State News

Employers often find New Jersey to be a very frustrating state for workers’ compensation because it is very difficult to close a file for good, unless the parties have grounds for a Section 20 disposition and the proposed Section 20 meets with the approval of the Judge of Compensation.  Now those employers will have added basis to complain in light of one of the most astonishing workers’ compensation decisions in decades.  InCatrambone v. Bally’s Park Place, A-3589-13T4 (App. Div. November 12, 2015), the New Jersey Appellate Division this month held that a man who received an award for total and permanent disability for his neck with Second Injury Fund contribution can reopen a prior award for his low back. 

The case appears to be the first of its kind in New Jersey and is causing waves in the workers’ compensation community because almost every practitioner had been of the impression that total disability means exactly what it says:  the most one can get in workers’ compensation court. 

It is important to understand the factual context.  Mr. Catrambone had two accidents: the first was on March 18, 2006 involving the low back.  That led to a settlement on May 15, 2008 for 27.5% of partial total with a small credit for a gross amount of $27,570. The second accident happened on June 14, 2008 and involved mainly the left shoulder.  On March 24, 2009, petitioner filed a reopener of the award on the low back and filed a claim petition for the second accident on June 14, 2008 for the left shoulder. Mr. Catrambone alleged that he was totally disabled from a combination of the second accident and the preexisting back problems from the first accident and applied for benefits from the Second Injury Fund.

The parties proposed a simultaneous resolution of both claims on November 29, 2010 with participation of the Second Injury Fund:

1)      The low back reopener was settled for 30% credit 27.5%.  That award became the basis for Second Injury Fund contribution because the Fund will only contribute if there is proof of previous disabling conditions, whether work-related or non-work-related.

2)      The left shoulder claim was settled for 100% permanent total disability with the employer paying 150 weeks and the Second Injury Fund paying 300 weeks and then paying for the rest of petitioner’s life.

All was well until November 14, 2011 when Mr. Catrambone moved to modify the prior low back award.  The modification, often called a reopener, was an attempt to increase the prior award of 30% to a higher percentage because Mr. Catrambone argued that his back was worse than it was when he settled on November 29, 2010.  Bally’s protested that Mr. Catrambone had already been adjudged totally and permanently disabled and could not therefore get any further increase in his low back award.  Bally’s also pointed out that the basis for the contribution of the Second Injury Fund was the prior 30% award, and that award had already been considered as part of the simultaenous settlement with the Second Injury Fund.

The Judge of Compensation disagreed with Bally’s and held that when there are two accidents, the first one being a partial award, the employee could settle for total disability on the second accident and still seek an increase later on the previous award for partial disability from the first accident.  The Judge did state that if there is only one accident resulting in total and permanent disability, that award cannot be reopened.  The Judge of Compensation entered an order for 35% permanent partial disability with a credit for the prior 30% award, granting petitioner another $27,048.  Bally’s appealed this decision.

The Appellate Division noted in its recent decision that when the case actually settled on November 29, 2010, the Judge of Compensation did say to the claimant that he had a right to reopen the partial award and neither attorney said anything at the time.  Further, the Appellate Division noted that no prior case directly on point existed precluding Mr. Catrambone from reopening the earlier award on his low back, even though he received total and permanent disability benefits for his left shoulder injury.  The Appellate Division held that if a claim for increased benefits is based on a different injury than the one that totally disables the claimant, then the earlier injury award can be reopened.  In this case, there was a period of about six months when Mr. Catrambone would be receiving both his additional partial award and total and permanent disability benefits from the Second Injury Fund. The Court ordered Bally’s to repay the Second Injury Fund during that period of double payment.  In the end, Bally’s had to pay $27,048, but Mr. Catrambone got $16,054 and the Second Injury Fund got repaid by Bally’s the sum of $10,994.

This case has serious implications for employers who resolve total disability claims with the Second Injury Fund using a prior partial award as a basis for Fund contribution, as well as employers who resolve total disability claims on their own without the Fund when the claimant has prior partial total awards.  There appears to be no end to the claimant’s right to reopen the prior award in these situations. While common sense would suggest that total and permanent disability is the end of the line, this case is now the leading one in New Jersey.  Based on this decision, Mr. Catrambone can continue to reopen his low back claim so long as he does so within two years from the last payment of compensation to him.  The sense of finality that employers had with regard to total and permanent disability claims appears now to be illusory.

