apps.americanbar.orgapps.americanbar.org/dch/thedl.cfm?filename=/il229000/newsletter...i would also...
TRANSCRIPT
Winter 2014
Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to Advance the Civil Justice System
Carbon nanotubes (CNTs) holdpromise for many beneficialapplications. However, there havebeen concerns and calls for amoratorium raised over “mountingevidence” that CNT may be the“new asbestos,”1 or at leastdeserving of “special toxicologicalattention” due to prior experienceswith asbestos.2 The shape and sizeof some agglomerated CNTs aresimilar to asbestos—the most“desirable.” And because CNTs forstructural utility are long andthin—characteristics thought toimpart increased potency to
asbestos fibers—discussions ofparallels between these twosubstances are natural. Thus, giventhe legacy of asbestos-relatedinjury and the thousands of caseslitigated each year, consideration ofpossible implications of the use ofCNTs in research and in consumerproducts is prudent.
First reported in 19913, CNTsepitomize the emerging field ofnanotechnology, defined by someas the “ability to measure, see,manipulate, and manufacturethings usually between 1 and100 nanometers.”4 CNTs are a typeof carbon-based engineerednanoparticle generally formed by
Uniting Plaintiff, Defense, Insurance, and Corporate Counsel toAdvance the Civil Justice System
Fall 2009
Toxic Torts and EnvironmentalLaw Committee
IN THIS ISSUECarbon Nanotubes: The Next Asbestos . . . . . . . . . . . . . . . . . . . . . . . 1
Editor’s Message . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tatera v. FMC Corporation: When Is A Product No A Product? . . . 3
Mexico’s National Wastes Management Program. . . . . . . . . . . . . . . 4
Environmental Risk During Restructuring And Bankruptcy . . . . . 5
Upcoming TTEL Programs And Meetings . . . . . . . . . . . . . . . . . . . . 6
Limitations Of Toxicogenomic Studies To Assess Toxic ExposuresAnd Injury From Benzene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Burlington Northern: The Requisite Intent For Arranger LiabilityUnder Cercla . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2009-2010 TIPS Calendar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Continued on page 18
CommitteeNewsCommitteeNews
CARBON NANOTUBES: THE NEXT ASBESTOS?Fionna Mowat, Exponent, [email protected] Tsuji, Exponent, [email protected]
1 Miller, G. 2008. Mounting evidence that carbonnanotubes may be the new asbestos. Friends of theEarth Australia. Available at http://nano.foe.org.au.2 The Royal Society and Royal Academy ofEngineering (RS/RAE). 2004. Nanoscience andnanotechnologies. Royal Society and Royal Associationof Engineers. London: The Royal Society. Available athttp://www.royalsoc.ac.uk/.3 Iijima, S. 1991. Helical microtubules of graphiticcarbon. Nature (London) 354:56–58.4 National Science and Technology Council (NSTC).2007. The National Nanotechnology Initiative. StrategicPlan. Washington DC: NSTC, Committee onTechnology, Subcommittee on Nanoscale Science,Engineering, and Technology. December. Available athttp://www.nano.gov/ NNI_Strategic_Plan_2004.pdf.
In any given workers’ compensation claim, there is potential for a multitude of disputes over issues running the gamut from entitlement to indemnity benefits,
to an injured employee’s efforts to return to work. And while there are a seemingly infinite number of variables impacting whether an employer/insurer is responsible for paying indemnity benefits, the one thing that is always certain in non-controverted cases where an employee remains injured due to a compensable work injury, is that the employer/insurer are liable for paying medical benefits. O.C.G.A. 34-9-200 (a) statutorily obligates the employer/insurer to furnish the injured employee with medical treatment which is “reasonably required and appears likely to effect a cure, give relief, or restore the employee to suitable employment.” Inherently broad in its scope, the legislature reeled in the employer/insurer’s liability for medical benefits with O.C.G.A. 34-9-201(b)(1), which allows the employer/insurer to satisfy the requirement by the employer posting a panel
of physicians identifying physicians from which an employee may accept medical treatment.
Continued on page 11
THE POWER OF THE PANEL: WILL STRICT COMPLIANCE BE ENFORCED?By: Taylor S. Poncz, Drew, Eckl & Farnham, Atlanta, Georgia
Workers’ Compensation And Employers’ Liability Law Committee
IN THIS ISSUE:The Power of the Panel: Will Strict Compliance Be Enforced? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Letter From The Chair . . . . . . . . . . . . . . . . . . . . . . . 3A Case Note On Sandifer v. United States Steel Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Which Medical Fee Schedule Applies In Georgia And Surrounding States . . . . . . . . . . . . . . . . . . . . . . . . . . 6Recent Traveling Employee Cases In Illinois . . . . . . . . 7Supreme Court Of Pennsylvania Carves Out Exception To Exclusive Remedy Provision Of The Pennsylvania Workers’ Compensation Act For Late Manifesting Occupational Disease Claims . . . . . . . . . . . . . . . . . . . . . 8A Review Of Recent Decision In Maritime Injury Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102014 TIPS Calendar . . . . . . . . . . . . . . . . . . . . . . . . 14
Stay connected through our Committee Web Page, “Like” us on Facebook, follow on Twitter, or join the LinkedIn discussion!
