State News

PENNSYLVANIA WORKERS’ COMPENSATION

SUBROGATION LIEN OUTLINE

By: Kevin L. Connors, Esquire

Recently presenting at a reinsurance conference on the issue of Pennsylvania workers’ compensation subrogation liens, one that all of us probably think about every day, being that not insignificant monies have been expended in paying for workers’ compensation benefits, in the form of wage loss and medical compensation benefits, it occurred to us that the thrill of recovering those monies, through the perfection and prosecution of subrogation lien claims, continues to astonish, dumbfound, and dazzle our claims consciousness, as we simply demand, what we affirmatively believe, are our statutory entitlements.

Obviously, this outline is simply a function of Section 319 of the Pennsylvania Workers’ Compensation Act, setting forth:

“Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employee, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer; reasonable attorney’s fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employee, his personal representative, his estate or his dependents. The employer shall pay that proportion of the attorney’s fees and other proper disbursements that the amount of compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement. Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employee, his personal representative, his estate or his dependents, and shall be treated as an advance payment by the employer on account of any future installments of compensation.”

When workers’ compensation benefits have been paid, and the tantalizing thought exists that a third party is responsible for having caused those payments, in which case the following calculations come into play, in the event that the person that you have paid workers’ compensation benefits to, proves that a third party was responsible for those benefits, to include:

           Total amount of third party recovery;

           Accrued workers’ compensation lien, for both wage and medical benefits;

           The expenses of recovery;

           The balance of recovery.

With the above cha-ching dollars in play, proceeds must now be distributed, and that requires that the proceeds be distributed, with the following being calculated:

           1)        Accrued lien expense reimbursement rate, requiring division of the accrued lien by the total amount of the third party recovery;

           2)        Expenses attributable to accrued lien, requiring multiplication of the expenses of recovery by the accrued lien expense reimbursement rate;

           3)        Net lien (amount employer to receive in satisfaction of lien), requiring that the expenses attributable to the accrued lien be subtracted from the accrued lien, leaving a net lien.

Hold on now, because that might not be the end of our lien calculations.

No less true, there might still be future benefits that are payable, potentially empowered by the third party recovery and lien issues, and that future liabilities will require calculations as to the future distribution of proceeds.

This requires that we apply the reimbursement rate on future compensation liability, requiring that the expenses of recovery be divided by the total amount of the third party recovery, resulting in the employer/insurer being responsible for paying a percentage of future weekly benefits and medical expenses, to satisfy its obligation to reimburse its pro rata share of the attorney’s fees and expenses that were incurred in securing the carrier’s lien recovery, with that percentage being paid by the employer/insurer until its subrogation interest is exhausted.

Upon exhaustion of the subrogation lien interest, compensation liability again attaches at the 100% rate, subject to the wonderful defenses that the Pennsylvania Workers’ Compensation Act provides, whatever they might be on any given day.

As for all of these delightful calculations, there are, nevertheless, other considerations, necessitating the statutory purposes for subrogation, being threefold, the first being, prevention of double recoveries, and the second being avoidance of the employer/insurer paying compensation caused by someone else’s fault, and the third being to make the responsible party pay, redistributing liability in reliance upon life as we know it.

So what else do we need to know about subrogation?

Well, it is an absolute primary right, that attaches upon there being a third party recovery, either through settlement or verdict.

It is a right that, unbelievably, is not negated by the employer/insurer’s failure to cooperate in the prosecution, of the third party case, to secure that third party recovery.

No less magically, this right is not negated by the injured employee’s comparative negligence.

It is an all-inclusive right, meaning that it encompasses all past, present, and future workers’ compensation benefits, although it does not include your administrative claim expenses.

As for enforcement issues, therein lies the rub, although workers’ compensation has exclusive jurisdiction over subrogation lien issues, these issues typically arise in the interplay between workers’ compensation and civil litigation, and a workers’ compensation judge’s order, enforcing subrogation, and requiring distribution of third party settlement proceeds in satisfaction of a subrogation lien, might have little effect outside the workers’ compensation province, as a workers’ compensation judge’s order cannot be used as an order of attachment against the corpus, being the body of funds, on deposit in some account somewhere, presumably either counsel’s or the employee’s, such that it might be necessary to seek civil remedies, to enforce attachment via a judgment against the proceeds.

So, what else should be considered?

Well, subrogation liens cannot be asserted against recoveries that are triggered by ADA-type litigation, as they are regarded as being separate and distinct from the liabilities typically associated with causing the physical/mental injury, that results in the payment of workers’ compensation benefits.

Third-party recoveries cannot be re-apportioned, in avoidance of satisfying the lien, in order to try to assign proceeds to spousal consortium claims, and/or to re-allocate the recovery, in satisfaction of non-economic claims for pain and suffering, etc.

Subrogation liens are absolutely applicable to legal and medical malpractice claims, although the liens might be limited to benefits paid after the actionable malpractice, and might not, therefore, be all-inclusive, in terms of all benefits paid under the workers’ compensation claim.

Moreover, if a workers’ compensation claim is being settled, with the settlement being perfected under a Compromise & Release Agreement, it is necessary that the Compromise & Release Agreement reflect the parties’ agreement, with respect to the subrogation lien issues, and, obviously, any satisfaction of a subrogation lien requires that the parties prepare and submit a Third-Party Settlement Agreement to the Bureau, reflecting the satisfaction of the lien, and setting forth all applicable calculations as to the third party recovery, the applicable lien amounts, the net lien recovery, and the reimbursement rate, in the event that compensation benefits are being suspended, during the period that the employer/insurer would be re-paying its pro rata share of the fees and expenses attributable to its recovery of its subrogation lien.

As an absolute matter of practice, every workers’ compensation claim should be viewed through the Newtonian prism of the potential involvement of third party liability, and employers and insurers should be encouraged to place Claimants and counsel on notice of subrogation lien rights as early as possible, in avoidance of being left on the dance floor in between song selections.

ConnorsLaw LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere mouthpieces claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the National Workers’ Compensation Defense Network (www.nwcdn.com) magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

Questions that might arise in the context of workers’ compensation claims can be directed to Kevin L. Connors at kconnors@connorslawllp.com (Phone: 610-524-2100 Ext. 112).

TO POST OR NOT TO POST

By

Kevin L. Connors, Esquire

Whether tis nobler to post on Facebook, and to suffer the salubrious likes and dislikes of friends promoting health and welfare, while conspicuously visible to the naked eye of the known universe, or to sulk, alas, silently, while a classic battleground has arisen, at least for civil litigation discovery purposes, between those who post and those who use post its!

