State News

Pursuant to Minn. Stat. 176.238, a Notice of Intention to Discontinue Benefits (NOID) can be filed for a number of reasons; most commonly an employee’s return to work. However, there are numerous other reasons to file a NOID. Remember, when an employee returns to work, compensation may be discontinued the day he/she returns to work and the NOID can be filed within 14 days the Employer and Insurer receive notice of such. However, if the reason for the discontinuance is other than an employee’s return to work, the liability of the employer and insurer to make payments of compensation continues until the copy of the NOID and attachments have been filed with the division.

Some common examples of reasons to file a NOID other than an employee’s return to work are listed on our website. You can find the full article athttps://cwk-law.com/wp-content/uploads/2019/11/Practice-Pointer-Reasons-to-file-NOID.pdf

 Practice Pointers are provided by CWK Attorney Parker Olson.

The State of Minnesota Department of Labor & Industry has proposed expedited rules governing the treatment of posttraumatic stress disorder (PTSD), known formally as treatment parameters. This action was compelled by the legislative amendments in Minn. Stat. §176.83, Subd. 5(b)(8). The proposed treatment parameters were published in the State Register on November 12, 2019 and are currently open for public comment. The period for public comment ends December 12, 2019. 

The entire summary can be found here: https://cwk-law.com/state-of-minnesota-moves-to-adopt-treatment-parameters-for-posttraumatic-stress-disorder-ptsd/ 

This summary has been provided by CWK Attorney Michael Johnson. 

Natalie Lund and Elizabeth Cox recently attended the national workers’ comp and disability conference and expo in Las Vegas. This is the largest industry conference and trade show in the nation. While in Las Vegas, Lund and Cox represented CWK at functions sponsored by the premier defense network, the National Workers’ Compensation Defense Network (NWCDN).

The NWCDN will be holding a regional conference in Charlotte, NC on May 29, 2020 with a cocktail reception on May 28,2020. The conference will be held at the Charlotte Marriott City Center, 100 West Trade Street, Charlotte, NC. For more information contact Sheri Mead, NWCDN Executive Director, Sheri@meadandco.com. or CWK’s Tom Kieselbach, NWCDN President,Thomas.Kieselbach@cwk-law.com.

The NWCDN will hold its annual national conference in Philadelphia on October 30, 2020 with the cocktail reception on September 30, 2020. Mark this on your calendar.

 We are pleased to announce that Andrew Carballo and Steven Halloran have joined the firm as associates. Carballo and Halloran will be practicing in the area of Workers’ Compensation defense. Both were judicial law clerks prior to joining the firm and graduated from the University of St. Thomas School of Law. They will be excellent additions to the firm. 

Whitney Teel authored a chapter in “Workers’ Compensation Emerging Issues” 2019 Edition (WCEIA). Whitney analyzed the 2019 trends in Minnesota Workers’ Compensation.

WCEIA is for sale at lexisnexis.com/WCEIA.com or 1-800-223-1940. This is an excellent treatise and an essential tool for risk managers and insurance professionals. The focus is on national and local issues involving Workers’ Compensation.

LexisNexis partners with the National Workers’ Compensation Defense Network (NWCDN) in the creation and publication of this book. NWCDN is a national consortium of firms dedicated to protecting the interests of employers and insurers in Workers’ Compensation cases. CWK is the Minnesota representative for NWCDN. LexisNexis is a premier publisher of textbooks and treatises for lawyers and judges. 

On November 27, 2019 the Alabama Supreme Court released its opinion in Ex parte Dow Corning Alabama, Inc., et al.  In this case an employee was injured while working for Alabama Electric Company, Inc.  The injury occurred at Dow Corning Corporation.  Dow Corning sought to enforce an indemnification agreement that it alleged it had with the employer, Alabama Electric Company, Inc.  Also involved in this matter was Alabama Electric Company’s insurance carrier, National Trust Insurance Company, Inc.  Prior to the settlement the Dow defendants demanded a defense and indemnification from Alabama Electric and National Trust.  Alabama Electric ultimately refused the demand.  The Dow defendants then settled the case with the employee and, approximately one month after the settlement, Alabama Electric and National Trust filed a declaratory judgment seeking a ruling that they were not responsible for the defense cost incurred by the Dow defendants in the personal injury settlement nor were they responsible for the settlement proceeds.  The Dow insurers later filed a counter claim seeking reimbursement for defense costs and settlement funds that were paid to the Alabama Electric employee in the personal injury action.  During the declaratory judgment action Alabama Electric sought to depose a Dow representative and in the deposition notice requested documents related to the decision to settle, which would include the Dow attorney’s evaluation and recommendations for the defense and settlement of the claim.  The Dow defendant’s asserted that said information was privileged and protected by the attorney client privilege and/or the work product doctrine.  American Electric asserted that the Dow defendants waived the protection by seeking indemnity and made the reasonableness of the settlement an issue. 

