Article by Capehart Scatchard

Newsletter

Employers Brace For New Ergonomics Rule

On November 13, 2000 the Occupational Safety and Health Administration (OSHA) implemented the much debated ergonomics rule. How will this affect workers’ compensation programs and what should employers, carriers, and third party administrators know? This article will summarize the key provisions of the rule as they relate to workers’ compensation.

OSHA estimates that the ergonomics rule will cover about six million workplaces and over 100 million workers. OSHA also commented that it does not believe “existing workers’ compensation systems are adequate to ensure the effectiveness of MSD management.” Federal Register, Vol. 64, No. 225, p.65852. MSDs are musculoskeletal disorders which include disorders of muscles, spinal discs, nerves, ligaments, cartilage, tendons, and joints. The final rule has several changes from the proposed rule of 1999. The rule is aimed at occupational musculoskeletal diseases rather than traumatic injuries.

Under the rule, employers in certain instances may have to provide a full ergonomics program, which includes management leadership, employee participation, MSD management, job hazard analysis, hazard reduction and control measures, and training. While each of these six program elements contains many different requirements, the MSD management aspect is the most controversial. If an MSD occurs at work, there is the potential that it may be necessary to remove the worker from the job or even the workplace for a period of time. This is called work restriction protection, or WRP. If WRP is required, an employer must do the following:

1) Maintain 100% of the employee’s earnings at the time the employee is placed in work restriction, if the employee is given an alternative duty job; or,

2) Pay 90% of the employee’s earnings, if the employee is removed from the workplace entirely.

It is interesting that removal from the workplace for a work-related MSD could mean that the worker earns more than he or she would have earned under the New Jersey Workers’ Compensation Act, where there is a maximum rate established each year. An employer may reduce WRP by the amount of workers’ compensation payments for lost wages (temporary disability benefits in this state), or by income from a new job taken because of the work restrictions. There is no reduction for income from a second job that the worker already had before the MSD. WRP must continue until the employee can return to the former job, a health care practitioner determines the employee can never return to work, or 90 calendar days have passed, whichever occurs first. The rule seems to suggest that if another MSD recurs after the employee returns to work for a few days following a period of 90 days of WRP and the health care practitioner recommends removal from work, the employer may have to provide another 90 days of WRP.

These provisions can create tension between employers and workers’ compensation carriers. Many workers will go out of work on WRP and will also file workers’ compensation claims in the Division of Workers’ Compensation. Just because an employer is required to provide WRP and pay 90% of the earnings of a worker recovering from an MSD does not mean that the workers’ compensation carrier will accept the occupational disease claim as compensable. The carrier may conclude that it should deny a claim which the employer may have already accepted as a work-related MSD. Since the employer would benefit by way of reimbursement in the event the carrier institutes temporary disability benefits, employers may look to the compensation carrier to accept cases that would ordinarily be denied. Worse still for carriers, workers who go out on WRP will have generally been given an opinion by a health care practitioner that the condition is work related. While OSHA indicates that workers’ compensation judges are free to ignore the opinions of the HCP that a given MSD is work related, as a practical matter this will make it hard to prevail on denials in workers’ compensation court.

The ergonomics rule is a job-based standard. It applies to all general industry jobs with limited exceptions. When an MSD or signs or symptoms of an MSD are reported, the employer must determine whether the condition is job related using a screening tool provided by OSHA in the new standard. The basic screening tool is a two-page checklist which identifies risk factors which could lead to an MSD hazard. Risk factors are force, repetition, awkward postures, vibration and contact stress.

The standard in deciding whether a condition qualifies as an MSD incident is different from the standard used in New Jersey in deciding whether an occupational disease meets the definition of “compensable” under N.J.S.A. 34:15-31. The standard under the ergonomics rule is rather general. A report is considered to be an MSD incident in the following two cases: 1) the MSD is work-related and requires days away from work, restricted work, or medical treatment beyond first aid; or, 2) the MSD signs or symptoms are work-related and last for seven consecutive days after the employee reports them. Unlike the provisions of N.J.S.A. 34:15-31, which require that the illness or disease be caused by conditions which are characteristic of or peculiar to work in a material degree, there is no such language in the OSHA ergonomics rule.