Previously reporting on Facebook issues that arose inMcMillen, yet another Facebook decision has come out of the Pennsylvania Common Pleas system, with the Honorable Richard Walsh, in the Franklin County Court of Common Pleas, granting the Defendants’ Motion to Compel inLargent v. Reed and Penna, compelling the Plaintiff to provide the Defendants with her Facebook e-mail and password, to allow the Defendants access to the Plaintiff’s Facebook postings.

The trial court order required Plaintiff to produce this information within fourteen (14) days, allowing the Plaintiff to change her Facebook password thirty-five (35) days after the date of the order, in order to restrict access by defense counsel.

Several attributes of Facebook were reviewed by the trial court, in its Opinion, as follows.

First, Facebook, although it has a privacy policy, that policy is ever-changing.

Next, only people with a user account can access Facebook, although access, for all practical purposes, is available to anyone with an e-mail account, who can then establish a Facebook account.

Facebook requires that users be at least 13 years or older, although this policy is impossible to enforce, and appears to be openly flouted.

Facebook users can set their privacy settings to various levels, although a user’s name, profile picture and user ID are always publicly available.

At the least restrictive setting, being “public”, 800,000,000 (that’s right) Facebook users can view whatever is on a user’s profile.

The intermediate level restricts visibility to the user’s Facebook friends, with the most restrictive, only allowing the user to view their profile.

Since Facebook permits “tagging”, whereby friends can tag each other in postings, such as photographs, notes, videos, or status updates, Facebook users know that their Facebook information can be shared by default, requiring the user to take affirmative steps to prevent the sharing of such information.

InLargent, the defense contended that the Plaintiff must be compelled to disclose her Facebook user name and password, as her profile was public, and the defense contended that the Plaintiff’s Facebook posts contradicted her claims of serious injury. Seeking to block the defense from having access to her Facebook postings, the Plaintiff contended that the information sought was irrelevant, and that the disclosure of this information might potentially cause unreasonable embarrassment and annoyance. The Plaintiff also claimed that disclosure violated privacy laws, in particular, the Stored Communications Act of 1986.

In a very well-reasoned Opinion by Judge Walsh, reviewing and resolving Pennsylvania’s discovery standards, potential privilege and privacy concerns, privilege issues under Pennsylvania Law, the Stored Communications Act, in the scope of the defense’s discovery request, Judge Walsh found that the information sought on the Plaintiff’s Facebook profile was not only relevant, was not covered by any specific privilege, and that the requests to produce was not unreasonable, and that the information sought was discoverable.

No less true than inMcMillen, which also permitted the defense access to a Plaintiff’s Facebook postings,Largent seems to track the general thrust of Facebook-profile litigation, which is that there is no keeping secret that which is already public.

If you post, it is public, and if it is public, it is discoverable.

As a routine manner, discovery requests, on both sides of the aisle, account for the humanoid penchant for always gazing with profane wonder into the miraculous caricature of our own lives, replicating postings in the Facebook universe as though sculpting a more perfect image of ourselves, and this is not discoverable why.

If Facebook is a still pond, the post that you place on its unbroken face is the ripple substantiating your existence.

No matter where you post, there you are!

Practically Speaking

How could you possibly think that this would have any other outcome, other than disclosure.

Knowing that no one is alone, Facebook legitimizes a license we all secretly sanction, which is simply self-importance through a medium permitting publication without consequence in terms of historical importance.

Face it, we post because we can, and because we can, we are drawn, like moths, to this flame.     

ConnorsLaw LLP

Trust us, we just get it! 

It is trust well spent!

Defending liability-based lawsuits throughout Pennsylvania, on behalf of insurance carriers, third-party administrators, and self-insured businesses and corporations, our 100+ years of cumulative experience defending our clients against negligence and occurrence-based liabilities, empowers our Casualty Practice Trial Group attorneys to be entrusted to create the factual and legal leverage to expeditiously resolve lawsuits and claims, in the course of limiting/reducing/extinguishing our clients’ potential liabilities under Pennsylvania’s common law, trial practices, and rules of civil procedure.

With every member of our trial practice group being AV-rated, our partnership with the Pennsylvania Defense Institute and the Counsel on Litigation Management magnifies the lens through which our professional expertise imperiously demands that we remain dynamic and exacting advocates for our clients, the same being businesses, corporations, insurance carriers, seeking our trial and litigation acumen, to navigate the frustrating and liability-intensive minefield pervasive throughout Pennsylvania trial practice and procedure.

Questions concerning tort and/or contract liability that might arise in the context of casualty claims can be directed to Kevin L. Connors at kconnors@connorslawllp.com (Phone: 610-524-2100 Ext. 112).

REFRESH YOURSELF:

THE PERSONAL COMFORT DOCTRINE IN WORKERS’ COMPENSATION

By: Kevin L. Connors, Esquire

I.         INTRODUCTION:

Universal throughout workers’ compensation statutes, the personal comfort doctrine is a real, and sometimes amusingly interesting, result-oriented principle ubiquitous in workers’ compensation decisions and rulings, at times testing the boundaries of compensability, as employees attending to personal needs, for comfort or sustenance, to include work-time breaks for eating, drinking, using the restroom, smoking, or otherwise seeking relief from discomfort, sustain injuries for which compensation is then sought.

It is necessity’s offspring, recognizing the need for both rest and refreshment, with its genesis spawned by the policy consideration that “the real reason (for the personal comfort doctrine) is that a working man must live and recognizing this, the employer has provided both physical conveniences and their opportunity for their use. Modern industry conditions provide the real basis for compensation and should be recognized. The Personal Comfort Doctrine, (1960 Wis. L. Rev. 91, 92).

Simply stated, the personal comfort doctrine judicially justifies that certain on-the-job acts of personal comfort are “necessarily contemplated” to be incidental to the employment itself, blanketing any inevitably attendant danger with compensability. This doctrine, by its very definition, incorporates a certain element of foreseeability as to compensability, as it marries an accidental work injury with a necessary personal comfort.

In the eloquently-sculpted analysis of Professor Larson, the general rule concerning the personal comfort doctrine can be thought of as follows:

“Employees, who within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or, unless, in some jurisdictions, the method is so unusual and unreasonable that the conduct cannot be considered an incident of the employment”.

See 2 A. and L. Larson, Larson’s Workers’ Compensation Law § 21 (2002).

And the most common personal comfort situations involve work breaks around food, drinking, smoking, hygiene and toiletry functions, and fashion statements involving clothing. 

           A.        General Rule:

The general rule, almost universally applicable, subject to distinct jurisdictional relevance, is that injuries occurring in the course and scope of employment, while furthering the interests of the employer, are considered to be work-related and, therefore, compensable, with workers’ compensation statutes providing for compensation benefits that will include lost wages, and payment of reasonable, necessary and related medical care expenses. 

