Recent Workers’ Compensation Opinions of Interest
Brenyon Pilgrim v. Snead and Sons Trucking, LLC, VWC JCN No.: VA00001116795 (March 23, 2016). The claimant was employed as a tractor trailer driver. His job required him to pick up materials from customers which were then transported for recycling. On September 16, 2015, the claimant had picked up a load from a customer and was transporting it to the recycling center. While in the process of doing so, he realized that he had left his wallet at home, and had no money for lunch. He called his wife, and asked her to meet him with his wallet near their home so that he could pick up his wallet. The claimant admitted that in order to meet his wife, he had to deviate from his direct route from the customer to the recycling facility. While taking the exit ramp off the highway to meet his wife, his truck overturned onto its side, resulting in various injuries to the claimant. In denying the claim, the Commission found that by deviating from his route, the claimant took himself from the course of his employment without approval or permission by his employer.
PROPER NOTICE OF CLAIM FOR PPD BENEFITS
Alberto Gomez v Garcia Construction Company, Record No. 1624-15-2 (Court of Appeals, March 29, 2016, unpublished). On August 3, 2007, the claimant suffered compensable injuries by accident to his wrists. The claimant was awarded wage indemnity benefits for the period August 4, 2007 through February 24, 2008. The claimant sought to hold the defendants liable for permanent partial disability benefits. At issue was whether the claimant had filed a claim prior to the expiration of the statute of limitations. The claimant argued that two letters he had written, the first on August 31, 2010 and the second on January 25, 2011, constituted claims for permanent partial disability benefits. The Court of Appeals affirmed the full Commission’s finding that the letters did not constitute claims for permanent partial disability benefits. The Court pointed out that in order to constitute a claim, a filing had to “fairly apprise the Commission that a claim was being made.” The claimant’s letters failed to apprise the Commission that a claim for permanent partial disability was being made. The letters merely mentioned problems the claimant was having as a result of his compensable injuries, such letters did not qualify as claims, and his claim for benefits was barred by the statute of limitations.
In Stanley v. Jefferson Area Bd. for Aging, JCN VA00000968370 (Oct. 13, 2015), the Commission reversed the Deputy Commissioner’s finding that the “special errand” exception to the “coming and going” rule was applicable. The claimant worked as a home delivery meal coordinator, a job that required her to set up routes, schedule drivers who delivered meals to elderly clients, and occasionally make deliveries herself. She was not paid for her transportation to and from work. If she made a delivery on her way home, the claimant would leave work early and log her time so that she was paid while making the delivery. The claimant occasionally worked from home. If she worked part of the day at the office and then traveled home to finish her workday, she was not compensated for the commute. On the date of accident, the claimant planned to work a half day in the office and work the rest of the day at home for personal reasons. On her way home, the claimant delivered a meal to a client who lived close to the office. Approximately ten minutes after making the delivery, she was involved in a motor vehicle accident. Finding the claimant was not involved in a special mission, but was fulfilling the primary mission of her job, the Commission found the “special errand” exception was not applicable. The Commission further held that since there was no contractual agreement to pay her for travel to and from work, the transportation exception was not applicable either. Accordingly, the Commission found that the claimant’s accident was solely the result of exposure to the risks of the road for entirely personal reasons and she was not within the course and scope of her employment.
ASSAULT DID NOT ARISE OUT OF EMPLOYMENT
In the full Commission opinion of Baker v. Lowe’s Home Centers, JCN VA00000990523 (Mar. 29, 2016), the claimant sought benefits for a neck injury resulting from a customer grabbing him around the neck from the rear as he was seated at his desk working. The claimant argued that his injuries were compensable as an innocent non-participating victim of horseplay because the customer had no intention to cause injury. The Deputy Commissioner disagreed, holding that the claimant was a victim of assault, and as the assault was not directed at him as an employee or because of his employment, the claim was not compensable. The Commission affirmed the Deputy Commissioner’s finding on compensability, holding that there was no evidence of the customer’s state of mind, but regardless, the absence of an expressed intention to maim or kill did not make the customer’s actions any less of an assault. The customer’s decision to approach the claimant from behind and grab him around the neck was purely personal and unconnected to the conditions of his employment. Therefore, the injury resulting from the assault did not arise out of his employment.
