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Peter v. Paylor, v. Dee Zee Incorporated And Travelers Indemnity Company Of Ct., Court of Appeals of Iowa, No. 14-1570

On November 10, 2010, Claimant, Peter Paylor, suffered a work related injury to his lower back for which he sought medical care on November 12, 2010. Claimant’s employer, Dee Zee Incorporated, stipulated the injury caused temporary disability. Claimant underwent back surgery in April 2011. He claimed the surgery was causally related to the work injury and filed a claim for permanent disability benefits. The employer denied causation and denied Claimant sustained a permanent disability related to his work injury. The deputy commissioner found Claimant did not prove the April 2011 surgery and subsequent treatment were related to his work injury. The commissioner affirmed the decision. The district court affirmed the agency’s action.

On appeal, Claimant contends the agency’s finding that his surgery and subsequent treatment were unrelated to his work injury is not supported by substantial evidence. He contends, for the same reason, the agency’s decision is irrational, illogical, and wholly unjustifiable. 

The Court of Appeals concludes the agency’s decision is supported by substantial evidence and is not irrational, illogical, or wholly unjustifiable. The Court notes that the agency carefully assessed the medical evidence as reflected in Claimant’s medical records and the opinions of different physicians. The agency credited some of the medical professionals’ opinions over others based on their respective training, experience, and area of practice and based on whether the opinions jibed with Claimant’s symptoms. The agency further took into account the quality of the opinion based on the medical history, or lack thereof, Claimant provided to the respective medical professional. 

Medical causation presents a question of fact that is vested in the discretion of the workers’ compensation commission. While there may be evidence in the record contrary to the agency’s findings and conclusions, “[e]vidence is not insubstantial merely because it would have supported contrary inferences.” Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 499 (Iowa 2003). The question is not whether the evidence would support a different finding, the question is whether the evidence supports the finding actually made. Accordingly, the Court of Appeals affirms the district court’s decision on judicial review.

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! 

The Clayton County School District in Atlanta, Georgia employed Edith Hill as a bus driver.  During the school year 2009-2010 Hill was assigned a non-air-conditioned bus for special needs students.  The temperatures inside the bus rose above 100 degrees and Hill found she was experiencing serious difficulty in breathing.  She filed an “Employee Request for Reasonable Accommodation” on August 11, 2009 stating that extreme heat impaired her ability to breathe.

Hill attached two doctors’ notes, one from a pulmonologist who said she had an airway-related physical impairment that limited her breathing abilities.  If she were provided with an air-conditioned bus she could do the job, according to the pulmonologist.

On August 13, 2009, the School District placed Hill on unpaid leave while it considered her request.  On August 28, 2009, the School District sent Hill a letter denying her request because all air-conditioned buses had already been assigned to other drivers.  The letter did not mention that the District was in the process of obtaining more air-conditioned buses. 

There was a dispute at trial whether the School District offered Hill one of these new air-conditioned buses.  Hill said it never happened; several employees of the School District said that the offer was made.  Hill remained out of work through 2009 and into early 2010. The School District terminated her employment on March 2, 2010.  Hill then sued under the ADA for discrimination.

The District Court ruled in favor of the School District and dismissed Hill’s law suit, but the Eleventh Circuit Court of Appeals reversed in favor of Hill on the disability discrimination issue.  The Court first noted that there was conflicting evidence on whether the School Board ever made an offer to Hill about using one of the new air-conditioned buses.  None of the School Board’s witnesses actually recalled making the offer to Hill.  The Court added:

Even assuming the School District did make such an offer, there is still a dispute as to whether making Hill wait two months was reasonable.  In its motion for summary judgment, the School District argued that providing an air-conditioned bus any earlier would have constituted an undue hardship, but does not provide sufficient evidence of what the hardship would be.  All the School District said was that it would have had to upset its seniority-sensitive bus-allocation process.

The Court reviewed prior case law where employers had made employees wait a few months before making an offer of reasonable accommodation.  It said that in all of the prior cases, the employer paid the employee during the waiting period before a decision was made on the offer or allowed the employee to work during the waiting period.  The Court said, “Here, by contrast, two months was more than enough time for the School District to overcome any administrative hurdles in providing Hill with an air-conditioned bus.”

What this means is that Hill has an opportunity to present her case before a jury.  The lesson in a case like this is that employers must act promptly when it comes to requests for reasonable accommodation.  In this case it was hard for the School Board to argue that Hill had no right to the accommodation request.  Hill had in years past driven an air-conditioned bus. The case also shows the importance of making a written offer of accommodation.  Throughout the hearing process the parties fought over the issue of whether an offer of accommodation had been made, even though this could have easily been resolved by documenting this in a written offer letter. The case can be found atHill v. Clayton Sch. Dist., No.13-14951, (11^th Cir. 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. 

In part one we examined the law surrounding New Jersey occupational disease claims and trends in our state (see last week’s blog).  In this segment, we will explore strategies and tactics employers can take to win occupational disease claims. 

Winning workers’ compensation claims depends more than any other factor on obtaining past medical history.  Experience teaches us that the vast majority of claimants who file back, neck, shoulder, leg, respiratory, and stress claims have had symptoms and treatment in the past, but often this information does not emerge and is not discovered until too late. This is particularly true in New Jersey where depositions are not permitted except in rare cases on motion, and where interrogatories are only allowed in occupational disease claims – and the questions are pre-printed and often irrelevant.  The single greatest reason that workers’ compensation benefits are overpaid is the failure to discover prior medical history.  In occupational disease claims, an employer will overpay virtually every case if the employer does not know what the employee does outside work and has done in the past and does not have an accurate picture of the employee’s health before the claim was filed.

It is imperative for the employer to identify the prior family doctor and get his or her records going back as far as possible.  That is true for all occupational orthopedic claims, respiratory claims, carpal tunnel claims and stress claims. As mentioned last week, the employer defeated the carpal tunnel claim inHuntoon only because respondent’s counsel insisted on obtaining prior family doctor records, which led directly to the statute of limitations defense.

Consider for a moment what the adjuster and defense attorney are looking for:

In respiratory claims, the family doctor records may contain the past smoking history, references to chronic cough or history of allergies. 

In carpal tunnel cases, the family doctor records may reveal diagnoses of conditions which are known to cause carpal tunnel syndrome:  hypertension or diabetes, for example.

In occupational orthopedic claims, the family doctor records may contain information about arthritic pain, joint pain related to weight gain, pain from over-exercising at the gym or in jogging, and treatment due to car accidents and slips and falls generally.

In cancer cases, the family doctor records often refer to family history of cancer.

