State News

Multiple Guaranty Associations brought claims for breach of contract stemming from unpaid policy
deductibles. The trial court granted Defendant Hill Bros.’ summary judgment concluding the
Associations’ claims were time-barred. After determining that various Guaranty Associations had
standing to bring suit on the underlying policy issued by an impaired carrier, the Third Court of
Appeals reversed the trial court and remanded the case for further proceedings.
The appellate court held that the statute of limitations on a breach of contract claim for failure to
reimburse deductibles does not accrue until a demand is made to the insured and the insured fails
to pay on demand. Because large deductible endorsements do not specify the time period within
which demand must be made by the carrier, the court concluded that demand for payment must be
made “within a reasonable time.” A “reasonable time for demand,” the Court explained, is
coincident with the four year limitations period for a breach of contract claim. In other words, in
Texas, a carrier has up to four years to make a demand for reimbursement of a deductible, and the
statute of limitations begins to accrue once the insured fails to make payment on demand.
Applying this rule to the Guaranty Associations’ claims, the court reversed the trial court’s judgment
on limitations and remanded the case for further proceedings.
Cal. Ins. Guar. Assoc., et al. v. Hill Bros. Transp. Co., 2016 WL 2991081 (Tex. App.—Austin
2016).

Most employers put limits on light duty and do not allow permanent light duty.  That was the case of the employer in the matter of Frazier-White v. David Gee, 2016 U.S. App. LEXIS 6318 (11th. Cir. 2016).  Plaintiff Frazier-White worked as a community service officer for the Hillsborough County Sheriff’s Office (HCSO).  She was responsible for security at a detention center.  She was injured in a work-related accident on July 29, 2010, when a heavy metal door closed on her right arm, pinning her against a door frame.  She was placed on light-duty status and temporarily assigned to a position as a records desk clerk. The HCSO policy limited light duty to 270 days in a two-year period.

During the period of time that plaintiff was on light duty from August 2010 to June 2011, she saw several doctors who found she was at maximal medical improvement and had no restrictions.  Plaintiff sought another evaluation in March 2011.  Her physician ordered an MRI of the neck, which showed degenerative abnormalities which the doctor thought were not caused by work but may have been aggravated by the work incident.  He too put Frazier-White at MMI with no restrictions but he did recommend a neurosurgical consult.

The sheriff’s department wrote to plaintiff several times as she approached the 270-day light duty limit.  In April 2011, plaintiff wrote to Gee saying she was still having problems with her neck and requested “an extension to continue to receive care.”  She did not specify the length of time she would need; nor did she suggest any accommodations that would allow her to return to full duty by April 24, 2011.

The HCSO Risk Management Director Richard Swann wrote to plaintiff on April 11, 2011 advising her that she had been on light duty for 256 days as of April 11, 2011.  He encouraged plaintiff to contact him about potential ADA accommodations that she may be requesting or to make applications for other civil service full-duty jobs.  Plaintiff did not respond,  leading HCSO to take disciplinary action.  A hearing was scheduled once plaintiff passed the 270-day light-duty limit.  By the time of the hearing, plaintiff had been on light duty for 299 days.  Swann asked plaintiff in the hearing whether she would return to full duty within a reasonable period of time.  Plaintiff replied that her most recent MRI showed serious spinal damage.  Her doctor was recommending a spinal fusion surgery.  She said she could not estimate when she could return to full duty.  She did not request any accommodations that would allow her to perform the essential functions of her job, and she did not apply for any other full-time jobs.  HCSO therefore terminated plaintiff’s employment as of June 20, 2011.

Following her termination, plaintiff sued under the ADA and the Florida Civil Rights Act alleging disability discrimination.  The federal court granted summary judgment to HCSO.  The Court of Appeals affirmed.  First the Court said, “To the extent Plaintiff intended to request a permanent light-duty position, it is undisputed that no such position existed.  SOP 213.00 provides that every HCSO employee is essential to its efficient operation, and that eligibility for light-duty status is thus limited to 270 days during a two-year period.  Defendant was not required by the ADA to create a permanent light-duty position especially for Plaintiff.”

