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On December 15, 2016, a decision following trial in New Jersey was handed down on the question of whether medical marijuana can be ordered under workers’ compensation. Petitioner Andrew Watson worked for 84 Lumber and was injured on November 6, 2008. He received an award of one third of partial total in 2012 apportioned 50% of the hand and 12.5% for complex regional pain syndrome (CRPS). The terms of the settlement required respondent to approve ongoing pain management treatment with Dr. Peter Corda. Petitioner received prescriptions on a monthly basis, including 120 Endocet/Oxycodone tablets as well as other pain medications such as Ibuprofen 800mg and lidocaine patches.
In late 2013 petitioner consulted with Dr. Corda about participating in New Jersey’s medicinal marijuana program (MMP). Dr. Corda referred petitioner to his partner, Dr. Jeffrey Drew Polcer, who possessed the required credentials to do medical marijuana evaluations. Petitioner saw Dr. Polcer and complained of burning pain and swelling in his left hand with extreme sensitivity to light touch. He said that his narcotic medications were not providing him with sufficient relief. Petitioner admitted to Dr. Polcer that he had experimented with marijuana and obtained a significant reduction in pain.
Dr. Polcer diagnosed petitioner with neuropathic and complex regional pain syndrome of the left hand and recommended petitioner for medicinal marijuana. He noted that neuropathic pain is one of the better indications for medicinal marijuana. He further said that if successful with medicinal marijuana, petitioner should lower his use of narcotics.
The New Jersey Department of Health issued an Attending Physician Statement to the Petitioner which authorized petitioner to register for the MMP and purchase one ounce of marijuana per month for three consecutive months. Petitioner received his Patient Registration Card and then used the card to purchase medicinal marijuana at authorized dispensaries, making his first purchase on March 28, 2014. Petitioner submitted the invoices and proof of cash payments to the respondent’s carrier for reimbursement, but the carrier denied reimbursement.
Petitioner filed an Emergent Motion to Enforce the terms of the Order Approving Settlement from 2012. The respondent disputed Dr. Corda’s referral to his partner and contended Dr. Polcer was not an authorized physician. Respondent also withdrew authorization of Dr. Corda in favor of Dr. Morris Antebi, who was asked to perform an IME of petitioner.
The Judge of Compensation, the Honorable Ingrid L. French, A.S.J.W.C., preliminarily entered an order requiring respondent to reinstate authorization of Dr. Peter Corda for pain management. Trial then ensued on the central issue regarding medical marijuana as curative treatment.
Drs. Corda and Polcer refused to testify at trial because they had ongoing business relationships with the respondent’s third party administrator. Instead, petitioner offered the testimony of Dr. Edward Tobe, Board Certified in Neurology and Psychiatry. Respondent had petitioner examined by Dr. Morris Antebi, whose report supported the position of respondent. However, Dr. Antebi also refused to testify and therefore his report was excluded from evidence. Respondent tried to offer into evidence three explanatory letters written by Dr. Corda to the third party administrator in response to a request for explanation on his initial referral and Dr. Polcer’s recommendations. These three letters were written subsequent to Dr. Corda’s initial referral to Dr. Polcer for the MMP and tended to undercut Dr. Corda’s initial position in the case, but the trial judge would not allow these reports to go into evidence without Dr. Corda’s testimony, which he refused to provide.
Dr. Tobe testified that Dr. Polcer’s plan to begin a course of medicinal marijuana was medically appropriate. He added that this plan made particular sense since it would lead to a reduction in the use of opiates. Dr. Tobe discussed the risks in using Percocet (oxycodone) in respect to kidney and liver function. He said narcotics impact alertness, concentration, memory, and cognitive function, potentially causing emotional detachment. In addition, possible side effects are loss of teeth, blurred vision, constipation, urinary retention and cardiac problems.
Concerning medical marijuana, Dr. Tobe said that the medicinal version is not tainted with contaminants that street marijuana might contain. He said that one is less likely to have cravings with the medicinal product. He did not agree that medicinal marijuana is a gateway drug, although he did admit that marijuana can have similar side effects as opiates in respect to withdrawal, impaired concentration and loss of memory. In his view, medicinal marijuana offers promising prospects as a pain management modality.