In addition to obtaining prior family doctor records, the adjuster and defense counsel should be writing to claimant’s counsel or filing supplemental interrogatories asking about the following:

In respiratory claims: the name and address of allergists the claimant has seen in the past, plus skin testing results;

In occupational hand claims, the name and address of rheumatologists and surgeons who have seen the claimant in the past;

In occupational orthopedic claims, the name and address of any chiropractor whom the claimant may have seen in the past as well as location of any MRIs, EMGs or other objective studies.

In occupational stress cases, the name and address of all prior psychologists, mental health counselors and psychiatrists.

Most defense lawyers around the country believe that there is no level playing field for employers when it comes to workers’ compensation. As far as discovery goes, New Jersey’s system is seriously tilted against employers.  While New Jersey has employer control of medical care, that fact is not of any consolation in an occupational disease claim because almost 100% of occupational disease claims are denied at the outset.  There are seldom any authorized treating records available. So adjusters and defense counsel have to be creative in conducting informal discovery.  Since the standard pre-printed form interrogatories do not focus on what employers need to know, adjusters and defense counsel must explore prior medical history informally, seek information about second jobs, prior and present hobbies, martial arts, sports and recreational activities, and inquire about hobbies like woodworking or crocheting in repetitive stress claims. When the claimant’s counsel will not cooperate, defense counsel should file a motion for supplemental interrogatories.

The tactics that help employers win occupational disease claims vary depending on the nature of the allegations.  Respiratory claims are particularly frustrating for employers because often they are brought like class actions with dozens of claimants filing petitions at once, almost none of whom have ever treated before for breathing-related complaints!  New Jersey has always had its share of plant closing cases, and these cases typically involve respiratory claims.  The good news is that employers can win the vast majority of these cases at trial.  The reason employers have the edge is that respiratory claims are unique in having objective data to support the defense.  Pulmonary function studies provide scientific information on lung function, and the tests are repeated to reveal if the claimant is not making a genuine effort to exhale or inhale. No matter what the claimant says of a subjective nature (short of breath, trouble sleeping, or coughing), pulmonary function studies provide reliable objective evidence which satisfies the standards ofN.J.S.A. 34:15-36. 

When an employer has to fight respiratory claims, whether in a mass filing following a plant closing or in an individual claim, the employer needs to retain board certified pulmonologists who do more than just spirometry.  The employer needs lung function and diffusion capacity studies in addition to spirometry because all of this information provides scientific proof of lung function.   In 90% of plant closing respiratory claims, the pulmonary function testing turns out to be normal.  Where the tests are abnormal, there is often an allergy history or cigarette smoking history.  A claimant can complain in testimony of shortness of breath but if the FVC and FEV1 parameters are normal, that fact will carry the day with the judge because this is objective evidence. Awards must be based on objective evidence of restriction of function underN.J.S.A. 34:15-36. Many cases have been decided in the past few years in favor of the employer on respiratory claims solely because the employer retained the better medical expert, who did spirometry, lung volume testing, and diffusion capacity testing.

Employers who must defend respiratory claims following plant closings should try to procure photos of the work environment, preferably video of the work environment, so that the defense expert and judge can see first-hand what the conditions really were like.  Claimants in plant closing respiratory claims tend to say the same things: “the atmosphere was dirty and dusty at all times, and I coughed a lot.”  But the photos and videos of the work premises can rebut these allegations.

One little known fact is that mild bronchitis is excluded from compensation inN.J.S.A. 34:15-36.  Many cases come down to complaints of a cough for which the employee has never treated.  Arguably, if this complaint is true, it is a condition of mild bronchitis, which is not compensable by law.

In any type of occupational disease claim, social media plays a major role because many claimants post information on Facebook or other sites that contradict their assertions in the workers’ compensation claim.  Ex:  employee in an occupational knee claim posts photos of recent 5k runs, or employee in occupational back claim posts photo of himself lifting 400 pounds at the gym.  Defense law firms often win many traumatic and occupational disease claims simply by doing social media searches. 

Insurance carriers and third party administrators have access to ISO reports, and employers should re-run ISO searches periodically during the life of the case.  An ISO report will often lead to other accidents or claims which may independently explain the reason the claimant has certain symptoms.  In the case ofJackson v. Township of Montclair, No. A-2212-11T2 (App. Div. July 5, 2012), the employee denied any prior knee problems only for the adjuster to discover that one year before the workers’ compensation accident, the employee had injured his knee in a car accident and had the very same diagnosis at that time.  The employer eventually pressed successfully for a dismissal based on workers’ compensation fraud.

Collaboration among the employer team (department supervisor, HR, plant manager, claims professional, defense counsel, and others) will almost always lead to valuable information about the claimant.  For this reason, employers who actively get involved in the defense of claims have uniformly better results than employers who simply refer the entire defense to the carrier/TPA and defense counsel.  This point cannot be emphasized enough: no one knows more about the work conditions and the claimants than the management team.

When all the discovery has been completed, the choice of independent medical examiner is dispositive.  The entire investigation, prior medical information, surveillance or videos of the job must go to the expert along with an explanation of the legal standard under N.J.S.A. 34: 15-31.   Not enough time is spent on choosing the right medical expert.  Factors to consider include whether the medical expert supports his opinion with scientific articles or just generalizes on causation, whether the medical expert testifies well in court, and whether the medical expert is known to ask detailed past medical history and past hobbies/recreational activities. Occupational disease claims depend on science because the standard is whether the occupational disease is produced by causes that are characteristic of or peculiar to the occupation.  Hence, Dr. Kenneth Peacock will provide medical literature to support his opinion that a given activity – typing, for example – has not been shown to be linked to the development of carpal tunnel syndrome.  That sort of testimony is powerful both in the Division of Workers Compensation and in the Appellate Division.  The claimant’s doctor may say simply that typing caused the carpal tunnel syndrome condition, but if he or she cannot back that theory up with research or medical literature, the assertion is nothing more than a net opinion.  So clients and counsel should dialogue the choice of defense expert, and in that connection, the cheapest expert is generally the worst choice.

To sum up, occupational disease cases can be won consistently by the employer, particularly occupational respiratory and stress cases.  The case law is favorable in both areas of the law.  Respiratory cases can often be won just because the employer retained the best pulmonary expert in the region who does the full range of pulmonary function testing.  Stress cases can be won because every employee is under stress generally, and generic stress is not compensable. Further, stress caused by merited criticism is not compensable.   Occupational orthopedic claims involving the joints or upper extremities are more challenging for employers, but they can be won with strong collaboration among the defense team and with exhaustive past medical discovery.  