No less true, courts analyzing personal comfort cases are oftentimes forced to distinguish between a brief, or minor detour or deviation, as opposed to situations where the activity resulting in injury is one that must be characterized as having broken or severed the chain of what is considered to be the course and scope of employment, necessitating a factual/legal analysis as to whether the injury occurred during an activity incidental to employment, being one that benefits the employer by improving employee efficiency, as opposed to one where the converse was true. 

           B.        Personal Comfort Awards in Pennsylvania:

The following are Pennsylvania personal comfort cases where benefits were awarded, with compensability being established:

·         Employee injured in motor vehicle accident afterstopping for dinner with co-employees while traveling from a construction site to obtain supplies and drop off a co-worker was found to be a compensable injury under the Pennsylvania Workers’ Compensation Act(Employer’s Mutual v. Boiler Correction and Repair, 964 A.2d 381 (Pa. Super. 2008).

·         Employee working from an employer-approved home office, was awarded workers’ compensation benefits, when she fell down the stairs, in route to the bathroom, for personal comfort(Verizon Pennsylvania v. WCAB, 900 A.2d 440 (Pa. Cmwlth. 2006).

·         Workers’ compensation benefits were awarded when an employee, while completing a furniture delivery to a residence, sustained a traumatic brain injury, while attempting to jump up and touch a basketball rim on the property, with the Pennsylvania Commonwealth Court finding that “intervals of leisure activity during the work day are deemed inconsequential departures from the act of delivering furniture for the employer”(Baby’s Room v. WCAB, 860 A.2d 200 (Pa. Cmwlth. 2004).

·         A momentary departure from working, to use a bathroom facility, did not remove the employee from the course of employment.  (Montgomery Hospital v. WCAB, 793 A.2d 182 (Pa. Cmwlth. 2002).

·         InCarroll v. WCAB, 750 A.2d 938 (Pa. Cmwlth. 2000), the employee was awarded workers’ compensation benefits for loss of use of an eye, resulting from a detached retina caused by the employee attempting to suppress a sneeze, to avoid spreading germs to co-employees during a business meeting.

·         InCity of Harrisburg v. WCAB, 616 A.2d 1369 (Pa. 1992), the Pennsylvania Supreme Court found that a police officer who shot himself while cleaning his weapon at home was in the course and scope of employment, as the police officer had no place to store his weapon at work, and the Court ruled that a work activity performed at home is notper se outside the course and scope of employment.

·         InKovalchik Salvage v. WCAB, 519 A.2d 543 (Pa. Cmwlth. 1986), an employee, killed in a head-on collision driving a company car, in route to his home, after stopping for drinks and then taking co-employees home, was found to have sustained compensable fatal injuries, with workers’ compensation benefits being awarded.

·         InDe’Agata National v. WCAB, 479 A.2d 98 (Pa. 1984), an employee entering a luncheonette, to purchase a cup of coffee, was found to have sustained compensable injuries, when shot in the head and abdomen.

·         Shockingly, an employee, who was shot and killed, after stopping his truck along a roadway in order to relieve himself, was found to have sustained work-related injuries, in the course and scope of employment, by the Pennsylvania Commonwealth Court inWCAB v. Borough of Plum, 340 A.2d 637 (Pa. Cmwlth. 1975).

           C.        Personal Comfort Awards in Other Jurisdictions:

·         In Utah, its Court of Appeals affirmed an award of workers’ compensation benefits to an injured worker, notwithstanding the fact that the worker had been terminated, after the worker had returned-to-work in a light-duty position, following the employee’s work injury, with the employee having been terminated by the employer for sending pornographic images to other employee’s cell phones, over a company e-mail account. 

            Bizarrely, the Utah Court rejected the employer’s argument that light-duty work   continued to be available to the employee, and that the employee’s termination forcause should have been characterized as a constructive refusal of available light-           duty work, due to the employee’s improper activities.

·         An Illinois “smoke break” case is illustrative of break-time accidents, as this case involved an employee taking a break to smoke a cigarette, with the employer having a designated smoking area on the floor below where the employee worked, and there was only one stairway connecting where the employee worked to the employer’s designated smoking area; in route to the smoking area, the employee fell, and was injured, with the Illinois Court finding that the injury was compensable, as it fell within the personal comfort doctrine, as the employee’s injury was connected to their employment, the employee was not doing anything unreasonable or dangerous when injured, with the employer being in control of the premises, through designation of the smoking area.

·         InLevine v. People’s Broadcasting, decided in 1965, the West Virginia Supreme Court held that an employee who was attempting to raise himself from a toilet seat by leaning on a wash basin, who was injured when a pipe broke, was found to have been acting within the course and scope of his employment, with workers’ compensation benefits awarded, as the Court held “that an employee is within the scope of his employment as provided by the Act when he is administering to his own health and comfort if that be reasonably necessary to his employment, citing toArchibald v. Workmen’s Compensation Commissioner (decided in 1916). 

            Moreover, the West Virginia Court noted that an employee is “acting within the   course of his employment when he is engaged in doing, for his master, either the            act consciously and specifically directed or any act which can fairly and       reasonable be deemed to be an ordinary and natural incident or attribute of that act    or a natural, direct, or logical result of it.  If in doing such act, the servant acts            negligently, that is negligence within the course of the employment”.

·         Most employers might think that this was a pretty crappy result!

·         In Illinois, an employee who was injured attempting to dislodge a bag of Fritos stuck in a vending machine on the employer’s premises was found to have sustained a compensable and work-related injury, notwithstanding the chips having been purchased by a co-worker, such that the employee seeking to retrieve the bag of chips was not doing so for his own consumption. 

The Illinois Commission applied the personal comfort doctrine, in awarding workers’ compensation benefits. 

This ruling survived appeal, with the Illinois Appellate Court affirming the lower commission’s award of workers’ compensation benefits, as the Court found that the employee’s actions tracked a line of “scope of employment” cases, expanding coverage to employees acting to aid others in emergency situations, although the Court impolitely noted that “what the instant case lacks in urgency, it makes up for in familiarity and collegiality”. 

Essentially, the workers’ compensation award survived the employer’s appeal, as the appellate court concluded that the Commission could have reasonably concluded that the employee’s manner of assisting the Frito-purchasing employee did not necessarily cross the line of employment, potentially barring the award of benefits for the Frito-saving employee.

See Circuit City Stores v. Illinois Workers’ Comp. (7/9/09).

·         The Washington Supreme Court, inBall Foster Glass v. Giovanelli, upheld an award of workers’ compensation benefits to an traveling employee, who regularly traveled around the country rebuilding and fixing furnaces for his employer, when he, on assignment to a company plant in Seattle, was injured on his day off, as he was headed to a park with his supervisor to go to a concert; on crossing a street in front of the hotel, he was struck by a motor vehicle, and was seriously injured. 