Workers’ Compensation and Employers’ Liability Law Committee Newsletter Winter 2014
2 2
ChairAnthony Macauley
Hanna Brophy MacLean McAleer & Jensen
606 S Olive St, Ste 1020Los Angeles, CA 90014-1665
(626) 844-7526Fax: (213) 943-4801
Chair-ElectStacy Tees
Goldberg Segalla LLP1700 Market Street, Ste 1418Philadelphia, PA 19103-3907
(267) 519-6818Fax: (267) 519-6801
Council Representative
James MyrickWomble Carlyle5 Exchange St
Charleston, SC 29401-2530(843) 722-3400
Fax: (843) [email protected]
Last Retiring ChairJoshua HoldenFish Nelson LLC
400 Century Park S, Ste 224Birmingham, AL 35226-3925
(205) 332-3430Fax: (205) 822-6611
Law Student Vice-Chair
Brittany Bryant1413 King Wall Dr
Baton Rouge, LA [email protected]
Membership Vice-ChairEffie CozartLaw Offices of
Julie Bhattacharya Peak5409 Maryland Way, Suite 212
Brentwood, TN 37027(615) 986-7700
Fax: (800) [email protected]
Scope LiaisonAnne Kulesa
PO Box 751Bartonsville, PA 18321
(570) [email protected]
Technology Vice-ChairJay Wolman
Raymond Law Group90 National Dr, Ste 3
Glastonbury, CT 06033-1247(860) 633-0580
Fax: (860) [email protected]
Vice-ChairsAnish Desai
German Gallagher & Murtagh200 S Broad St, Ste 500
Philadelphia, PA 19102-3814(215) 875-4044
Michael FishFish Nelson LLC
400 Century Park S, Ste 224Birmingham, AL 35226-3925
(205) 332-1448Fax: (205) 822-6611
Saba HashemD’Angelo & Hashem LLC401 Andover St, Ste 202
North Andover, MA 01845-5076(978) 687-8100
Antonio JeffreyGanan & Sapiro PC
210 W Illinois StChicago, IL 60654-7847
(312) [email protected]
Deborah Kohl191 Bedford St, Ste 301
Fall River, MA 02720-3050(508) [email protected]
William LevasseurWilliam R Levasseur Atty at Law22 W Pennsylvania Ave, Ste 202
Towson, MD 21204-5008(410) 321-0400
Fax: (410) [email protected]
Hervey LevinLaw Offices of Hervey P Levin
6918 Blue Mesa DrDallas, TX 75252-6140
(972) 733-3242Fax: (972) [email protected]
Sharon MurphyRobinson Wolenty & Young LLP8415 Allison Pointe Blvd, Ste 210
Indianapolis, IN 46250-4208(317) 587-7820
Fax: (317) [email protected]
Leonard NasonLaw Office of Leonard Y Nason
113 Great RdBedford, MA 01730-2715
(781) 271-9296Fax: (781) 271-9022
Alan PierceAlan S Pierce & Associates
27 Congress St, Ste 301Salem, MA 01970-5523
(508) 527-0974Fax: (978) 745-1046
Chris ScheldrupScheldrup Blades et al
PO Box 36Cedar Rapids, IA 52406-0036
(319) 286-1743Fax: (319) 286-1748
Matthew SchiffSchiff & Hulbert
200 S Wacker Dr, Ste 3000Chicago, IL 60606-5815
(312) 454-8500Fax: (312) 454-9500
Todd SeeligPA Dept of Labor & Industry
110 N 8th St, Ste 400Philadelphia, PA 19107-5157
(215) 560-2488Fax: (215) [email protected]
Emily SpielerNortheastern University
School of Law400 Huntington Ave
Boston, MA 02115-5005617 373-2346
Fax: 617 [email protected]
Cliff StubbsMcAnany Van Cleave
& Phillips PA10 E Cambridge Circle Dr,
Ste 300Kansas City, KS 66103-1342
(913) 671-3715Fax: (913) 371-4722
Vice-Chair (Newsletter)Lindsey MillsScheldrup Blades
1225 Jordan Creek Pkwy, Ste 108
West Des Moines, IA 50266-2347
(515) 223-9920Fax: (515) 262-1384
Hypertext citation linking was created by application of West BriefTools software. BriefTools, a citation-checking and file-retrieving soft-ware, is an integral part of the Westlaw Drafting Assistant platform. West, a Thomson Reuters business is a Premier Section Sponsor of the ABA Tort Trial & Insurance Practice Section, and this software usage is implemented in connection with the Section’s spon sorship and mar-keting agreements with West. Neither the ABA nor ABA Sections endorse non-ABA products or services. Check if you have access to West BriefTools software by contacting your Westlaw representative.
Workers’ Compensation and Employers’ Liability Law Committee Newsletter Winter 2014
3 3
Six months into my term as Chair, it is high time that I write you. Many of us have worked together the last 20 years in the ABA. It is always a great pleasure. Our leadership lineup has changed but a little. Matt Schiff returns as a vice chair. Matt is a premier Chicago defense lawyer, TIPS leader, and a prior Chair of this committee. He lives and works near the site of our Committee’s Workers’ Compensation Midwinter Seminar and Conference, March 13-15, 2014 at the Conrad Hotel (near Michigan Avenue) Matt’s local knowledge and his proximity have and will be a real benefit. Our Program Chair for the conference is Antonio Jeffrey who joined us as a vice chair last year when he graduated from the TIPS leadership academy.
I would like to acknowledge two very special leaders on our committee.