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

On October 16, 2015, The Alabama Court of Civil Appeals released its opinion inAnita Martin v. Austal USA, LLC. At the trial court level, the judge granted the employers motion for summary judgment based on the applicable statute of limitations. It being an occupational disease case, the two year statute of limitations in which to file a lawsuit would have started to run on (1) the date of last exposure or (2) the date of the last indemnity payment, whichever is later. It was undisputed by the parties that the date of last exposure was the last day worked and, using that date, the statute would have definitely expired. However, the employee received employer sponsored short term disability benefits while she was out of work. The employee argued that said benefits constituted indemnity payments that served to toll the statute of limitations. The employee cited to a case where the court held payment for injury days and full pay for less than full work constituted indemnity payments.

On appeal, the Court of Civil Appeals distinguished the case relied upon by the employee by noting that the employer in that case was aware that the employee was making a workers’ compensation claim. In the instant case, however, there was no evidence that the employer was aware that the employee was claiming a work related occupational disease at the time she was receiving her short term disability benefits. As a result, the Court affirmed the trial judge’s decision.

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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 atmfish@fishnelson.com or by calling him directly at 205-332-1448.

On October 16, 2015, the Alabama Court of Civil Appeals released its opinion inJenkins v. American Transport, Inc., reversing the trial court’s order granting summary judgment in favor of American Transport, based on the trial court’s finding that American Transport was not Jenkins employer and that Jenkins’ injury was not subject to Alabama’s workers’ compensation laws.

Jenkins was a truck driver who leased his truck to American Transport. The parties entered into an agreement in Dothan, Alabama, which provided that Jenkins would use the truck to haul freight for American Transport throughout the United States. The agreement explicitly stated that Jenkins was an independent contractor and not an employee. The agreement provided that either party could terminate the relationship by giving thirty (30) days written notice, and that American Transport could terminate the agreement if Jenkins violated established service standards, any laws, any terms and/or conditions of the agreement, or transported any cargo for any company other than American Transport. The agreement further provided that American Transport would compensate Jenkins by paying him a percentage of the gross revenue of each load; that Jenkins was responsible for providing his own workers’ compensation insurance; that Jenkins assumed full responsibility for all loads; that Jenkins had the right to accept or reject loads offered to him by American Transport; and that American Transport had no right to control or attempt to control the manner or means by which Jenkins performed under the agreement.

Jenkins was later injured while hauling a load from Colorado to Minnesota. He sued American Transport for workers’ compensation benefits, and American Transport filed a Motion for Summary Judgment. In its Motion, American Transport asserted that it was not Jenkins employer, and that even if it were his employer, Alabama law would not apply because Jenkins’ employment was not principally localized in the state. The trial court granted American Transport’s Motion for Summary Judgment, and Jenkins appealed.

The Court of Appeals pointed out that Jenkins’ designation as an independent contractor alone was not determinative of whether he was entitled to workers’ compensation benefits. The Court of Appeals found sufficient evidence in the record to establish that American Transport retained a right to control, and even exercised the right to control, Jenkins’ work. Based on this, the Court found that there were genuine issues of material facts as to whether Jenkins was an employer or independent contractor, and that summary judgment was therefore improper. Additionally, the Court found that while Jenkins’ employment was not principally located in any state, there was sufficient evidence in the record to establish that if Jenkins was an employee, his contract for hire was made in Alabama.

Most notably however, the Court of Appeals pointed out that American Transport failed to argue that it could not be deemed Jenkins’ employer pursuant to §25-5-1(4). That section provides that "In no event shall a common carrier be deemed the employer of an owner/operator or a leased operator." The Court pointed out that if American Transport had asserted this defense, there may have been no need to determine whether American Transport retained a right of control over Jenkins, because American Transport would have been exempt from the provisions of the Alabama Workers’ Compensation Act.

MY TWO CENTS

Generally, when the putative employer retains a right to control the agencies and means of the work being performed, the parties will be subject to the Act. However, § 25-5-1(4) provides an absolute exemption for common carriers who employ leased owner-operators. The employee bears the burden of proof in workers’ compensation, and that burden even applies to establishing that he/she is an employee. However, since American Transport moved for summary judgment, it had the burden of proving that it was exempt pursuant to § 25-5-1(4).

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond 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. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atcdrummond@fishnelson.com or (205) 332-3414.

Dorothy Jane Ketchie and Glegg Lee Jones worked for Fieldcrest Cannon, Inc. over the course of approximately two and 45 years respectively. The parties stipulated that Ms. Ketchie was last injuriously exposed to asbestos in the seven months before January 31, 1974.  The parties stipulated that Mr. Jones’ last injurious exposure was in the seven months before September 24, 1986.  In 2000, Ms. Ketchie was diagnosed with asbestosis as a result of her exposure during employment with Fieldcrest.  In 2003, Mr. Jones was diagnosed with mesothelioma and died on May 9, 2004.

The North Carolina General Assembly created the Security Association on October 1, 1986 to provide a way to pay covered claims against member self-insurers in order to avoid, among other things, non-payment of claims due to the insolvency of a member self-insurer. All self-insurers are required to be members of the Security Association as a condition of being licensed to self-insure.  Fieldcrest was a member of the Security Association from October 1986 until December 19, 1997, after which the company purchased workers’ compensation insurance.  The company thereafter filed for bankruptcy in 2000 and 2003.  After the bankruptcy in 2003, Fieldcrest defaulted on its outstanding workers’ compensation claims incurred during this period of self-insurance before the company became a member of the Association on October 1, 1986.  Mr. Ketchie and Mr. Jones’ claims, along with other plaintiffs, fell into the category where their employment and last injurious exposure occurred before October 1, 1986 but were not diagnosed until after the bankruptcies.  As such, these plaintiffs sought compensation from the Security Association because Fieldcrest had declared bankruptcy and had defaulted on their claims.  In 2009, both Ms. Ketchie and Mr. Jones’ estate filed workers compensation claims against Fieldcrest and the Security Association.

The Full Commission concluded that the plain language of N.C.G.S. § 97-130 statutorily excluded Ms. Ketchie’s and Mr. Jones’ claims because covered claims only include those claims where an injury occurred while the employer was a member of the Security Association. Under N.C.G.S. § 97-57, liability for an occupational disease attaches when the last injurious exposure occurs.  Because Fieldcrest was not a member of the Security Associates on the date of the last injurious exposures, Ms. Ketchie’s and Mr. Jones’ claims were not covered claims.

The Court of Appeals affirmed the Commission’s decision, relying on the plain language of N.C.G.S. §§ 97-130 and 131 to find that there was no coverage for these claims. In order for the claims to be covered by the Security Association, the claims must have arisen when the self-insured company was insolvent and when the company was a member of the Association.  The Court found that these claims arose in 1974 and September 1986, while Fieldcrest was solvent and before the company joined that Security Association.  Because the Association was not created until after Ms. Ketchie’s and Mr. Jones’ last injurious exposures, these claims could not be covered.  As such, Ms. Ketchie’s and Mr. Jones’ claims were barred and there was no recourse for them as a result of Fieldcrest’s bankruptcy.

