Producing Records: Judge finds for Employer – WCB Reverses

In Curtis v. Xerox, N.Y.A.D. 3rd Dep’t, ___ N.Y.S.2d ___ (decided October 8, 2009), the claimant alleged that her 33 year employment caused her to develop occupational conditions related to her use of a computer keyboard. The claimant stopped working in July 2005, and thereafter visited the employer’s ‘plant medical department’ receiving treatment. The Workers’ Compensation Law Judge (WCLJ) directed the employer to produce the records of this treatment. The employer failed to do so.
After trial, the WCLJ issued an opinion denying the claimant’s occupational claims. On appeal, the Workers’ Compensation Board ordered the employer to produce the records within two weeks, or be subject to an ‘inference’ at trial that the occupational disease was causally related to the employment.
At trial, the employer produced a lay witness to state that no medical records existed for the claimant. Once again, after trial, the WCLJ dismissed the case, stating that there was insufficient proofs to establish the occupational claims.
Once again, the trial decision was reversed by the WCB, who found that “testimony regarding the non-existence of records” was improper. The WCB found the occupational claims “causally related” to the employment.
The employer appealed.
On appeal, the Appellate Division agreed with the employer, that testimony that “there were no records” should not have been precluded. However, the Appellate Division stated that the decision of the WCB was ‘supported by substantial credible evidence’ and they affirmed the award of compensation. The Appellate judges went on to state that WCLJ ‘abused his discretion’ by allowing the employer multiple adjournments to locate the medical records/testimony requested by the Judge.

Refuting Claims: Trial Proofs

New York Claimant Rufus Browne, a railroad track employee, was bending down to pick up a rail flag when he experienced weakness on the left side of his body. He went to the hospital the next day and was diagnosed as having had a stroke. Browne filed a workers compensation claim, alleging that his stroke ‘arose out of and in the course of’ his work.
The employer denied the causal relationship of the stroke tot he work. A hearing was held (but no testimony was produced) and the Workers’ Compensation Law Judge determined there was ‘no prima facie medical evidence of causal relationship between the stroke and the employment’ and the claim was NFA’d (designated for ‘No Further Action.’)
The claimant appealed to the Workers’ Compensation Board (WCB), who affirmed the denial. The claimant appealed the WCB’s denial to the Appellate Division.
The Appellate panel found that the employer “never refuted the allegation that the onset of the claimant’s symptoms occurred while he was at work” and that therefore the claimant was entitled to the statutory presumption that the stroke arose out of the employment (WCL Sect. 27). The Appellate panel found that the WCB erred by requiring the claimant to establish his case before the employer refuted it: in essence, the panel found that the employer “must . . . .be afforded the opportunity to rebut the presumption [of compensability].”
Practice tip- in this case, the fact pattern must have been very clear to the employer and the WCLJ: the stroke didn’t happen at work, and the medical records probably bore that out. However, even where the employee fails to establish the ‘seemingly’ bare minimum proofs to establish his claim, the employer must be prepared to present the employer’s proofs – to make a record that will withstand appeal.
Case: Browne v. New York City Transit Auth., ___ N.Y.S. 2d ___ (N.Y. App. Div. 3rd Dep’t, Decided October 29, 2009).

Failing to Deposit Settlement Check: Enough to Toll Statute of Limitations?

New Jersey Claimant Kimberly Paladino was injured at work on March 30, 2001. On February 3, 2005, she agreed to an ‘Order approving Settlement.’ Nine days later (February 14th, 2005) the respondent issued her draft for the settlement. The claimant then waited seventeen months (until July, 2006) to take the settlement draft tot he bank for deposit. The bank refused to honor the old check.
After the bank refused to honor the original check, the claimant requested that another draft be issued. the respondent complied, and issued a replacement check on July 26, 2006. The claimant deposited the check and enjoyed the proceeds.
The claimant then filed a ‘re-opener’ application on August 28, 2007, alleging that her disability had increased since the entry of her February 5, 2005 settlement and that she was entitled to more compensation.
The respondent raised the statute of limitations as a defense to the re-opener. Under the New jersey Workers’ Compensation Act, a claimant has “two years from the date when the injured person last received a payment upon the application of either party on the ground that the incapacity of the injured party has subsequently increased” to file a ‘re-opener’ claim. The respondent argued that the claimant has two years from the date of the original check being issued – not two years from the date the replacement checked was actually cashed – to re-open her claim. Under this reasoning, the claimant was ‘out-of-time’ on her re-opener.
The Appellate Court agreed: regardless of when the draft was actually cashed, the claimant’s opportunity for re-opener was governed by the date the respondent delivered the original check to the petitioner.
Case: Paladino v. Pier One Imports, App. Div. 39-2-5671 (Decided October 26, 2009).