The first is Stacy Tees who will succeed me. She is amazing. She has been managing me before and during my term. That is a big challenge and she has handled it well. She is organized, a fine thinker, and committed to our committee. She delivers. Her own term as chair begins in August 2014. Her influence on this committee should be profound.
The second is Dave Torrey, a preeminent judge in Pittsburg who writes prolifically on workers’ compensation. He too has committed himself to the ABA workers’ comp community. He speaks. He serves. He leads. He gives generously. Not most importantly, but great for us, he wrote our committee’s contribution to the soon to be released annual survey issue of the TIPS Law Journal.
I would like to reiterate Josh Holden’s invitation for all of us to join and participate in our committee’s LinkedIn and Facebook pages. I would also like to thank vice-chairs Anish Desai and Jay Wolman for their social media work. I look forward to our work together from now until August.
Sincerely,Anthony MacAuley, Chair
LETTER FROM THE CHAIR
©2014 American Bar Association, Tort Trial & Insurance Practice Section, 321 North Clark Street, Chicago, Illinois 60654; (312) 988-5607. All rights reserved.
The opinions herein are the authors’ and do not necessarily represent the views or policies of the ABA, TIPS or the Workers’ Compensation and Employers’ Liability Law Committee. Articles should not be reproduced without written permission from the Copyrights & Contracts office ([email protected]).
Editorial Policy: This Newsletter publishes information of interest to members of the Workers’ Compensation and Employers’ Liability Law Committee of the Tort Trial & Insurance Practice Section of the American Bar Association — including reports, personal opinions, practice news, developing law and practice tips by the membership, as well as contributions of interest by nonmembers. Neither the ABA, the Section, the Committee, nor the Editors endorse the content or accuracy of any specific legal, personal, or other opinion, proposal or authority.
Copies may be requested by contacting the ABA at the address and telephone number listed above.
VISIT US ON THE WEB AT:
wwww.ambar.org/tipsworkers
Workers’ Compensation and Employers’ Liability Law Committee Newsletter Winter 2014
4 4
Recently the Supreme Court of the United States heard oral arguments regarding what it means to change clothes and what exactly
constitutes clothing. While the questions presented in their stripped down and barest form, appear rather trivial and simple, the implications of their answers in the labor realm are certainly neither of these.
The Fair Labor Standards Act (“FLSA”) requires that workers be paid at least the federal minimum wage for all hours worked. 29 U.S.C. §201 et seq. Complicating the matter, as the unanimous three-judge panel of the federal appeals court in Chicago correctly pointed out, is the fact that the FLSA does not define “work.” Sandifer v. United States Steel Corp., 678 F.3d 590 (7th Cir. 2012). However, §203(o) of the FLSA provides that time spent changing clothes at the beginning or end of a work day may be excluded from the definition of work by a bona fide collective-bargaining agreement.
Petitioners, a group of former and current steelworkers, and Respondents, U.S. Steel, have had collective bargaining agreements in place since the 1940s which have been silent on the topic of payment for the time required to put on and take off their flame-retardant pants and jacket, work gloves, metatarsal boots, hard hat, safety glasses, ear plugs and snood. Petitioners allege that they should have been compensated for the time spent putting on and taking off the above mentioned articles because the articles are more properly categorized as safety equipment and not clothing. U.S. Steel maintains that the articles are part of the work outfit contemplated by Congress when it enacted §203(o) and as such, are clothes.
Petitioners argue that the “changing clothes” language found in 29 U.S.C. §203(o) requires both removal of non work clothes and replacing them with work clothes. Petitioners point out that the workers in this case do not change their clothes but instead apply safety equipment designed to protect against workplace hazards. During oral arguments counsel for Petitioners stated that items specifically designed and used to protect
against workplace hazard should not be included in the definition of clothes.
U.S. Steel however, argues that equipment related to protection from workplace hazards was exactly what Congress had in mind when it passed §203(o). U.S. Steel also argued that an adoption of Petitioners definition of clothes would result in an equally unclear status quo as courts would still be tasked with determining which articles were clothes and which articles were safety equipment on a case by case basis. U.S. Steel instead proposed a definition of clothes as anything a worker might don as part of a work outfit.
Neither party’s proposed definition seemed to win approval from the Justices as they appeared to be searching for some middle ground. Justice Scalia noted that U.S. Steel’s definition was too broad stating, “Nobody would consider eyeglasses or a wrist watch…to be clothes.” Similarly, Justice Sotomayor stated, “jewelry are not clothes…toupees might not be…makeup is not, and they cover the body. So I agree that a definition that says anything that covers the body might go too far.”
However, Petitioners proposed definition also drew criticism. Again Justice Sotomayor stated, “…I have a problem with things that look like clothes. If I don’t buy your argument that fire resistant pants and shirts are not clothes, where would you propose I draw the line?...Let’s apply a little bit of common sense to life.”
Despite the noted and admonished flip flopping of the agency’s interpretation, perhaps the Supreme Court will find their middle ground in the Department of Labor’s suggestion of defining clothing as any article worn on the body, excluding tools but to include ancillary items such as jackets and safety goggles.
Political leanings seemed nonexistent during questioning and no Justice except Roberts seemed to have his or her support firmly in one camp or the other. We will simply have to wait for the opinion next year to learn the naked truth about the definition of clothing.