Risk Handling Hints:  This decision shows that courts will apply the plain language of statutes to determine compensability, even when it leaves injured employees without recourse or relief.  The Workers’ Compensation Act is to be interpreted broadly to provide injured workers benefits, but this purpose will be limited by the laws enacted by the General Assembly.

Johnnie Wilkes was a 62-year-old landscaper working in the Recreation and Parks Department for the City of Greensboro. He had worked for the City for approximately nine years.  On April 21, 2010, Mr. Wilkes was involved in a car accident.  Mr. Wilkes was treated for an abrasion to his head, broken ribs, and injuries to his neck, back, pelvis, and left hip.  He underwent a brain MRI, which was negative for acute infarction but revealed mild paranasal sinus disease resulting from a concussion.  The claim was accepted by the City on a Form 60.  Mr. Wilkes was discharged from the hospital the next day.  Mr. Wilkes later sought treatment for anxiety and depression.

After the hearing, a deputy commissioner found that Mr. Wilkes’ anxiety and depression were causally related to the April 21, 2010 accident. It was also found that it would be futile for Mr. Wilkes to seek employment due to pre-existing conditions that were personal to him; such as age, IQ, work history, and physical conditions as a result of the at-work injury.  Defendants appealed and the Full Commission reversed the deputy commissioner’s decision, holding that Mr. Wilkes failed to meet his burden of proving that his anxiety and depression were caused by the accident, and that he was no longer entitled to temporary total disability benefits because he had presented insufficient evidence that a job search would be futile.  Mr. Wilkes appealed this decision to the Court of Appeals.

The Court of Appeals held that Mr. Wilkes was entitled to medical compensation for his anxiety and depression. The Court relied on theParsons presumption and two subsequent cases to find that this additional medical treatment was related to the April 21, 2010 injury.  The Court specifically cited a footnote in thePerez v. Am. Airlines/AMR Corp. case that noted, “[w]e can conceive of a situation where an employee seeks medical compensation for symptoms completely unrelated to the compensable injury.  But the burden of rebutting the presumption of compensability in this situation, although slight, would still be upon the employer” (emphasis inWilkes decision).  The Court therefore held that, in light of the previously filed Form 60 accepting Mr. Wilkes’ claim as compensable, there was a rebuttable presumption that Mr. Wilkes’ anxiety and depression were causally related to the accepted injury.  The Court remanded the case to the Commission to determine if the City had rebutted the presumption.

The Court also found that Mr. Wilkes had successfully demonstrated that searching for work would be futile based on his pre-existing, personal conditions. The Court factually distinguished this case from theFields v. H&E Equip. Servs., LLC case (which was included in a prior Risk Alert).  The Court noted that Mr. Wilkes was 60 years old, had worked as a landscaper with the City since 2001, had been employed in medium to heavy duty labor positions for his entire adult life, only attended school until the 10^th grade, was physically incapable of performing his prior job as a landscaper, had difficulty reading and comprehending written material, and had a low IQ putting him in the impaired range.  Specifically, the Court highlighted that Mr. Wilkes had a lack of transferrable skills and that there was medical evidence of his intellectual impairment and difficulty with reading comprehension.  The Court found that, generally, plaintiffs are not required to present medical evidence or vocational expert testimony to establish futility, which appears to contradict the recent holding inFields.  The Court instead relied on prior case law to hold that, once the plaintiff establishes futility through his or her own testimony, the burden shifts to the defendants to show that suitable jobs were available and that the plaintiff is capable of obtaining one considering his physical and vocational conditions and limitations.  The Court found that the City had not carried its burden to show that suitable jobs were available and Mr. Wilkes capable of obtaining a job in light of his conditions, thus entitling him to additional indemnity benefits.

Risk Handling Hints:  The decision in Wilkes extends theParsons presumption to apply to injuries not previously accepted and even to injuries entirely different from the injuries included on a Form 60.  The burden is then on the defendants to produce evidence that additional claimed injuries are not causally related to the accepted conditions.  This is an extension of the prior case law where the courts had previously been unwilling to apply the presumption to entirely different body parts.  The Court relied on side notes in prior cases to take extend this analysis to apply to wholly different injuries.  Going forward, employers and carriers should be aware that they will have the burden of rebutting compensability for any claimed injury regardless of what injuries or body parts are listed on the Form 60.  As a result of this decision, employers and carriers should work on gathering medical evidence that disputes causation as soon as they become aware of any claimed injury.

In addition, employers and carriers should obtain medical evidence and vocational experts to rebut an employee’s contention that it is futile to seek employment. This decision re-establishes that an employee’s testimony alone will be enough to carry his or her burden of proving futility.  Defendants will then be responsible for rebutting this presumption through expert testimony and evidence.

 TRUCK DRIVER’S GUIDE TO PENNSYLVANIA  EXTRA-TERRITORIALISM FOR WORKERS’ COMPENSATION

By Kevin L. Connors, Esquire

“We demand rigidly defined areas of doubt and uncertainty!”  Hitchhiker’s Guide to the Galaxy.

A recent decision by the Pennsylvania Commonwealth Court addresses the issue of extra-territorial jurisdiction when employment is not principally localized in Pennsylvania. 

The case was decided by the Pennsylvania Commonwealth Court on September 15, 2015.

The case is William Watt v. WCAB (Boyd Brothers Transportation).

The Claimant appealed decisions by the Workers’ Compensation Judge and the Appeal Board, denying and dismissing the Claimant’s Claim Petition for lack of jurisdiction under the Pennsylvania Workers’ Compensation Act, as the Claimant challenged the WCJ’s findings that his employment was not principally localized in Pennsylvania. 

The Claimant also argued that his employment contract, which stated that his employment was principally localized in Alabama (Go Crimson Tide!), was unenforceable and against public policy, further arguing that Section 305.2(d)(5) of the Workers’ Compensation Act, which is the Section dealing with extra-territorial jurisdiction for worker’s compensation claims, was unconstitutional.

“Don’t panic, and always carry a towel,”  Hitchhiker’s Guide to the Galaxy.

The Commonwealth Court affirmed the decisions of both the Appeal Board and WCJ, denying the Claimant’s Claim Petition on jurisdictional grounds.

By way of background, the Claimant was an interstate truck driver, employed by Boyd Brothers Transportation, and he alleged that he sustained a work injury in New Jersey.

Filing a Claim Petition seeking workers’ compensation benefits under the Pennsylvania Workers’ Compensation Act, the Employer’s Answer to the Claim Petition denied jurisdiction for the claim in Pennsylvania, and it was further denied that the Claimant was either injured or hired in Pennsylvania, averring that the Claimant was already receiving workers’ compensation benefits under Alabama’s workers’ compensation laws, pursuant to the terms of the Claimant’s employment contract with Boyd Brothers.