ACCIDENT DID NOT ARISE OUT OF CLAIMANT’S EMPLOYMENT
United Airlines, Inc. v. Bryan Andrew Taylor, Record No. 1169-15-4, Court of Appeals of Virginia (unpublished) (March 15, 2016). In this unpublished Court of Appeals Opinion, the claimant was employed as a ramp agent for United Airlines. On the date of his accident, he was unloading a plane, walking up the “jet bridge” with two strollers under his arms. The claimant estimated that the stroller in his right hand weighed 30 lbs., and the stroller in his left hand weighed about 5 lbs. He did not slip or trip, and there was no defect with the stairs, nor was there debris on the stairs. The claimant’s knee “popped “ as he stepped onto the third stair with his right leg, and he fell down the stairs onto his back, having dislocated the patella of his right knee. A majority of the Full Commission found this claim to be compensable, inferring that the weight and bulk of the stroller, as well as the other lighter stroller, were conditions of the claimant’s employment that caused or contributed to the claimant’s injury. However, in reversing the Full Commission and denying this claim, the Court of Appeals panel noted that there was no medical testimony or opinion of a causal connection between the conditions of the claimant’s employment and the injury. Moreover, there was no defect with respect to the stairs. The Court stated that the Commission can draw inferences from the facts before it, but in this case, the inference of a causal connection between the conditions of employment and the injury is speculative, and there was no evidence in the record to suggest that the dislocation would not have occurred, or would have been less likely to occur, if the claimant had not been carrying anything in his hands at the time of the incident. Accordingly, it was held that the evidence failed to establish that the accident arose out of the claimant’s employment. Benefits were denied.
CLAIMANT’S ACCIDENT WAS NOT SUSTAINED IN THE COURSE OF HIS EMPLOYMENT
Robert William Jones v. The Woodland, Inc., et al., JCN No. VA00001035833 (March 29, 2016). In this Full Commission Opinion, the claimant worked for the employer as a certified nursing assistant and resident aide. The claimant clocked out at 7:30 a.m. on the date of his accident. He then walked slowly to the human resources building to pick up his paystub. While the claimant testified that he arrived at the human resources building just before 8:00 a.m., other evidence in the record indicated that he did not arrive until 8:45 a.m., and the claimant offered no explanation for this discrepancy in the timeline. The claimant went to the human resources building to obtain a copy of his paystub for his wife’s disability. (Paychecks were directly deposited into the claimant’s account, and paystubs could have been emailed or mailed to the claimant.) He slipped on snow and fell, fracturing his leg, after leaving the building and taking the same route back to return to his vehicle. A majority of the Full Commission held that while the claimant’s venture to pick up his paystub was not unexpected and was not prohibited by the employer, the employer did not receive a benefit from the claimant’s actions. Accordingly, this claim was denied, with the majority of the Full Commission finding that the claimant was not in the course of his employment at the time of his injury. (The dissenting Commissioner gave the opinion that the claimant’s injury did occur during the course of his employment, as the claimant remained on the employer’s premises and walked across the premises after his shift had ended in order to pick up his paystub, which the claimant was permitted to do. Furthermore, the dissenting opinion reasoned that the claimant’s action did benefit the employer, as it saved the employer the cost of mailing the paystub to the claimant, and it satisfied a legal duty that the employer owed to the claimant that requires an employer, upon request of an employee, to furnish the employee with a written statement of the gross wages earned by the employee during any pay period, along with the amount and purpose of any deductions. The dissenting Commissioner noted that the claimant fell on the employer’s premises shortly after clocking out for work, and that the claimant remained in the course of his employment during this brief deviation.)
BURACKER v. CAM REPAIRS & GROUP CAM
JCN VA00000643071 (Aug. 17, 2014)
Commission reversed Deputy Commissioner’s award of benefits to claimant who was terminated for reasons unrelated to his work injury, but rather as a result of poor job performance, acts for which the claimant was responsible. The Commission held that all that is required to establish a termination for cause and a forfeiture of subsequent compensation benefits is a showing (1) that the wage loss was properly attributable to the employee’s wrongful act and (2) that the employee was responsible for the wrongful act. Thus, pursuant to the factual findings of the Deputy Commissioner, the claimant was unable to cure his constructive refusal of selective employment and permanently forfeited his right to subsequent compensation benefits when partially disabled. In reaching this conclusion, the Commission specifically found that the defendants did not have to prove that the claimant’s wrongful act was willful or deliberate.
GOMEZ v. GARCIA CONST.
In Gomez v. Garcia Const., Inc., JCN No. 2346002 (Sept. 16, 2015), the full Commission dealt with the issue of what constitutes a claim for benefits. On August 3, 2007, the claimant suffered compensable injuries to both wrists. As a result of the accident, the claimant was awarded wage indemnity benefits for the period August 4, 2007 through February 24, 2008. In November, 2009, defense counsel filed medical reports with the Commission reflecting that the claimant had suffered permanent partial disability to his upper extremities.