Based primarily on the testimony of Dr. Tobe, Judge French found that petitioner’s trial use of medical marijuana was medically warranted. She concluded, “While the Court is sensitive to the controversy surrounding the medicinal use of marijuana, whether or not it should be prescribed for a patient in a state where it is legal to prescribe it, is a medical decision that is within the boundaries of the laws in the State of New Jersey. In this case, there is no dispute that all of the credible evidence presented confirms that this Petitioner is an appropriate candidate for New Jersey’s medical marijuana program.”
An equally significant aspect of this case had to do with respondent’s challenge to the referral by Dr. Corda to Dr. Polcer. The judge focused on the issue of whether a respondent has a right to object to a referral from the authorized doctor to another physician. “Whether it is a second opinion directed by a Respondent/Carrier or a referral to an alternative specialty directed by an authorized doctor, this Court interprets the statutory language as requiring an analysis that focuses on whether the referral is in the best interest of the injured worker.”
The Court acknowledged that Dr. Corda failed to discuss his recommendation of Dr. Polcer with the respondent/carrier or obtain pre-approval for the referral. “Medical experts must be given sufficient latitude in directing the care of an injured worker. Here, the Court will not allow the respondent to deny authorization of a treatment, which has now proven to be beneficial to the Petitioner, simply because the doctor did not allow the Respondent an opportunity to second guess his medical opinion.”
The Judge entered an order requiring respondent to pay for the costs of the medical marijuana program and prescriptions and ordered respondent to authorize either Dr. Corda (who since became licensed to participate in the MMP) or Dr. Polcer for petitioner’s ongoing participation in New Jersey’s MMP.
This case is not binding on other courts because it is a Division level decision. Nonetheless, this decision will be studied by other judges and practitioners given that there are few trial decisions in New Jersey on the use of medicinal marijuana for workers’ compensation treatment. Respondent could not prevail in this case because defense counsel never offered any expert testimony to rebut the opinions of Dr. Tobe. The failure to produce expert testimony put respondent at an impossible disadvantage and all but guaranteed that Dr. Tobe’s testimony would carry the day on the issue of the reasonableness and necessity of medical marijuana. Based on the evidence presented, the Judge of Compensation made the only decision she could make. The most compelling evidence in favor of petitioner was that the use of medical marijuana would decrease the use of narcotics.
This case is also extremely useful in dealing with an often litigated issue of whether respondent is bound by a referral from the authorized doctor to another physician. The 2012 court order in this case only referred to treatment by Dr. Corda. Interestingly, the Court did not focus on the basic rule of agency, namely that a principal is bound by the actions of his or her agent. Rather, the Court addressed the rule in Benson v. Coca Cola to the effect that the Court can make a retroactive analysis of the alleged “unauthorized treatment” to determine whether the treatment should be ordered. The rule under Benson is that if the treatment proves helpful, that fact would strongly favor a conclusion that respondent must pay for it. In this case, the only evidence presented at trial (Dr. Tobe’s testimony) supported petitioner’s position that medical marijuana helped relieve petitioner’s pain levels.
Practitioners who are interested in this case can email the undersigned for a copy of the opinion.
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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.
There are a number of misconceptions about the rules on independent medical examinations. Several provisions in the New Jersey Workers’ Compensation Act are helpful in clarifying these misconceptions:
§ Misconception One: An employer must set up an IME in the county where the employee resides. Section 19 states that an IME may be arranged at any reasonable location within the state. There is no limitation to the employee’s county of residence.
§ Misconception Two: An employee may have his lawyer present during the examination. Section 19 states than an employee only has the right to have his or her personal physician present.
§ Misconception Three: An employee may apply for mileage for travel to an IME. There is no statute or rule in New Jersey which requires that employers pay mileage for IMEs, even to those who travel from out of state back to New Jersey.
§ Misconception Four: An employee cannot object to an IME performed by a physician of the opposite sex. Section 68 states that where a physical examination is taking place, an employee may request an exam by a physician of the same sex. If such a request is made, the statute says that the employer “shall” comply.
§ Misconception Five: An employer is limited to only one IME during the case. Section 19 states that an employee may be required to attend an examination “as often as may be reasonably requested.”