In support of his Petition, the Claimant testified that he was employed as a truck driver for Boyd Brothers in 2010 and 2011, sustaining a work injury while untarping a cargo load on April 12, 2011.

The Claimant then began receiving workers’ compensation benefits through Alabama’s workers’ compensation system for injuries to the Claimant’s right shoulder, right arm, and right hand.

Testifying that he was a Pennsylvania resident, the Claimant testified that he had completed an online application for employment with Boyd Brothers, while using his personal computer in Pennsylvania.   He then passed a driver’s test, obtaining a CDL license, with the Claimant being contacted by telephone by an Employer representative, scheduling the Claimant for orientation in Ohio.

The Employer representative advised the Claimant that he would be paid $400.00 per week during orientation and training, with the Claimant then receiving an e-mail confirming that he was accepted into the orientation program for Boyd Brothers.

Attending driver orientation in Ohio, the Claimant was put through training and various tests, with the Claimant also being presented with a document titled “Workers’ Compensation Agreement” which the Claimant gleefully signed. 

After completing his orientation, the Claimant returned to Pennsylvania, after which he began working as a long haul truck driver for Boyd Brothers.

Testifying that over the course of his employment with Boyd Brothers, the Claimant had kept daily logs of his trips, as required by DOT regulations, the Claimant testified that he only drove in the state of Alabama on four occasions, with the Claimant calculating that he had driven a total of 35,124 miles while employed by Boyd Brothers, with the Claimant testifying to the following state-specific mileage:

·         6,196 miles in Pennsylvania;

·         5,031 miles in Virginia;

·         4,689 miles in Ohio;

·         2,346 miles in Tennessee; and,

·         Lesser amounts in 22 other states.

The Claimant testified that he accumulated a total of 678.25 hours driving truck for Boyd Brothers, calculating that his state-specific driving hours were:

128 hours driving in Pennsylvania;

80.75 hours driving in Ohio;

64.75 hours driving in Virginia;

42 hours driving in Tennessee;

37 hours driving in Maryland;

34.75 hours driving in West Virginia;

33.5 hours driving in Indiana;

31.25 hours driving in Texas; and,

Lesser amounts of hours driving in 18 other states.

Opposing the Claimant’s Petition, the Employer presented extensive documentary evidence, including the signed WC Agreement, which stated that all workers’ compensation claims would be administered from Boyd Brothers administrative offices in Clayton, AL, and that workers’ compensation claims would be subject to the laws of the State of Alabama.

Before the workers’ compensation Judge, the Claimant and Boyd Brothers oddly enough stipulated that all workers’ compensation claims would be governed by the workers’ compensation laws of the State of Alabama, and that the Claimant’s employment was principally localized within the state of Alabama, as the company’s principal place of business was in Alabama.

Opposing Claimant’s Petition, testimony was presented by an Employer representative, a student recruiter, and from the director of recruiting, with all testifying that a prospective driver would not be officially hired until they had cleared orientation.  Orientation required a prospective driver to pass a road test, a physical agility test, a drug test, and other written tests, over a period of five days of orientation.

Evidence was then presented that the Claimant’s employment began with Boyd Brothers when the Claimant completed orientation, and that his date of hire was recorded as November 24, 2010.

Testimony was also presented from an Employer representative, responsible for managing the Claimant’s orientation, that the Claimant had been read and explained the terms of the WC Agreement during the orientation process, for purposes of establishing that worker’s compensation claims would be administered through the laws of the State of Alabama.

An Employer representative was also present to testify as to the Claimant’s mileage, for the period that he was employed, from November 29, 2010 through April 9, 2011, with it being calculated that the Claimant had driven 34,581 miles for Boyd Brothers, with the state-specific mileage being broken down as follows:

·         50.35.9 miles in Virginia;

·         4,721.4 miles in Ohio;

·         4,010.6 miles in Pennsylvania;

·         2,301.1 miles in Tennessee;

·         2,032.8 miles in Maryland; and,

·         Lesser amounts in 21 other states in the District of Columbia.

In denying the Claimant’s Claim Petition, the WCJ found the testimony of the Employer witnesses to be “competent, credible, and worthy of belief,” with their testimony being accepted as to the Employer’s policies and procedures in recruiting, testing, and hiring drivers for employment.

Reviewing the evidence of record, the WCJ, found that the Claimant had sustained a work injury in the course of his employment in New Jersey, although the Claimant was working under a contract of hire entered into in Ohio, and that the Claimant and Boyd Brothers had agreed, under the WC Agreement, that the Claimant was provisionally hired in Alabama, and that his employment was principally localized in Alabama, with the WCJ holding that he was “constrained to find as fact that Claimant’s employment was principally localized in the State of Alabama,” for purposes of determining the Claimant’s eligibility for worker’s compensation benefits under the Pennsylvania Workers’ Compensation Act.

So holding, the WCJ concluded that he lacked jurisdiction over the Claimant’s Claim Petition, denying and dismissing the Claim Petition on jurisdictional grounds. 

The WCJ’s decision was affirmed by the Appeal Board, with the Claimant appealing to the, Commonwealth Court, in the course of which the Claimant argued that his employment was principally localized in Pennsylvania, because he lived in Pennsylvania, and because he worked in Pennsylvania more than in any other state. 

He also argued that the WC Agreement’s choice of law provision was unenforceable, with the Claimant alleging that it violated public policy.

Not to be outdone with speechless arguments, the Claimant also argued that Section 305.2(d)(5)(d) the Act, dealing with extraterritorial jurisdiction over workers’ compensation claims, was unconstitutional, and that the provision violated the Full Faith and Credit Clause of Article IV of the U.S. Constitution.

Addressing the appellate arguments raised by the Claimant, the Commonwealth Court, in an opinion authored by Judge Simpson, noted that the issue of whether employment is “principally localized,” in this or another state, is dependent on:

“(i)  if it was his employer’s place of business in this or such other state and he regularly works at or from such place of business, or (ii) having worked at or from such place of business, his duties have required him to go outside of the State not over one year, or (iii) If clauses (1) and (2) foregoing are not applicable, he is domiciled and spends a substantial part of his working time in the service of his employer in this or such other state.”

Section 305.2(d)(4).

Seeking benefits under this Section of the Act, a Claimant must show that he worked from Pennsylvania “as a rule, not as the exception,” in order to establish that employment is principally localized in Pennsylvania. Atkins v. WCAP, 651 A.2d 694 (Pa. Cmwlth. 1994).

Arguing that his employment was principally localized in Pennsylvania under clause (iii) of Section 305.2(d)(4), the Claimant argued that he spent a substantial part of his working time for Boyd Brothers in Pennsylvania.

