Oklahoma High Court Finesses Constitutional Issue as to Retaliatory Discharge Statute

In Young v. Station 27, Inc., 2017 OK 68, 2017 Okla. LEXIS 69 (Sept. 12, 2017), the Supreme Court of Oklahoma finessed the constitutionality of the state’s current retaliatory discharge statute, 85A O.S. § 7, holding that the trial court had favorably passed upon the constitutionality of the wrong statute. The Court stressed that because plaintiff’s work-related injury occurred on January 29, 2013, prior to the February 1, 2014 effective date of the new statute, the former version of the retaliatory discharge statute, 85 O.S. 2011 § 341, applied to plaintiff’s claim. The Court did hold that plaintiff’s claim was not a Burk tort [see Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24], since an adequate statutory remedy had been provided by the Legislature to protect the public policy at issue.

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2017’s Top 10 Workers’ Compensation Cases

During September of each of the past five years, my colleague, Robin Kobayashi, and I have pulled together a volume entitled, Workers’ Compensation Emerging Issues Analysis. Annually published by LexisNexis®, it is a compendium of expert analysis and commentary highlighting current state trends, legislation, and court decisions in the field of workers’ compensation law. Part II of the work includes short summaries of important recent workers’ compensation decisions from around the nation. I take this occasion to highlight what I think are the 10 most important comp decisions so far in 2017. Bearing in mind that one’s assessment of “importance”—like one’s appreciation for beauty—is in the eye of the beholder, I recognize that your own list may differ from mine. Let me know if I’ve missed a crucial decision from your state.

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Seventh Circuit Sustains Illinois Governor’s Action in Refusing to Reappoint Arbitrators

In a case that highlights some of the bitter infighting going on in Illinois regarding the state’s workers’ compensation system, the Seventh Circuit Court of Appeals affirmed a decision of the district court—although on different grounds—that dismissed a civil action filed by two former workers’ compensation arbitrators against the Illinois governor and two of his advisors, alleging that they had been terminated for exercising their First Amendment rights [Hagan v. Quinn, 2017 U.S. App. LEXIS 15069 (7th Cir., Aug. 14, 2017)]. Finding the former arbitrators were “policymakers,” as enunciated by the U.S. Supreme Court in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980), the Seventh Circuit ruled that elected officials could replace high-level and confidential employees not only when those employees belonged to the “wrong” political party or faction, but also when they engaged in speech or other First Amendment activity that could undermine the policy or political goals of the officials accused of the retaliation.

Background

In 2011, plaintiffs and another arbitrator filed a due process action challenging the implementation of House Bill 1698, which terminated their six-year appointments under prior law. The district court granted summary judgment for defendants, and the Seventh Circuit affirmed, concluding that plaintiffs failed to demonstrate a clearly established right that had been violated by the legislation [see Dibble v. Quinn, 793 F.3d 803, 814 (7th Cir. 2015) (the “Due Process Suit”)].

In October 2011, while the Due Process Suit was pending, the Illinois governor declined to reappoint plaintiffs, which ended their employment. Two years later, plaintiffs filed the instant action against the governor and two of his advisors in their individual and official capacities. Plaintiffs alleged that the defendants had retaliated against them for filing the prior suit and that the retaliation violated the First Amendment to the United States Constitution and Illinois state law.

District Court Dismissed Claims

The district court dismissed plaintiffs’ First Amendment claims, holding that the Due Process Suit was not protected speech under the Connick-Pickering line of cases [see Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)].

Seventh Circuit Affirms on Different Grounds

On appeal, the Seventh Circuit indicated it need not and did not decide whether the Due Process Suit was speech on a matter of public concern as is required for a government employee to show retaliation in violation of the First Amendment. It said plaintiffs’ claims failed for a more fundamental reason. Plaintiffs were policymakers who could be terminated—or, more precisely, not reappointed—for engaging in “speech on a matter of public concern in a manner that is critical of superiors or their stated policies” [Kiddy-Brown v. Blagojevich, 408 F.3d 346, 358 (7th Cir. 2005)].

