1975.

In sum, regardless of who files the initial Complaint in an Alabama Worker’s Compensation lawsuit, venue is proper where an employee can properly maintain an action against the employer.

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This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.

Two Microsoft employees have sued their employer alleging that they suffer from post-traumatic stress disorder because their job required them to watch horrific internet videos portraying brutality, murder, beastiality, and even child pornography. Both men filed lawsuits in King County, Washington, seeking damages for negligence, disability discrimination, and violations of the Consumer Protection Act. The men allege that Microsoft involuntarily transferred them to its online safety program, where they reviewed online videos to identify and report illegal content. Their lawsuits are currently ongoing at this time, and it remains to be seen how they will be decided under Washington law. However, under Alabama law, it is clear that the employees would have no remedy upon which to base an award of damages for their post-traumatic stress.

First, §§25-5-53 and 25-5-54 of the Alabama Workers' Compensation Act provide that workers' compensation benefits are the employee's sole legal remedy for injuries occurring in and arising out of the employment. Additionally, mental injuries such as post-traumatic stress disorder are only compensable if accompanied by physical injury under Alabama law. Therefore, as horrible as the their jobs must have been, they would not have any grounds upon which to recover damages if they worked in Alabama.

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About the Author

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

2017 PENNSYLVANIA WORKERS’ COMPENSATION RATE CHANGES

By Kevin L. Connors, Esquire

Happy New Year!

To Employers and Insurers responsible for workers’ compensation benefits in Pennsylvania, the Pennsylvania Office of Adjudication has issued the controlling compensation benefit rates for 2017.

The maximum compensation benefit payable rate for 2017 is $995.00 per week, yielding $51,740.00 per year in temporary total disability benefits.

The $50,000.00 mark was passed with the maximum rate of $978.00 per week in 2016.

Average weekly wages between $1,492.50 and $746.26 will be adjusted on a 2/3^rd%basis, for purposes of yielding the temporary total disability benefit.

Average weekly wages that range between $746.25 and $552.78 will result in the temporary total disability benefit rate being set at $497.50.

An average weekly wage of $552.77 or less per week will result in the temporary total disability benefit rate being calculated based upon a 90% basis.

An average weekly wage of $552.77 would, therefore, yield a temporary total disability benefit rate of $497.49, yielding yearly temporary total disability benefits of $25,869.63.

Kindly contact our office with any questions that you might have regarding any calculations of a pre-injury average weekly wage, typically requiring calculation of wages only for the 52 weeks preceding the date of injury, as well as any questions that you might have in terms of the applicable temporary total or temporary partial disability benefits rates.

ConnorsO’Dell LLP

Trust us, we just get it!  It is trust well spent!

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

 In  Drug Dealer, M.D., Anna Lembke, a psychiatrist and chief of addiction medicine at Stanford University’s medical school, points the finger at over prescribing physicians and a subculture of the addicted, in her view from the trenches in the war on opioid drug abuse in America.   While there is plenty of blame to go around in the medical community, from the physicians and the myriad problems in the American health care system to Big Pharma, Lembke steps into the often off-limits area of patient accountability.  Lembke writes of patients “who visit a doctor’s office not to recover from illness but to be validated in their identity as a person with an illness.”  She describes the patients’ drug-seeking behavior by user type.  “Senators” will “filibuster” the doctor for the length of the visit and then make a last-minute plea for narcotics, giving the doctor little time to object.  “Exhibitionists” writhe in pain and exhibits extreme pain behaviors.  The “Dynamic Duo” is the patient and crying mother/wife/girlfriend presenting a team too pitiful to refuse.    This short, 172 page book, offers an interesting perspective into a problem all too familiar to the workers’ compensation community.

PBMs are pharmacy benefit managers.  What do they do, you ask?  They negotiate drug prices, build networks of pharmacies and build formularies.  The largest, Express Scripts, Inc., reported $102 billion in revenue in 2015 (that’s almost more than Pfizer, Coca-Cola and McDonalds, combined!).   Formularies are the primary tool in the PBM arsenal.  Drug companies offer PBMs sizeable rebates to make sure their drugs can stay on the formularies.  Last year, AstraZeneca paid the government $7.9 million to settle allegations that it paid its PBM “kickbacks” in order to stay on the formulary (and ostensibly to keep competing drugs off the formulary).  The drug manufacturers, in order to keep up with the rebates and keep their profit margins up, pass the cost on to the consumer. The lack of transparency in the rebate negotiation process and drug pricing practices is a continuing frustration to insurance carriers and consumers alike.    Numerous factors combine to keep consumers in the dark as the pricing is derived from a combination of premiums, deductibles, formulary availability and pricing, network requirements, coverage and individual price points for a given drug.  Full transparency would allow consumers a bigger voice in the drug pricing equation.   Such transparency is unlikely, however, barring regulatory intervention.