Plaintiff produced records showing numerous vacancies in the HCSO during the time she was on light duty.  However, the Court pointed out that she never requested any of the positions.  Further, the Court observed that plaintiff’s testimony was that she could not have physically returned to any full-time work given her serious neck problems.  The Court concluded, “Plaintiff’s only response was to request an indefinite extension of her light-duty status, an unreasonable accommodation as a matter of law.”

This case is relevant for employers because most employers have policies that end light duty based either on a specific time limit or on reaching maximal medical improvement.  Such policies must be flexible enough to consider requests for reasonable accommodation under the ADA or state civil rights law even after the time limit has ended.  In this case HCSO wrote several times to the employee asking her if she was requesting accommodations or other positions that would allow her to return to work full duty.  The plaintiff in this case, as is quite common, simply wanted an indefinite leave extension.  Courts in just about every state believe that indefinite leave is simply an unreasonable request.

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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 most recent special session of the Arkansas legislature, an Act was passed ending claims against the Death and Permanent Total Disability Trust Fund effective June 30, 2019.   Prior to that date, death and PTD exposure for carriers and self-insured employers is capped with any additional benefits being paid by the state Fund.  

The most expansive discussion of confidentiality in workers’ compensation comes ironically from a civil law suit in the matter of Seymoure v. A.O. Smith Water Products Company, et. al., A-3967-14T3 (App. Div. May 11, 2016).  The case arose from an asbestos law suit filed by Gwendolyn Seymoure, who sued several defendants, including Union Carbide Corporation (hereinafter UCC) for manufacturing, supplying or distributing asbestos products that led to the death of her husband from mesothelioma.  Plaintiff Seymoure alleged that her husband was exposed to asbestos while making deliveries and pick-ups at UCC’s Bound Brook facility.

Seymoure filed a discovery request in 2013 seeking workers’ compensation records of other UCC employees.  Eventually the Law Division judge ordered UCC to produce the records.  UCC then moved for a protective order to limit disclosure of the files of other workers’ compensation claims to just this particular litigation.  That request was denied.  The judge required  the following: 1) UCC must advise former/current employees of production of documents within seven days; 2) UCC may redact social security numbers only, but not names; and 3) UCC had to produce all documents within 14 days.

UCC appealed and contended that the court’s order violated privacy rights under the New Jersey Workers’ Compensation Act. The company argued that current and former employees have a reasonable expectation of privacy in their records.  It relied onN.J.S.A. 34:15-128(a)(1) which prohibits disclosure of workers’ compensation records unless the information is provided in a way that makes it impossible to identify any claimant.

For his part, plaintiff’s counsel argued that he needed to use the records obtained in this law suit in other litigation against Union Carbide.  He stated that he fully anticipated using the medical records from other employees in future litigation that he might file.  Counsel also argued that N.J.S.A. 34:15-62 provides that all workers’ compensation hearings “shall be open to the public.”

The Appellate Division ruled, “As the judge’s protective order fails to adequately protect the privacy interests of UCC”s former employees, we are remanding this matter for the entry of a more comprehensive protective order. Both N.J.S.A. 34:15-128 and N.J.S.A. 34:15-128.3(a) prohibit disclosure of workers’ compensation records unless all personal identifying information has been removed.  Thus, a protective order would require the redaction of all personal identifying information of the employee.”

The Court also observed that requiring hearings to be public is not the same thing as giving third parties not involved in the workers’ compensation case access to medical information of other claimants.  The Court concluded, “Finally, the interest that plaintiff’s counsel has in expediting other asbestos litigation against UCC does not outweigh the privacy interests the former employees have in their medical records.  Unless the former employees specifically consent to the use of their unredacted medical records beyond this litigation, the use will be limited to this matter.”

This case deals with provisions of the New Jersey Workers’ Compensation Act that seldom, if ever, draw mention from courts. It is noteworthy that hearings in the Division are open to the public by statute.  Yet that does not mean that third parties can access medical information of claimants.  Only the parties to the case, such as the judge, carrier, third party administrator, treating doctor, experts, and counsel have access to medical information of the claimant.  There is no right of access, however, to medical information of other claimants not involved in the litigation.  Had the decision in this case gone the other way, there would be no way to protect medical information of claimants in the Division.