The employer appealed the award of workers’ compensation benefits, on grounds that the employee had not been engaged in a recreational activity that had any business purpose behind it. 

Upholding the compensability of the employee’s injuries, the Court relied upon the “commercial traveler rule” or the “continuous coverage rule”, which is a rule that holds that a traveling employee is considered to be in the course of employment during his or her entire trip, except for a “distinct departure on a personal errand”. 

Holding that distinguishing between reasonable personal administrations and purely personal amusement adventures can be difficult, the Washington Supreme Court nevertheless found that compensation courts have routinely had little difficulty denying compensation benefits for unusual or unreasonable activity, such as the denial of compensation benefits for a Florida employee injured during a skiing trip, at a resort 50 miles away from the hotel that the employee had been staying in. 

Although the employer in Foster argued that the employee’s activity was a deviation from his employment, and that his actions in crossing a highway without a right of way was an “inherently dangerous” activity, the Washington Supreme Court rebuked that argument, citing to the personal comfort doctrine as follows:

“The scope of activities covered by the personal comfort doctrine depends on the particular circumstances of employment. A traveling employee is entitled to broader coverage than a non-traveling employee because a traveling employee is in a significantly different position of risk than a non-traveling employee. The non-traveling employee may satisfy his personal needs without leaving the comfort of            home.  In contrast, the traveling employee must face the perils of the street in order to satisfy basic needs, including sleeping, eating, and seeking fresh air and exercise”.

·         In Vermont, workers’ compensation benefits were awarded to an employee who was injured during lunch, while shooting off bottle rockets, with the Vermont Court finding that the injury did fall within the scope of the personal comfort doctrine. See, Notte v. Rutland, 112 Vt. 498 (1942).

·         In Georgia, a Claimant was awarded workers’ compensation benefits, when she injured her knee, as she bent over to pick up a pill off the floor. The Claimant was 300 lbs., and her knee buckled, causing her to fall, when she bent over to get the pill. The employer presented evidence that the employee’s knee buckled because of an idiopathic condition. However, the Georgia Court awarded workers’ compensation benefits, finding the claim to have been compensable based on the personal comfort doctrine, as the employee’s job was that of a custodian, sometimes requiring her to pick items off the floor.

In granting compensation benefits, the Court compared this fact scenario with cases where employees were injured when getting food and drink, or using a restroom, while working.

                       See Harris v. Peach County Board, 674 S.E. 2^ND 36 (2/11/09).

·         InLiberty Northwest Insurance v. Nichols, when a 6 Or App 664 (2003), an employee who broke his tooth while eating an employer-supplied piece of candy was awarded workers’ compensation benefits, overcoming the employer’s defense that the Claimant’s injury had not occurred within the course and scope of employment, as the Oregon Board found that the employee’s injury occurred as he was “eating while working”, and that the employee had not been engaged in personal recreational or social activities.

·         InThompson v. Keller Foundations, benefits were awarded to a Florida employee, a construction worker, who was injured in an accident that occurred as he was driving home from work, after stopping at a bar to shoot pool with co-workers.  The claim was initially denied by the insurance carrier, as well as by the workers’ compensation judge, but the appeals court reversed the denial of compensation benefits, finding that the employee’s injuries were indeed incidental to employment.

This case is illustrative, as the injured employee was traveling for business.  Although travel to and from work is typically not compensable under the “coming and going” rule, Courts take a more inclusive approach in evaluating injuries, when an employee is traveling overnight for business.

In reversing the lower court decision, the Florida Court stated:

“A traveling employee is deemed to be in the continuous conduct of his employer’s business including those times when he is not actually at work but is engaged in … normal and necessary activities.  Thus, so long as a traveling employee’s injury arises out of a risk which is reasonably incidental to the conditions of employment, the injury will be compensable. Although the appellant may have been engaged in amusement activities immediately prior to the accident, the JCC did not make any findings sufficient to conclude that the traveling construction worker was not attending to a normal creature comfort and a reasonable necessity – driving to dinner – when his injuries were sustained.”

This case illustrates the inclusive 24/7 nature of overnight business travel, in terms of compensability.

·         In Washington, workers’ compensation benefits were awarded to an employee, inDial v. Taplett Fruit Co., when the employee was injured, as she was walking to her car, during a morning rest break, to smoke a cigarette. As a result of falling, she sustained a low back injury, with the employer denying the claim, on grounds that the employee was not furthering the employer’s business interests when she was injured.  Telling, the employer did allow its employees to smoke in their cars during their rest breaks.

                       The Washington Court concluded that the employee had not left the course of her employment, as she was engaged in a “personal comfort that was reasonably incidental to her employment”. So concluding, compensation benefits were awarded to the employee.

·         InCooper v. Barnickel Enterprises, the New Jersey Superior Court awarded workers’ compensation benefits to an employee, who was injured while using a company vehicle, that he was using to drive to get coffee.  The employee was a master plumber and foreman. He had driven to a job location, to discuss the job details.  Arriving at the jobsite, the person that he needed to talk was not available, and would not be so for almost 45 minutes.  The employee decided to drive to a deli about 5 miles away, to get some coffee.

In route to the deli, the employee was injured in a motor vehicle accident, sustaining several injuries, resulting in the New Jersey Division of Workers’ Compensation awarding workers’ compensation benefits to the employee.  In awarding benefits, the Court found that the employee had been “engaged in exactly the kind of brief activity which if embarked on by an inside employee working under set time and place limitations, would be compensable under the personal comfort doctrine”.

·         And now, a pregnant paws worthy of the Australian personal comfort case that “went viral” on the Internet, being the case of the Australian public servant, who sought, was denied, and has now been awarded workers’ compensation benefits, as a result of her being injured while having sexual intercourse on a work-related business trip.

Initially, her claim was denied before the Australian Administrative Appeals Tribunal (AAAT), which denied her claim for workers’ compensation benefits, over the passionately poignant plea of her salaciously libidinous lawyer, who argued that she had sustained her injuries in the “ordinary prevue of human life”, and that she was not injured while engaged in performing any activity of gross misconduct or self-harm, her injury being no different than that of a traveling employee who might be injured while bathing or seeking sustenance, an argument countered by the employer arguing that her injuries were sustained in the course of “frolic of the applicant’s own”, during the course of a “quintessentially private activity”.

The employer argument being that “having sex is a different kettle of fish”, clearly distinguishing the “catching” from “caught”.

While the AAAT denied the Claimant’s lascivious claim, the Claimant pressed onward, appealing to the Federal Court of Australia, which, on April 19, 2012, overturned the AAAT, setting aside the Tribunal’s lecherous denial, in the course of which the Australian Court rendered 26 Findings, akin to what we refer to as Findings of Fact, followed by an additional 29 Considerations, akin to our Conclusions of Law.