§ Misconception Six: An employee is entitled to one missed IME before benefits are stopped. Section 19 states that during the period that the employee refuses to participate in attending examinations, the employer can terminate all workers’ compensation benefits.
§ Misconception Seven: An employer can make a voluntary offer within 26 weeks of MMI or return to work but the percentage of the offer must correspond to the estimate of the defense IME. Case law makes clear that an employer is not required to limit the bona fide or voluntary offer to the same percentage as respondent’s IME. In fact, there is no requirement at all that an IME be done for an employer to make a voluntary offer of partial permanent disability.
§ Misconception Eight: After an IME, the physician must provide a copy of the report to the injured worker. The rules of the New Jersey Medical Society make clear that there is a difference between a patient and an examinee. An independent medical examination occurs when there is no expectation of treatment and therefore no doctor/patient relationship. In that case, the injured worker is an examinee, not a patient, and has no right to a copy of the report that the defense IME expert prepares for the employer or carrier. The report is the property of the employer/carrier. During litigation of a formal claim petition, the parties must exchange independent medical exams at the pretrial stage of the case.
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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.
Fitness for duty examinations must meet a standard of being job related and consistent with business necessity. If the employer does not have enough to meet this standard, the employer may be sued for discrimination under the ADA for improperly requiring a fitness examination. The employer in Painter v. Illinois Department of Transportation, 2016 U.S. Dist. LEXIS 94940 (D. Ill. July 21, 2016) addressed the issue of meeting the job-related standard by obtaining detailed statements from co-employees supporting the need for a fitness examination.
Deanna Painter was assigned to a position of Office Administrator at Traffic Safety, which was part of a division of the Illinois Department of Transportation (IDOT). The initial problem concerned an incident involving plaintiff and a co-worker where plaintiff loudly accused the co-worker of prank calling her in the Spring of 2011. Plaintiff was put on administrative leave at that time. An investigation of this incident led to other employees preparing written statements regarding what they witnessed. These statements were given to the IDOT fit-for-duty physician, Dr. Fletcher, who then made a decision whether there was a basis for a fitness examination.
Dr. Fletcher read the statements and determined that a fitness exam was needed. He found plaintiff fit for duty but recommended a reevaluation in 45 days. Around the same time, other employees surfaced and described other incidents involving plaintiff. Seven more employees wrote statements, describing how the plaintiff would have frequent outbursts and would walk around the office while talking to herself. Some expressed fears for their own safety. Two or three employees insisted on being escorted by security guards to their cars at the end of the day because they feared that plaintiff would approach them in the parking lot while she was on leave.
Interestingly, plaintiff admitted in her deposition that she had issues with 11 employees in the Traffic Safety area. The statements from this new group of employees were given to Dr. Fletcher, who again saw plaintiff for a fitness examination but recommended that she see a psychologist, Dr. Karen Lee. After seeing plaintiff, Dr. Lee decided to take plaintiff as her personal patient, thereby creating a conflict of interest and preventing her from informing the employer of her views.
On September 26, 2011, plaintiff returned to work but in the Day Labor division of IDOT as an office administrator. Her supervisor noticed that she was making logs of actions of co-employees and conversations with co-employees and reprimanded her for this. Plaintiff said that she was creating the logs in order to document everything so that she could figure out why she had been placed on leave. Her supervisor pointed out that none of the people in Day Labor had been involved in her situation in Traffic Safety.
Her new co-workers began to complain about plaintiff’s behavior. Her supervisor also complained that she was sending him emails in the middle of the night that were nonsensical. Plaintiff was again put on administrative leave on November 23, 2011. Two employees prepared statements that said they feared for their safety. Plaintiff again went for a fitness exam and was again authorized to return to work. After returning to work, plaintiff sent an email to her union representative stating: “for the record, the clock in the small conference room being set to 4:30 PM when it was only 4:00 PM – that is a tell-tale sign for me. It told me everything I needed to know. Thanks.” Plaintiff included a smiley-face emoticon with this email. The union rep responded that he did not understand the reference and thought the battery was dead. Plaintiff responded, “Something’s dead alright – however, I prefer to be ‘a lady’ and not say what I think is dead.” This email was treated by IDOT and the Illinois State Police as a threat.