 It is the understanding of this practitioner that Bally’s has applied for certification from the Supreme Court of New Jersey.

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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. 

On November 18, 2015, the West Virginia Supreme Court of Appeals issued a new signed opinion inGoff v. W. Va. Dept. of Natural Resources, expanding benefits for a statutory rated loss of vision in one eye. In a Memorandum Decision also released November 18 the Court delineated calculation of Average Weekly Wage. In an October 18 order, the court set oral argument and invited interested parties to file amicus briefs by December 1, on the question of the correct methodology for apportioning the level of impairment in workers’ compensation cases involving preexisting conditions.

Goff and W. Va. Office of Ins. Comm., (No. 14-0977, November 18, 2015)

In a signed opinion, the Supreme Court addressed whether a claimant who lost an eye because of a workplace injury is limited to the statutory award in W. Va. Code § 23-5-6(f) for loss of vision in one eye. The Court allowed additional impairment for the physical removal of his right eye, in addition to the previously awarded statutory amount of the loss of vision in his right eye. In a new Syllabus point, the Court held: “The statutory percentage disability award contained within W. Va. Code § 23-5-6(f) (2005) for the total functional loss of vision of an eye caused by an occupational injury does not preclude an additional award, if appropriate, for permanent disfiguring effects and other permanent disabling effects caused by the physical removal of the eye itself.”

Claimant was struck in the right eye by a brier. His eye became infected and ultimately was removed. He was fitted with a prosthetic eye, but needed continuing treatment for conjunctivitis, blepharitis (eyelid inflammation) and other conditions related to the eye socket itself. In addition, medical reports indicate claimant suffered a permanent disfigurement to the area around the eye. The claimant was awarded 33% statutory permanent partial disability award under W. Va. Code § 23-5-6(f) for “the total and irrevocable loss of sight in one eye.” Nothing was awarded for the permanent impairment caused by his continuing problems with infections and related conditions in his right eye socket or for the permanent disfigurement caused by his eye injury. The Court held “the Legislature chose its words carefully, focusing on something short of a total physical loss of the eye – limiting its words to the ‘loss of vision’ or ‘sight’ of the eye, rather than the impairments related to the loss of the physical eye itself. Giving effect to this plainly worded statute, we therefore hold that the statutory percentage disability award contained within W. Va. Code § 23-5-6(f) (2005) for the total functional loss of vision of an eye caused by an occupational injury does not preclude an additional award, if appropriate, for permanent disfiguring effects and other permanent disabling effects caused by the physical removal of the eye itself.”

Lowry v. Team Environmental LLC and W. Va. Office of Ins. Comm., (No. 13-1125, November 18, 2015)

In a Memorandum Decision, the Supreme Court provided clear direction on how to calculate a claimant’s daily wage, the basis upon which temporary total disability and other benefits are established. Giving the words in the statute their ordinary and familiar meaning, the language of W. Va. Code § 23-4-14(b)(2) provides that in choosing between computing an injured worker’s benefits using his or her daily rate of pay or the weekly average derived from the best quarter of wages of the preceding four quarters, the computation which must be used is the one which is “most favorable to the injured employee.” There was a factual dispute whether the injured claimant was a full-time employee or a contractor whose work was intermittent. The claimant based his weekly wage on earning $16.00 per hour for a forty-hour work week which is what he was paid the day before his injury. He based his weekly wage on multiplying a forty-hour work week by his hourly rate of pay, and then dividing the number by a five-day work week, for a daily rate of pay of $128.00, and a corresponding average weekly wage of $640.00. Conversely the employer and the claims administrator used an average weekly wage of $595.38 calculated from 1099-MISC forms and checks from earnings in the fourth quarter of 2010, which was the highest-paid quarter of the year preceding the quarter of the year in which the injury happened. The daily rate of pay most favorable to the claimant was the one proposed by him and adopted by the court.

Cases from January 2015 Term of Court

In the January 2015 Term of Court, the Supreme Court issued three signed opinions. In two cases, the Court drastically diminished the enforceability of temporal limitations on claims brought under the West Virginia Workers’ Compensation Act. InSheena H. for Russell H. v. Amfire, the court ruled the claim of a dependent of a deceased employee may be accepted beyond the statute of limitations, until the dependent could reasonably learn the death was work-related.Hammons v. A & R Transport, Inc., allows claimants to apply for permanent partial disability benefits after the statutory period, if lengthy litigation on the underlying claim extended beyond the time limitation. These decisions allow injured employees, or their dependents, to claim benefits under the Worker’s Compensation Act beyond the limited time determined by the West Virginia Legislature.