First Amendment Rights

The Seventh Circuit stressed that employees do not give up all First Amendment rights when they accept government employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen about matters of public concern.

To establish a First Amendment retaliation claim, a public employee must show that (1) she engaged in constitutionally protected speech; (2) she suffered a deprivation because of her employer’s action; and (3) her protected speech was a but-for cause of the employer’s action. Initially, to establish a prima facie case of retaliation, the plaintiff must produce evidence that his or her speech was at least a motivating factor of the employer’s decision to take retaliatory action against the employee. Then, the burden shifts to the employer to rebut the causal inference raised by the plaintiff’s evidence. If the employer fails to counter the plaintiff’s evidence, then the plaintiff has established the but-for causation needed to succeed on his claim.

Policymakers Exception

In Elrod v. Burns and Branti v. Finkel (cited above), the U.S. Supreme Court prohibited government employers from dismissing most public employees on the basis of partisan affiliation, holding that the age-old practice of patronage firings violated the First Amendment. At the same time, however, the Court recognized an exception for employees who occupy policymaking or confidential positions. The Court said that elected officials may require political loyalty from such employees so that representative government is not undercut by tactics obstructing the implementation of policies presumably sanctioned by the electorate. If an employee’s private political beliefs would interfere with the discharge of his public duties, his or her First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.

The court concluded that, as gubernatorial appointees, Illinois workers’ compensation arbitrators “are the face of the administration in the workers’ compensation arena.” Accordingly, the governor was entitled to appoint point and retain only those arbitrators in whom he had confidence.

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Kansas Court Strikes Words “Accidentally” Introduced into Medical Fee Schedule

Saves Hospital $600,000 in Lost Reimbursement

Stressing that a rule or regulation adopted by an administrative agency can only be given binding legal effect if the agency complies with the full requirements of the state’s Rules and Regulations Filing Act [See Kan. Stat. Ann. § 77-415], the Court of Appeals of Kansas recently held that a three-word modification in language introduced into the 2011 version of the Kansas Workers’ Compensation Schedule of Medical Fees could not be enforced [see Via Christi Hosps. Wichita, Inc. v. Kan-Pak LLC, 2017 Kan. App. LEXIS 67 (Aug. 25, 2017)]. Utilizing the schedule, with the three-word modification from the 2010 version, a hearing officer awarded a hospital reimbursement in the amount of $136,451.60 for its services to a severely burned workers’ compensation claimant. Had the three words not been introduced into the 2011 schedule, the hospital would have entitled to an additional $600,000. The hearing officer and the state’s Workers’ Compensation Appeals Board ruled that the schedule had to be enforced as written. The Appellate Court detailed the proper procedure to be followed in making regulatory changes and noted that none of the required safeguards had been utilized in adding the suspect language. The Court concluded that since the appropriate procedure had not been followed, the 2011 schedule should be read as if the changes in wording had never occurred.

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Bob Wilson May Have a “Cluttered Desk;” His Prediction of Opt Out Reprise is Spot On!

What if Employers Are Willing to Give Up Exclusive Remedy Defense?

In his typically lucid and engaging style, Bob Wilson mused in his post this morning that the employer opt out movement in workers’ compensation law isn’t dead; it’s only sleeping. For what it’s worth, I agree.

It’s as if all too many in the comp world have become susceptible to a form of “Jedi mind trick.” Like the Stormtroopers who stopped Obi-Wan and Luke as the duo searched for a starship, only to be side-tracked when Ob-Wan waved his hand, saying, “He can go about his business,” many in the comp arena heard about the Oklahoma Supreme Court holding last year in Vasquez v. Dillard’s, Inc., and numbly repeated to ourselves, “You can go about your business.”