Plaintiff was again placed on administrative leave and sent for a fitness examination. This time she was found to be psychiatrically unfit for duty as a result of paranoid thinking. Plaintiff’s own psychiatrist disputed this finding. Plaintiff sued and alleged that she was improperly required to attend fitness examinations. She later became employed with the Illinois Department of Human Services.
The federal court ruled for the employer stating that there was ample reason to require the fitness examinations: “The record establishes that prior to each leave and subsequent exam, multiple employees raised concerns about the Plaintiff’s behavior in the workplace. A number of employees felt unsafe around the Plaintiff. Certain employees did not want to be alone around her and some were afraid to walk to their cars at night. The Plaintiff shouted at her co-workers, talked in a fast-paced manner and talked to herself at times. The Plaintiff’s supervisors considered the employees’ statements and their own interactions before determining that Plaintiff was a security risk to the other employees.”
The case is interesting because it shows how careful the employer in this case was in documenting the basis for the fitness examination. The care which the employer took was clearly warranted, and the result was that the employer easily defeated plaintiff’s ADA law suit.
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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.
Derrick Dillard injured his back and shoulder in a work-related car accident in March 2011. He was unable to perform his previous duties as a Street and Drainage Maintenance Senior for the City of Austin, Texas. He took FMLA leave and then placed in the City Return to Work Program, which was designed to help employees like Dillard find alternative work for a maximum of 180 days in a year.
Dillard exited the Return to Work Program in January 2012. During the entire period he was enrolled in the program, the City was unable to place him in any position because he remained on a “no duty status.” The City continued to allow him to remain on leave. Between late January and late April 2012, Dillard was released by his doctors to perform “limited duty” or “administrative duty” work. The City offered him “administrative work” from May through October 2012.
Dillard lacked the three years of clerical or secretarial experience for an administrative assistant position, so the City offered him on-the-job typing and computer training. Dillard’s supervisor testified that she repeatedly told Dillard to complete more training and showed him how to sign up for more training, but Dillard did not do so. He was found playing computer games, surfing the internet, sleeping, making personal calls or looking for other positions while he was supposed to be training. He missed work without proper notice, came late and left early, and lied about his time. He attended work only 74% of the time over a 21-week period. The City gave him an unsatisfactory rating.
For his part Dillard admitted that his lack of typing skills made it impossible for him to complete the one assignment he was given. He asked Human Resources to give him another position. Meanwhile, Dillard’s doctors were increasing his capacity to perform certain lifting and physical activities. The City scheduled him for a pre-termination meeting based on his poor performance while on administrative duty. The Director noted that Dillard was unapologetic for his inappropriate behavior and admitted that comments about his poor performance were accurate. The City fired Dillard on October 26, 2012.
Dillard sued for discrimination under the ADA and argued that the City should have considered him for vacancies across all departments, not just the Public Works Department, once it became obvious that he lacked the skills of an administrative assistant. The lower court disagreed and noted that the breakdown in the interactive process was caused by Dillard’s failure to make a good faith effort to make the administrative position work.
The Fifth Circuit Court of Appeals held that the City did not fire Dillard because of any disability but because he was frequently late, used work time to play games, and failed to take advantage of training opportunities. The Court conceded that the City had a duty to make reasonable accommodation and engage in the interactive process. “Dillard’s position neglects that the interactive process is a two-way street; it requires that employer and employee work together, in good faith, to ascertain a reasonable accommodation.” The Court said that the City made a reasonable accommodation with the administrative assistant position. “At this point, the ball was in his court; it was up to him to make an honest effort to learn and carry out the duties of his new job with the help of the training the City offered him.” The Court felt it was pivotal that the City offered him training which Dillard neglected.
The case can be found at Dillard v. City of Austin, Texas, 837 F.3d 557 (5th Cir. 2016). It is an interesting case because there are so few published cases where the plaintiff is fired while on alternative duty and while performing inadequately during alternative duty. Clearly the case’s reasoning makes sense: when an employee’s job performance is grossly sub-par during alternative duty, and where the employee does not take advantage of offered accommodations, the employee has no argument that his termination is a violation of the ADA.