In support of that argument, he argued that he maintained his trusty truck in Pennsylvania, and that he was occasionally dispatched by Boyd Brothers from his home in Pennsylvania. 

“Would it save you a lot of time if I just gave up and went mad now?” Hitchhiker’s Guide to the Galaxy.

Contrary to Claimant’s arguments, the Commonwealth Court held that the Claimant’s evidence did not support findings that the Claimant spent “a substantial part of his working time” in Pennsylvania, as the Commonwealth Court drew a pie chart, based on the WCJ’s findings with regard to the Claimant’s state-specific mileage, evidencing that the Claimant only spent a fraction of his total time in miles in Pennsylvania, as his mileage in time of Pennsylvania only represented 17% of his total time driving as a long haul truck driver for Boyd Brothers. 

While the 17% was greater than any other single state, in terms of time and mileage, the Commonwealth Court did not conclude that the Claimant spent a “substantial part of his working time” in Pennsylvania, holding that the Claimant, comparatively speaking, only spent a relatively small percentage of his time in Pennsylvania compared to some of the other high totaling states, such as Virginia and Ohio.

Stating otherwise, the Commonwealth Court held that the Claimant did not work from Pennsylvania “as a rule”, such that the WCJ did not err in concluding that Claimant’s employment was not “principally localized” in Pennsylvania.

Further arguing that the WC Agreement constituted a waiver of his statutory rights under the Pennsylvania Workers’ Compensation Act, which will not permit an agreement between an employer and an employee to diminish the applicability of the act, or to limit a Claimant’s entitlement to workers’ compensation benefits, the Claimant argued that the WC Agreement violated public policy, being the humanitarian objectives of the Act, and that it was unenforceable as a matter of law.

Eviscerating the Claimant’s public policy argument, the Commonwealth Court held that when an injury occurs outside the territorial limits of Pennsylvania, as was the case inWatt, such an agreement between an employee and employer is enforceable, provided the parties agree that the employment is, as the Claimant and Boyd Brothers had agreed, was principally localized in a state other than Pennsylvania in the course of entering into such an agreement as to jurisdiction.

As for the enforceability and constitutionality of the WC Agreement, the Commonwealth Court held that there is a distinct difference between claims involving injuries that occur in Pennsylvania, and claims that involve injuries occurring in other states, as Pennsylvania typically does not allow the parties to “overcome the Act’s coverage pertaining to a subsequent, in-state injury,” through the use of a choice-of-law agreement, when an employee’s job duties require interstate travel. McIlvaine Trucking Company v. WCAB, 810 A.2d 1280 (Pa. 2002); Neff, Inc. v. WCAP, 624 A2d 727 (Pa. Cmwlth. 1993).

Holding that the WC Agreement did not abridge the Claimant’s rights under the Pennsylvania Workers’ Compensation Act, or otherwise violate public policy, the Court held that the WC Agreement must be given full force and effect, and that the WCJ had not erred in relying upon the WC Agreement, in finding that the Claimant’s employment was, in fact, principally localized in Alabama.

With the Claimant arguing that Section 305.2(d)(5) of the Act was unconstitutional, claiming that it violated the Full Faith and Credit Clause of the U.S. Constitution, the Commonwealth Court dismissed the Claimant’s constitutional argument, finding that the Employer’s corporate headquarters and principal place of business in Alabama constituted sufficiently significant contacts that application of Alabama law to the Claimant’s workers’ compensation claim was neither unfair nor unexpected, particularly when the  Claimant’s employment was not principally localized in Pennsylvania, and the Claimant’s injury had not occurred in Pennsylvania.

For those reasons, the Commonwealth Court found that there was no constitutional problem with the parties haven chosen that the workers’ compensation laws of Alabama would govern the Claimant’s workers’ compensation claim, as opposed to Pennsylvania law.

Dismissing Claimant’s appeal, the Commonwealth Court held the Claimant was not entitled to benefits in Pennsylvania for an extraterritorial injury, as the Claimant had been unable to prove that his employment was principally localized in Pennsylvania. 

His appeal was also denied on grounds that the WC Agreement determined that the Claimant’s employment was principally localized in Alabama, and that the WC Agreement was in full conformity and compliance with Section 305.2(d)(5) of the Act, and was not violative of public policy.

Moreover, the constitutional argument advanced by the Claimant was rejected by the Commonwealth Court, finding that the WCJ had given the WC Agreement full force and effect, in determining that Pennsylvania lacked jurisdiction over the Claimant’s workers’ compensation claim.

“Time is an illusion.  Lunchtime doubly so.”  Hitchhiker’s Guide to the Galaxy;highly recommended for existential orientation by the undersigned.

What are our takeaways from this case?

First, given the mobility of the trucking and logistics industries, routinely crossing state lines, agreements between employers and employees, as to where the employment is “principally localized,” can be enforceable, under Pennsylvania law, so long as the employee is not injured in Pennsylvania, as, in that instance, Pennsylvania will assert jurisdiction over a workers’ compensation claim.

Another takeaway is that such jurisdictional agreements will survive challenges as to enforceability and constitutionality, absent a different ruling by the Pennsylvania Supreme Court, with it being anticipated that the Supreme Court will affirm the Commonwealth Court, in the course of denying any appeal that might be taken by the Claimant in this matter.

“For a moment, nothing happened.  Then, after a second or so, nothing continued to happen,” our final citation from Hitchhiker’s Guide.

ConnorsO’Dell, 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 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 NWCDN 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.

Candace H. Seaman, Deceased, By Paul J. Seaman, Her Husband, Individually and as Administrator of the Estate of Candace H. Seaman, v. Burgess Health Center and Farm Bureau Mutual Insurance Company, Court of Appeals of Iowa, No. 14-1385

Claimant, Candace Seaman, was employed by Burgess Health Center as a mental health therapist/social worker. On January 25, 2010, Claimant was injured in a multiple vehicle car accident during the drive from her home in Sioux City to her workplace in Onawa. She died as a result of injuries sustained during the accident. Her spouse, individually and on behalf of her estate, sought workers’ compensation burial expense and death benefits. The agency found Claimant’s death did not arise out of and in the course of her employment and denied the claim. The district court affirmed the agency’s decision.

Under the going-and-coming rule, “absent special circumstances, injuries occurring off the employer’s premises while the employee is on the way to or from work are not compensable.”Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 150 (Iowa 1996).  There are several exceptions to the going-and-coming rule that Claimant contends apply here. The claimant first contends Claimant was performing a special errand for Burgess at the time of her car accident. The claimant also contends the dual purpose exception applies to Claimant’s accident. The claimant argues the special errand or dual purpose of Claimant’s travel to work on the morning of her accident was the need to deliver her completed patient reports to Burgess. In support of the contention, the claimant argues the reports were time-sensitive and Claimant would be subject to discipline if she failed to deliver the reports. 