Obi-Wan waves that hand again and continues, “Move along.” All too many of us nod quietly and say, “Move along …, move along.” Continue reading

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Eighth Circuit: North Dakota Need Not Substitute Colorado’s More Generous Death Benefits Rules for Claim Filed in the Peace Garden State

In a case of first impression, the 8th Circuit Court of Appeals affirmed a U.S. District Court decision that had dismissed a widow’s civil action seeking a declaration that N.D. Cent. Code § 65–05–05(2)(2013) was invalid and unenforceable under the Due Process, Equal Protection, and Full Faith and Credit Clauses of the United States Constitution and, therefore, could not be applied to suspend her North Dakota benefits while she sought a hearing on her claim for Colorado benefits [DeCrow v. North Dak. Workforce Safety & Ins. Fund, 2017 U.S. App. LEXIS 13877 (8th Cir., July 31, 2017)]. Citing Carroll v. Lanza, 349 U.S. 408, 412, 75 S. Ct. 804, 99 L. Ed. 1183 (1955), the 8th Circuit indicated that a State need not substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.

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Florida MDs Have No Duty to “Cross-Examine” Workers’ Comp Claimant Regarding Known Misrepresentations

A Florida appellate court held that misrepresentations regarding a claimant’s medical history can disqualify the claimant from receiving benefits even if there is no direct link between the allegedly false or misleading statements and the particular injury for which benefits are being sought [Cal-Maine Foods v. Howard, 2017 Fla. App. LEXIS 10681 (1st DCA, July 26, 2017)]. Moreover, oral or written misrepresentations to a physician about a claimant’s prior medical history cannot be excused or “nullified” because the doctor actually possessed accurate medical information from some other source. Florida’s fraud statute [§ 440.105(4), Fla. Stat.] places no affirmative duty on an evaluating physician to interrogate the claimant regarding known misrepresentations.

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Mississippi Commission’s Decision to Deny Claim Because of Employee’s “Refusal” to Take Breathalyzer Test Cannot Stand

Yesterday, in a divided decision, the Court of Appeals of Mississippi reversed a decision by the state’s Workers’ Compensation Commission (“Commission”) that had denied an employee’s workers’ compensation claim because the employee had refused to take a breathalyzer test after the injury occurred [McCall v. Sanderson Farms, 2017 Miss. App. LEXIS 420 (Aug. 1, 2017)]. The Court found that the Commission’s decision was not supported by substantial evidence where the employer’s own evidence showed that the employee had remained on the employer’s premises for more than an hour and a half after suffering a painful back injury, that the employee left the premises at that point to go to a nearby hospital emergency department for treatment, and that shortly after the injured employee left, a contracted technician arrived at the employer’s premises to administer the breathalyzer test.

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Maine High Court Blocks Employer’s Attempt to Challenge Continued Existence of Disability

Highlighting the fine line that exists, on the one hand, between a party’s attempt to relitigate an issue already decided and, on the other hand, a party’s contention that a change of condition or circumstances warrants revisiting the issue of an injured worker’s continued level of disability, the Supreme Judicial Court of Maine affirmed a decree of the state’s Workers’ Compensation Board Appellate Division that concluded that a 2007 determination of permanent impairment as of the date of MMI was final and, therefore, res judicata princples barred relitigation of the issue [Bailey v. City of Lewiston, 2017 ME 160, 2017 Me. LEXIS 170 (July 20, 2017)].

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Missouri Court Stresses Importance of Injury “by Accident” in Recent Horseplay Case

The Missouri Court of Appeals recently affirmed a decision of that state’s Labor and Industrial Relations Commission that had denied workers’ compensation benefits to a tire shop employee who sustained severe burns when he used a lighter to ignite a can of glue held in a coworker’s hand during an apparent lull in the workday [Hedrick v. Big O Tires, 2017 Mo. App. LEXIS 660 (June 29, 2017)]. Agreeing with the Commission, that the claimant’s intentional ignition of the glue was not an accident, as that term is defined in Mo. Rev. Stat. § 287.020 (2017), the Court stressed that it is the accident, and not the injury, that is the event which is unforeseen. The Court added, “It is therefore possible that an expected traumatic event may produce unexpected injuries, but that does not change the event from a non-accident to an accident” [2017 Mo. App. LEXIS 660, emphasis by the Court].

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