A CASE NOTE ON SANDIFER v. UNITED STATES STEEL CORPORATION By: Caitlin Kilburg of Scheldrup Blades Schrock Smith P.C., West Des Moines, Iowa
Workers’ Compensation and Employers’ Liability Law Committee Newsletter Winter 2014
5 5
Register Today!www.americanbar.org/tips
Inaugural TIPS Golf Tournament and CLE Program-Earn Ethics Credit!
Workers’ Compensation and Employers’ Liability Law Committee Newsletter Winter 2014
6 6
There are several instances when a Georgia workers’ compensation claimant may receive authorized medical treatment from an out-of-state provider in non-emergency
scenarios. For example, an authorized treating physician may make a referral to a specialist in another state, which is not uncommon in metro areas near the state line. It is also possible an out-of-state provider may be on a panel, or it could be the case where a claimant has moved outside of Georgia for a legitimate reason. In any event, the question arises whether the treating provider is entitled to reimbursement under the Georgia Workers’ Compensation Fee Schedule or the fee schedule of their home state.
Under the “General Reimbursement Requirements” of the Georgia fee schedule, the applicable fee schedule will be determined by which state has jurisdiction over the workers’ compensation claim. With that said, we note there is nothing in the Georgia fee schedule that prohibits an out-of-state provider from setting its own rates when treating Georgia claimants. As such, an employer/insurer would be well-advised to negotiate a written agreement with an out-of-state provider regarding reimbursement prior to provision of medical services. This cannot be arranged in all scenarios, but as a practical matter, providers near the Georgia state line should have an interest in working with Georgia employers/insurers both to maintain a good working relationship and to avoid repetitive fee disputes with Georgia employers/insurers.
We also note that the states surrounding Georgia are typically broader in their application of their own fee schedules for claims they have jurisdiction over. This could be an issue when an out-of-state claimant seeks to treat in Georgia.
• North Carolina: Out-of-state providers are allowed to build charges in full or based on a prior agreement is one has been established. However, if one has not been established, providers are advised to expect reimbursements under their own state’s fee schedule.
• South Carolina: The fee schedule explicitly excludes services provided outside of South Carolina from their fee schedule. Furthermore, the South Carolina Supreme Court has found that the South Carolina Workers’ Compensation Commission does not have jurisdiction over a fee dispute relating to fees charged by an out-of-state medical provider or services performed outside of South Carolina, even relating to an injury occurring in South Carolina.
• Florida: Prior authorization is required for non-emergency medical treatment, including out-of-state providers. As such, out-of-state providers treating Florida claimants have an incentive to pre-arrange reimbursement amounts. If there is no reimbursement agreement in place, the Florida rules indicate that the reimbursement amount shall be the greater of the Florida fee schedule or the fee schedule for the out-of-state provider’s state.
• Alabama: The rules specifically indicate that the Alabama fee schedule is premised upon treatment being provided in Alabama for Alabama claimants. However, the rules provide that out-of-state medical treatment for Alabama claimants shall be reimbursed upon the rate of the out-of-state providers fee schedule, pursuant to a mutually negotiated agreement between the provider and the employer/insurer or pursuant to the Alabama fee schedule for non-facility medical providers.
• Tennessee: Their fee schedule only applies to claimants seeking benefits under Tennessee law. However, under their rules, the fee schedule applies in any state where the Tennessee claimant seeks medical treatment.
Ultimately, the trend among Georgia and the bordering states is for employers/insurers and medical providers to negotiate reimbursement terms upfront to limit disputes and delays in claimants receiving treatment or providers receiving reimbursement. Doing so can help all parties avoid out-of-state legal proceedings regarding medical bills for workers’ compensation claimants.
WHICH MEDICAL FEE SCHEDULE APPLIES IN GEORGIA AND SURROUNDING STATESBy: Fred L. Hubbs, Jr., Esq. and Michael E. Memberg, Esq. of Hall Booth Smith, P.C., Atlanta, Georgia
Workers’ Compensation and Employers’ Liability Law Committee Newsletter Winter 2014
7 7
Two recent decisions issued by the Workers’ Compensation Commission Division of the Appellate Court of Illinois and one by the Supreme Court address the question of the compensability of injuries suffered by a traveling employee.
In Mlynarczyk v. Illinois Workers’ Compensation Commission, the claimant, Stanislawa Mlynarczyk, and her husband were employed by a janitorial service. On the day in question the Mlynarczyks were assigned to clean a church and two homes. The employer provided a van, which driven by petitioner’s husband, to transport them from job to job. They finished cleaning the second home at about 2:30 p.m. They normally had a full day of jobs running from 6:00 a.m. to 4:00 p.m. however, because of cancellations due to the holiday season; they had no other jobs but could return to the church at 4:30 to assist the evening crew. In the meantime, the Mlynarczyks traveled home to have lunch. Normally the Mlynarczyks took a 15 minute break for lunch but, because of the timing gap, they remained home for about 90 minutes on this day. Shortly after 4:00 p.m. the petitioner’s husband returned to the minivan to warm it up. The minivan was parked in the driveway of the house where petitioner and her husband resided. At 4:10 p.m. petitioner left the house to return to work. As she walked around the rear of the minivan she slipped and fell. Petitioner testified that the accident occurred “adjacent to the driveway on a ‘public sidewalk’ leading from the house to the driveway.” The petitioner suffered an injury to her left hand. The Arbitrator awarded benefits but this was reversed by the Commission. The Appellate Court concluded that the Commission erred as a matter of law in denying the benefits. It pointed out that petitioner was a “traveling employee” who was required to travel away from her employer’s premises to perform her job. As a traveling employee the test of whether the injury arose out of and in the course of the employment is the reasonableness of the conduct in which he was engaged at the time of the injury and whether that conduct might have been anticipated or foreseen by the employer. The Court held that the evidence established that the claimant’s injury occurred after she left home, while walking to a vehicle used to transport her to work. “Because claimant is a traveling
employee, the injury occurred in the course of her employment.” Additionally, the Court found that the injury arose out of the employment, pointing out that claimant’s walk to the minivan constituted the initial part of her journey to her work assignment. “As such, it is reasonable and foreseeable.”