Sheena H. ex rel. Russell H., et al. v. Amfire, LLC, 235 W.Va. 132, 772 S.E.2d 317 (2015)

This case addressed the tolling of the six month statute of limitations period in which W. Va. Code § 23-4-15(a) permits dependents of deceased employee to apply for death benefits under the Workers’ Compensation Act. In answering this question affirmatively, the Court utilized canons of statutory construction to avoid absurd results and overcome lack of explicit statutory permission for extending the jurisdictionally limited six month period. Ultimately, the Court decided the limitation period may be tolled under the limited circumstance in which the dependent is unaware of the work-related injury’s role in the death of a decedent because of delay by the medical examiner in preparing the autopsy which determined the cause of death. 

The peculiar facts produced a narrow holding. The decedent received a traumatic head injury while on the job. The decedent went to the hospital, returned to work less than three days later, and died in his sleep twenty-one months after the head injury. A medical examiner performed an autopsy the day after the decedent’s death; however, the medical examiner did not release the autopsy report for eight months. The autopsy report was the first, and only, indication a work-related injury caused the decedent’s death. The delay in the release of the autopsy prevented the dependents of the deceased from timely applying for death benefits within six months after the date of death in accordance with W. Va. Code § 23-4-15(a).

The Court determined the unique facts of this case were likely not considered by the legislature at the adoption of W. Va. Code § 23-4-15(a). The Court, to avoid what it characterized as a patently unfair and absurd result, determined the legislature could not have intended a claim for death benefits to be untimely simply because of a medical examiner’s delay. The Court buttressed their decision by reaffirming the purpose behind the time limitation of the Workers’ Compensation Act – to protect employers from frivolous claims and to afford claimants sufficient opportunity to investigate a claim before filing it. 

Hammons v. W. Virginia Office of Ins. Com'r, 235 W. Va. 577, 775 S.E.2d 458, 460 (2015)

The Court held that claimants may apply to reopen a workers’ compensation claim and request a referral for determining related PPD benefits after the time limits established by W. Va. Code § 23-4-16(a)(2) if four factors are met. To reopen a closed claim, the claimant must have (1) received an award of PPD for an initial workplace injury; (2) timely filed a reopening request under W. Va. Code § 23-4-16(a)(2) seeking additional, related injuries to the initial claim; (3) the additional injuries must be compensable, and (4) the Claim Administrator must fail to refer the claimant for a PPD evaluation in accordance to W.Va. Code § 23-4-7a(f). In adopting this new factor test, the Court recognized three rights afforded to claimants under the Workers’ Compensation Act; the right to the payment of benefits for workplace injuries, the right to appeal adverse decisions; and the right to be referred for a PPD evaluation.

In this case, both claimants were injured on the job, suffered from persistent pain stemming from the initial injury, and went through lengthy litigation to add new permanent partial disability benefits by reopening their initial claim. In reaching the ultimate decision to allow the untimely application for permanent partial disability referral, the Court reiterated that W. Va. § 23-4-7a(f) creates  an affirmative duty on a Claim Administrator to refer claimants for an examination to determine whether permanent partial disability exists if temporary total disability continues longer than one hundred twenty days from the date of injury or from the date of the last examination or evaluation. Here, the claimants were not afforded this right. Thus, the Court found it necessary to allow the untimely application to protect the rights recognized by the Legislature.  

Moore v. K-Mart Corp., 234 W.Va. 658, 769 S.E.2d 35 (2015). 

In a third signed opinion in the court’s January term, the court addressed a limited question whether an employee is entitled to reimbursement for medically necessary chelation therapy to treat heavy metal toxicity.  The Court found invalid the limitation to reimburse chelation therapy performed in an office as provided in W. Va. C.S.R. § 85-20-62.2 (2006). In a new syllabus point, the court ruled: “West Virginia Code of State Rules § 85–20–62.2 (2006), which provides, in part, that “[t]he Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will not reimburse for IV chelation therapy performed in office[,]” unreasonably denies reimbursement when such treatment is medically necessary, in contravention of the Workers' Compensation Act, West Virginia Code § 23–4–3 (2010), and it is therefore invalid.”

