State News

The Texas Supreme Court recently held that an employer did not retaliate against a Claimant for
filing a workers’ compensation claim when the Claimant was terminated in accordance with the
employer’s uniformly applied leave policy following the expiration of the Family Medical Leave
Act (FMLA) leave period. Kingsaire, Inc. v. Melendez, ___ S.W.3d ___, 2015 WL 7950716, * 8
(Tex. 2015).
The Claimant sustained a compensable work injury on 07/02/09. Claimant was notified that he
would be placed on unpaid FMLA leave effective 07/03/09, for up to twelve weeks and that he was
required to provide status updates on his ability to return to work every two weeks. Claimant
provided the work status updates as required by the employer. On 09/24/09, the employer notified
Claimant that his FMLA leave expired, that he had not yet been released to return to work by his
workers’ comp doctors, and that his employment was terminated effective 09/25/09. In October 2009, Claimant sued the employer for wrongful termination in retaliation for his filing a workers’
compensation claim. The jury entered a verdict in favor of Claimant.
The Court reviewed the evidence on a legal sufficiency standard and determined that the evidence
showed Claimant was terminated in accordance with the employer’s consistent and uniform
enforcement of its leave policy. The Court held that no evidence supported the jury’s verdict on the
retaliatory discharge claim.

Grades are in. The PBO assessment evaluated the providers in four categories: (1) timely filing of
DWC 69s, (2) completeness of DWC 73s, (3) documentation supporting return to work
determinations recorded on DWC 73s, and (4) usage of MRIs. In each category, the DWC identified
which of the health care providers evaluated were high performers, average performers, and poor
performers. A complete list of the PBO Assessment results are available here.

In an article by EmploymentLawAcademy.com, WorkersCompensation.com reports that the
National Conference of Insurance Legislators plans to investigate efforts by several of the country’s
largest employers to expand the number of states allowing employers to opt out of workers’
compensation coverage. The investigation was prompted by media reports from ProPublica and NPR
criticizing the opt-out plans in Texas and Oklahoma as providing fewer benefits, more restrictions,
and less oversight. The National Conference’s endorsement or disapproval of the opt-out plans will
likely influence future legislation in many states.

Effective January 1, 2016, the standard mileage reimbursement rate for Alabama was decreased to 54 cents per mile.

http://www.medicaresettlementsolutions.com/ 

Colleen Fitzgerald filed a claim petition alleging that on April 26, 2010 she was walking down an alley as a zone merchandising supervisor for Walmart, when she suddenly felt a “pop” in her lower back.  She admitted that she was simply walking at the time the incident occurred.  However, prior to this popping incident she said she was doing some lifting at work.  She experienced severe pain radiating into her buttocks and down her legs.

Fitzgerald reported the injury to her zone manager but she did not fill out an accident report at that time.  She thought the pain would subside.  The next day at work the pain was more severe, causing her leg to give out and requiring her to leave work.  She saw her family doctor on April 29, 2010 who prescribed for her two medications and an MRI. 

Fitzgerald took FMLA leave for the next 12 weeks.  On May 13, 2010 the MRI was performed revealing protruding discs at L4-5 and L5-S1 with mild displacement of the right L5 and S1 nerve roots.  Fitzgerald also saw a chiropractor in May 2010.

Fitzgerald attempted to return to work following her FMLA leave but still had pain.  In June 2011, she sought additional care when her back pain increased after a coughing spell.  She then took a second leave of absence while getting epidural injections.

In September 2011, Fitzgerald was involved in a non-work-related slip-and-fall in which she broke her elbow, requiring a third leave of absence.  She did not return to work and her employment was terminated.  However, her back treatment continued into December 2013.         

Fitzgerald filed two claim petitions in April 2012: first, she argued that a traumatic accident occurred on April 26, 2010; second, she argued that her injuries were the result of occupational exposures from December 2008 until April 2010.  In December 2013 she filed a motion for medical and temporary disability benefits.  Petitioner testified in support of her motion as well as her medical and psychiatric experts.  Respondent produced its orthopedic expert and offered the report of its psychiatrist in evidence.