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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.
Diana Vernacchia worked as a housekeeper for Warren Hospital performing vacuuming and cleaning duties in the radiology department and hallways, dusting and cleaning the x-ray machines and diagnostic devices, and lifting and discarding biohazardous waste and linen bags weighing an average of 50 pounds each. She filed an occupational disease claim alleging that she developed neurological problems with her left ankle, ganglion cysts, plantar fasciitis in both feet, lower back pain and fibromyalgia from her work duties. Vernacchia also filed a claim saying that she was shocked while using the vacuum cleaner, which caused and aggravated similar injuries.
Petitioner produced two doctors on her behalf. Dr. Maio, an expert in general surgery, testified that she examined petitioner four times. She diagnosed various injuries including ankle sprains, disc bulges in her low back, and sprains of her knees and ankles. She said that repetitive micro-trauma and movements caused her injuries.
Dr. Waller, a primary care internal medicine practitioner, testified that her ongoing work activities caused burning sensations in her feet, stiffness in her neck and back, and tendonitis in her extremities. He diagnosed petitioner with fibromyalgia which was aggravated by work activities and by the one incident involving electric shocks from the vacuum. Both doctors conceded that petitioner had bilateral ankle pain and edema well before her employment but they contended that work duties aggravated her condition.
Respondent did not produce any medical experts. Rather, respondent made a motion to dismiss the claims based on lack of proof. The Judge of Compensation granted the hospital’s motion and entered an order of dismissal stating as follows:
Neither Dr. Maio nor Dr. Waller referred to any demonstrable objective medical evidence to support their assertions. The medical witnesses merely asserted a probable contributory work connection without medical support. I find the petitioner has failed to set forth one iota of proof regarding the compensability of her claim. I find there was no competent evidence submitted relating multiple medical problems to her employment with Warren Hospital.
The Appellate Division affirmed the dismissal of petitioner’s case even without testimony from respondent’s medical witnesses. It said that it is not enough for a medical witness to simply say something is work related without providing medical support or medical literature. The Appellate Division relied on a line of cases from the 1990s which emphasizes the importance of offering medical literature in occupational disease claims or scientific evidence establishing causation. The Court added, “Also, in this case before us, neither expert witness explained which of petitioner’s work responsibilities may have resulted in her injuries, choosing, instead, to rely upon broad and conclusory averments untethered to the facts in the case. While petitioner testified about the walking, standing, lifting and pushing associated with her employment with respondent, her expert witnesses failed to show that her injuries were a consequence of her work based upon qualitative medical support.”
There are many cases currently in the Division that contain similar vague allegations and vague diagnoses. Several firms representing claimants file claims directly along the very same lines of this case. The rationale employed by the Judge of Compensation and Appellate Division in dismissing this case is pertinent to many other similar claims in the Division. Employers can defeat such claims by arguing the well established case law in New Jersey requiring proof in an occupational claim of scientific evidence or medical literature to establish a causal link to work. For a medical expert to testify simply that a condition is work related is completely insufficient. It is always the medical and scientific explanation that is more important than the mere conclusion on causation. This case can be found at Vernacchia v. Warren Hospital, A-4634-14T1, (App. Div. October 19, 2016).
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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.
Kenneth Camp worked for 38 years for Bi-Lo, LLC., a grocery store in Tennessee, as a stock clerk. He worked with two others stocking the grocery with product each night. In March 2012 the Store Director, Mr. Gilreath, arrived at the store and noted that the three stock-shift clerks had not finished shelving all the product. He asked why not. The supervisor, Mr. Bishop, said that Camp had a bad back and the other two workers had to pitch in to help with the heavy stuff. Bishop also said that “it was hard for them to get done with Camp on restrictions.”
Since a teenager Camp suffered from scoliosis but he had always worked with this medical condition. Gilreath never knew about the back condition until March 2012. He approached Camp and told him the company was thinking of putting him on light duty. The HR Director asked Camp if he felt he could do the job. Camp said, “Yes, I can still do everything. I know what I can lift and what I can’t, and I can do all the other things except lift the real super heavy items.”