Article by Dill Battle with assistance from James C. Walls III.

 If you have questions or need more information, please call or e-mail Dill Battle at 304.340.3800 ordbattle@spilmanlaw.com

The signature workers’ compensation event in the United States takes place each year at the National Workers’ Compensation and Disability Conference and Exposition in Las Vegas, Nevada.  The highlight of the conference is the presentation of the “Teddy” award to a select few companies, chosen from hundreds of applicants, for outstanding achievement in workers’ compensation. The “Teddy” award honors the memory of President Theodore Roosevelt who lobbied for years on behalf of workers’ compensation laws to protect injured workers.

This year New Jersey based Barnabas Health System along with three other companies around the nation won the coveted “Teddy” award for its innovative Corporate Care program, spearheaded by Caryl Russo, Vice President of Corporate Care.  Several Capehart Scatchard attorneys were present at the ceremony.  Russo acknowledged the efforts of her business partners in winning this award, including PMA Management Corporation, third party administrator, William H. Connolly, the hospital’s insurance broker, as well as Capehart Scatchard, among others.

Russo and three other representatives of award winning companies, including American Airlines, participated in a 90 minute panel discussion focusing on the elements of success behind each company’s award winning workers’ compensation program.  Russo began by posing this challenge, “Creating consistency in an occupational health program is like tacking jello to a wall.”  There are countless challenges to be faced.  She said that for  Barnabas Health Care the key was establishing clear and achievable goals. In the hospital’s case the main goals were to provide the best possible health care while reducing lost time frequency.

The hospital created a system-wide “corporate care” program which was rolled out at each member hospital one hospital location at a time. A highly qualified occupational physician was hired to oversee treatment of workers’ compensation cases at each hospital.  All the physicians were trained in understanding the requirements on the New Jersey Workers’ Compensation system.  The program also focused on the need for creative modified duty positions at every hospital location. Since the rollout of the program,  Barnabas has seen a 72 percent drop in lost time  frequency.

Another key aspect of the program was the creation of a claim triage team, including the third party administrator, broker, department heads and other professionals. The triage team convened each week to focus on complex and high cost claims, looking for innovative ways to close files and resolve claims in an efficient manner.  Another focus of the program was to put in place systems which helped gather detailed past medical history early in the life of a new claim which could bear on causation and credit issues.  Such information became critical for occupational physicians and specialists involved in providing medical care.

Russo explained that all of these changes have resulted in millions of dollars in cost savings and reductions of reserves and letters of credit for the hospital, at a time when many New Jersey employers are experiencing skyrocketing workers’ compensation costs.

Those who are interested in learning more about Barnabas Hospital’s Corporate Care program can hear Russo and her award-winning program team speak about the crucial elements of their cost saving program at the Millennium Seminar on December 3, 2015 at the Hilton Hotel in Parsippany, New Jersey.  Information on and registration for the seminar is available at www.millenniumseminars.com or by contactingcwright@capehart.com.

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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. 

One of the hallmarks of the New Jersey workers’ compensation system is that awards of partial permanent disability can be reopened for more medical, temporary or permanent disability benefits.  In this case, Rebecca Weston, a detective investigator for the Union County Prosecutor’s Office, received an award of 55% of partial total, 31% of which was attributed to her cigarette smoking.  She reopened the case in 2010 claiming that her chronic obstructive pulmonary condition (COPD) had worsened.

In 2011 Mrs. Weston passed away and her husband continued the litigation.  The Honorable Lenore Kramer Mohr, Administrative Supervising Judge of Compensation, found that the increase in petitioner’s pulmonary disability was due exclusively to continued cigarette smoking, not to work exposures. The Judge found that petitioner “never gave up smoking for any significant period of time and continued to smoke regularly until the time of her death.”  Mr. Weston appealed.

The Appellate Division said that the controlling test is “whether the work exposure substantially contributed to the development or aggravation of petitioner’s medical condition.” One of the key reasons for the affirmance in this case was that Mrs. Weston’s last exposure to environmental pollutants at work ended in the year 2000.  The Court concluded that this fact made it extremely difficult for the claimant to show material worsening from work exposures, given that she continued to smoke cigarettes.