Both experts agreed that petitioner had protruding discs at L4-5 and L5-S1 but they disagreed completely on causation. The Judge of Compensation ruled for Walmart and dismissed both petitions.  Petitioner filed an appeal and the Appellate Division affirmed the dismissal of the cases.  The Court reviewed prior case law for the requirement that petitioner prove her injury would not have occurred but for her employment. 

Applying the test, the judge concluded the petitioner failed to satisfy the first step of the test, in part because ‘[t]he facts here do not establish that the petitioner would not have been exposed to the risk if she had not been at work.’ An appellate court must give ‘due regard to the opportunity of the one who heard the witnesses to judge of their credibility’ and owes deference to the judge’s expertise in workers’ compensation issues.

This case was handled successfully for Walmart by Lora Northen, Esq., partner with Capehart Scatchard, with assistance from Andrea Schlafer, Esq. on the legal briefs.  The case underscores the rule that just because an event happens at work does not mean it is compensable.  There are many health issues that occur during work but are not necessarily caused by work.  Feeling pain in one’s joints or spine while walking is not work related unless work effort or work premises cause or contribute to the medical condition.  This case can be found at Fitzgerald v. Walmart, A-1186-14T3 (App. Div. November 20, 2015).

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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. 

Michael Sluga worked for Metamora Telephone Company as an Outside Plant Supervisor.  On July 27, 2011 he slipped on a trailer while at work and fell two feet to the ground, tearing his rotator cuff.  He tried to work with the injury but eventually in December he asked for a six month leave of absence to obtain surgery to the shoulder and then physical rehabilitation after surgery.  His surgery took place on February 15, 2012 in Chicago, Illinois, and he was placed on FMLA leave from February 15, 2012 to May 16, 2012.

Metamora promoted another employee, Dale Matson, to Outside Work Supervisor on May 20, 2012 after Sluga’s FMLA leave expired.  Matson had previously been under Sluga’s supervision, but he had been doing Sluga’s job while Sluga was on leave. Metamora also hired Don Adams on August 6, 2012 to work on the outside crew doing line installation, filling Matson’s position.

Sluga filed a workers’ compensation claim for his shoulder and settled it.  On July 27, 2012, the treating doctor sent a report to the workers’ compensation carrier stating that he would give an opinion on Sluga’s ability to return to work in four weeks.  Ultimately, Sluga’s doctor released him to work on August 30, 2012 with certain restrictions.  At that point Metamora terminated Sluga’s employment because the company had no open jobs for him to perform.

Sluga sued under the Americans with Disabilities Act, alleging that he was discriminated against on the basis of disability for failure to make reasonable accommodations.  Metamora countered that Sluga never really asked for any accommodation.  The Court said, “Even if Plaintiff had preserved his reasonable accommodation claim, it would fail based on the evidence presented.  When an employee seeks a reassignment to a vacant position as a reasonable accommodation, as Plaintiff does here, it is the employee’s burden to show that another position for which they are qualified existed.”  The Court added that Sluga never proved that there was an available job for him to perform.

Sluga also argued that the real reason that the company terminated him was that it did not want someone  with a disability to return to work. The Court disagreed, noting that Sluga never offered evidence that the company did not honestly believe that no positions were available in August 2012. The Court examined depositions and company affidavits given in the case by managers of Metamora and concluded that the company consistently explained that there just was no job available for Sluga when he was cleared to return to work.  The Court also affirmed the principle that a company does not have to bump one employee to accommodate another employee. 

This case can be found at Sluga v. Metamora Tel. Co., 2015 AD Cases 181739 (C.D. Illinois April 27, 2015).

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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. 

Most assaults by an employee on another employee on work premises are compensable for the victim of the assault, but the facts inJoseph v. Monmouth County, A-4144-13T3 (App. Div. December 14, 2015) were most unusual.