Camp was given a job description which was written in 2007, almost 30 years after Camp began working for the company, which identified lifting requirements, including being able to safely lift over 35 pounds. The job description also said he had to be able to lift at least 20 pounds constantly and 20-60 pounds frequently. On April 24, 2012 the company advised Camp he would have to take a leave of absence. He was instructed to use his remaining sick leave and vacation days, followed by short-term disability in order to reach his 62nd birthday. At that point he could retire.
Camp wanted to return to work after his short-term disability ended but the HR Director said he would have to be cleared by his doctor to lift 60 pounds. Camp’s leave was extended several times but on October 12, 2012, he was advised he would be terminated if he did not provide a fitness for duty form from his doctor. Camp requested that he be permitted to return to work as he had done for many years with his two co-workers lifting the heaviest items. The company refused this request and terminated his employment.
Camp sued and argued that the company discriminated against him on the basis of his disability. He lost at the federal court level and appealed. The issue on appeal came down to whether heavy lifting was an essential job function. Bi-Lo argued that the 35 pound lifting requirement was an essential job function. Camp and his two co-workers testified that they had never seen this 2007 job description or any other job description during their long period of employment. Bishop, who was Camp’s immediate supervisor, testified that “heavy lifting was not an essential function of Camp’s job, and Mr. Camp did his job fine.” Bishop also said that heavy lifting was only a very small part of the job. The other co-worker said the same thing. Both co-workers said that the way they worked was Camp would put items on the shelves while the other two men would carry the heavier items so there was no loss of efficiency. In essence, the two workers made accommodations for Camp’s inability to lift very heavy items.
Given this testimony, the Sixth Circuit Court of Appeals said that a supervisor’s testimony may rebut the written job description regarding what constitutes an essential function. The Court said, “This is not a case involving a firefighter, nurse, police officer or a military person where the inability to lift the ‘required’ weight could put an innocent person’s life at risk or cause ‘undue hardship’ or even endanger a colleague.” The Court said that summary judgment should not have been granted for the employer in this case because there was enough evidence for a jury to decide that the ability to lift more than 35 pounds is an essential function of the stock-clerk job. The Court further noted that the record showed Camp was meeting all job expectations, and his termination stemmed from only one incident when the crew did not get their work done on time. There was no proof by the company of any other instances where the 35 pound requirement could be shown to explain why there were delays in getting work done. “Bi-Lo has presented no evidence that accommodating Camp’s disability caused undue hardship to his coworkers.”
This case can be found at Camp v. Bi-Lo LLC, 2016 U.S. App. LEXIS 19053 (6th Cir. 2016). It is a case worth studying. When it comes to deciding what is an essential job function and what is a reasonable accommodation, this case emphasizes the importance of considering not just the written job description says but what actually happens in the workplace. It also shows how important it is to speak with supervisors on the job before making termination decisions. Ironically, in this case the plaintiff’s own supervisor turned out to be the key witness against the company.
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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.
A number of prominent Medicare experts disseminated Legal Alerts last week to the effect that changes may be occurring with respect to the requirements for CMS to approve zero allocations. These changes would spell bad news in New Jersey for employers who want to settle disputed cases on a Section 20 basis. According to Martin Cassavoy of ISO Claims Partners in his October 27, 2016 News Alert, the Workers’ Compensation Review Contractor (WCRC) has stated that CMS will soon require the following for approval of a zero allocation:
The case or the body part in question has been denied throughout the case;
There has been no medical or indemnity payment for the denied case or body part; and
There is either a finding from a hearing by the Judge of Compensation relieving the carrier of liability or a report from the treating physician recommending no future treatment.
No official enactment of these requirements has occurred to date, but if this is the new approach that CMS is going to adopt, it will be very hard for employers to obtain zero set aside allocations in New Jersey and other states. Compensation judges in New Jersey have enormous caseloads. They have not historically been actively involved in ruling on Medicare issues. If a judge now has to determine that no compensable workers’ compensation claim exists, that will create a long back-up of trials on cases that were formerly resolved simply and efficiently by way of Section 20 settlements.