The Court of Appeals rejects this contention, noting there is no evidence in the record to support it. The agency found “there [was] no factual basis in this record to find that claimant was on a special errand at the time of her accident and death on Interstate 29 while driving from her home to her place of employment.” The agency found there was not a dual purpose for Claimant’s travel. The agency found the reports were not due that day. The evidence showed Claimant would not have suffered any adverse consequences if she failed to deliver the reports to her employer that day. The claimant admits the employer did not require Claimant to report to work that day. The Court of Appeals thus finds the agency’s findings are supported by substantial evidence and its conclusions are not irrational, illogical, or wholly unjustifiable. 

The claimant also contends a third exception to the going and coming rule is applicable here: the second business situs exception. The exception recognizes that some travel to and from an employee’s home to the workplace may arise in the course of employment where the employee’s home serves a secondary office.

The Court of Appeals rejects this contention as well. Claimant did some work at home in the evenings to complete her reports. Her employer did have a telephonic dictation system, which would allow Claimant to dictate her notes from anywhere, including her office at Burgess or at her home. The record is clear, however, that Claimant’s home was not a dedicated office space or secondary office space. Claimant never saw clients at her home. Further, Burgess never specifically directed her to work from home. The employer did not expect her to work from home and did not provide compensation for her work at home. The employer did not pay mileage or other expenses associated with Claimant’s commute. Burgess did not provide her with any equipment for her home. The agency concluded: “Catching up on occasional work at home or completing tasks at home that could be completed at the employer’s premises is an insufficient basis to find that claimant had dual employment premises.” The Court of appeals thus finds the agency’s findings are supported by substantial evidence and its conclusions are not irrational, illogical, or wholly unjustifiable. The District Court judgement is affirmed.

Charles C. Mullen and Julie L. Mullen, Administrators of the Brandon Mullen Estate, v. Steven Grettenberg, Court of Appeals of Iowa, No. 14-1699

Claimant, Brandon Mullen, was an employee of Steven Grettenberg, the sole proprietor of Grettenberg Farms, Ltd. Claimant was emptying a grain bin when he became trapped inside and suffocated. Grettenberg was working in the vicinity of the accident.

Charles and Julie Mullen, administrators of Claimant’s estate, sued Grettenberg for damages, alleging he engaged in grossly negligent conduct under Iowa Code section 85.20(2) as Claimant’s “supervisor” and “co-employee.” Grettenberg moved for summary judgment. He argued he was Claimant’s employer rather than his co-employee and, accordingly, the estate’s exclusive means of redress was under the workers’ compensation statute. The district court agreed with Grettenberg. The court stated:

"In this case, the Defendant is a sole proprietor who also worked alongside his employees. As yet, there is no Iowa authority which states that a sole proprietor who works alongside his employees should be deemed a co-employee for purposes of Iowa Code section 85.20."

The court also rejected an equal protection argument raised by the estate.

On appeal, the estate reiterates that Grettenberg should have been deemed a co-employee under section 85.20(2) and again raises an equal protection challenge to the court’s interpretation of the statute.

The Court of Appeals first points out that if a court “finds that a defendant is the plaintiff’s employer, then the court has no subject matter jurisdiction over a section 85.20 gross negligence suit against that defendant.”Henrich v. Lorenz, 448 N.W.2d 327, 331 (Iowa 1989). The estate admitted Grettenberg was Claimant’s employer. Accordingly, the district court lacked subject matter jurisdiction. Further, the Court of Appeals notes that case precedent forecloses the possibility of Grettenberg being “deemed” an employee. See Horsman v. Wahl, 551 N.W.2d 619, 621 (Iowa 1996);Crees v. Chiles, 437 N.W.2d 249, 252 (Iowa Ct. App. 1988); Carlson v. Carlson, 346 N.W.2d 525 (Iowa 1984).

The estate also makes an equal protection claim, arguing the differential treatment of employees of sole proprietors and employees of other business entities bears “no reasonable relation to the purposes of the act.” However, the Court of Appeals recognizes that the act itself makes no distinction between these types of employees. As Grettenberg points out, the act differentiates between employers and employees, not between employees. Most employers pay for qualifying compensable injuries through the statutory workers’ compensation system, whereas employees who injure co-employees through gross negligence, pay through common law negligence actions. Claimant was foreclosed from suing Grettenberg if Grettenberg was Claimant’s employer, whatever statutory form the employer assumed. Accordingly, the equal protection clauses were not implicated.

The Court of Appeals thus affirms the District Court’s dismissal of the estate’s petition for lack of subject matter jurisdiction. 

Premium Transportation Staffing, Inc. and Dallas National Insurance Co., v. Alan Bowers, Court of Appeals of Iowa, File No: 15-0378.

In an arbitration decision, the deputy commissioner found Claimant, Alan Bowers, carried his burden of proving he sustained a permanent injury to his low back as a result of a work injury in 2011 and that he was permanently and totally disabled. In its decision, the deputy specifically gave greater weight to the opinions of Dr. Sedlacek, a treating physician, and Dr. Mathew, an examining physician. The deputy concluded “the greater weight of the medical evidence indicates claimant’s work injury of October 17, 2011, caused claimant’s current low back and coccyx pain, and resulted in permanent impairment.” Again, giving greater weight to the opinions of Drs. Sedlacek and Mathew, the deputy concluded the “[c]laimant’s credible testimony also clearly demonstrates ongoing permanent disability.”

The deputy noted that Claimant’s testimony “that he spent only $12.00 per day for food and expenses and kept the remainder of the $52.00 per diem as compensation is uncontroverted in the record.” The deputy concluded Claimant showed by a preponderance of the evidence that only a portion of his per diem was reimbursement for expenses, and that the appellants did not carry their burden of proof to show otherwise. Finding that $12.00 of Claimant’s per diem payment was an expense allowance under Iowa Code section 85.61(3), the deputy commissioner included the remaining $40.00 of the per diem payment in calculating the weekly rate. On intra-agency appeal, the commissioner adopted and affirmed the arbitration decision without additional comment.

The appellants filed a petition for judicial review. They asserted the commissioner’s findings with respect to whether or not Claimant sustained a permanent injury to his low back, whether Claimant was permanently and totally disabled, and whether the per diem payment should have been included in Claimant’s weekly benefit rate were not supported by substantial evidence in the record and involved an application of law to fact that was irrational, illogical, or wholly unjustifiable. The district court affirmed the commissioner’s decision.

Appellants now appeal. On appeal, they raise the same arguments to the Court of Appeals as proffered to the district court.