The finding of an MSD will not always lead to an Action Trigger. A job meets the Action Trigger if: 1) an MSD incident has occurred in that job; and, 2) the employee’s job routinely involves, on one or more days a week, exposure to one or more relevant risk factors at the levels described in the basic screening tool.

As can be seen from the above, the focus is certainly on “work-related.” The role of the health care practitioner (HCP) is paramount. It is the HCP who gives opinions on whether the employee’s medical condition is related to an MSD hazard at work and also whether temporary work restrictions and follow-up are needed. The HCP must certify that he or she advised the worker of the results of the evaluation and of medical conditions related to the work hazard and must also advise the worker about activities which could aggravate the MSD during the recovery period. If the employee disagrees with the opinion or recommendation of the HCP, he or she can choose a personal HCP at the employer’s cost. If the two HCPs disagree after consultation with each other, a third HCP is chosen by the employer and employee, and the opinion of the third HCP is binding.

The choice of an HCP needs to be made wisely. OSHA requires that the HCP have a job description and MSD hazard information about the job, know available work restrictions during the recovery period, and understand the ergonomics rule and MSD management requirements. If the HCP says the condition is not work related, then the employer will not implement the ergonomics program.

In most cases employers can avoid the rather onerous full ergonomics program mentioned above. If the employer believes there is an obvious solution to the problem causing the MSD, the employer can use a Quick Fix Option. That option avoids the full program but requires the employer to consult with employees in problem jobs, seek recommendations for eliminating hazards, put in Quick Fix controls within 90 days, check to see if they have worked, keep a record of the controls, and provide the hazard information to employees within the 90 day period.

While the ergonomics rule is well intentioned and is premised on reducing musculoskeletal disorders throughout the United States, it could be costly to comply with, could pit employers against their workers’ compensation carriers, and could lead to many grievances and considerable litigation. The limited scope of this article does not permit a summary of all six components of the full ergonomics program. After October 15, 2001 employers must respond to reports of MSDs and signs and symptoms of MSDs. Clients are invited to contact either John Geaney or Bruce Harrison of the Firm for more information or in-house seminars on this very important rule.

Two Important Decisions in 2000

by John H. Geaney, Esq.

In the case of Walsh v. RCA/General Elec. Corp., 334 N.J.Super. 1 (App. Div. 2000), the Second Injury Fund was held responsible for payments in a situation where a worker retired in 1984 for a period of 11 years before becoming totally disabled by asbestosis in 1995. This case appears to be the first published decision in New Jersey requiring the Fund to contribute following a lengthy retirement.

The facts are that Mr. Walsh worked for RCA/GE as a maintenance mechanic and electrician from 1958 until 1972, when he suffered a second heart attack. During this period of employment he was exposed to asbestos. In 1972 he began doing lighter work but continued with RCA/GE until 1984, at which point he took a service-based (non-disability) retirement. He said that the work demands by 1984 were in excess of the restrictions that had been imposed on him by his cardiac physicians. He also started to receive social security retirement benefits. In 1991 petitioner contracted asbestosis due in part to work with RCA/GE. The judge of compensation found that he was totally and permanently disabled as of 1995.

In a surprising decision, the judge of compensation held in the Second Injury Fund on the basis that the prior disabling condition was the heart attack, and that the last compensable condition was work-related asbestosis, even though that condition did not become totally disabling until 11 years after the petitioner retired! The appellate division agreed with the compensation judge and rejected the Fund’s arguments that it should only be liable when a work-related injury or illness forces the employee to leave the work force. The appellate division accepted the judge’s finding that this worker was only partially disabled until 1995 because retirement from one job does not necessarily preclude work in another job. In this case, Mr. Walsh did not even seek employment between 1984 and 1995.

When employers are last in line at the time a latent disease manifests, this case may help them join the Second Injury Fund assuming there is evidence of prior disability. Retirement itself even after conditions like heart attacks may not prevent the employer from successfully joining the Second Injury Fund.

A less beneficial case for employers is Brower v. ICT Group, 162 N.J. 486 (2000). In this Supreme Court decision, petitioner was a telemarketer employed by ICT Group. She was injured May 9, 1997 falling down concrete stairs within a two story, multi-tenant building. ICT Group was located on the second floor of the building. There was an elevator in the front of the building, a front stairway next to the elevator, and a back stairway where petitioner fell.