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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. 

This is the second article devoted to fitness-for-duty examinations and Functional Capacity Exams (FCE) in workers’ compensation. The first segment focused on how such examinations can lead to significant cost savings for employers and common mistakes that are made by employers.  This segment will focus on when to order a fitness exam or FCE and how to avoid conflict with the FMLA and ADA.

A fitness-for-duty examination must be job-related and consistent with business necessity according to the relevant EEOC Guidance. When an FCE is ordered by a physician as part of a workers’ compensation case, it is generally related to medical care or to determining return-to-work status.  When a physician requests an FCE, more often than not, it is because the physician is not sure that the injured worker can perform light duty or full duty work.  Under those circumstances, the FCE is job related.

Many employers also request FCEs or fitness-for-duty examinations on their own when an employee has been out of work for a lengthy period of time, usually following surgery.  This is particularly true where the employee has a physical job, like maintenance, custodian, construction or the like.  An employer’s request would meet the job-related standard if the employee has certain restrictions imposed by the treating physician, or if the employee has requested accommodations at work.   Employers should be aware, however, of one limitation on such exams: namely those that occur during the 12-week FMLA period.  All workers’ compensation lost time cases are generally FMLA events, and most employers designate the absence from work as FMLA leave.  They run FMLA time concurrent with workers’ compensation absences.  The FMLA does not permit second opinions on return to work.  So if the treating doctor issues a return-to-work note, stating that the employee can perform the functions of his or her job, there is no right to a fitness exam within the 12-week FMLA period.

After 12 weeks when FMLA has expired, an employer has more leeway in requesting an FCE or fitness examination.  The employer must still show that there is a job-related need for the FCE or fitness examination.  That could be satisfied by observations that the employee is having problems walking or getting around.  Alternatively, the employee may speak to supervisory staff indicating that he or she is not sure about being able to perform the essential job functions.  The employee may ask for assistance in doing certain essential functions should he return to work or request that certain functions be eliminated.  All of these reasons justify a fitness-for-duty examination or an FCE.

It is very important to make sure that the physician who is performing a fitness-for-duty examination is familiar with the essential job functions.  The same is true of physical therapists who are performing FCEs.  Functional job descriptions are of great value to doctors and physical therapists.  The examination should be tailored to the injury that the employee has and should not be focused on long-standing medical conditions that have nothing to do with the work injury.  The physician should address the ability of the employee to perform essential job functions as well as  the direct threat standard.

Sometimes employees do not recover adequately from work injuries to be able to return to work and perform their job functions safely.  Before making such a determination, the employer should carefully review the FCE or fitness assessment and then meet with the employee to engage in an interactive dialogue with the employee.  Because the ADAAA so widely expands ADA disability coverage, it is better to assume that the injured employee following surgery or significant injuries is potentially covered under the ADA.  In that meeting, the employer will be able to hear first-hand whether the employee is requesting reasonable accommodations that would allow the employee to perform the essential functions of the job.  It is the employee’s responsibility to make the request for the accommodation, not the employer’s job to guess what they might be.  However, it is the employer’s obligation to decide which accommodation would work best and whether the accommodation poses an undue hardship.

Sometimes treating doctors give short shrift to the return-to-work process and issue full clearance notes without the benefit of an FCE.  The result is that many employees in New Jersey who have had some serious injuries with lasting complaints of pain and limitations may struggle with work duties.  When an employer has job-related reasons to require a fitness examination of an existing employee, the employer should utilize the FCE or fitness-for-duty process.  If an employee in a factory setting with very physical job duties comes into work limping and in pain, the wrong thing to do for the supervisor is to walk past the employee and bid him or her a good day.  That is exactly the circumstance that may justify a fitness-for-duty examination.