On August 31, 2010, the claimant sent a letter to the Commission requesting authorization for left wrist fusion surgery. Attached to the letter were medical records indicating that he had reached MMI. And that ratings would follow. In the letter, the claimant stated to the Commission that “I really need your help, because [I] hurted both my wrists…sometimes [I] can’t move my arm and [I] am loosing [sic] the power of my left wrist.” The defendants subsequently authorized the fusion surgery, and claimant’s counsel asked the Commission to dismiss the claim, which was done by Order dated February 14, 2011.
On January 24, 2011, an Employer’s Application for Hearing was filed with the Commission. In response to such application, the claimant wrote the Commission on January 25, 2011. In the correspondence the claimant stated that “I still feel numbness and tingling in that hand. I have not received a copy of the MMI or the IME to know what my rating of disability is.” The Employer’s Application was subsequently withdrawn.
On July 14, 2014, the claimant, by counsel, filed a claim for benefits seeking permanent partial disability benefits. The claim was defended on the grounds that such claim was not timely filed. Although the claimant stipulated that he was last paid wage indemnity benefits pursuant to an award on February 24, 2008, he argued that his August 31, 2010 and January 24, 2011 letters constituted timely filed claims for permanent partial disability benefits.
The majority of the full Commission upheld the deputy’s finding that the letters were not claims for permanent partial disability benefits. The Commission held that the August 31, 2010 letter sought surgery, and that there was no indication that the claimant was seeking permanent partial disability benefits. A majority of the Commission held that the January 25, 2011 letter was a response to the Employer’s Application, and an explanation as to why the claimant did not want his case closed. It was noted that neither the claimant nor his counsel contemporaneously identified these letters as claims for permanent partial disability benefits, nor did the claimant specifically request such benefits. The majority of the Commission held that, given the circumstances, the letters did not constitute claims for benefits. Commissioner Marshall dissented in part, noting his belief that the January 25, 2011 letter met the requirements to be considered a claim for benefits.
HUGHES v. TOMMY’S WARWICK RESTAURANT
In the full Commission opinion of Hughes v. Tommy’s Warwick Restaurant, JCN No. VA00000887733, dated October 2, 2015, the claimant sought benefits resulting from a stab wound sustained during an altercation with his supervisor. The claimant was working in the employer’s kitchen when he was confronted by his supervisor with a customer’s complaint that the eggs that the claimant had prepared were greasy. An argument ensued, which escalated into a physical confrontation. A co-worker witnessed the claimant lift his supervisor onto a steam table, after which the claimant was persuaded by the co-worker to leave the employer’s premises. The claimant remained on the adjoining parking lot for approximately 5 minutes. The supervisor exited the building with a knife and stabbed the claimant. The majority of the full Commission denied this claim, following the general rule that with injuries resulting from fights between co-workers, the injured worker must show that the fight was related to the employer’s business and that the claimant was not responsible for the fight. The majority agreed with the Deputy Commissioner’s determination that the claimant was the aggressor. Accordingly, it was held that the claimant removed himself from the course of his employment by assaulting his supervisor. The majority of the full Commission also noted that the claimant failed to prove that his injury arose from a risk posed by the nature of his work, as doing so would require the Commission to conclude that the supervisor’s “murderous rage was fueled by lingering indignation over a customer’s runny eggs, rather than by an assault instigated by the claimant some minutes before.” A dissenting opinion noted that the claimant was not the aggressor in the assault, as the claimant had abandoned the initial conflict when he left the kitchen, and that only five minutes elapsed before the supervisor came outside, chased the claimant in the parking lot, and stabbed him. Accordingly, the dissenting Commissioner was of the opinion that the claimant sustained a compensable injury by accident which arose out of and in the course of his employment.