Husband or Employee?

The definition of employee for workers’ compensation purposes has always been fluid: the workers’ comp courts apply a different standard than does the IRS, for example. In New Jersey, the definition of ‘employee’ is “all natural persons . . who perform a service for an employer.” Therefore, a variety of working relationships have been held to be covered by the Act, including those not necessarily confined to traditional employment settings. The courts have frequently ‘revisited’ this definition of ‘employee’ because there are many cases where either the (alleged) employer or the (alleged) employee have sought to have the particular employment recognized – because employers may benefit (in certain cases) from an expanded definition of “employee,” where an ‘expanded’ or “liberally applied” definition of employment may prevent civil claims.
In the recently-decided Federal case, Kleschick v. Hope Depot, United States District Court 02-3120 (Decided October 9, 2009) , the issue was squarely put to the deciding Judge.
Kurt Kleshick, owns a company called ‘Hydrate Irrigation’ which installs irrigation systems. On May 16, 2000, his wife Marianne Kleshick was injured while using a tool (a grinder manufactured by ‘Makita’ and sold by Home Depot). Marianne Kleshick brought a suit against Home Depot and Makita for her injuries, which she alleges arise from the use of the allegedly defective tool.
The Home Depot/Makita implead Kurt Kleshick, owner of Hydrate Irrigation, as a co-defendant. basically, their counterclaim stated that if Marianne Kleshick was injured, it was at least partially the fault of Mr. Kleshick.
Mr. Kleshick challenged the impleader, stating that at the time of the accident, his wife was a ‘co-employee’ of Hydrate Irrigation, and that a claim against a co-worker was specifically barred by the New Jersey Workers’ Compensation Act.
Home Depot/Makita argued that Mr. Kleshick was not acting as a ‘co-employee’ at the time of the accident, but instead was merely a “husband helping his wife.” They based this argument on the fact the Mr. Kleshick waived payment for working with his wife on the date of loss. They also raised the possibility that Mr. Kleshick was a ‘causal employee’ – defined as “any job that is not “regular, recurring, or periodic” and in which the services rendered are by chance or by accident” – rather than a legit co-worker.
The Federal Judge ruled that the parties would have to produce proofs as to the exact roles the Kleshicks were performing – and that Mr. Kleshick was not automatically guaranteed the immunities offered a co-worker under the New Jersey Workers’ Compensation Act.

Rules Change: Communications between IME Doctors and IME entities

A common practice – communications with IME doctors by the contracting entities that send them cases – is falling under increased scrutiny after the WCB banned virtually all verbal communications between the doctors and the IME entities.
Employer IMEs have been facilitated by a group of regulated ‘Independent Medical Examination ‘brokers’ known as IME entities for years. These entities act as go-betweens – findings doctors to perform IMEs, collecting the relevant medical records for the doctor’s review, sending scheduling notices, and collecting the final reports of the physicians to provide those reports to the WCB and the employer (or carrier).
This process necessarily injects the IME entity into the mix: they coordinate communications with the doctors and are intimately involved in selecting physicians. The entities have also been called in question for practices where they are generating reports for the doctors to sign – commonly ‘transcribing’ the doctors own notes or taped exams. In some instances the IME entities have been accused of generating reports that differ from the doctor’s findings and “changing” IME reports after the doctor has signed off on the report.
This summer the WCB banned all oral communications between IME entities and the examining physicians – and allowing for all written communications between the parties to be part of the WCB record. This move, coupled with the new IME report form (discussed in out last newsletter) is expected to reduce claims that IME reports are ‘tampered with’ by the IME entities entrusted with facilitating those examinations.

Passaic Cop Charged with filing false Comp Claim

Remember Ronnie Holloway? He was in the news back in May when a video surfaced showing a Passaic City cop, Joseph Rios, jumping out of a patrol car to beat him. The unprovoked attack was captured on a restaurant’s surveillance camera, and was the subject of breathless reporting in the Spring.

In a comp-related twist, the partner of Officer Rios, who was present at the beating but didn’t take part in it, is being brought up on charges by the Passaic police for allegedly filing a false workers’ comp claim in relation tot he incident.

In her New Jersey claim, officer Erica Rivera claims she was struck repeatedly by her partner’s baton as he attempted to subdue the victim of the police attack, Ron Holloway. Apparently, Officer Rivera was unaware that the whole incident was caught on tape: the images show Officer Rivera pacing, mostly at a safe distance, during the beating. Her claim alleges she “was struck accidentally several times with a baton about the body & head.”

Link to a news report with video of the beating: http://www.youtube.com/watch?v=0lREauR9TvY

Defending Employers