The issue was raised as to whether or not the petitioner had left her private property when the injury occurred. The Court found that the evidence did not support the premise that the claimant’s fall occurred on private property because the claimant’s unrebutted testimony was that the accident occurred adjacent to the driveway on a “public sidewalk”. The Court also noted that the employer cited no authority in support of its claim that a traveling employee who has left the physical confines of his or her home on the way to a job assignment and sustains an injury on private property cannot be subject to the hazards of the street.
The second case is Kertis v. Illinois Workers’ Compensation Commission, in which the petitioner was a branch manager for two branches of employer’s bank. The petitioner regularly traveled between the two offices. While traveling from one branch to another he parked in a municipal parking lot, as was his custom. He exited his parked car and began walking across a parking lot toward the branch office. As he approached the parking lot’s only entrance a car drove into the lot. While attempting to avoid the oncoming car, petitioner stepped into a pothole and fell. He suffered injuries to his lower back and right hip. The Arbitrator had denied the claim because petitioner had failed to establish that he was exposed to a risk to a greater degree than the general public, finding that the risk that the claimant was exposed to was “common to the general public and not unique to [the claimant].” The Arbitrator observed that claimant had “offered no evidence to suggest that the area in question represented an increased risk greater than the general public would be exposed to on a daily basis.” The Commission affirmed the decision. The Court overturned the Commission’s decision finding that petitioner was a traveling employee and the standard is, therefore, whether he was injured while engaging in conduct that was reasonable and foreseeable, i.e., conduct that “might normally be anticipated or foreseen by the employer. Finding that the conduct was foreseeable the
RECENT TRAVELING EMPLOYEE CASES IN ILLINOISBy: James M. Gallen of Evans & Dixon, LLC, St. Louis, Missouri
Continued on page 13
Workers’ Compensation and Employers’ Liability Law Committee Newsletter Winter 2014
8 8
Historically, the exclusive remedy provision of the Pennsylvania Worker’s Compensation Act has been strictly interpreted by Pennsylvania’s highest courts. But, history shows that, at times, the courts will create exceptions to this provision. In November, the Supreme Court of Pennsylvania issued an important decision that crafted an exception to the exclusivity doctrine for late manifesting occupational disease claims.
The case was Tooey v. AKA Steel, ARMCO Steel Crown Cork & Seal, et al., 2013 Pa. LEXIS 2816. In it, the Supreme Court was confronted with the issue of whether the manifestation of an occupational disease outside of the 300 week period proscribed by Section 301(c)(2) of the Act removes the claim from the purview of the Act, such that the exclusivity provision of Section 303(a) does not apply. Section 301(c)(2) requires that an occupational disease-based disability manifest within 300 weeks of an employee’s last exposure to the hazards of the disease.
The facts involved direct tort actions brought by employees against their employers for mesothelioma
that had developed some ten to fifteen years after the workers were exposed to asbestos. The employers sought to dismiss the claims on the basis that the causes of action were barred by the exclusive remedy provided for in Section 303(a) of the Act. Employers’ motions to dismiss were granted at the trial court level, but reversed on appeal by the Superior Court, which found that the exclusivity provision of the Act still applied even though the claims were time barred under Section 301(c)(2).
However, the Supreme Court reversed the Superior Court, finding that such a strict interpretation of these provisions defeated the purpose of the Act by leaving the employee with no remedy against the employer. The Court concluded that the exclusivity provision of Section 303(a) of the Act does not preclude employees from taking direct common law action against their employers for claims for disability or death resulting from occupational disease which manifests more than 300 weeks after the last occupational exposure.
SUPREME COURT OF PENNSYLVANIA CARVES OUT EXCEPTION TO EXCLUSIVE REMEDY PROVISION OF THE PENNSYLVANIA WORKERS’ COMPENSATION ACT FOR LATE MANIFESTING OCCUPATIONAL DISEASE CLAIMSBy: Frank X. Wickersham of Marshall Dennehey Warner Coleman & Goggin, King of Prussia, Pennsylvania
VISIT US ON THE WEB AT:
www.ambar.org/tipsworkers
Workers’ Compensation and Employers’ Liability Law Committee Newsletter Winter 2014
9 9
2013-2014 SECTION SPONSORS
THE TORT TRIAL & INSURANCE PRACTICE SECTION WOULD LIKE TO THANK OUR 2013-2014 SECTION SPONSORS FOR THEIR GENEROUS SUPPORT
PREMIER SECTION SPONSOR
SECTION SPONSORS
Workers’ Compensation and Employers’ Liability Law Committee Newsletter Winter 2014
10 10
Admiralty courts have long noted their willingness to ensure justice to seamen1. However, this willingness could not guarantee favorable treatment from the courts, nor ensure that they could
respond to the dangers inherent in earning a living on the water2. Remedying this was one of the objectives of the Jones Act (the Act). The search for justice under the Act, however, has had some unintended side-effects. Because the alternative to coverage under the Act is coverage under the less-generous Longshore and Harbour Workers Compensation Act, there is inevitably pressure on plaintiffs and their lawyers to seek coverage under the Jones Act. As a result, “when one attempts to apply the case law from the various federal circuits and state courts under the Jones Act, one encounters a bewildering array of decisions in which there is a citation to support any outcome and no outcome that fits comfortably with every precedent.”3
In the circumstances, a review of recent decisions in maritime injury cases may be instructive.