ETZLER v. FELLOWSHIP COMMUNITY CHURCH
In the full Commission decision of Etzler v. Fellowship Community Church, JCN No. VA00000981465, dated August 20, 2015, the claimant was seeking benefits for injuries sustained while rushing down steps. The claimant testified at the hearing that in order to maintain the required student/teacher ratio, she needed to rush back to the classroom, and that this led to her missing a step and injuring her ankle. In denying this claim, the full Commission’s reasoning included that they were not convinced that the minimal amount of time that rushing down the steps would have saved would have corrected a ratio imbalance, and the fact that the claimant was not rushing due to an emergency. The full Commission noted that the need to hurry or rush was not shown to be a condition of the employment. The full Commission stated the general rule that an injury that occurs while a claimant climbs or descends a staircase will not be compensable unless it is caused by an additional risk of employment, such as a defect in the structure, or a foreign substance on the steps. Also, it was noted that if the claimant’s work requires her to rush or to hurry, then this may constitute an additional risk which causes an injury to arise out of the employment. In this case, the full Commission held that the claimant did not prove that her injury arose out of her employment, and the Deputy Commissioner’s denial of this claim was affirmed.
MCKELLAR v. NORTHRUP GRUMMAN SHIPBUILDING, INC.
In McKellar v. Northrop Grumman Shipbuilding, Inc., Record No.: 140999 (Oct. 29, 2015), the Supreme Court found that a retiree who was totally disabled was entitled to temporary total disability wage benefits. The claimant worked for the employer for 42 years. On or about April 1, 2010, the claimant notified the employer that he would be retiring effective May 1, 2010. On April 15, 2010, the claimant suffered a work-related fall, resulting in injuries to his back, hip, knees, hands and wrists. On May 1, 2010, the claimant retired as scheduled. The claimant’s physician subsequently found that he was totally disabled, as a result of which the claimant filed a claim for temporary total disability wage benefits.
A majority of the full Commission found that the claimant was entitled to medical benefits but not wage indemnity benefits, as he had retired and taken himself out of the workforce. The Court of Appeals affirmed the full Commission’s findings. The Supreme Court, however, reversed. The Court found that the clear language of Va. Code §65.2-500(A) entitled the claimant to wage indemnity benefits for periods of total incapacity, despite the fact that the claimant left the workforce through retirement. The Court found that the claimant’s status in the labor market was irrelevant where the claimant was.
Liability Cases in the News
USE OF BLACK BOX RECORDER DATA IS LIMITED IN VIRGINIA
In a recent Federal Court decision of Ferguson v. National Freight, Inc. (VWF 016-3-128), the trial judge limited the defense expert’s opinions based upon the Event Data Recorder or black box data. The accident involved a tow truck wrecker that had just picked up a disabled car on the side of the interstate. The tow truck pulled into the travel lane, and thereafter was struck in the rear by a tractor trailer. The defense claimed the tow truck pulled out suddenly and did not give the tractor trailer sufficient time to respond. There also was a dispute about the speed of the vehicles.
The defendant’s accident reconstruction and forensic expert had expected to testify based upon the Event Data Recorder from the tractor trailer. The expert wanted to testify about the speed of the tractor trailer as well as the actual speed at the time of collision, the lag time between the application of brakes and the collision, and the speed of the tow truck vehicle at the time of the collision. The judge only allowed the expert to testify about the speed of the tractor trailer based upon the actual reading of the Event Data Recorder. The other opinions were found by the court to be too speculative and did not take into consideration other variables, such as the weight of the vehicle, level surface of the roadway, the incline of the highway, and the conditions of the tires.
The expert had wanted to use a study performed on lag times of driver’s braking to use for his opinion of the truck driver’s lag time in the case. The judge would not permit this testimony since the study used different equipment, had not been subject to peer review and had no known rate of error. The judge found any testimony regarding the driver’s response time to be unreliable and inadmissible.
The opinion is consistent with previous Virginia Court decisions: accident reconstructionist and forensic experts are rarely permitted to testify in Virginia cases.
THE UNSETTLED STATE OF BAD FAITH CLAIMS IN VIRGINIA
In a previous post on our website, we discussed a recent decision by a Norfolk Circuit trial judge granting a bad faith action against the Underinsured Motorist Carrier, Allstate, after a jury verdict.(Chevalier v. Magnum, VLW 015-8-092). Pursuant to Va. Code §8.01-66.1(D)(1), the judge found the language permitted a bad faith action after a judgment.
Recently, in a Fairfax Circuit Court case, the trial judge found there is no bad faith cause of action pursuant to Va. Code §8.01-66.1(D)(1), and this has resulted in contrary Circuit Court Opinions in Virginia. In the case of Manu v. GEICO Cas. Co., VLW 016-8-034, the Fairfax trial judge ruled that Va. Code §8.01-66.1(D)(1) requires a judgment against the insurance carrier before a duty arises under the contract. Therefore, the insurance carrier has no pre-trial duty to evaluate, adjust or settle an uninsured or underinsured motorist carrier claim in good faith. Like the Chevalier case, the verdict in the Manu case exceeded the policy limits of $50,000 for UM benefits. The offer by the UM carrier, GEICO, had only been $5,000 before trial. These factors did not seem to be an issue in the decision; rather it was the reading of the statute that seemed to dictate the judge’s decision.