There was apparently a dispute in testimony about whether Mrs. Weston stopped smoking in 2006 after she developed COPD but the Judge of Compensation did not believe Mrs. Weston’s testimony. 

The Judge also credited the testimony of the employer’s medical expert that Rebecca’s COPD became worse due to her continued smoking.  The judge did not credit the testimony of petitioner’s medical expert, because he based his opinion on the factual assumption that Rebecca stopped smoking in 2006, and he overlooked what the judge found was clear evidence in Rebecca’s medical records that she had continued to smoke.  The judge found petitioner’s expert’s ‘conclusions based on his faulty assumptions were therefore flawed and unreliable.

This case can be found at Weston v. Union County Prosecutor’s Office, A-3578-13T4 (App. Div. October 23, 2015).  

The reasoning here is compelling because the only harmful respiratory exposures after retirement were non-work-related cigarette exposures.   But the rationale of this case should not be limited to respiratory claims.  One can apply the same reasoning to orthopedic claims where an employee with an award of partial permanent disability for the back, for example, retires and later reopens the case.  If the employer can show that the worsening of the spine is due to physical exertion in a new job, not the original employment, the same result should follow.  Readers should also consider that the employer won this case because of diligent searching of medical records.  While the search for past and current medical records may seem tedious and expensive, many cases are won by detailed attention to entries in medical records such as the comments in these records about continued cigarette smoking.   

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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 term “idiopathic defense” is widely misunderstood.  Practitioners need to appreciate when the defense applies and who has the burden of proving an idiopathic defense.  In New Jersey, and in most states, the burden is on the employer to prove an idiopathic defense.  The word “idiopathic” comes from the Greek: “idios” meaning one’s own, and “pathos” meaning suffering or illness.  It is defined in medical dictionaries as a disease or condition that arises spontaneously or for which the cause is unknown.  In law it means more precisely a personal condition which in and of itself explains the injury or illness of the claimant.

At the outset, it is important to distinguish claims where there is no work connection at all: these are not idiopathic claims and petitioner has the burden of proof. The case ofMeuse v. Egg Harbor Township Police Department, No. A-4553-90G5 (App. Div. May 6, 1992) involved a police officer who was walking down steps at the station when he felt pain in his knee.  Apparently, a piece of bone broke off in the knee but the officer did not fall or strike anything.  The respondent never proved that petitioner had prior treatment in the knee because there was no need to.  It was petitioner who had the burden of proving that his knee problem arose from work, but he could not do so.  There was really no connection at all with work other than the fact that this happened at work.  The Appellate Division stated that this could have happened at any time and at any place and was not compensable. 

The burden of proof always rests on the claimant to show that his or her conditionoccurred during work and arose from work.  The first concept is one of time; the second concept is one of causation.  If there is no work connection, then the case fails on that test.  For example, if an employee were just sitting at a desk and began to feel back pain, this would be denied as having nothing to do with work.  The respondent would win this case not because the injury is idiopathic but because it does not arise from work.

Now let’s look at an example of an idiopathic claim. InMcNeil v. Township of South Brunswick Police, No. A-0777-11T1 (App. Div. May 9, 2012), Officer McNeil was responding to a call and felt pain in his back while hurriedly exiting his vehicle.  He was not sure if he bumped the steering wheel on exiting the vehicle.  Later that day he went to the hospital for treatment and reported the incident. The workers’ compensation doctor thought he had at best a mild strain.  McNeil eventually brought a motion to compel surgery on his back for an extruded disc.

Respondent arranged an IME which revealed that the officer had a long history of low back problems including prior herniated discs and prior surgery, and in fact the very herniated disc at issue had been known for quite some time.  The Judge of Compensation found that the act of exiting the vehicle did not cause any of the pathology in petitioner’s spine, and the physical act of exiting the vehicle was not consistent with the MRI results.  The Appellate Division affirmed and found that that exiting the vehicle was not the causal origin of petitioner’s back condition.  It said that petitioner must show “whether it is more probably true than not that the injury would have occurred during the time and place of employment rather than elsewhere.”

In an idiopathic claim, the burden of proof shifts to the employer.  When an employee  presents enough evidence to show that some event happened at work causing an injury, then the employer has the opportunity to rebut the claim and argue that the real cause is a long-standing or prior medical condition.  This burden shift is discussed inVerge v. County of Morris, 272N.J. Super. 118 (App. Div. 1994).  The facts in Verge involved an employee who tripped on a rug but did not fall down.  The petitioner argued that her knee injury was occasioned by this twisting motion, and that the trip on the rug was the work connection.