In reliance upon personal comfort precedence in Australian compensation law, the Court found in favor of the employee seeking compensation for her sexual misfortune, holding as follows:

“Accordingly, it shall now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or incurs the employee to spend that interval or interlude at a particular place or in a particular way.  Furthermore, the injuries sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of misconduct taking him or outside the course of employment.”

                       Well, that certainly settles it!

Exactly, where do we go next? The simple rule being, that you need not be working, to be considered “employed”.

Although true, the Australian Court went to great lengths to diffuse the splatter effect of a case like this, given that media and Internet buzz created by it, and its infinitely special ability to replicate its affect across multiple jurisdictions, as it twies to avoid being tantalized by tweetfulness.

And what might have happened, with altered facts, if the Claimant, in fact, became pregnant and/or contracted a sexually-transmitted disease, are compensation benefits actually owed to the Claimant?

                       The answer is, of course, “it depends”.

            D.        Denied Personal Comfort Cases in Pennsylvania

What follows are illustrations of Pennsylvania personal comfort cases where benefits were denied:

·         In theDepartment of Labor & Industry v. WCAB, 977 A.2d 585 (Pa. Cmwlth. 2009), a state employee on a paid break off of the employer’s premises, who was attending to her own personal comfort, was not awarded workers’ compensation benefits, as she was not injured in furtherance of the employer’s business or affairs.

·         InGraves v. WCAB, 983 A.2d 241 (Pa. Cmwlth. 2009), an off-duty Philadelphia Housing Authority patrolman who was shot in an altercation with an armed bar patron was not found to have been engaged in police action in furtherance of the employer’s business when injured.

·         InBrookhaven Baptist Church v. WCAB, 912 A.2d 770 (Pa. Cmwlth. 2006), a church member and trustee, who was also paid to cut grass on the church grounds, was found to be outside the course and scope of his employment, when he was fatally burned while destroying lawn trimmings that he had gathered from pruning the shrubs.

·         InWright v. WCAB, 871 A.2d 281 (Pa. Cmwlth. 2005), an employee who was struck while crossing a highway, as he attempted to retrieve personal items from his own vehicle, was denied compensation benefits, as the Court found that the employee was not required by his employment to be crossing a highway at the time of the incident. 

·         DUH!       

·         InSchrif v. WCAB, 658 A.2d 2 (Pa. Cmwlth. 1995), an employee who was dismantling a hoist that the employer was permitting the employee to take home to use on a personal home project, was denied workers’ compensation benefits, when he was injured while dismantling the hoist, as the employer had given the hoist to the employee as a courtesy, and the Court found that the injury had not occurred in the scope of employment, nor did it further the employer’s interests.

·         InPesta v. WCAB, 621 A.2d 1221 (Pa. Cmwlth. 1993), an employee was collecting cans from the employer’s premises, intending to sell them, was not awarded fatal claim benefits, when he was fatally injured, as he crossed the street, to put the cans in a parked car.

·         InHabib v. WCAB, 29 A.3d 409 (Pa. Cmwlth. 2011), the Pennsylvania Commonwealth Court held that an employee, who sustained an injury to his eye, as he and other employees, all laborers, were attempting to smash a bowling ball found near the parking lot where they were working, with several employees having used the bowling ball in a shot-put challenge, after which the employees took turns trying to smash the bowling ball with a sledgehammer, with the injured employee being injured when shattering the bowling ball as a piece of the shattered ball flew into his eye. 

The workers’ compensation judge, awarded workers’ compensation benefits to the employee, finding that his actions, while careless, had not taken him outside the course and scope of employment, although the judge’s compensation award was vacated and reversed by the Pennsylvania Workers’ Compensation Appeal Board, which found that the employee had acted in violation of a positive work order, as his supervisor had told him to “knock it off”, further telling the employee that he would not take the employee to the hospital, if the employee was injured hitting the ball. 

On further appeal to the Pennsylvania Commonwealth Court, the Court held that the employee’s injury was not compensable, as it occurred while the employee was violating a positive work order, further holding that 3 requirements are necessary to bar an injury for violation of an employer work order, including:

                       a)         that the injury must be caused by the violation of the work injury;

                       b)         that the employee must know about the positive work order; and,

                       c)         that the Order must implicate an activity not connected with the                                        employee’s work duties.

           E.        Personal Comfort Denials in Other Jurisdictions:

The following claims involve Courts denying personal comfort claims, finding that the injuries had not occurred within the course and scope of employment, and that the injured employees had deviated from their normal work activities:

·         In Indiana, a morbidly obese long-term employee, weighing over 360 lbs. was not found to have been engaged in an “activity of daily living”, when she suffered a cracked femur as she tried to get herself out of a booth in a university cafeteria, during an employee appreciation dinner. Although she was successful in securing an award of workers’ compensation benefits from the first level factfinder, on appeal, the appellate court held that her injury was personal to her, and that there had been no increased risk created by her work environment, with the Court further observing that her pre-existing physical condition probably contributed to her injuries, and undoubtedly hampered her recovery, resulting in her injuries being found to be personal, and not work-related.

·         In a Florida case, in Galaida v. AutoZone (9/27/04), an employee was denied workers’ compensation benefits, when he was injured on a smoke break in the company parking lot. Although the employer allowed employees to take smoke breaks, the employee was getting cigarettes out of his car, when a gun fell out of his car, as he opened the car door, the gun discharged, and shot him in the foot.  The employee was denied workers’ compensation benefits on a deviation from course of employment theorem, which is an extension of the violation of positive work order rule, as the employer had a policy against possessing firearms on company premises.

On appeal, the appellate court held:

“The personal comfort doctrine incorporates a foreseeability element to the cause of injury.  Thus, inHolly Hill Fruit Products, 473 So. 2^nd A29 (1985), an employee was injured while crossing a street to purchase cigarettes was held to have sustained a compensable injury because the “trip was a foreseeable and non-prohibited refreshment break activity, and the employer’s authority over Claimant was not significantly dissipated during the course of the trip”.

“Being exposed to a firearm, however, is not a foreseeable consequence of an authorized cigarette break, especially when the possession of a firearm is strictly prohibited by the employer. Moreover, Galaida’s possession of a firearm, in violation of his employer’s policy, was not conducive to the employer’s interests. Thus, he should not benefit from the doctrine.”