Lesley Joseph was a nursing supervisor at a Monmouth County owned nursing home.  On June 9, 2011, Mr. Joseph was taking a break in the break room, had his feet up and his eyes closed, when his female assistant attacked him with a hammer, causing multiple injuries and cuts on his face and head.  Joseph managed to wrest the hammer away from his attacker and asked for help.  Police and paramedics responded and took him to the hospital.  Joseph filed a workers’ compensation claim which the County investigated, finding circumstances behind the attack that cast grave doubt on the compensability of the claim.

Through its investigation, the County learned that Joseph had become involved in a pyramid scheme run by his assistant.  This scheme was called a “susu,” which required an investment in which participants put money into a pot and then take turns sharing the amounts collected.  An example was provided where 20 employees would contribute $100 each week, then over the course of 20 pay periods, each employee would take turns collecting $2,000 during his or her assigned week.  No interest was paid.

Joseph participated in the “susu” on three occasions but never collected any funds.  Participants became concerned when the petitioner’s assistant said she had an upcoming wedding.  Petitioner tried to talk to his assistant, but she avoided him.  On June 9, 2011, he approached his assistant and talked about what rounds needed to be done on her shift but then started telling her that everyone in the “susu” was upset because people in the pool who were supposed to be paid the week prior had not yet been paid.  Joseph emphasized that he himself was supposed to be paid the next week.  The assistant admitted that she had to use some of the money but assured petitioner that he would get his money.  Shortly thereafter the assistant attacked petitioner and eventually pleaded guilty to aggravated assault with a deadly weapon.

The Honorable Lionel Simon III, Supervising Judge of Compensation, Monmouth vicinage, held that the confrontation between the two employees did not arise from work but rather from the fact that Joseph felt he was not going to be paid on time.  Judge Simon further found that there was no nexus to work at all. The mere fact that the attack happened at work was not sufficient for coverage because it did not arise from work activities. Petitioner appealed the dismissal of his case.

The Appellate Court said, “Assuming there was no prohibition against sleeping in the break room, petitioner’s claim still could not be sustained because its origins were only related to his involvement in the susu scheme, a personal connection to the assistant that resulted in injuries for reasons wholly unrelated to their employment.”  The Court said that the attack arose from personal motivation and was not attributable to a risk of employment.  “Had petitioner not been a participant in his assistant’s susu, the attack would not have occurred. Once he became involved and questioned his assistant about the ‘invested’ money, he was attacked at a location that just happened to be their place of employment.”

The petitioner argued that work brought the two employees together and created the conditions that resulted in the confrontation.  However, the Judge of Compensation and the Appellate Division both noted that this was a case where the friction between the two employees arose from purely personal reasons unrelated to the work that they performed at the county nursing home.

This decision is a significant one because it illustrates the exception to the general rule that the victim of an assault at work at the hands of a co-employee is generally covered.  If the origin of the animus is purely personal, having nothing really to do with work, neither the victim nor the aggressor is covered.  This case was successfully handled at both the trial level and the appellate level by Carla Aldarelli, Esq., partner in Capehart Scatchard.

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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. 

Samuel Roman formed Treeminator Tree Services, Inc. in 2007.  By 2012 he and his girlfriend, Sandra Flores, were both employees along with two others.  In 2009 Roman sought workers’ compensation coverage with NJM for Treeminator Tree Service, LLC, a company with no employees and a minimum premium.  He obtained the same type of policy in later years with Technology Insurance Company, part of the Amtrust Group. 

On May 4, 2012, Roman was cutting down a tree when he fell and suffered very serious injuries. He filed a workers’ compensation claim against Technology Insurance Company, which denied the claim on the ground that the policy indicated that Treeminator was an LLC with no employees.  Petitioner then filed a Motion for Medical and Temporary Disability Benefits, and a full trial ensued with testimony from petitioner, his girlfriend, and three witnesses associated with the insurance broker. 

The Judge of Compensation, the late Honorable Virginia Dietrich, ruled that petitioner made material misrepresentations in procuring his insurance application and was not entitled to coverage. She found that Mr. Roman provided false information in obtaining his policy in that all of his workers’ compensation policies indicated that he had no employees.  The application for the Technology policy described the business as a “one man operation – no employees.”