The Court of Appeals first notes that its review of final agency action is “severely circumscribed,” and it is obliged to accept the factual determinations made by the agency. The Court thus affirms the decision of the Iowa Workers’ Compensation Commissioner, stating:

"We have carefully reviewed the record, the briefs of the parties, and the district court’s thorough and well-reasoned ruling. The district court’s ruling identifies and considers all the issues presented. In applying the above standard-of-review precepts, and in giving the due deference we are statutorily obligated to afford the commissioner’s findings of fact, we approve of the reasons and conclusions in the district court’s ruling. Further discussion of the issues would be of no value. See Iowa Ct. R. 21.26(1)(b), (d), and (e)."

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!

This is a two part analysis of the defense of occupational disease claims in New Jersey workers’ compensation.  The first segment will focus on the proofs in occupational disease cases and why this practitioner believes that these kinds of claims will be filed increasingly in coming years.  The second segment will focus on how employers can win occupational disease claims.

After the New Jersey Workers’ Compensation Act was reformed in 1979, occupational disease was defined in such a way that there are really four proofs that a claimant must make to prevail in compensation court, and language was inserted in N.J.S.A. 34:15-31 which provided some level of protection for employers.  While some practitioners believe it is easier for a claimant to win an occupational disease claim than a traumatic claim, this argument ignores the fact that there are additional proofs in an occupational claim that do not exist in a traumatic claim.

Both types of claims must satisfy the following two standards:

1)      An occupational disease as well as a traumatic injury must arise out of the employment;

2)      An occupational disease as well as a traumatic injury must occur during the course of employment;

3)      However, in an occupational disease claim, the claimant must also prove that the illness was produced by causes which are characteristic of or peculiar to the trade, occupation, or place of employment.

4)      Further, the claimant must show that work contributed in a material degree (not a minor degree) to the illness.

The statute also says, “Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process thereof is not compensable.”  If an employer can prove the condition is due to the natural aging process, the employer wins.

After the 1979 Amendments took place, employers began to test the new provisions of the law in response to an enormous number of occupational respiratory claims filed in the 1980s.  These claims were often filed by pipefitters or shipyard workers and generally involved exposure to asbestos, leading to a variety of asbestos-related diseases.  By the mid-1980s into the late 1990s, firefighters, police officers and factory workers around the state began to file thousands of occupational respiratory claims.  These respiratory claims constituted the single largest group of occupational disease claims in the Division of Workers’ Compensation at this point in time. 

Employers began to litigate these respiratory cases in the 1990s leading to fairly strong case law for respondents, particularly Laffey v. City of Jersey City, 289 N.J. Super. 292 (App. Div.), certif. denied, 146 N.J. 500 (1996).  Laffey stressed that courts should not focus just on the petitioner’s own description of the work environment as dusty and dirty, but on evidence of articles, treatises, and medical studies that prove a link between exposure to fumes and dust to complaints of shortness of breath and coughing.  Employers began to win a high percentage of trials, and the volume of such claims declined because the science often was not there to support the claim.

The next big wave of occupational claims occurred in the 1990s with occupational carpal tunnel claims.  These claims have also recently tailed off in volume for different reasons:  first, ergonomic changes in the workplace have created safer work environments for those who use their hands throughout the day.  Secondly, the New Jersey Workers’ Compensation Act continues to undervalue hand injury claims such that a hand injury is worth 2.45 weeks per percentage while an injury to the trunk is worth 6 weeks per percentage.  

The single most devastating case to occupational carpal tunnel claims was Huntoon v. Borough of Clementon, No. A-0956-09T3 (App. Div. July 28, 2010).  That case barred the claim of a clerical worker who filed a claim petition in 2007 alleging carpal tunnel syndrome from continuing typing and paper work.  The respondent’s attorney obtained prior family doctor records which showed in 2004 that petitioner already had a diagnosis of carpal tunnel syndrome. Even though she continued to allege exposures contributing to her illness through 2007, the Judge of Compensation held that the claim petition was time barred because petitioner did not file within two years from when she knew her condition and thought it was work related.  The Appellate Division affirmed. Because of this case, the statute of limitations remains a powerful defense to many occupational disease claims.

Enter the most recent wave of occupational disease claims, which began to form in the past five years.  Some law firms began fairly recently to market occupational disease claims or repetitive stress injuries through print and radio spots, specifically targeting older workers who may have problems with their shoulders, spine, legs and arms. These claims involve allegations that such medical conditions are a result of decades of repetitive work activities.  Prior to 2010, these claims had been occasionally filed in New Jersey but in recent years, the filings are dramatically increasing.  Clever law firms have recognized that employees are working later in life and longer than in the past. The so-called aging workforce is an enormous market in New Jersey and in other states for occupational disease claims of the upper extremities and spine.  This trend is here to stay for economic reasons: folks are working later and longer because they have to in order to survive.  One can expect that occupational disease claims for upper extremities and the spine will constitute an ever rising percentage of formal petitions in the coming years.

What is the main weapon that claimants use to advance occupational claims for the shoulder, spine, arms and legs?  It is the MRI.  The MRI study has probably cost employers nationally in workers’ compensation billions of dollars over the years because employers inevitably end up paying for normal age-related changes. The MRI is a study which provides a fairly accurate and clear picture of the body part:  a partial or full tear, a herniated disc, a torn meniscus or ligament, etc.  But it cannot date the finding or indicate whether the finding on MRI is age related or is the result of years of repetitive physical activity, whether at work or in the gym.  As Dr. Kenneth Peacock has said, “One can look at an oak tree and know that it did not spring up overnight.”  That is true, and employers know intuitively that they are often being asked to pay for normal age related changes on MRI, but the problem is that there is no medical science that can clarify when and why certain abnormalities are found in joints or disc spaces. One cannot simply argue to a judge of compensation that every bulging disc is preexisting and unrelated to physical exertion. Costs also limit the ability of respondents to counter a positive MRI.  For example, seldom does a doctor treating a right shoulder claim for a partial tear order an MRI of the asymptomatic left shoulder to compare the findings in the shoulders.  If this were done, one would often find that both shoulders have identical partial tears due to aging.  But this would be expensive and problematic.

So how does a doctor tell the difference between a joint problem that is caused by a worker who repetitively does a physical task and a joint problem that is caused by the natural aging process? If technology cannot solve the problem, then defense counsel must step in with the help of strong expert witnesses who can provide good medical literature and studies.  Discovery is crucial for employers, and it remains this practitioner’s belief that employers can win occupational disease cases only if they perform aggressive prior discovery.  In the next segment, the focus will be on the steps employers must take to successfully defend such cases, beginning with getting prior family doctor records from as far back as possible.  Without such records it is next to impossible to determine whether the medical condition is preexisting or produced by non-work activities or age-related changes.  Defending occupational disease claims without prior discovery is like picking horses at the race track based on names: you will only win by accident.

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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.