The rear stairway in the building opened only into ICT’s leased premises and the basement. The stairway was fully enclosed and the top floor was carpeted with the same floor covering as inside ICT Group’s offices. There was a doorway which led directly from the top landing into ICT Group’s premises. Employees of ICT used the rear stairway regularly, and the landlord cleaned the rear stairway.

Petitioner punched out on the time clock on the date of the accident, walked to the rear stairway, and fell from the top landing of the stairway. Both the workers’ compensation judge and the appellate division found the case to be non-compensable because the injury took place off premises on property not owned by the employer.

The Supreme Court reversed and found the accident compensable, holding that the term “control” is more expansive than that used in formal property law. The court held that the employer knew or should have known that its employees used the back stairway for ingress and egress and for smoking breaks. Given that the employer took no action to prevent employees from using the stairway, respondent “ratified” their use.

This case does not mean that accidents in common areas of buildings are compensable. It does, however, open the door for more exceptions to the going and coming rule. Accidents in areas like stairways and elevators which employers had in the past denied will be harder to defend based on this decision.

Medical Malpractice of Workplace Physicians Highlighted in Recent Supreme Court Case

by Christopher J. Saracino, Esq.

In Hawksby v. Prieto, 165 N.J. 58 (2000), the Supreme Court recently ruled that when a worker is treated for a work-related condition by an authorized physician or nurse, who is also an employee of the injured worker’s employer-owned and operated health facility, the injured worker’s exclusive remedy for alleged malpractice is to pursue the claim in the Division of Workers’ Compensation.

The facts in this case were that the plaintiff Donald Hawksby, a pressman for the New York Times at its Edison plant, fell from a ladder injuring his left elbow, left knee and left leg. The Times operates it own healthcare facility that provided medical care to the plaintiff. After initial minor treatment on the day of the accident by the Times nurse and emergency room doctor, plaintiff consulted defendant, Dr. Joseph DiPrieto, ten days later. Dr. DiPrieto was the full-time director of the Times’ on-site clinic that treated plaintiff for approximately one year. During the course of treatment, an MRI taken in October 1994 revealed a lesion in the plaintiff’s leg and he was referred to an orthopedic oncologist. A large grade sarcoma of the left calf was diagnosed and the plaintiff underwent appropriate treatment for that condition.

Mr. Hawksby then filed a claim petition in the Division of Workers’ Compensation against the Times for the accident on December 3, 1993. While that claim was pending, he also filed a medical malpractice lawsuit against Dr. DiPrieto in the Superior Court of New Jersey. The trial court ultimately granted Dr. DiPrieto’s motion for summary judgment on the grounds that he was a fellow employee and immune from a tort action pursuant to N.J.S.A. 34:15-8. The matter was ultimately appealed and reached the New Jersey Supreme Court.

It is important to note that the parties took reverse legal positions than might otherwise be expected. Mr. Hawksby argued that his malpractice claim should not have been dismissed because the cancer in his leg was not work related, and was instead the result of a disease process that was unrelated to the workplace. He also argued that Dr. DiPrieto’s failure to time diagnose the tumor was independent of his employment status as the physician authorized by the Times to treat employees for work-related conditions. Obviously, the plaintiff was well aware that his malpractice claim had the potential to be much more lucrative in Superior Court. On the other hand, Dr. DiPrieto maintained that the exclusive forum for this type of claim was the Division of Workers’ Compensation since the tort action was barred by the exclusive remedy rule of Section 8. The Supreme Court agreed.

In affirming the decision of the Appellate Division, the Supreme Court ruled that Section 8 does apply to this scenario and rejected the plaintiff’s argument that the company doctor operated in a “dual capacity” of co-employee and physician, and therefore owed the plaintiff an independent duty of care. The Supreme Court further established that in order for the plaintiff-petitioner to establish compensability, he or she must prove professional negligence.

The effect of this case is that medical malpractice claims will now be litigated in the Division of Workers’ Compensation where a worker is treated by a company doctor who is also an employee of the injured worker’s owned and operated health care facility, and the petitioner alleges that there was malpractice on the part of the doctor. In order to establish compensability, the petitioner will have to prove medical malpractice in that the doctor deviated from generally accepted standards. As the dissent pointed out, this is an issue that has customarily been submitted to juries for a resolution.

WINS

Anderson v. Willingboro Board of Education

Occupational total disability claim dismissed for failure to sustain the burden of proof.

Handled by: Claire Y. Ringel, Esq.

