City of Gadsden v. Lawrence Scott:

On October 29, 2010, the Alabama Court of Civil Appeals released this opinion wherein it considered whether or not the employee proved by clear and convincing evidence that his carpal tunnel syndrome of the right wrist was job related. The trial court returned a verdict in favor of the employee. On appeal, the Court considered the job duties of the 59 year old that was employed as a police office for over 30 years. Although the employee testified that he had to use his right hand repetitively on a daily basis, the evidence did not demonstrate that he did so in a manner that exceeds what ordinary people are exposed to in their every day lives. An employee must be able to demonstrate such exposure in order to prove legal causation. Since the employee was unable to satisfy his burden that his job caused a cumulative trauma injury, the employee was not able to use the date of last exposure as his accident date. As such, he failed to meet the 90 day notice requirement or file his lawsuit within the applicable statute of limitations and the verdict was reversed.

 Acting Justice Jeffrey Arlen Spinner has ruled that a plaintiff must give a defendant access to private postings from two social networking sites that could contradict claims she made in a personal injury action. 

The action stems from an injury sustained by Kathleen Romano when she fell off an allegedly defective desk chair.  She claimed to have sustained “serious permanent personal injuries,” causing her to undergo multiple surgeries.  She brought action against Steelcase Inc., the manufacturer of the chair, as well as the distributor of the chair.  Romano claimed injuries including herniated discs, restricted motion in her neck and back, and "pain and progressive deterioration with consequential loss of enjoyment of life."

Steelcase served Romano with a notice for discovery requesting full access to current and deleted records on her Facebook and MySpace pages.  Romano refused to give the authorizations, and Steelcase responded by filing a motion to compel with the court.  Steelcase supports their motion with Romano’s public content, which contains photos of Romano smiling happily outside her home despite her claim of being confined to her house and bed.  Romano claims that the request and motion violate her privacy rights.

Judge Spinner disagreed that turning over the records requested was a violation of Romano’s privacy rights.  In his ruling in favor of Steelcase, he states that the discovery request is valid “with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff's injury.”  The judge also stated that it was “reasonable to infer from the limited postings on Plaintiff's public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence.”

My Two Cents:

So what does this mean for WC claims?  If a plaintiff’s social media profile contains photos in his or her public content that could be construed as contrary to his or her claims, that could open the door to the plaintiff’s private content.  What a plaintiff puts online, no matter what the “privacy settings” on the account are, could be opened up to the defense and used in defense of the claim.

 United States v. Stricker

In this case, the Government alleged that 907 recipients of the Abernathy settlement (a “global settlement” of $300 million) received Medicare payments for medical expenses for injuries related to PCB contamination.  In its lawsuit filed on December 1, 2009, the Government sought to recover reimbursement for its Medicare payments from the corporate defendants, their insurance carriers, and certain attorneys who represented Abernathy plaintiffs and allegedly received settlement funds.  

On September 30, 2010, the Government’s case was dismissed due to the statute for limitations for the MSPA reimbursement claim had expired.

The Medicare Secondary Payer Act (“MSPA”) was enacted in 1980.  The act allowed Medicare to seek reimbursement for money an insurance company or self insured paid on behalf of a Medicare beneficiary. MSPA covers all carriers, self-insureds, no fault insurance, and workers’ compensation insurance.   MSPA regulations also clarify that the Government can use direct action to recover from the primary payers (insurance providers) and from parties that receive primary payments, such as beneficiaries, physicians, or attorneys.  MSPA also specifically lists a judgment, settlement, or award as an example which may demonstrate “responsibility for payment” by a primary payer, triggering the obligation of Medicare reimbursement.

The Court separated the defendants into two groups, the corporate defendants and the attorney defendants.  The separation into these groups is extremely important for future cases because the actions against these groups carried different statutes of limitations.

Generally, to recover from a defendant in a case which stems from a tort carries a statute of limitations of three years.  Actions to recover from a defendant in a case which stems from a contract dispute carries a statute of limitations of six years.

As the Government’s action against the corporate defendant was founded in tort law, the complaint against them must have been filed by the government within three years after the right of action first accrued.  The Court ruled that the Government’s first opportunity, or right of action, was on September 10, 2003, the day the court approved the settlement.  Therefore, the action against the corporate defendants, filed December 1, 2009, was time-barred.

As for the attorney defendants, their obligation to reimburse Medicare from their clients settlement funds arose from the contractual relationship between the attorney and the client.  Since this action was based in contract law, the statute of limitations was six years from the date of accrual.  The attorney defendants received payment from the primary payer (the corporate defendants) on October 29, 2003, the date the court governing the Abernathy litigation ordered the transfer of $275 million in settlement monies from the court registry to the attorneys’ escrow account.  Therefore, the government’s suit against the attorney defendants was also time-barred.

My two cents:

There are a few important lessons to be learned from Stricker.  First, the government took a very aggressive stance, asking for double the amount owed as damages.  Second, the distinction the court makes between the attorney defendants and the corporate defendants is substantial.  Under the Court’s analysis, if the lawsuit had been filed in the four to six year window after the settlement, the action against the attorney defendants would have been allowed, while the action against the corporate defendants would have been dismissed.

Grund v. American Trim, LLC:

On September 17, 1010, the Alabama Court of Civil Appeals upheld the Cullman Circuit Court’s decision to deny workers’ compensation benefits based on a lack of causation between the employee’s accident and the alleged injury.

The employee claimed that she suffered an on the job injury to her rotator cuff in November of 2006. She further claimed that she suffered a subsequent rotator cuff injury in August of 2007.

At trial it was established that her physician could not determine medical causation because of the lag time between the incident and the treatment. It was further established that she had filed a short term disability application in which she stated that her injury was not work related. The Alabama Court of Civil Appeals found that the lower court’s opinion was proper considering the evidence presented before it and affirmed the decision of the lower court.

As a side note, both the trial and appellate courts ruled that the employee was liable to the employer for the employee’s contribution to her health insurance premiums, which were provided by the employer, while she was on leave. While the trial court relied to contract principals in issuing its ruling, the Court of Civil Appeals relied on the FMLA to uphold the decision to have the employee repay the contributions.

Under the FMLA, an employer is required to maintain group health insurance benefits for an employee who goes on FMLA leave. The employer is able to recover the share that would have been paid by the employee, either through deductions of pay after the employee returns from leave, or through deductions prior to the employee’s absence if the leave is planned. In this case the employee did not return to work after her second injury, so she was liable for the total $7,176.49 that had been paid on her behalf.