Attorney Heather Schwartz Sanderson, Esq., Chief Legal Officer for Franco Signor, LLC., wrote in her Alert: “Our recommendation has always been where the workers’ compensation claim is completely denied, no medicals have been paid, and the claim is settling on a compromise basis CMS approval is not recommended.” Ms. Sanderson’s statement makes sense since Medicare would have been and would continue to be the primary payor in this situation. Her reasoning is persuasive and should be considered by employers. She argues that there should be no allocation for future medical care in the above situation.
Our office will continue to update clients if these changes are adopted by CMS. Thanks to Marita Tortorelli, Assistant Vice President of PMA Insurance Companies for bringing this issue to the undersigned’s attention.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
One of the most anachronistic aspects of New Jersey workers’ compensation law is that employers pay workers’ compensation benefits even when intoxication is a substantial cause of injury. In Diaz v. National Retail Transportation, Inc., A-3927-14T2 (App. Div. November 9, 2016), Antonio Diaz was injured moving a heavy lift which fell over on him. He admitted that prior to work on January 28, 2014, he drank at least two eight-ounce glasses of half whisky and half ice and water. Respondent’s toxicologist testified at trial that petitioner had a blood alcohol level of at least .173 percent. Had petitioner been driving, that percentage would have been more than double the legal limit.
Respondent denied the workers’ compensation claim on the basis that petitioner’s intoxication was the cause of the injury based on the expert testimony of respondent’s toxicologist. Petitioner argued that there was another factor which contributed to the injury, namely a flat tire on the lift. He said that the lift fell over when it “tilted to one side at the same moment” that he was pulling the lift. He noted that one of the tires on the lift was flat.
Respondent produced a forensic engineering expert, who testified that “a flat tire didn’t contribute in any way to this accident.” The expert did concede that a flat tire on the lift could have caused the lift to tilt to one side or the other. The expert conceded that if someone pulled the lift backwards and it had a flat tire, the lift could fall backwards “cockeyed.” The expert said, however, that the lift with a flat tire would tilt only a very small amount, only the one inch that the equipment is off the ground.
Petitioner did not offer expert testimony. Instead, petitioner filed a motion to dismiss the intoxication defense on the basis that under N.J.S.A. 34:15-7, respondent must prove that intoxication is the sole cause in order to defeat a claim. In this case the Judge of Compensation believed that both the petitioner’s intoxication and the flat tire contributed to the cause. Therefore the intoxication was not the sole cause, and petitioner prevailed.
Respondent appealed the dismissal of its intoxication defense. The Appellate Division affirmed the dismissal of the intoxication defense on the grounds that respondent failed to prove that intoxication alone caused the accident. Even if the flat tire contributed in just a small degree, that was enough to permit petitioner to recover workers’ compensation benefits.
The case underscores the onerous burden that employers must meet in New Jersey to defeat a workers’ compensation claim on the intoxication defense. In most states, if intoxication is found to be a substantial cause, that is enough to defeat the claim. In some states, merely a contributory case is enough. But in New Jersey the legislature requires the employer to prove that there was no other factor which contributed to the happening of the accident. Sole cause means sole cause, which is why there have only been a couple of reported cases over many decades where the intoxication defense succeeded.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
The Honorable Russell Wojtenko, Jr., Director and Chief Judge, issued a Memo effective October 21, 2016 to all workers’ compensation attorneys advising that the administrative rules on motions for medical and temporary disability benefits will be strictly enforced. What this means to employers, carriers, third party administrators and practitioners is that motions for medical and temporary disability benefits must be handled right away and forwarded to counsel immediately. Otherwise respondents will lose motions based solely on failure to meet certain time deadlines noted below.
The Director’s Memo cites N.J.A.C. 12:235-3.2, which says that “a respondent shall file an answer within 21 days of service of the motion or within 30 days after service of the claim petition, whichever is later.”
“The respondent’s exam shall be completed within 30 days of receipt of the motion and the report issued in not more than 35 days from receipt of the motion and shall not delay the start of the hearing of the motion except for good cause shown.”