Employers should also take note that when a workers’ compensation case is settled in the Division, the employee has to provide his or her complaints on the record to support the award of disability.  The only time this does not happen is when the settlement is under N.J.S.A. 34:15-20.  All orders approving settlement with percentages of disability are premised on proof by the employee of either a substantial limitation in working ability or a substantial impact on non-work activities — or both. Seldom are employers in court to hear these complaints but the defense lawyer should provide details in the closing letter to the client so that the employer is aware that an employee may be complaining of physical problems in doing the essential job functions.  If that is the case, the employer has a right to obtain a fitness-for-duty examination.  An employer can also ask for a copy of the transcript of the testimony before the Judge, as this is sworn testimony.

In this practitioner’s opinion, the reason there are so many re-injuries in New Jersey is that there is not enough attention to the issue of fitness for duty.  Unlike other states where employees settle their cases and agree as a condition of settlement not to return to work, almost every employee in New Jersey returns to the former job because New Jersey is a functional loss state in contrast to Pennsylvania, which is a wage loss state.  Re-injuries are expensive and often lead to much higher awards and sometimes total disability awards costing the employer millions of dollars.  The cost of an FCE or a fitness examination, by contrast, is very modest but that well-timed examination may save the employer tens or even hundreds of thousands of dollars down the line.

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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. 

We have all seen this situation: an employee with a physical job has major surgery and is given restrictions by the treating doctor, who issues an MMI note (maximum medical improvement).  When temporary disability benefits are stopped, the employee immediately calls to see about returning to work.  The employer indicates that it cannot take the employee back with such heavy restrictions.  The next day the treating doctor issues a note clearing the employee to return to work with no restrictions.  One month later the same employee reinjures his back at work severely, leading to another surgery and hundreds of thousands of dollars or even total and permanent disability. The hit to the employer’s workers’ compensation budget becomes astronomical.

What went wrong?Why does this sort of thing happen so often? This is the first of a two-part series on the critical importance of fitness-for-duty exams and functional capacity evaluations in the New Jersey workers’ compensation system.  In this blog, we will focus on mistakes employers make and why fitness exams can result in enormous savings for employers. The next blog will focus on how to do fitness exams correctly and how to avoid law suits when arranging fitness exams.

Every insurance adjuster in the state can tell you about a claimant with 10 or even 20 claim petitions against the same employer over a period of many years.  Employers throw up their hands and ask, “How can the judge let this guy return to work after all these accidents?”  The answer is that the Judge of Compensation has nothing to do with the decision to allow an employee to return to work. That decision is made by the employer and is outside the realm of workers’ compensation.  Many times the person handling the workers’ compensation case for the company is not in touch with Human Resources, with the result that the return-to-work issue may be missed entirely.

Most of the problem cases stem from injuries that result in surgery to the spine, shoulder, knee and hand, which comprise the majority of orthopedic claims in New Jersey.  The dynamic that frustrates the employer is that the employee will give a host of complaints to the IME doctors and the Judge of Compensation in support of a high partial permanent disability award, but then turn around and tell the employer or supervisor that there are no problems doing the job. 

For example, a DPW worker has fusion surgery followed by pain management, and eventually he reaches MMI.  There is no fitness exam requested by the doctor or employer, and the employee returns to work.  Now the comp case continues: the petitioner’s attorney sends the employee to his or her IME, and the respondent’s attorney does the same.  At the IME the petitioner complains about severe pain lifting anything over 15 pounds, difficulty bending or lifting at work, trouble getting dressed, throwing a ball or the like.  The job requires regular lifting over 50 pounds.  The case settles for 40% of partial total or $111,360, and at the time of settlement the employee is asked by the Judge of Compensation for his or her complaints at work and outside work.  The employee says that work is very painful, and at times, others have to help him get through the day.  He adds that there are many tasks that the employee can no longer perform. All the while, the employer has no idea that the employee is complaining about problems on the job or telling the IME doctors about difficulties doing routine work tasks.  Shortly thereafter this employee performs a relatively minor task on the job when he experiences incapacitating pain in the back leading to a long period of work absence followed by another award in workers’ compensation court.

You can see from these scenarios what the major mistakes are:

1)      Employers seldom request fitness-for-duty exams and FCEs before returning the injured employee to work, perhaps because they do not know they can do this, or because they mistakenly think the workers’ compensation third party administrator or carrier will do this for them.  Adjusters do not handle employment issues.