A few Appeals Panel cases of interest in the past couple of months include:

Finality

APD 161628 (decided 10/4/16) - the Appeals Panel analyzed finality in the context of Rule 130.102(h), which provides that if there is no pending dispute regarding the date of MMI or the impairment rating prior to the expiration of the 1st quarter of SIBs, the date of MMI and IR shall be binding and final.  In that case, the first certification was rendered on 9/11/13.  A designated doctor was requested on 10/6/13.  On 10/18/13, a designated doctor was appointed, and saw the claimant on 11/7/13.  The designated doctor certified MMI on 9/4/13 with a 15% impairment rating.  Claimant subsequently applied for SIBs for the 2nd, 3rd and 4th quarters.    The Appeals Panel clarified that it is Rule 130.102(h) that controlled in this case, not Rule 130.12 (which the hearing officer cited).  The Appeals Panel explained that the preamble to the relevant portion of Rule 130.102 makes it clear that the finality provisions of that rule do not apply to any situation where a party has raised a dispute prior to the first quarter of SIBs, and the appointment of a designated doctor does not resolve a dispute of the MMI certification or assigned impairment rating.

APD 161503 (decided 11/7/16) - the hearing officer erred in holding the first certification of MMI/IR was not final based on compelling evidence of a previously undiagnosed condition.  A flight attendant injured her left wrist, hand and forearm when she was flung around the cabin during an episode of turbulence.   She was diagnosed with left wrist and hand contusions and ulnar radicular pain.  A left wrist sprain was accepted by the Carrier.  Her treating doctor determined that she reached MMI with no permanent impairment.  The hearing officer determined that the injury also included left ulnar nerve entrapment, and the Appeals Panel agreed.  The Appeals Panel disagreed, however, the left ulnar nerve entrapment was a previously undiagnosed medication condition that justified an exception to the finality rule.  The Appeals Panel cited evidence that the claimant was diagnosed with early with ulnar nerve radicular pain, and the treating doctor who rendered the first certification had continuously diagnosed her with a left ulnar injury.  Reversed and rendered on the issues of finality and MMI/IR.

Expert Medical Evidence Required - Causation 

APD 161780 (decided 10/18/16) - the Appeals Panel reversed a hearing officer decision that the compensable injury included lumbar radiculitis where there were no medical records that explained how the injury caused that condition, and requiring expert medical evidence to prove causation of lumbar radiculitis.
 
Treatment After MMI Can’t Be Considered in Impairment Rating

APD 161877 (decided 11/2/16) - the hearing officer erred in adopting the designated doctor’s certification of MMI/IR as the designated doctor included a rating for a surgical procedure that occurred after the statutory date of MMI, which was determined to be the proper MMI date by the Appeals Panel. 

Course and Scope - Deviation from Employment

APD 161985 (decided 11/7/16) - the hearing officer erred in holding the claimant was not in the course and scope of his employment when he was involved in a motor vehicle accident.   The claimant was driving to Discount Tire to repair the tires on his personal truck in preparation for a 10-hour drive to a location at the direction of his employer.  Claimant was paid $30.00 per day for the use of his truck and it was company policy to reimburse foremen and operators for use of their personal vehicles.  Claimant was reimbursed each months regardless of whether or not the truck needed maintenance.  The employer directed claimant to choose a crew to travel with him to Baytown for a safety meeting.  ON the date of injury he was driving to get his tires repaired before traveling to Baytown. 

DWC is losing two more Hearing Officers.  John Bell is leaving the Dallas Field Office and Marilyn Allen is leaving the Houston West Field Office.  Meanwhile, in Ft. Worth, long-time Benefit Review Officer, Larry Beckham has retired and in San Antonio, Mery-Margaret Cisneros has moved from BRO to OIEC to manage the ombudsmen in San Antonio and Corpus Christi.  The new year promises to be interesting.