Further, the Judge of Compensation noted that Roman also misrepresented the nature of the business as one involving landscaping instead of the high risk work of tree removal and tree trimming.  She concluded that Roman did not intend to cover himself when he procured his workers’ compensation policy.

Roman appealed and contended that his broker erred in not procuring for him a policy listing his company as a corporation.  He argued that he himself should not suffer due to his broker’s error.  The Appellate Court noted that the Judge of Compensation rejected this argument because it was clear from the evidence at trial that Roman was trying to pay the absolute lowest amount possible for coverage as a Limited Liability Corporation (LLC) with no employees.  The Court said, “When apprised of the increased costs of insuring a company with employees, Roman chose to ‘take coverage as cheaply as he could find it.  He wanted to pay the least and hoped for the best.’”

The Appellate Court agreed with the Judge of Compensation that there was sufficient credible evidence in the record to support the finding that petitioner made a material misstatement of fact underN.J.S.A. 34:15-57.4, thereby warranting dismissal.  This matter was handled successfully by Nick Dibble, Esq. of Capehart Scatchard with assistance on the brief from the undersigned.  It can be found at Roman v. Treeminator Tree Service, A-0094-14T2 (App. Div. December 2, 2015).

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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. 

Robert Miller worked as customer service and bookkeeping associate at Saker Shoprite from 4:00 p.m. to 11:00 p.m.  On January 29, 2010, Miller came to work to pick up his paycheck at 10:00 a.m.  The store allowed employees to do direct deposit or to pick up their paychecks in person.  While he went in to get his paycheck, someone waited in the car outside. One fellow worker described Miller as wearing what appeared to be pajamas.

Miller picked up his paycheck at the courtesy desk and then cashed it.  He also bought a lottery ticket for a co-worker who was working a register in the checkout area as a cashier.  He walked over to the co-worker, handed her the lottery ticket, turned and headed toward the store exit.  As he exited, he slipped on a substance that may have been sugar or salt, falling to the floor and injuring his knee.  He was diagnosed with a medial meniscus tear.

Miller filed both a workers’ compensation claim and a parallel personal injury action in the Law Division.  The Judge of Compensation heard testimony and ruled that the accident was compensable.  The judge relied on the fact that the store allowed its employees to cash their paychecks at the store.  In the judge’s mind, this indicated that the store intended to benefit by “impulse buying” of workers who came to cash their checks in person.  The judge awarded 17.5% disability of the leg or $11,686.50.

Saker Shoprite appealed and contended that there was no legal support for a finding of compensability.  The Appellate Division reversed the Judge of Compensation, noting that petitioner was not performing any work duties at the time of his injury.  He was not dressed for work and was only there to do a personal task, namely pick up his paycheck.  In addition, the court noted that petitioner performed one other personal task in buying a lottery ticket for a co-worker.

In finding that the fall was not compensable, the court had to distinguish this case fromChen v. Federated Dep’t Stores, Inc., 199N.J. Super. 336 (App. Div. 1985).  In that case an injury to a Federated employee was found compensable during lunch hour when the employee tripped on a clothes hanger while shopping in the store.  The Appellate Division in that case found that the lunch-break shopping was beneficial to the employer and encouraged by the employer. 

In this case the court said that Miller’s injury did not occur during a lunch break but many hours before his work shift would begin.  The court also found that Miller never offered proof that Shoprite benefited from having employees pick up checks in person.  The benefits manager of the store testified that employees were generally discouraged from remaining in the store if they were not working or shopping.  The court said, “[t]here is no testimony that the store actively encouraged such conduct by check-cashing workers.  The practice was merely a gratuitous convenience provided by the employer.”

In reversing the Judge of Compensation, the Appellate Division allowed Miller to reactivate his civil suit against the store.  This case may be found atMiller v. Saker Shoprite, A-3746-13T2 (App. Div. November 13, 2015).

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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.