The Alabama Supreme Court ultimately determined that the Dow attorney evaluation and recommendations were still privileged and did not have to be produced despite the fact that the issue of whether or not the settlement was reasonable and made in good faith was to be determined.  The Alabama Supreme Court held that American Electric had access to the facts and evidence, and other non-privileged information, that could be used in determining whether or not the evaluation and settlement was reasonable.  This would include experts which both parties had intended to use to review this information and determine the reasonableness of the settlement.  Therefore, the Court held that the Dow attorney evaluation and recommendations were to remain privileged and did not have to be turned over.  As a result, the Court granted Dow’s Petition for Writ of Mandamus and directed the trial court to vacate its discovery order which was going to require the Dow defendants to produce their attorney evaluations and recommendations.  The Court further held that an appropriate protective order was to be entered. 

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.  Mr. Holden can be reached at jholden@fishnelson.com or (205) 332-1428.

On November 15, 2019, the Alabama Court of Civil Appeals released its opinion inEx parte Sea Coast Disposal, Inc., in response to a Petition for Writ of Mandamus. The employer argued there was insufficient evidence to support the trial court’s determination that the employee’s neck and back claims were compensable.  Regarding the neck, the Court of Appeals reviewed the evidence, consisting of medical records, medical expert testimony, and the testimony of both plaintiff and his father-in-law, regarding the onset of symptoms, including swelling in the plaintiff’s neck. The Court of Appeals determined that there was “substantial evidence” supporting the trial court’s finding of compensability. The Court of Appeals then reviewed the evidence regarding the low back, including an almost one-year delay in the onset of symptoms, infrequent complaints, and no supporting causation opinion from a medical expert. The Court of Appeals held that there was not “substantial evidence” for the trial court to have reasonably inferred that the low back injury was compensable. The Petition for Writ of Mandamus was granted in part and denied in part.

------------------

About the Author

This article was written by Karen E. Cleveland, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Defense Network (NWCDN). If you have any questions about this submission, please contact Cleveland by emailing her atkcleveland@fishnelson.com or by calling her directly at 205-332-1599.

Ombudsmen Patricia Fraley and Ted Roose plan to continue to keep regular office hours on the 2nd and 4th Tuesdays of every month from 9-12 and 1-3 for anyone who wants to submit a settlement for their review. There is no need to make an appointment for these times but it is a good idea to call and give them a heads up just to make sure they will be there.

2020 OFFICE DAYS FOR BRCS

ALABAMA CARRER CENTER

3216 4^TH AVENUE SOUTH BIRMINGHAM, AL 35222

9:00 AM- NOON & 1:00 PM-3:00 PM

JANUARY 14, 2020                       JANUARY 28, 2020

FEBRUARY 11, 2020                     FEBRUARY 25, 2020

MARCH 10, 2020                          MARCH 24, 2020

APRIL 14, 2020                              APRIL 28, 2020

MAY 12, 2020                                MAY 26, 2020

JUNE 9, 2020                                 JUNE 23, 2020

JULY 14, 2020                                JULY 28, 2020

AUGUST 11, 2020                         AUGUST 25, 2020

SEPTEMBER 8, 2020                     SEPTEMBER 22, 2020

OCTOBER 13, 2020                       OCTOBER 27, 2020

NOVEMBER 10, 2020                   NOVEMBER 24, 2020

DECEMBER 8, 2020                      DECEMBER 22, 2020

Ombudsmen

Patricia Fraley   205-305-6343    patricia.fraley@labor.alabama.gov

Ted Roose          205-307-8576    theodore.roose@labor.alabama.gov

The Career Center located at 3216 4th Avenue South (Birmingham).