The Judge of Compensation dismissed the case saying that this could have happened anywhere, but the Appellate Division reversed on the grounds that the employer should have the obligation to prove that the knee condition was preexisting and that the prior knee condition caused the knee pain.  The Appellate Division criticized the trial judge for failing to put the employer to its proofs on the idiopathic defense. “We hold that if petitioner’s ‘slip’ is to be characterized as an ‘idiopathic event,’ it must be found to be one which was caused by ‘a purely personal condition having no work connection whatever.’”  The appellate court said that petitioner had discussed prior problems and surgeries with her left knee but had stated she had no problems with her left knee since 1985.  The court clarified, “If petitioner sustained an idiopathic injury because there was no slip to cause her knee to twist in the first instance, then she cannot recover, as there was no subsequent fall or impact capable of causing a secondary injury.”

In considering Verge, what the court was saying was that the employer had to prove that the petitioner did not really slip, but rather that her knee condition caused the event due to its preexisting condition. For instance, if the employer had been able to prove that petitioner’s knee had been buckling for weeks due to a prior condition and it just buckled once more, completely unrelated to the impact of the rug, then the injury would have been idiopathic.  Similar toVerge isShaudys v. IMO Industries, 285N.J. Super. 407 (App. Div. 1995).  There an employee arrived at work in the company parking lot, exited his car and then, as he turned to walk toward his building, took a step with his left leg while slamming his car door shut.  In that moment he felt knee pain and heard a pop.  The court ruled for the employee: “…IMO would have had to prove by a preponderance of the evidence that petitioner’s injury was caused by a pre-existing condition and that petitioner’s twisting step towards his workplace did not contribute causing his injury.”

The lesson is this to all workers’ compensation practitioners. When you have a case where there is really no connection at all to the employment, you do not have an idiopathic defense case.  The burden is on the claimant, who will lose if she cannot show that the injury arose from work.  For example, when Mrs. Coleman got her permanent wave solution and came to work the next day and lit a cigarette, causing her hair to ignite in flames, that was not an idiopathic defense case.  Petitioner lost because the act of lighting a cigarette had no connection to work.  She could not show that the injuryarose from work.Coleman v. Cycle  Transformer Corp., 105N.J. 285 (1995).  The idiopathic defense only arises after the employee has articulated some work event, even a minor one, which then shifts the burden to the employer to prove that the medical condition was preexisting and in fact caused the minor incident. 

In essence, there are two competing theories in workers’ compensation when it comes to causation.  An employer takes the employee as he finds him is a dominant theme in workers’ compensation.  That means that the employer cannot prevail just because an employee is shown to have prior knee problems or prior low back problems.  The reason for that rule is that virtually every employee has prior conditions that he or she brings to the workplace.  So if the work effort “aggravates” the prior condition (i.e., objectively worsens it), then the employer is liable to pay workers’ compensation benefits.  On the other hand, if the employer can show that the work effort did not really cause the injury but that the preexisting condition was already there and was the cause of the pain, then the employer is not liable.

The idiopathic defense is, in a very real sense, the antidote to the maxim that the employer takes the employee as he finds him.  To win such a defense, the employer must obtain prior family doctor records, prior surgical records, prior car accident history, and the like, because a workers’ compensation judge will not rule in favor of an employer with just proof that a person had prior arthritis. This information must then be transmitted to a medical expert for an opinion on whether the cause of the symptomatology was solely due to the prior medical condition, not the alleged work event.  Having a prior medical condition like osteoarthritis is not enough to win an idiopathic defense.  There must be proof that the prior condition was treated and significant enough to be an independent cause of the petitioner’s injury.  Informal discovery and use of ISO and other valuable resources can turn the tide on a workers’ compensation case.  This is particularly important in a state like New Jersey where there is almost no formal discovery. Only with aggressive informal discovery can employers prevail in workers’ compensation in New Jersey.

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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.