Dize v Association of Maryland Pilots4
The Jones Act, of course, entitles seamen to claim against their employers for injuries. Dize’s case turned on whether he was a seaman at all.
Mr. Dize alleged that his employer had negligently caused him to develop silicosis as a result of sandblasting work. He was employed by it as a launch boat operator. His role was to transport pilots to and from ships in Chesapeake Bay, but also to maintain the launch boats and the worksite buildings and property, order supplies, unload trucks and also carry out cleaning and gardening.
It had previously been held5 that to be a seaman, an employee must contribute to the function of a vessel or the achievement of its mission, and
their connection to a vessel in navigation must be substantial in duration and nature. A rule of thumb for the substantial duration test was that a worker spending less than about 30% of their time in the service of a vessel in navigation was unlikely to qualify. The Court in Dize considered that in assessing ‘duration’, what is most relevant are sea-based duties that regularly expose the worker to the perils of the sea. The Court concluded that -
“Mr Dize’s time spent maintaining the Association’s vessels while they were docked or onshore … as well as his time spent performing upkeep of the station property … does not count towards the 30 percent threshold …. [T]hese duties … did not subject him to the “caprices of open water,” and, in the case of an emergency, “onshore assistance was never far away.” During his commission of this work, , there would never be a “need to abandon ship” or “survive exposure to the elements until help arrives.” His proximity to shore meant that there was no danger of unusual “delay or inconvenience in being transported to medical attention for injuries.” This work plainly did not subject Mr Dize to the perils of the sea, and therefore did not comprise sea-based activities that should have been counted in the Circuit Court’s duration analysis”6
As a result, Mr Dize was found not to be a seaman for the purposes of the Act.
Hartley v Williams Southern Co., LLC7
A similar situation to Dize was presented in the case of Mr Hartley, who was employed as an oil-rig floorman.
Mr Hartley’s employer was largely engaged in servicing the land-based oil industry, although
A REVIEW OF RECENT DECISION IN MARITIME INJURY CASESBy: Stephen Tuck of Riordan Legal, Shepparton, Virginia
1 “The Court said, that … a seaman’s claim for his wages was sacred as long as a single plank of the ship remained”: The Sydney Cove, 2 Dods. 11, 13; 165 ER 1399, 1400 (High Ct of Admiralty, Eng., 1815).2 Consider Vanvalkenburg v Northern Navigation Co., 30 OLR 142 (Ont., 1913).3 Dize v Assoc’n of Md Pilots, No. 56, September Term, 2012, 435 Md. 150 (Md. Sept. 23, 2013).4 Id.5 Chandrix, Inc. v Latsis, 515 US 347 (1995)6 Dize v Assoc’n of Md Pilots, (n. 3).7 Hartley v. Williams Southern Company, LLC, No. 01-11-00849-CV, 2013 WL 4477993 (Tex. App. Aug. 20, 2013).
Workers’ Compensation and Employers’ Liability Law Committee Newsletter Winter 2014
11 11
at the time in question it had arranged to service an third party’s oil wells in Louisiana using workover rigs placed on barges in a marsh. Mr Hartley worked on these rigs for the six days he was employed with the defendant. On the job in question the workers slept on the shore and each day traversed the 100 feet from the shore to the rigs in a 5-10 minute boat ride. He suffered injury in a falling incident and sought compensation under the Jones Act.
The Court noted the Chandris test referred to above. It observed that a court assessing whether a plaintiff has a substantial connection to a vessel in navigation must consider all of the circumstances of the worker’s employment. The worker’s duties must “regularly expose him to the perils of the sea”. While the court seems to have accepted that the barges were vessels in navigation, it found that the isolation from help, exposure to the elements, and possible delay in receiving medical care covered by the phrase “perils of the sea” were
not present. Hence, the plaintiff’s duties did not demonstrate a substantial connection to a vessel in navigation.
The court also noted the 30% test for a connection to a vessel of substantial duration. Significantly, it considered this test unsuitable because the plaintiff had only been employed in his role for 6 days. It was necessary instead to consider the scope of his role to assess whether he would have had an enduring relationship to the vessel. The evidence was that the work in the marshes would last at most a few weeks and that, had the plaintiff continued with the defendant, most of his work would have been land based. The Court therefore considered it unlikely that he would have spent at least 30% of his time on a vessel in navigation and so he had failed to demonstrate a connection to the vessel of substantial duration and was not a Jones Act seaman.
By only requiring the employer/insurer to authorize treatment with an authorized panel physician, and by vesting the employer/insurer with the right to select the physicians to be listed on the panel of physicians, the momentum shifts back slightly towards the employer/insurer, creating more of an equilibrium between the parties with regard to Claimant’s right to medical treatment and the employer/insurer’s obligation to pay for that treatment. For the employer/insurer to enforce the panel of physicians, the panel must first be valid. For a panel to be valid, O.C.G.A. 34-9-201(b)(1) provides that it must contain at least six physicians or professional associations or corporations of physicians who are reasonably accessible to employees. Of those physicians, at least one of the physicians must practice as an orthopedic surgeon, one must be a minority physician, and no more than two of the providers can be industrial clinics.