2)      The carrier or defense attorney does not send the IME report or the summary of testimony at the settlement to the employer to review.  Instead it just goes to the adjuster without a copy to the actual employer. So the employer never realizes that their employee is complaining about having problems on the job.

3)      The workers’ compensation manager in the company may not be familiar with employment issues.  Workers’ compensation may be a separate silo from HR, so no one really analyzes the question of whether the employee can safely perform the job functions.

4)      Treating doctors are often too eager to return a patient to work when asked by the patient for a full-duty clearance rather than deal with what could become an angry patient.

If a fitness-for-duty examination or an FCE is done properly and timely, the employer will have the opportunity to make an informed decision on whether to return the employee to work with or without accommodations.  If there is an ADA issue, the fitness process will help address it.  If the employee cannot perform the essential job functions, that employee may have to be terminated or reassigned to a position within the restrictions.  When that happens, the risk of reinjury is much lower, and workers’ compensation costs are greatly reduced.  For this reason, it is quite fair to think of fitness-for-duty examinations and FCEs as powerful cost-saving tools in workers’ compensation.   Employers with dozens of workers’ compensation claims could save hundreds of thousands of dollars, if not millions, by doing timely fitness examinations.  Unfortunately, however, fitness examinations and FCEs are grossly underutilized.

There was a time in 1979 when workers’ compensation rates amounted to $40 per week for permanency.  An award of 50% of partial total was $12,000.  Those days are long gone.  Now a 50% award amounts to $174,300.  An award of 70% amounts to $341,460 in tax free dollars. Every large employer has multiple employees at work who have such high awards where the employee has given a plethora of complaints about work and non-work activities in workers’ compensation court. 

Workers’ compensation medical costs have risen much faster than the rise in permanency costs.  A two-hour fusion procedure may result in a payment of $40,000 to the surgeon, plus fees for the assistant, hospital/surgery center and anesthesiologist.  So the employee who gets back to work but who cannot safely perform the job duties only to be reinjured can cost the employer quite literally half a million dollars in no time at all, considering the medical, temporary disability and permanency costs. 

It goes without saying that an employee who cannot safely perform the job duties should not be on the job.  The ADA does not require removal of essential job functions.  An employee must be able to perform the assigned job duties with or without reasonable accommodation. The fitness assessment must be made only with medical analysis usually informed by functional capacity examinations, which compare the physical abilities of the injured worker with the actual job duties.  A good FCE will provide tremendous guidance for employers in determining how much an employee can lift, bend, kneel, push or pull.  There are talented New Jersey physicians who do many fitness-for-duty assessments and are quite adept at helping employers decide whether the employee can perform safely the essential job functions.  

Consider this advice: employers should rethink the way their workers’ compensation programs function if injured workers who simply cannot do the job any longer routinely get back to work doing the very same job that caused their initial injury without having undergone a fitness examination.   In the next blog, we will discuss the basic rules for doing fitness examinations and traps to be avoided.

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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. 

Robinson v. Fairview Fellowship Home, 2016 OK 42

Holding: The Oklahoma Workers’ Compensation Commission and its administrative law judges have the power to determine whether a provision of Title 85A is constitutional.  The Court has granted the Commission the authority to decide the constitutionality of any provision related to either party.

Damien Smith v. Baze Corp, 2016 OK 41

Holding:  Scheduled members, arms, hands, feel, legs, eyes and ears are exempt for evaluation for permanent partial disability using the AMA Guides.  The deferral of permanent partial disability benefits if an injured worker returns to work is unconstitutional as a violation of due process.  The calculation of permanent partial disability to a scheduled member shall be tied to the amount in schedule and not converted to the 350-week whole man limitation.  The court did not address the constitutionality of using the AMA Sixth Edition Guides to rate permanent partial disability other than scheduled member.

Vasquez v. Dillard’s

The Workers’ Compensation Commission found the Oklahoma opt out scheme unconstitutional and inoperable in Vasquez v. Dillard’s because it treats employees differently, depending upon if their employer carries traditional insurance or opt out.