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

Effective November 1, 2019 Parker Olson has been named a Shareholder at Cousineau, Waldhauser, & Kieselbach P.A.

Parker joined the firm in February of 2016.  During the past 3.5 years, Parker has made significant contributions to the firm and we are happy to recognize him for his efforts.

Few scenarios generate more questions from clients than whether a carrier or third party administrator in New Jersey can cut off temporary disability benefits when an employee engages in part-time employment while receiving temporary disability benefits for the job-connected injury.   This is a much bigger issue than it was 30 years ago precisely because so many New Jersey employees have more than one job. Consider a situation where the carrier starts to pay temporary disability benefits to an injured worker but finds out a few weeks later that the worker has continued to work in his or her part-time job without losing any time from that second job. Should temporary disability benefits be stopped?

We begin the answer with the language in the statute under N.J.S.A. 34:15-38, which states that temporary disability benefits must be paid for days or fractions of days that the employee is unable to work.  Such benefits end when “the employee is able to resume work and continue permanently thereat.”  Note that the statute does not say “resume work at the injury-connected job.”  It simply says “resume work.”  The argument that many workers’ compensation professionals make is that if an employee returns to work anywhere, temporary disability benefits should cease.

There are no helpful reported cases on the meaning of “resume work.”   Not getting paid may be a factor according to a reported appellate division case entitled, Tobin v. All Shore All Star Gymnastics, 378 N.J. Super. 495 (App. Div. 2005).  In that case the petitioner, the owner of the company, suffered work injuries leading to the receipt of temporary disability benefits.  She was released by her treating doctor to do light duty work but she said that she could not use her shoulder.  She used to do physical work at the gym which she owned, and said that there was no light duty work for her.  However, she admitted that she was in fact supervising operations at the gym without pay.  She was able to do this because it did not involve use of her injured shoulder.  The carrier stopped temporary disability benefits.

The Judge of Compensation found that temporary disability benefits should not have been stopped solely because petitioner could supervise activities at the gym.  The Appellate Division affirmed the ruling in favor of petitioner, noting that the ability to do light or intermittent work is not inconsistent with the receipt of temporary disability benefits.  One key fact in this case, however, was that petitioner was not being paid.  That makes this case distinguishable from the question posed in this blog.

Let us next consider the unreported case of Morris v. Township of Washington, No. A-2374-99T2 (App. Div. January 16, 2001).  In that case, the holding was that an injured employee in receipt of temporary disability benefits could do some occasional part-time realtor work while recovering from her work injuries without losing her temporary disability benefits.  This case is much more on point to our question, but it is unreported and therefore not precedential.  The emphasis in this case was on occasional work being done by a part-time realtor, who did actually receive commissions from that work.

As in all legal situations, the facts are always crucial.  If the injured worker who is out of work is only making phone calls in the morning to call in substitute teachers for his part-time job, most if not all judges would be likely to find that temporary disability benefits should still continue.  Other judges may focus on the number of hours involved in the part-time job or the physicality of the part-time job.  If the part-time job is physically demanding for a person who is out of work and receiving temporary disability benefits, that information would likely lead to cessation of benefits. In cases like this, it is wise to send the information about the part-time job to the treating doctor for his or her consideration.  This information could bear on whether the employee has reached maximal medical improvement.

One other factor that should be mentioned is whether the injured employee has denied working part-time only to be later found to be doing part-time work while receiving temporary disability benefits.  This fact pattern moves the case more to a more powerful argument of fraud or deliberate misrepresentation.  Adjusters and treating doctors should ask at the outset if the employee does have a part-time job and if the employee is performing that work during the treatment phase of the case.  Counsel for petitioners often point out that their clients are not aware that they are doing anything wrong by continuing in their part-time employment, particularly if the work is not physical.

The best argument for employers is that temporary disability benefits should not be available for someone who is found to be working a substantial number of hours in a part-time or near full-time second job.  Frankly, it is an unsettled area of law. When the right case reaches the appellate division or Supreme Court, greater guidance will emerge for practitioners.  Most employers and adjusters are very practical in responding to this situation.  They realize that doing a few hours of week of a non-physical nature will not be viewed the same by the judge as working 20 or 30 hours per week in a second job while receiving temporary disability benefits.

--------------------------------

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.