·         TheOregon Supreme Court in  Roberts v. SAIF, 341 Or 48 (2006) denied workers’ compensation benefits to an employee who was injured while riding a motorcycle around the lot of his employer’s car dealership, with the Oregon Court finding that the employee’s injury was not compensable or work-related, applying the following analysis:

“Texturally ORS 656.005(7)(b)(B) raises three questions. The first is whether the worker was engaged in or performing a “recreational or social activity”. The second is whether the worker incurred the injury “while engaging in or performing, or as a result of engaging in or performing,” that activity. The final question is whether the work engaged in or performed the activity “primarily for the worker’s personal pleasure” if the answer to all of these questions is “yes”, then the worker cannot recover”.

The Oregon Supreme Court distinguished between activities performed for personal pleasure as opposed to activities performed for personal comfort.

            F.         The Smoking Duck:

That’s right, a smoking duck is a loaded fowl.

So, you as the benevolent employer, must balance stockholder demands against employee retention and productivity.

So what are you looking for, when a claim is reported to you, that seems to fall along the fault lines of personal comfort?

Well, from a practical and pragmatic perspective, it is axiomatic that the doctrine of common sense, not always applicable in a no-fault compensation system, be applied, as otherwise logic and reason fall prey to the collusive dark ages of intellectual chaos. The relevant analytical template begins with a description of the activity in question, to include lunch breaks, on and off premises, supplied or not by the employer, drinking, smoking, use of toilet facilities, washing hands, changing clothes, and seeking relief from heat, cold, or discomfort, not to include the supervisor’s baneful eye. 

Garnish the described activity in question with its time, location and purpose, to determine if, during work hours, after work hours, on your premises, off your premises, during some type of employment-related trip or travel, considering its purpose, the catch all being, was the activity under the compensation microscope advancing your business interests.

Then grab your trusty employee handbook, check the described activity in question against permissive and non-permissive stuff. Did you give permission for the activity, or does it violate a work or safety order?

II.       LOOSE ENDS:

·         Compensability is in the eye of the judge;

·         It is a doctrine as ancient as workers’ compensation law;

·         Universally, it is a doctrine based on decisional authority, untethered to any statutory provisions;

·         Telecommunications expand the scope of both personal comfort and personal discomfort, requiring an intense analysis by the employer as to whether the injury occurred within the course and scope of employment, whether the injury fell within the employee’s job description, whether it occurred in furtherance of the employer’s business interests;

·         This doctrine is intended to balance the personal needs of the employee against the business interests of the employer, so plan accordingly.

Senate Bill 863 was signed into law by Governor Brown on Sept. 18, 2012,. Many of its provisions take place January 1, 2013.  The bill makes wide-ranging changes to California's workers' compensation system, including increased benefits to injured workers and cost-saving efficiencies. Click on our Power Point Presentation in the Updates Section of our website for a complete discussion of the changes. Hanna Brophy Clients: please contact your local Hanna Brophy office or email this website for the next Hanna Brophy in-person presentation of SB 863 changes and strategies  http://www.hannabrophy.com

O’Reilly Auto Parts and Gallagher Bassett Services v. Jerry Alexander, No. 2-711 / 11-1864, Court of Appeals of Iowa

The Claimant began working with the employer in 1999. On May 8, 2008, the Claimant alleged he sustained hip and back injuries while unloading at tote from a truck and twisting his body to take a step. He encountered his supervisor and told him he could barely walk. He returned to work on May 12, 2008 using a walker and reported the injury to the store manager.

An injury report was filled out, however it listed the injury dates as August 8, 2006 and December 2007. This report was signed by both the Claimant and his manager. The claimant testified at hearing that he was upset as he was denied seeing the company doctor and likely signed the document without reading it. He further testified that he did not understand the importance of the form and that he was confused about what the dates represented.

The Claimant’s manager testified that the Claimant did report injuring his hip but she was uncertain as to when the report occurred. She apparently was also questionable of the report of injury as the Claimant had previously reported him pain which he had associated with a hip injury he sustained in 2003. Due to the inconsistencies in the Claimant’s statement, the employer maintained that the Claimant had not suffered any injury in May 2008.

The Claimant treated with Dr. Ray who ultimately opined that the Claimant’s work with the employer contributed to a worsening of pain from his pre-existing condition of spinal stenosis and assigned 8% whole person impairment. Prior to his deposition and hearing of this matter, the Claimant sustained a stroke. During his deposition and at hearing he frequently explained that he was having difficulties with his memory. After hearing of the matter, the deputy commissioner found that the Claimant had not sustained an injury in the course of his employment. This was reversed on appeal to the Commissioner, who found that the testimony of the Claimant and his wife, along with the medical records in the case provided substantial evidence that the claimant suffered an injury in May of 2008.

The decision of the commissioner was upheld on appeal to the district court. At the district court level, the employer argued there was insufficient evidence of the necessary causal connection between the conditions of employment and the injury to support the commissioner’s finding. The district court declined to address this argument as it was not presented at the agency level and not preserved for judicial review. The case was appealed to the Court of Appeals.

The Court first addressed that the argument on appeal was one that presented a mixed question of law and fact and thus the commissioner’s decision would only be disturbed if irrational, illogical or wholly unjustifiable. The Court then turned its attention to whether the argument that the injury to the Claimant was not caused by or related to the conditions of his employment as his work presented no particular hazards of such an injury. The Court first recognized that this was not raised in the initial pleadings nor as an issue the parties agreed were in dispute. However, the Court noted that among the issues identified by the deputy was “whether the injury arose out of and in the course of employment.” The Court then stated that while the majority of the focus of the proceedings centered upon whether and injury occurred and if so, if it occurred in the course of employment, the employer had consistently raised the issue of whether the Claimant’s act of lifting and carrying a tote allegedly containing a four ounce filter was sufficient to establish a compensable injury. Therefore, the Court viewed the contention as there being no causal connection between the injury and a condition, risk or hazard of the Claimant’s employment.

In the Court’s eyes, this satisfied them that the error was preserved as the “arising out of” requirement was raised, litigated and decided by the agency.

The Court next turned its attention to the issue of whether substantial evidence supported the commissioner’s finding that the Claimant sustained an injury arising out of and in the course of his employment. The Court stated that credibility determinations are to be made by the commissioner as a trier of fact and that while some testimony can be disregarded due to its impossibility or absurdity, the Claimant’s testimony did not fit that description. The Court did note that he exhibited confusion in his testimony and that he himself acknowledged that his memory was not as good as it used to be. However, the Court also found that the Claimant’s manager was in no way consistent in his testimony as to when the injury was reported. The Court also noted that while the Claimant did not report an injury to his family doctor in later May of 2008, he did report a fall having occurred a few weeks prior in a June 2, 2008 appointment with another doctor.

Ultimately the Court found that there was substantial evidence to support the Commissioner’s finding that the claimant did sustain an injury in May of 2008.