Dillard’s appealed the case to the Oklahoma Supreme Court.  The record was completed on April 28, 2016.  The Oklahoma Attorney General asked that the proceedings be stayed because the legislature is trying to fix the problem.  An objection was filed because whatever the legislature does, it does not fix the law that was in effect on the date of injury.  The case should be fully briefed by the middle of the summer with many amicus briefs filed on both sides.

On December 29, 2014 we reported on an opinion handed down by the Alabama Court of Civil Appeals inFlexicrew Staffing, Inc. v Champion. In that case, the Court of Civil Appeals agreed that the employee’s injury was compensable and the case went back to the trial court level for disability determination. Following the case being sent back to trial court, the employee amended his Complaint and named his supervisor as a defendant. After the appellate decision, Flexicrew ultimately settled the worker’s compensation case with the employee and the case went to trial on the claims against the employee’s supervisor.

The employee’s action against his supervisor was brought under §25-5-11(c)(2) based a willful failure to maintain, repair and/or replace the safety handle on the grinder. The employee further alleged that the supervisor was negligent and wanton in his actions when instructing the employee to drive himself to the clinic 30 miles away, which was in violation of the policies and procedures put in place by Flexicrew, the employer, which required that injured employees be transported and/or accompanied to a medical clinic or facility whenever possible. The employee did not specifically state which section of the act the negligence and wantonness claims fell under but willful and intentional violation of specific written safety rules of an employer would fall under §25-5-11(c)(4). The cause of action against the supervisor would fall under §25-5-11(b) which allows an employee to file suit outside of the worker’s compensation act against an officer, director, agent or employee of an employer when the officer, director, agent or employee commits willful conduct that results in the employee’s injury or death.

During the trial against his supervisor, the employee asserted that his supervisor had instructed him to drive himself to a distant medical facility in spite of his injured leg. He also made a claim that the side handle of the grinder that he was using when he cut his leg was missing causing it to be unstable and unsafe. The supervisor defended and argued that the employee’s cut was superficial and it was the supervisor’s position that the employee had simply run a red light. The supervisor further disputed whether or not the missing side handle of the grinder was significant in causing the employee’s leg injury. After a four day trial in Baldwin County, the jury returned a defense verdict in favor of the supervisor and the employee’s motion for a new trial was ultimately denied.

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About the Author

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden 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.

It can be difficult to predict the outcome of appeals where the issue before the Judge of Compensation is credibility of witnesses as opposed to pure legal issues.  InFrank Hodson v. C. Abbonizio Contractors, Inc., A-2083-14T3 (App. Div. May 2, 2016), Mr. Hodson said that while working as a laborer on May 9 and May 10, 2013, he threw a traffic barrel and “felt a small click-like pop in his back.”  He finished his shift and did not notify his supervisor, Dan Trainer, of the injury because he was distracted when he was informed that a “crash truck” was hit by a vehicle, requiring him to respond immediately. 

Hodson said he was sore while driving home that night and was in a lot of pain.  But he continued to work the next week.  Not until May 26, 2013 did he admit to notifying his employer.  He said his co-worker, Ray Batot, saw him limping on May 26, 2013 and asked him what was wrong.  Hodson said that he injured his back.  Hodson also said that he spoke with Tom Abbonizio and Trainer on May 26, 2013, informing them of his back injury.  Hodson saw a personal physician who provided him with two epidural injections after the accident.  He also was taking 10 milligrams of Percocet.

When his doctor took him out of work, Hodson called Human Resources and was informed that he could not collect workers’ compensation benefits because no incident report was filed.  Hodson was told to seek unemployment benefits.  He filed for those benefits through his family doctor, who certified that his injury was not work related.  Later petitioner filed a claim petition against Abbonizio and against his previous employer for a 2012 injury to his back and legs.

There were some inconsistencies that were brought up in trial.  Hodson admitted having Trainer’s cell phone number but said he did not call him because of the crash truck incident that was more pressing.  He also said he did not know that there were two hospitals he was permitted to go to in the event of a work injury, but he admitted that his co-worker Batot had been taken to one of those two hospitals on May 10, 2013 for Batot’s own work injury involving the crash truck.