Tyson Foods, Inc., v. Yawa Tameklo, Court of Appeals of Iowa, No. 15-0222

 Claimant, Yawa Tameklo, sustained a work-related injury to her right shoulder while trimming dirty meat off cow carcasses as they proceeded down an assembly line at Tyson Foods, Inc. After conservative treatment failed to alleviate her pain, Claimant underwent surgery, known as “subacromial decompressive acromioplasty with bursectomy.” Claimant returned to full-duty work eight weeks after the surgery. The pain in Claimant’s right shoulder did not abate. Eventually, a physician diagnosed her with “avascular necrosis,” described in part as a narrowing of the joint space with particulate debris.

 Claimant petitioned for workers’ compensation benefits. Tyson countered that the necrosis was not work-related. Following an arbitration hearing, a deputy workers’ compensation commissioner found “that the avascular necrosis condition [was] related to [Claimant’s] work injury.” The deputy awarded Claimant healing period benefits. On intra-agency appeal, the commissioner upheld the award, as well as the deputy’s findings, applications of law to fact, and conclusions of law. A subsequent application for rehearing was denied. Tyson sought judicial review. The district court reversed the agency decision, finding insubstantial evidence to support the commissioner’s determination of a causal connection between the injury and Claimant’s employment. Claimant appealed. 

On appeal, the Court notes that the commissioner cited three pieces of evidence in finding a causal connection between Claimant’s injury and employment: (1) an opinion from the physician who performed the prior surgery, (2) an opinion from a second physician, and (3) medical literature proffered by a physician who conducted an independent medical examination. Tyson argues the first two physicians did not conclusively find a causal connection and the findings in the article presented by the third physician were based on a different surgery than Claimant underwent, involving patients with different underlying medical issues. The Court of Appeals agrees with Tyson’s contentions, but notes their agreement does not mandate reversal.

 Neither of the first two physicians conclusively ruled out a causal connection with Claimant’s employment. Further, the independent medical evaluation was based on more than the journal article alone. After reviewing and summarizing the pertinent medical records, that expert found a cumulative aggravation of Claimant’s original work-related shoulder injury when she returned to full-duty work. Setting aside the journal article, these statements amount to substantial evidence in support of the agency’s finding of a causal connection.

 The Court of Appeals concludes the agency’s finding of a causal connection between Claimant’s avascular necrosis and her employment was supported by substantial evidence. To the extent the determination involves application of law to fact, the Court concludes it is not irrational, illogical, or wholly unjustifiable.

Eaton Corporation and Old Republic Insurance Co., v. Don Archer, Court of Appeals of Iowa, No. 15-0255

 Claimant, Don Archer, filed a workers’ compensation petition alleging he sustained a work-related injury while employed at Eaton, where he engaged in repetitive work as a machine operator on a factory assembly line building transmissions. On the day of his alleged injury, March 22, 2012, Claimant began to experience pain in his hands, and as a result, Claimant reported to Eaton that he was unable to work. He also missed his next two work shifts due to his symptoms. Claimant was terminated from his employment on April 2, 2012, due to excessive absenteeism and has been unable to obtain new employment. Dr. Donald Bumgarner, Claimant’s physician, determined Claimant had “[p]robable carpal tunnel syndrome left side and possible carpal tunnel syndrome right side.” An EMG further indicated he had carpal tunnel syndrome on his left side. Dr. Michael Morrison also diagnosed him with mild bilateral carpal tunnel syndrome and recommended surgery.

 Each party requested an independent medical examination (IME). Claimant’s IME was conducted by Dr. Caliste Hsu. Dr. Hsu diagnosed Claimant with bilateral carpal tunnel syndrome caused by working at Eaton. Dr. Hsu further determined Claimant was not capable of performing the work he had been doing at the time of the injury. Eaton obtained an IME from Dr. D.M. Gammel, who also diagnosed Claimant with bilateral carpal tunnel syndrome but disagreed with Dr. Hsu’s opinion on causation.

 Claimant filed a petition for workers’ compensation benefits. Following an arbitration hearing, a deputy workers’ compensation commissioner found Claimant sustained a work-related injury on March 22, 2012, and was entitled to a running award of healing period benefits beginning April 3, 2012. The workers’ compensation commissioner affirmed and adopted the deputy’s decision on appeal. Eaton sought judicial review of the causation finding and award of healing period benefits, which the district court affirmed. On appeal, Eaton only challenges the award of a running healing period benefit, claiming substantial evidence does not support the agency’s finding.