The employer also contended that Dr. Ray’s opinion on causation could not be relied on as he was unaware of the weight of the tote the Claimant was carrying at the time of the alleged injury. In finding that the Commissioner could rely on Dr. Ray’s opinion noted that the employer had not offered an expert opinion calling Dr. Ray’s opinion into question; nor had they offered evidence that Dr. Ray’s opinion would have changed if he had known that the tote was light in weight. Ultimately the Court concluded that substantial evidence supported the Commissioner’s reliance upon the testimony of Dr. Ray in finding medical causation was present for the Claimant’s injury.

The Court ultimately found that substantial evidence supported the findings of the Commissioner and the determination that the injury sustained by the Claimant was not irrational, illogical or wholly unjustified.

The final issue taken up by the Court on appeal was whether the Commissioner’s review of the employer’s proof of coverage information on the agency’s website to verify the appropriate insurer constituted bias or reversible error. The Court first noted that the Iowa Administrative Procedures Act provides that “[A]n individual who participates in the making of any . . . final decision in a contested case shall not have personally investigated . . . or advocated in connection with that case, the specific controversy underlying that case . . . .” The Court however found no evidence that the commissioner investigated the specific controversy underlying the case. Rather the Court found that he simply “consulted records maintained by the agency and corrected an error, which counsel failed to identify and remedy, making the decision he rendered enforceable against the proper insurance carrier.”

The Court then examined the commissioner’s decision in adding the correct insurance carrier for errors at law. The Court found that the “commissioner’s action in adding the correct insurance carrier was necessary and within the authority granted to him by the legislature under the power to adjudicate the rights and duties as between injured workers and the responsible insurance carriers and the power to enforce the provisions of the code.” Thus the Court did not find that the Commissioner’s action created an appearance of impropriety or evidence of bias.

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!

NC Risk Handling Hint - Attorneys' Fees

Ensley v. FMC Corp. is a yet another reminder of the broad discretion afforded the Industrial Commission both in awarding and denying attorney’s fees.

Grover M. Ensley worked in various jobs with FMC Corporation and was exposed to asbestos when he removed metal from“dipping cells” insulated with asbestos and installed asbestos insulation in the cells. Ensley retired from work in 1998. In 2006, he underwent chest X rays which were reviewed by a board certified pulmonologist who diagnosed Ensley with asbestosis and silicosis caused by his employment. The Industrial Commission determined that Ensley had developed compensable asbestosis and awarded indemnity and medicalbenefits. Ensley was also awarded attorney’s fees under N.C.G.S. § 97-88.1.

Defendants appealed to the Court of Appeals, contending that Ensley retired because of medical conditions unrelated to his employment, and as such, he had no loss of earning capacity in 2006 when he was diagnosed with asbestosis. The Court of Appeals disagreed and noted that the Full Commission’s unchallenged findings of fact established that Ensely was unable to work in any capacity due to asbestosis in 2006.

The case was then remanded to the Full Commission because the evidentiary record lacked any findings of fact or conclusions of law regarding whether Defendants pursued a defensewithout reasonable grounds. On remand, the Full Commission determined that Defendants defendedthe claim without reasonable grounds and that Ensley was entitled to $12,000.00 in attorney’s fees. Defendants appealed to the Court of Appeals.

On August 21, 2012, inEnsley v. FMC Corp.,the Court of Appeals first considered whether the Industrial Commission erred in awarding Plaintiff attorney’s fees under N.C.G.S. § 97-88.1. It upheld the Full Commission award of attorney’s fees, noting Defendants’ denial was unreasonable because four doctors testified that Ensley had asbestosis as a result of his employment. Although Defendants argued that none of Ensley’s witnesses testified that he was actually disabled as a result of that condition, Defendants’ own medical expert determined that Ensley was disabled due to asbestosis. The record also showed that two of Ensley’s experts testified that he was disabled from any work as a result of asbestosis.

The Court also considered whether the Full Commission erred in reducing the sanction amount from 25 percent of the compensation awarded to Ensley to $12,000.00 in attorney’s fees. In finding no error, the Court noted that during the previous appeal, the Court of Appeals only required the Industrial Commission to make findings of fact and conclusions of law in support of its award of attorney’s fees. Ensley argued that the Industrial Commission was precluded from altering the amount of attorney’s fees awarded in its original opinion and was limited to making findings of fact and conclusions of law in support of its award of sanctions.

On remand, however, the Industrial Commission concluded, in its discretion, that an award of $12,000.00 in attorney’s fees was appropriate. The Court held that in making this decision, the Industrial Commission was within the authority granted under N.C.G.S.§ 97-88.1 and did not abuse its discretion.

Consideration of requests for attorney’s fees are typically fact-intensive and the Full Commission’s findings of fact and conclusions of law will rarely be disturbed on appeal. Therefore, Defendants need to carefully consider the evidence supporting their defenses and recognize the risk of attorney’s fees when such evidence is limited.

Luz Lukasik agreed to provide house cleaning services for Marguerite Hollaway and two others. Respondents contacted Lukasik after hearing about her from an acquaintance. At that time she was cleaning five or six other houses and one office building on a regular basis. Petitioner Lukasik and her daughter went to the home of respondents and examined the house. A discussion occurred about the potential for doing laundry, but petitioner declined, stating that she would consider that in the future. The parties did agree to $100 per day for cleaning services.

           On January 16, 2007 petitioner came to the respondents’ home with a friend and began cleaning, using the supplies furnished by respondent. Within the first hour on the job, petitioner fell off a stool and injured her hand. An ambulance was called and petitioner received treatment for hand fractures. She came to the house on another occasion but directed someone else and her daughter in doing the cleaning. She told respondents that she needed to purchase supplies and expected to be reimbursed for those costs. Thereafter, respondent refused to pay her for the cleaning and supplies.

           Petitioner filed a workers’ compensation claim asserting that she was employed by respondents when she was injured. The Judge of Compensation ruled in petitioner’s favor and held she was an employee. The Judge focused on the right of control test and noted that respondents set the day for the work to be done, expected her to provide this service on a regular basis, and had the ability to direct her work even if they chose not to do so. The Judge found 45% of the hand or $22,170.75.

           Respondent appealed and contended that petitioner was an independent contractor under either the “control” test or the “relative nature of the work” test. The Appellate Division reversed inLukasik v. Marguerite Holloway, A-5913-10T3 (App. Div. August 22, 2012) holding that there was insufficient control of petitioner’s work activities to constitute an employer/employee relationship. The Court said that respondent did not control how petitioner did her cleaning, what supplies she used, or who did the cleaning. There was no discussion about the specific day of the week petitioner would clean and no agreement that petitioner herself would do the cleaning. In fact, on the second day of cleaning petitioner did no cleaning herself but directed her daughter and a friend. “An employee would not have the option to produce helpers or a substitute to do the employee’s work.”