Perhaps the most glaring discrepancy concerned prescription medications.  On direct examination, petitioner denied taking any prescription medications before the date of the alleged injury.  On cross examination he conceded that he was taking Lyrica for pain as of May 10, 2013, and he was also taking Percocet before May 10, 2013.  He had had prior back injuries and prior workers’ compensation claims.  Hodson then maintained that heincreased his medications after May 10, 2013.

Petitioner contended that he told his family doctor, who treated him after the alleged incident on May 9 or May 10, 2013 that he injured his back throwing barrels.   However, Dr. Winfield put on the TDB application that his injury was not work related.  There is no indication in the record of this case that Dr. Winfield testified at trial.

Petitioner offered corroborating testimony from his co-worker, Batot, who said he was working with petitioner and saw him moving barrels on the day petitioner claimed to have hurt himself.  Batot also said he spoke with Tom Abbonizio about petitioner’s back issue.  Batot said he was injured on the same night as petitioner (Batot was driving the crash truck) but that earlier in the day he saw petitioner limping. 

Two other lay witnesses testified at trial.  Ms. Carmen Ferrillo, HR Manager, said that petitioner told her the injury took place on May 14, 2013 (not May 10^th).  She spoke with Trainer and was told petitioner never mentioned a work injury.  She denied telling petitioner to file for unemployment benefits.  For his part, Trainer said that he did not see petitioner move any barrels on May 10, 2013.  He said petitioner never informed him of a work injury. 

One medical witness testified, Dr. Joseph Zerbo.  He said he saw petitioner on July 23, 2014.  Dr. Zerbo compared prior MRI films from 2011 with those of June 2013.  He said that there was a “worsening of the disease process” which the doctor attributed to the alleged work injury. 

The Judge of Compensation, the Hon. Audrey Kernan, ruled for petitioner, requiring the payment of medical and temporary disability benefits, based primarily on her assessment of petitioner and Batot as being more credible than the other witnesses in this case.  She also credited the testimony of Dr. Zerbo. The Appellate Division affirmed on the basis that there was sufficient evidence to support the credibility findings of the Judge of Compensation.  While there was a potential dispute in this case between prior employers for previous back injuries and Abbonizio Contractors, the court left that issue for the future when the permanency issue should be reached. 

The case demonstrates the difficulty respondents have when there is really no legal or medical issue in the case and the dispute centers on conflicting testimony of various witnesses. Based on this record, a judge of compensation could have made a convincing argument that the claim was not work related and never happened at all.   There was a plethora of inconsistencies and perhaps outright misrepresentations (such as not using pain medications before the accident) which would have formed a solid basis for denial.  But there was also strong testimony from a co-worker supporting the petitioner.

The lesson in cases like this is that the Judge of Compensation controls on credibility findings.  Appellate courts will not reverse unless there is insufficient evidence to support the decision of the Judge.  That is a high standard for either party to overcome on appeal.   

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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 PA COMMONWEALTH COURT

DENIES COMPENSATION FOR PARKING LOT INJURY

By

Kevin L. Connors, Esquire

Inconceivable!

Interesting facts produce interesting law!

This was the case in Quality Bicycle Products, Inc. v. WCAB, decided by the Pennsylvania Commonwealth Court on April 25, 2016.

Quality Bicycle involved a course and scope of employment case, with Claimant originally being awarded workers’ compensation benefits by the Workers’ Compensation Judge, the award being affirmed by the Appeal Board, and the award then being overturned and reversed by the Commonwealth Court, which held that the Claimant’s injury, on the employer’s premises, did not occur within the course and scope of employment, as it was not caused by “a condition on the premises”.

Back to our interesting facts.

In Quality Bicycle, the Claimant was working in his employer’s warehouse when he was paged over the intercom that he had a telephone call from his fiancé, who was hysterical that their 9 year old daughter was missing from school.

The Claimant immediately told his manager that he had to leave work, for a family emergency.  Attempting to clock out, Claimant’s manager told him that he would clock out for him, and the Claimant immediately left the building.

As the Claimant was hurrying to his car, only about 10 or 12 feet into the parking lot, he felt a pop in his knee, and fell to the ground, unable to bear weight on his leg.

Ambulanced to the hospital, the Claimant eventually required surgery on his injured knee.