This is not a new rule. The prior rule was amended in 2002 to state exactly what the Director has quoted above. However, the rule has been seldom enforced since 2002 primarily because it is extremely difficult for respondents to get an exam within 30 days of the filing of the motion and still harder to get a report within 35 days of the filing of the motion. Some doctors will not schedule within 60 days, much less 30 days, and it often takes a doctor 10 to 14 days to issue a report.
The Director’s memo concludes by stating, “The following requirements on motions for medical and temporary disability benefits shall be strictly enforced.” We advise that carriers and third party administrators, when served with motions for medical and temporary disability benefits, must send such motions immediately to defense counsel. An answer must be filed within 21 days, unless the motion comes with the claim petition (in which case the time is extended to 30 days). The time is running from the date the carrier, third party administrator or self-insured receives the motion. If the carrier holds the motion for 10 days without acting on it, then there remain only 11 days to file an answer, 20 days to get the defense exam and only 25 days to obtain the report.
These timelines will be extremely problematic for all respondents statewide because treating and IME doctors can seldom find scheduling slots within a few weeks and then turn around a report in a few days. Because of these somewhat unrealistic timelines established in 2002, many employers will soon lose and pay orders on cases for which there were valid defenses. All employers, carriers, third party administrators and counsel should develop reliable methods to handle motions for medical and temporary disability benefits. A motion for medical and temporary disability benefits should be treated now like a 911 call.
Practitioners should bear in mind that the Director also reminded claimants’ counsel that a valid motion must contain affidavits or certifications in support of the motion. The Memo adds that the motion should include reports of a physician, stating the medical diagnosis and the specific type of diagnostic study, referral to a specialist, or treatment sought. Motions which do not meet these requirements will be rejected. This is less onerous on petitioners and their counsel because a deficient motion can always be refiled later with adequate paperwork. But once an order is entered against respondent, the only route left to respondent is an appeal.
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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 Giordano v. High Point Insurance Company, No. A-4971-14T3 (App. Div. October 11, 2016), Michelle Giordano, an employee of High Point Insurance Company, was injured in a parking lot adjacent to a multi-tenant office building. After parking in the lot, she fell on twigs and debris, injuring her right shoulder. Her employer denied the claim based on the premises rule arguing that she was not at work until she got to the floor where her insurance company did business.
Giordano contended that High Point had 10 assigned parking spots in the lot in addition to another 12 parking spots for directors, management, and employees who won awards. There were other tenants in the building who also assigned marked parking spots to their employees. The key fact in this case was that the lease made High Point partially responsible for maintenance costs of the parking lot.
Giordano testified that High Point instructed other employees, like herself, to park in the spots that were “not marked.” High Point did enforce the marked parking spots in the parking lot. Giordano observed that there was no other on-street or off-street parking for a mile.
The Judge of Compensation found for petitioner, and the Appellate Division affirmed. The Judge also awarded petitioner 15% permanent partial disability. High Point appealed and argued that the premises rule barred recovery. The court recited the main principle in parking lot cases. “The pivotal questions under the premises rule are (1) where was the situs of the accident, and (2) did the employer have control of the property on which the accident occurred.” The Judge of Compensation noted that High Point instructed employees where to park and where not to park, and it could do so because of its responsibility under its lease.
The Appellate Division reviewed a number of leading cases in recent years on parking lot injuries. The court said that there was substantial proof that High Point had control over the parking lot. The company leased parking area in the parking lot from the landlord and for its employees and invitees. The court said that this set of facts is quite different from the Hersh v. County of Morris case where the Supreme Court found a county employee not covered for workers’ compensation purposes on the way from the parking lot to work. Here High Point controlled a fairly large number of parking spaces. The court said, “Although High Point here did not add any special hazards by having employees park in the lot, it did control where employees parked by directing them to park in the spots that were not marked.”
The only way to square this decision with the decision in Hersh, which went against the petitioner, is to focus on the partial responsibility of the employer High Point for the parking lot. The claimant here was actually not parking in the designated parking spaces but was still found to be covered for workers’ compensation purposes. The claimant in Hersh did in fact park in the designated parking space that the County provided, but the county did not own or maintain the lot in question. It just leased certain spaces for its employees. The court seems to be saying that one does not use the “special hazard” test in the Hersh case where the employer has partial responsibility for maintenance of the parking lot.
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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.