 The Court of Appeals holds substantial evidence supports the finding Claimant is unable to return to similar employment. The Court notes that Claimant testified his injury caused pain so intense he was unable to work, leading to his eventual termination. After his termination, Claimant’s symptoms failed to improve. Dr. Hsu recommended Claimant be surgically treated to improve “his symptoms of pain, tingling, and numbness in his hand,” but Claimant has been unable to pursue this treatment after losing health insurance following his termination. Most significantly, Dr. Hsu opined, “I do not believe [Claimant] is medically and physically capable of performing the work that he was doing at the time of his injury.” The Court notes that, although Eaton cites evidence that may support a finding that Claimant was capable of returning to substantially similar employment, the Court’s task is not to determine whether substantial evidence supports different findings but rather the findings actually made. 

The Court of Appeals also holds that substantial evidence supports the finding the healing period began when Claimant was terminated from his employment with Eaton. In determining the date of injury, the Court uses the date on which the disability manifests, or in other words, “‘the date on which both the fact of the injury and the causal relationship of the injury to the claimant’s employment would have become plainly apparent to a reasonable person.’” Here, Claimant had only been told he had “probable” carpal tunnel syndrome on his left side and “possible” carpal tunnel syndrome on his right side before he was terminated. Although Dr. Bumgarner suggested Claimant try wearing a neutral wrist splint to reduce his pain, he did not receive any work restrictions. It was a short period of time after Claimant’s symptoms began that he was terminated, and it was not until after Claimant was terminated that he was given an EMG and diagnosed by three doctors as having carpal tunnel syndrome. The first opinion on causation was given in August 2012, months after Claimant’s termination. Therefore, Claimant would not have been aware of the connection between his injury and his work, or the adverse impact his injury would have on his employment, until after he was terminated.

 Because the Court of Appeals agrees with the district court that the evidence here supports an award of healing period benefits beginning on April 2, 2015, it affirms.

 Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

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 (7^th 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 Appeals Panel has set a very high bar for relief from a benefit dispute agreement. A day before
a CCH, the claimant and the carrier, both represented by attorneys, entered a benefit dispute
agreement to resolve extent of injury, disability, and bona fide offer of employment issues. An
earlier CCH had already been continued to allow time for an RME to take place. The RME had
occurred, but subpoenas for medical records were still outstanding. After the benefit dispute
agreement was finalized, the carrier received the subpoenaed medical records that revealed extensive
preexisting conditions that had not been disclosed by the claimant.
The carrier sought relief from the benefit dispute agreement based on the claimant’s fraud in lying
to the DD and RME doctor regarding his prior history of injury. The Hearing Officer agreed, and
found that newly-discovered evidence constituted good cause for relieving the carrier from the
effects of the benefit dispute agreement. The RME doctor testified that she would have reached a
very different conclusion had she reviewed the records showing extensive preexisting injury.
The Appeals Panel disagreed and reversed the Hearing Officer. The Appeals Panel held that the
evidence was not “newly-discovered,” because the carrier knew that there were additional medical
records before entering the benefit dispute agreement. That is, the carrier had subpoenaed records
before entering the agreement, and thus, the carrier was aware that there was additional evidence
in existence. The Appeals Panel did not address the claimant’s fraud in lying to the DD and RME
doctors, but noted that the carrier’s allegation of fraud was also based on the “newly-discovered
evidence,” and was apparently excused by the carrier’s lack of diligence in obtaining those records.
Appeal No. 151634, decided October 6, 2015.

“Emoticons” (the little happy and sad faces made of punctuation) and “emojis” (a picture version
of emoticons) that we use in text messages and Facebook posts from time to time, are now being
used as evidence in court. Does something make you happy or sad? This could be relevant to
determining if you’re liable under the law.
In the criminal context, a Kentucky woman was accused of harming her child and attempted to show
that she loved her child (and thus could not be guilty) by showing the jury tweets about her child’s
condition with a crying face emoji. In the civil litigation context, use of emoji has been used to
show intent in contract disputes. A “:P” was a successful defense in a defamation suit to show that
the comments were clearly a joke.
Courts in various jurisdictions have allowed introduction of emojis as evidence. However, just
because emojis are admissible does not mean they necessarily prove anything. Remember the
Kentucky mother? She’s now sending her crying faces from a jail cell.

Effective February 1, 2016, Fentanyl transdermal patches and MS-Contin will have their status
changed to “N.” Beginning February 1, 2016, prescriptions for either of these drugs will require
preauthorization.