In support of his Claim Petition, Claimant testified that he was injured in the parking lot where he always parked for work, that all of his co-workers also parked in that parking lot, and that his employer had told him to park there for work.

However, the Claimant also testified, presumably on cross-examination, that there was no condition or abnormality of the parking lot that caused him to fall, as his knee simply gave out.

Awarding benefits to the Claimant, the Workers’ Compensation Judge accepted the Claimant’s testimony as being both credible and persuasive, including that the Claimant was injured on the employer’s premises in the course and scope of his employment.

Affirmed by the Appeal Board, probably through a statistical anomaly, the employer’s appeal to the Commonwealth Court argued that the Claimant’s injury was not in the course and scope of employment as the Claimant should have been required to prove, since he was not furthering the business or affairs of the employer when injured, each of the three following elements:

·         The injury must have occurred on the employer’s premises;

·         The employee’s presence on the employer’s premises was required by the nature of his employment; and,

·         The Claimant’s injury was caused by the condition of the premises, or by operation of the employer’s business, citing to Section 301(c)(1) of the Act and the Commonwealth Court’s 1991 Decision inMarkle v. WCAB, 785 A.2d 151, 153 (Pa. Cmwlth. 2001).

In reversing the Claimant’s award of compensation, the Commonwealth Court held that the Claimant was unable to prove that his knee injury was caused by a condition on the premises, such that the Claimant was not able to satisfy the requirements of Section 301(c)(1).

Reversing the Claimant’s award of compensation benefits, the Commonwealth Court reviewed several course and scope of employment decisions in which it had concluded that the Claimants’ injuries were not caused by conditions on the employer’s premises, to include:

·         Markle, involved the Claimant being injured while climbing over the center console in the front seat of her car, because the employer’s parking lot was snow-covered and the truck parked next to the Claimant was too close to allow her to open her driver’s side door, with the Court holding that the Claimant’s injury was caused by the Claimant’s act of climbing over the console, and not by any condition on the employer’s premises, to include either the accumulated snow, or the car parked next to the Claimant’s car;

·         Dana Corporation (548 A.2d 669), involving the Claimant being injured in the employer’s parking lot when a co-worker’s car moved backward as the Claimant was attempting to help push the car forward, with the Court determining that the Claimant’s injury was caused by the movement of the car, and not by the condition of the premises;

·         Anzese (385 A.2d 625), involving the Claimant being killed when he was struck by lightning in the employer’s parking lot, with the court holding that “death from lightning was in no way related to the condition of the premises …”

For argument sake, the Court also reviewed several decisions in which it had found that the Claimant’s injury, while not furthering the employer’s business or affairs, were caused by conditions on the premises, including:

·         WCAB v. United States Steel (376 A.2d 271), in which it was concluded that the employee’s injury was caused by a condition on the premises, when the employee, while driving to work in the employer’s parking lot, suffered a seizure and crashed into a concrete abutment, concluding that the abutment was a condition on the employer’s premises that contributed to the employee’s death;

·         Newhouse (530 A.2d 545), involving the employee being injured when thrown from the hood of a co-worker’s car on an access road on the employer’s premises, when the co-worker made an unexpected turn on the access road due to a closed exit gate, concluding that the closed exit gate and a bend in the road were conditions on the employer’s premises contributing to the employee’s injury.  

Since the Claimant did not allege, in Quality Bicycle, that the parking lot caused or contributed to his injuries, admitting that no physical condition of the parking lot caused his injury, the Commonwealth Court held that the Claimant had failed to prove any connection between his injury and any condition on the employer’s premises, resulting in the reversal of the Claimant’s compensation benefit award.

This appears to be a very straightforward decision predicated on the Claimant’s own testimony that his injury simply occurred, for no apparent reason, there being testimony from the Claimant himself that he was not injured because of somethingin or on the parking lot.

Keep in mind that this holding is also predicated on the Claimant’s injury occurring when the Claimant was not doing anything that could be construed to prove that the Claimant was furthering the business or affairs of the employer, as the Claimant was regrettably injured when responding to a family emergency.

Again, interesting facts make interesting law.

ConnorsO’Dell LLP

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