        &nbspnbsp;  Other factors that argued against employment were that respondents set a price of $100 per day rather than pay wages to each of the persons performing the cleaning work. Additionally, petitioner herself purchased the supplies for the second cleaning and determined what equipment to use. Further, there was no proof of economic dependence by petitioner on respondents. “We conclude that respondents did not control petitioner’s work to the extent that an employer controls the work of an employee.” 

From time to time plaintiff’s counsel takes the position that respondent’s lien is applied to the net proceeds after deduction for plaintiff’s total costs of suit.  In Greater New York Mutual Insurance Company v. Calcagno & Associates, A-0900-11T4 (App. Div. September 20, 2012), that very issue was decided.

           John Phillips was injured arising from work, and the workers’ compensation carrier paid benefits in the gross amount of $29,733.84. Phillips also sued a third party and recovered $35,000.  Greater New York (hereinafter GNY) asserted its full lien.  In response, counsel for Phillips requested a lien compromise.  GNY refused to compromise its lien and insisted that it was due two thirds of $29,733.84 minus $750 for costs of suit for a balance of $19,073.55.

           Calcagno & Associates, counsel for Phillips, did not pay $19,073.55. Instead the law firm sent a check to GNY for $14,821.85 after deducting $12,767.23 for “disbursements of suit.” GNY then sued for the balance of $4,251.70.

           The trial judge ruled that the New Jersey subrogation statute (N.J.S.A. 34:15-40) is clear on its face in stating that costs of suit are limited to $750. Counsel for Phillips appealed and argued that N.J.S.A. 2A:13-5 governing attorney’s liens had priority over a workers’ compensation lien. Counsel also argued that the carrier’s lien only attached to the net settlement proceeds in the third party action.

           The Court rejected these arguments.  “N.J.S.A. 2A:13-5 is irrelevant to this matter, and defendants cite no authority for the proposition that this statute has priority over a workers’ compensation lien pursuant toN.J.S.A. 34:15-40.”  The Court further held, “Here, the third party tortfeasor or his insurance carrier paid Phillips $35,000 to settle the negligence lawsuit. The employer’s liability, therefore, was based on that sum, not the net sum.”

           The Court said that GNY was entitled to its full two thirds minus $750 or $19,073.55. It said that Phillips’ lawyer could seek reimbursement of the litigation costs in excess of $750 from Phillips pursuant to their retainer agreement.

            Defining what is a flare up from a new injury as opposed to objective worsening in the condition has always been more art than science. InAllison v. L&J Contracting Company, A-1352-11T4 (App. Div. September 27, 2012), the petitioner Allison injured his low back falling in a hole on July 27, 2006. He filed a claim petition against L&J, which admitted the accident. 

L&J subsequently moved to join a subsequent employer, Baumgardner Floor Covering, for two accidents occurring in June 2007 and March 2008.  Petitioner had returned to work for Baumgardner and found that his normal activities on that job and at home were worsening his back and leg. He claimed he was injured in June 2007 and in March 2008 while working for Baumgardner, but he never reported either incidents to Baumgardner, nor did he seek treatment. He himself thought these incidents were flare ups of his previous symptoms.

An MRI was done in 2006 showing small disc herniations at L4-5 and L5-S1 as well as a bulging disc at L3-4. Petitioner treated with Dr. Steven Valentino for the 2006 injury and got three injections of cortisone. Dr. Valentino did not observe radicular pain during his treatment in 2006. 

When Dr. Valentino saw petitioner in November 2007, he noted that petitioner’s symptoms had increased. He gave him epidural injections. Dr. Valentino saw petitioner in February 2008 but did not recommend surgery. 

On March 17, 2008, petitioner saw Dr. Valentino and reported lifting a 92 pound bag of sand at work (during Baumgardner’s employment) and experiencing low back pain with sciatic pain. Dr. Valentino found definite worsening related to lifting the 92-pound bag. A new MRI in April 2008 showed no change in the discs other than some increase at L4-5.

Dr. Valentino continued to treat petitioner and eventually performed surgery on October 3, 2008 consisting of a laminectomy at L4-5. After his surgery, petitioner experienced improvement.

The petitioner’s expert, Dr. Henry David, found an 80% disability, apportioning 65% to L&J and 15% to occupational exposures at Baumgardner. Baumgardner produced testimony from Dr. Tim Pinsky, who found that all of the disability was from the first accident with L&J. He said that petitioner had ongoing problems from the time of his first accident. Dr. A. Gregory McClure testified for L&J, making no attempt to apportion disability between the two employments.

The Judge of Compensation found that all of petitioner’s back problems stemmed from his 2006 accident. He said that the incidents in June 2007 and March 2008 were “descriptive of occupational activities” rather than “accidents or traumatic events.” The judge said that nothing petitioner did while working with Baumgardner was any different than his normal everyday occupational activities. The Judge assessed all responsibility for the claim against L&J, which filed an appeal.

The Appellate Division reviewed the rule inPeterson v. Hermann Forwarding Co.,267 N.J. Super. 493 (App. Div. 1993). In that case the first employer in a series of employments was held responsible for petitioner’s disability where the claimant continued to work after the original injury and the subsequent employments were not shown to have materially worsened his condition. The Appellate Division held that as inPeterson, the petitioner here got worse over time simply by the progressive worsening of his condition, not necessarily by the subsequent work. The Court said that there was only proof of one compensable accident in 2006 against L&J. Although the court does not discuss this point, it was no doubt problematic that petitioner never reported either incident, nor sought treatment for the two alleged subsequent incidents.

This case shows how difficult it can be to render subsequent employers liable after a significant initial injury. It is clear that this was a close case. One factor that no doubt hurt L&J was that its own expert did not apportion disability between the two employers. Most of all courts focus on objective testing, and there were legitimate differences of opinion among medical experts whether the second MRI showed any material difference from the MRI done immediately after the first incident in 2006.

The owner of ABC testified that Mr. Atchley did not talk to him about the claimant's accident. It was also noted that ABC did not make any payments on his claim. The claimant filed an original Claim against ABC Roofing & Contracting (not the correct employer) on February 27, 2009. He filed an amended Claim on December 20, 2010, listing ABC Seamless Siding & Windows. The Statute of Limitations begins to run after the last payment was made on the claim, and in this case no payments were made on the June 21, 2007 injury by the direct employer, Mr. Atchley, or the statutory employer, ABC. Since a Report of Injury was not filed, the applicable three year Statute of Limitations began to run on the claimant's date of injury. Therefore, the claimant had until June 22, 2010 to file his claim. The Commission agreed with the ALJ and found that because ABC did not become a party to this case until December 20, 2010, the claimant did not file a timely claim against the statutory employer and his claim was denied.