Client: Inservco and Willingboro Board of Education

This case involved a lengthy trial before Judge Colsey in Burlington. The petitioner had an undisputed very significant pulmonary and cardiac disability. Asbestos exposure as well as exposure to other “pulmonary irritants” was alleged. The primary issue was correct diagnosis of the pulmonary condition and causation of the same. Petitioner was a long time heavy smoker. Judge Colsey accepted the testimony of our expert , Dr. Fiel, that petitioner suffered from emphysema, not any asbestos-related condition, and that the emphysema was caused by petitioner’s cigarette smoking. Doctor Fiel had done much more sophisticated pulmonary testing than the petitioner’s doctor, which conclusively ruled out any asbestos related disease. The cardiac claim was also dismissed for failure to sustain the burden of proof.

Mary Ann Sivoella v. Wawa

No Wage Reconstruction Allowed after Bifurcated Trial

Handled by: Claire Y. Ringel, Esq.

Client: Wawa and AIG Insurance

Petitioner had worked part time in the summer for the respondent and during the school year worked as a teacher, making a substantially higher wage. She fell sustaining a fracture to her knee and elbow. She went back to work as a teacher, initially in a cast. Petitioner testified about permanent problems at her teaching job because of the residuals of the compensable injury – she can’t walk around in labs, she is unable to do cafeteria duty and is generally slower and more cautious. Petitioner feared that her work life as a teacher would be shortened because of the compensable injuries. The petitioner admitted however that she lost no wages and in fact got two raises between the accident and her testimony in court. Judge Gumbs in Toms River held that petitioner had not sustained her burden to prove impairment of ability to earn full time wages and therefore found that any permanency had to be based solely on petitioner’s part time wages.

Peterson v. Borough of Alpine

Handled by: John H. Geaney, Esq.

Client: Bergen Municipal Joint Insurance Fund

Petitioner was severely injured while directing traffic on a public street while Bell Atlantic workers strung new cable lines. The case was accepted by the Borough, and our office filed a motion to require Bell Atlantic to reimburse the Joint Insurance Fund for one half of all benefits paid to petitioner. After a full trial, the Hon. Ray A. Farrington held in favor of the Borough that Bell Atlantic jointly employed petitioner since he was serving Bell Atlantic’s interest in protecting the utility’s workers while they strung cable lines. Bell Atlantic has appealed to the appellate division.

Sorrentino v. Cendant

Handled by: John H. Geaney, Esq.

Clients: Cendant Mortgage Company and GAB

Petitioner was injured as a passenger in a vehicle driven by a co-employee returning from lunch at the Moorestown Mall to another large office building where petitioner was going to assist the co-employee driver in performing work. Respondent denied the claim based on the defense of the going-and-coming rule and on the assertion that petitioner never received employer authorization to assist the co-worker. After a full trial, the Hon. Joshua Friedman dismissed the case for failure of the petitioner to prove that he was engaged in any special mission exception to the going-and-coming rule.

Vernon Nutt v. Ras Processing

Claim dismissed for failure to comply with Hernia Notice Provisions

Handled by: Claire Y. Ringel, Esq.

Client: Constitution State Insurance

This matter was the subject of a bifurcated trial before Judge Parks in Burlington. The petitioner alleged that he sustained a hernia in his last week of work, but admitted that he only notified his supervisor of the same after he was told he was fired. The petitioner testified that he felt pain while lifting and several days later felt the hernia. The workers’ compensation statute provides that a claimant must give an employer notice within 48 hours after sustaining a traumatic hernia. Judge Parks agreed with the respondent’s argument that this petitioner, who had suffered several prior hernias knew or should have known right away that he sustained a hernia and therefore the notice “several days” after he felt the hernia “lump” was not within the statutory notice period.

Williams v. Rutgers University

Handled by: John H. Geaney, Esq.

Clients: Rutgers University and PMA Insurance Company.

Petitioner, a sexton for Rutgers, suffered serious injuries during a slip and fall on University premises, and brought a motion for medical and temporary disability benefits. Rutgers denied the claim asserting that there was no proof petitioner was actually doing university work at the time of the injury. Investigation generated by Bill Nortrup at Rutgers revealed many inconsistencies in petitioner’s version of the facts. The Hon. Peter J. Calderone dismissed the motion and the case after a full trial with numerous lay witnesses.