One of the easiest ways for a claimant’s attorney to trigger a swing of momentum back to claimant’s favor is to prove that the panel is invalid. O.C.G.A. 34-9-201 (f) warns that if the employer fails to provide any of the procedures for selection of the physicians, then the
employee is entitled to seek treatment off of the panel with a physician of his choosing. From an employer/insurer’s perspective, this could be a huge blow to not only the value of the claim, but also to the reliability of the medical treatment being provided. Unfortunately, all too often in practice we see claimants’ attorneys taking advantage of the panel’s invalidity to select the most liberal physician possible who is nearly guaranteed to operate, put the claimant on an endless supply of pain pills and so often totally disable the claimant. Read: Increase the value of the claim.
Consequently, ensuring the panel is valid is of extreme importance and the pattern emerging is that Administrative Law Judges are going to be strict about an employer/insurer’s compliance with the statutory requirements for a panel to be valid. The plain language of the O.C.G.A. 34-9-201(b)(1) requirements for a panel to be valid seems fairly clear with regard to the makeup of the types of providers that must be included. However, the statute provides that these providers must be “reasonably accessible”, and that brings up a multitude of questions over what that means. Does the name, address and phone number all have to be exactly right for the provider to be reasonably accessible? What if one digit of the phone number is off? What if the provider’s name is wrong? What if just the suite number
THE POWER OF THE PANEL ...Continued from page 1
Workers’ Compensation and Employers’ Liability Law Committee Newsletter Winter 2014
12 12
listed is wrong, but the building and street address are right? How do these errors, whether inadvertent or not, impact how accessible the provider is and furthermore, what, if any, effort is reasonable for the actual employee to make to identify and locate the provider when there is an error on the panel?
There is no real statutory guidance for what information has to be listed on the panel for the provider to be “reasonably accessible” and in Georgia, the binding case law is virtually non-existent as well. However, a recent decision by the Appellate Division of the State Board of Workers’ Compensation suggests that even the smallest of errors on a panel can invalidate the provider, threatening the validity of the entire panel if it results in an insufficient number of valid providers listed.
This June 2012 Appellate Division Award found that the Administrative Law Judge erred in finding that the wrong address for a medical provider did not invalidate the panel. At the trial court level, the Administrative Law Judge found that while the address for the orthopedic center was listed incorrectly on the panel, the employee could have easily have found the address. The Judge reasoned that a mistaken address should not invalidate the panel. The Appellate Division disagreed, and found that the employer’s failure to list the address accurately invalidated that provider from the panel (and thus, invalidated the panel in its entirety), since the provider was no longer “reasonably accessible” to the employee, notwithstanding the fact that the orthopedic center was a well-known provider. Based upon the Appellate Division’s ruling then, “reasonably accessible” would mean that the address has to be completely correct.
From a defense standpoint, this type of ruling also essentially means that the employee need not make even the slightest of efforts to access the provider as listed, and surely that can’t be reasonable. Can it? The Appellate Division seems to think so and so does another Administrate Law Judge who ruled similarly in a recent Motion brought before her on a change of physicians on the basis that the entire panel was invalid because the medical provider’s name was listed incorrectly on the panel. In that case, the address and the phone number for the medical center were correctly provided on the panel, but the name of the provider was incorrect. It actually contained the name of a different doctor’s office not located at the address listed. Defense counsel contended, unsuccessfully, that the inadvertent error in the name of the provider did not change the fact that the employee would have reached a viable medical provider authorized
to treat the employee under workers’ compensation had the employee either physically gone to the address listed or simply called the telephone number listed on the panel to confirm the name. In other words, the provider was “reasonably accessible”, albeit with a small amount of effort on the employee’s part to identify the provider. The Administrative Law Judge disagreed, and in line with the reasoning behind the June 2012 Appellate Division Award, found that the named provider did not correspond to the telephone number and address listed on the panel, and as such, that provider was not reasonably accessible to the employee. Consequently, the panel was left with only 5 reasonably accessible providers which violated the validity requirements of O.C.G.A. 34-9-201(b)(1) and as a result, invalidated the panel in its entirety. To make matters worse, not only did the Judge designate the non-panel selection as the authorized treating physician, but the Judge found the defense unreasonable and awarded assessed fees.
Arguably, this type of ruling suggests that the employee is under no obligation whatsoever to make even the slightest effort to look in the phone book or online or call the number listed to confirm the address or the name of the provider. Then why would the statute says “reasonably” accessible if the Board is not going to obligate an employee to make even the slightest effort to locate the provider? This question remains unanswered.
The bottom line is that the stakes are high for the employer/insurer to make sure the panel has no errors in it, typographical or not, since O.C.G.A. 34-9-201 (f) allows an employee to select the authorized treating physician off panel if the panel is invalid. As a practical matter, one option employers have is to list an extra provider or two on the panel so that if one provider’s information is inaccurate and becomes invalidated, the panel as a whole could still have the requisite six “reasonably accessible” providers, and as such, would not be invalidated in its entirety. Another option is to make sure panels are up to date. Employers should call each number listed and ensure that the number is still in service and that the address and names of each providers are accurate and current. While the panel listed on the date of accident will apply to a particular claim, there is nothing stopping an employer from updating the invalid panel and preventing the same consequence on a subsequent claim. In the end, taking the time to periodically ensure the panel is accurate is well worth not sacrificing the employer/insurer’s right to control medical.