The Plaintiff’s counsel has indicated an appeal will be taken, and therefore, the issue may eventually be decided by the Supreme Court of Virginia. The Chevalier case settled before any other opinions were written.
While the Fairfax trial judge in the Manu v. GEICO case felt the Supreme Court of Virginia would agree with his opinion, it is uncertain how the Supreme Court will rule. At this point, there are conflicting Circuit Court Opinions on the issue, and other Circuit court judges may rule upon the issue before any Virginia Supreme Court opinion is rendered.
THE CHANGING LAW IN BAD FAITH CLAIMS AGAINST INSURANCE CARRIERS
A recent case in Norfolk Circuit Court is being litigated regarding a UIM carrier’s Bad Faith in pre-trial litigation. A recent opinion of the trial court indicates a potential shift in the trial court’s view of bad faith claims.
In the case, the liability carrier offered its policy limits of $100,000. Allstate as the UIM carrier had a $250,000 policy, which meant an exposure of $150,000. The plaintiff suffered a traumatic brain injury with medical bills and lost wages totaling around $60,000. Liability was admitted, and the plaintiff continued to suffer from gait and balance issues due to the accident. Allstate’s initial offer of $50,000 came only weeks before trial. On the day before trial, they offered $75,000. The case was tried in front of a jury and the verdict was $800,000.
Plaintiff is pursuing a bad faith claim against Allstate in the underlying case in front of the trial judge. Allstate tried to have the matter dismissed claiming it was not appropriate in the underlying case, and they are only responsible after a judgment is rendered.
Virginia Code §8.01-66.1 involves Pre-Trial Failure to Act in Good Faith. The parties in the trial court contested the availability of this Code Section to a UIM carrier.
The statute provides:
Whenever a court of proper jurisdiction find that an insurance company licensed in this Commonwealth to write insurance as defined in §38.2-124 denies, refuses or fails to pay to its insured a claim of more than $3,500 in excess of the deductible, if any, under the provisions of a policy of motor vehicle insurance issued by such company to the insured and it is subsequently found by the judge of a court of proper jurisdiction that such denial, refusal or failure to pay was not made in good faith, the company shall be liable to the insured in the amount otherwise due and payable under the provisions of the insured’s policy of motor vehicle insurance, plus interest on the amount due at double the rate provided in §6.2-301 from the date the claim was submitted to the insurer or its authorized agent, together with reasonable attorney’s fees and expenses.
Va Code Section 8.01-66.1 (D)(1).
The Virginia Supreme Court has not addressed if this statute can be applied to a UIM Carrier. It has always been argued that the duty to a UIM carrier does not arise until there is a judgment against the underinsured motorist.
However, several Circuit Courts have ruled that §8.01-66.1(D) does provide a remedy for pre-trial bad faith behavior by insurance companies handling UIM claims. Copenhaver v. Davis, 31 Va. Cir. 227, 227 (Louisa 1993); Ballard v. State Farm Mut. Auto. Ins. Co., 1997 Va. Cir. 584 (Va. Beach 1997).
The Courts reason that there is nothing in the statute to suggest the statute does not apply to UIM carriers; rather the statute creates a duty on insurers to act in good faith. Therefore, trial courts are using §8.01-66.1 to give relief to the insured when they can prove bad faith on the part of the UIM carrier.
Not only does this open the UIM carrier to potential attorney fees and costs, but it permits an insured to obtain dicovery from the insurance carrier that may include claim logs or other information that is normally deemed not discoverable.
In Luthman v. GEICO, 40 Va. Cir. 404 (Fairfax 1996), the Circuit Court permitted discovery of an insurer’s file, holding that Plaintiff had made a showing of substantial need and that no substantial equivalent of the materials otherwise was availabe. Id. at 405. Work product privilege claims were rejected by the court, and the case even held that the insurer had waived its attorney-client privilege by asserting a defense that the claim was handled pursuant to the advice of counsel.
The current case in Norfolk Circuit Court is permitting discovery by Plaintiff of Allstate’s files and even depositions of adjusters. In the end, the trial judge will determine if plaintiff is entitled to bad faith damages against the UIM carrier. Such a decision may result in an appeal, and utlimately, the Virginia Supreme Court may render on opinion on this serious issue for insurance companies.