Workers’ Compensation and Employers’ Liability Law Committee Newsletter Winter 2014
13 13
Court awarded compensation. Because the appeal could be resolved under the analysis applicable to traveling employees, it did not need to address the claimant’s alternative argument that he was exposed to a neutral risk more frequently than members of the general public by virtue of his employment.
The Supreme Court Case is The Venture-Newberg-Perini, Stone & Webster vs. Illinois Workers’ Compensation Commission. In this case the petitioner was a member of the Plumbers & Pipefitters Union Local 137 in Springfield, Illinois. The petitioner had worked for Venture in four short term jobs over the preceding two years, being be laid off when the job was completed. Local 137’s rules provided that its members could only take work outside of the local territory only when no work was available locally. The petitioner took a position with Venture at a plant in Cordova, Illinois, about 200 miles from Springfield. He was expected to work 12 hours per day, 7 days per week. Because of the location the petitioner and a coworker stayed at a motel. Although there was evidence that Venture preferred the employees to be located close to the plant, there was none that it required proximity or that Venture directed either where the employees would stay or the route they would take to reach the plant. Petitioner was neither paid for travel time nor reimbursed for expenses. While driving to the plant site on the second day on the job the petitioner was severely injured in an automobile accident.
The arbitrator concluded that the petitioner had failed to prove that his injuries arose out of and in the course of his employment and that the petitioner did not qualify for the traveling employee exception. A divided Commission reversed, finding that the accident occurred in the course of the employment because the course or method of travel was determined by the demands and
exigencies of the job, rather than his personal preference and that, as a practical matter, he needed to stay within a reasonable commuting distance from the plant and that he was a traveling employee. The Circuit Court reversed and denied the claim. A divided Appellate Court reversed and reinstated the Commission’s decision. The Supreme Court, with a dissent, reversed and reinstated the Appellate Court.
The Supreme Court found that the petitioner was not a permanent or a long term-exclusive employee of Venture nor was there anything in his contract that required him to travel out of his union’s territory to take the position with Venture. Accepting the job was a personal decision that the benefits of the pay outweighed the personal cost of traveling. The petitioner was hired to work at a specific location and was not directed by Venture to travel from his work site to another location. Finally, Venture did not reimburse the petitioner for his travel expenses nor did it assist the petitioner in making his travel arrangements. Due to these facts, the Commission’s conclusion that the petitioner was a traveling employee was against the manifest weight of the evidence. The Supreme Court also pointed out that if the holding was otherwise an employee, he would be entitled to benefits while traveling to the job site because he chose to take a job at a distance from his home whereas an employee who worked close to home would not be entitled to benefits for an injury arising while traveling to or from the workplace.
Mlynarczyk v. Illinois Workers’ Compensation Commission, 2013 IL App (3d) 120411WC, 3-12-0411 WC.
Kertis v. Illinois Workers’ Compensation Commission, 2013 IL App (2d) 120252 WC. No. 2-12-0252 WC.
The Venture-Newberg-Perini, Stone And Webster v. Illinois Workers’ Compensation Commission, 2013 IL 115728
RECENT TRAVELING ...Continued from page 7
VISIT US ON THE WEB AT:
wwww.ambar.org/tipsworkers
Workers’ Compensation and Employers’ Liability Law Committee Newsletter Winter 2014
14 14
2014 TIPS CALENDARFebruary 20145-11 ABA Midyear Meeting Swissotel Chicago Contact: Felisha A. Stewart – 312/988-5672 Chicago, IL Speaker Contact: Donald Quarles – 312/988-5708
20-22 Insurance Coverage Litigation Committee Arizona Biltmore Midyear Meeting Resort & Spa Contact: Ninah F. Moore – 312/988-5498 Phoenix, AZ
March 201413-15 Workers’ Comp & Labor Law Conrad Chicago Hotel Joint CLE Program Chicago, IL Contact: Donald Quarles – 312/988-5708
20-22 Ethics CLE Program & Golf Tournament Loews Ventana Contact: Donald Quarles – 312/988-5708 Canyon Resort Tucson, AZApril 20143-4 Emerging Issues in Motor Vehicle Product Arizona Biltmore Liability Litigation National Program Resort & Spa Contact: Donald Quarles- 312/988-5708 Phoenix, AZ
4-5 Toxic Torts & Environmental Law Committee Arizona Biltmore Midyear Meeting Resort & Spa Contact: Felisha A. Stewart – 312/988-5672 Phoenix, AZ
12-16 TIPS/ABOTA National Trial Academy National Judicial College Contact: Donald Quarles – 312/988-5708 Reno, NV
Property Insurance Law Spring CLE Meeting TBD Contact: Ninah F. Moore – 312/988-5498May 2014 7-9 Fidelity & Surety Committee Spring Meeting The Brown Hotel Contact: Donald Quarles – 312/988-5708 Louisville, KY
14-18 TIPS Section Spring Leadership Meeting Boca Raton Resort & Club Contact: Felisha A. Stewart – 312/988-5672 Boca Raton, FL Speaker Contact: Donald Quarles- 312/988-5708