Alex Mayfield in the Herndon, Virginia, office recently prevailed at an evidentiary hearing on the denial of a claim before the Virginia Workers’ Compensation Commission. Claimant, appearing pro se, alleged that he sustained an injury to his chest, shoulder, and neck, when he swatted at a fly while working as a test proctor. In addition to lifetime medical benefits, Claimant sought temporary total disability benefits from the date of injury to present and continuing. On behalf of the Employer and Insurer, Alex raised defenses of: (1) no injury by accident arising out of or in the course of employment, (2) claimant not disabled to extent alleged, and (3) claimant failed to provide timely notice of his alleged injuries.

At the evidentiary hearing, Claimant testified that he was seated at his workstation when he observed a flying insect that flew underneath his desktop. After he spotted the insect, he testified that he bent forward at his waist for approximately 15-30 seconds in an attempt to swat the bug away with a piece of paper. As he was straightening up to a seated position, he allegedly felt a burning sensation or spasm in his stomach/chest. Claimant testified on cross-examination that the bug was “not a regular fly” and that he did not want the people undergoing testing to be disturbed. Additionally, he stated that his job duties as a test proctor required him to exterminate pests from the facility, including rats. As to medical treatment, Claimant stated he initially thought the pain would subside, but eventually sought treatment at the emergency room, where he was given muscle relaxers and pain medication.

Although Claimant claimed wage loss related to the alleged work accident, including an inability to work for 8 hours a day due to his pain, he admitted to subsequently working as a shuttle driver and accepting “love offerings” (i.e. donations) through the ministry. Claimant provided minimal medical evidence to the Commission, which included a referral for physical therapy dated February 6, 2016, and a “Patient Visit Information” document from the ER noting a visit on February 19, 2016 for a chest wall and muscle spasm.

Claimant, upon his request for hearing, had the burden of proving the essential elements of his case by a preponderance of the evidence. For a basic accidental injury claim in Virginia, the essential elements include an (1) injury by accident, (2) arising out of claimant’s employment, and (3) in the course of claimant’s employment. Additionally, Claimant must prove the causal relationship of the alleged accident to medical treatment sought and subsequent wage loss.

The Deputy Commissioner weighed the evidence presented at the hearing and ultimately found that the claimant did not meet his burden of proving an injury by accident arising out of his employment because “the simple act of sitting back up in a chair after swatting at a fly” is not a risk associated with Claimant’s employment. In his Opinion, the Deputy Commissioner relied on important authority regarding the “arising out of” prong of an accidental injury claim—“‘[t]he mere happening of an accident at the workplace, not caused by any work related risk or significant work related exertion, is not compensable.’ Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).” If the general public is exposed to the same risk outside of the workplace, then the injury is not likely to be found as compensable under the Act.

Because the Deputy Commissioner found that Claimant did not prove an injury by accident, he did not make findings related to the other defenses raised. As this case was decided at the evidentiary hearing level, it does not have any precedential value, but it provides an overview of the law regarding the “arising out of” element needed to prove compensability. Many injuries, although they occur at work, are not compensable injuries under the Virginia Workers’ Compensation Act.

 

 

 

Your business is taking off and work is showing results. You have built a reputation over the years and, until now, you have turned a blind eye toward registering a company trademark. Maybe that thought now comes into focus – when your business gathers visibility and suddenly has a reputation to uphold. Countless business disputes result from a business owner’s failure to take care of the little things early on – before they present a real threat. Consider the benefits of registering a trademark and the consequences of not doing so. Like a reputation, your business has likely taken years to build. Its reputation can be altered, perhaps irrevocably, if a competitor registers the trademark first and markets itself under your company’s brand.

What Is a Trademark?

Generally, trademarks are symbols, words or images that indicate where a product is from, as distinguished from a similar product from a competitor.  This helps prevent a competitor from using your company’s rising visibility to their advantage.

What Is Common Law Trademark Protection?

There are two sets of trademark protections: 1) common law rights; and 2) federal rights.

Common law rights are created by mere use of your trademark and its association with a product or service you sell.  Since actual use of the trademark is required to create a common law rights in the trademark, a company often must spend significant time and money marketing and building a brand before those protections are created.

Fortunately, common law protections apply without a company taking any other action aside from using the trademark – no registration of any trademark is necessary. Under common law, your trademark will be protected by use from a competitor within a certain geographic area around your company. Ultimately, if you found a competitor was using your company’s trademark, your company could enforce common law protections on that trademark to the extent your company could show the competitor’s trademark is likely to cause confusion about the source of the product being sold. Upon the showing of such confusion, your company could use the court system to stop the competitor’s use of the trademark.

What Are the Federal Protections and Why Are They Better?

Federal trademark protections are created when you register your trademark with the U.S. Patent and Trademark Office (USPTO).

The only requirement, aside from fees, is that the application be made in good-faith. Specifically, the registrant must show intent to use the mark in connection with the marketing of a product or service.

The ease of filing with the USPTO creates a problem – a third party can file an application for the same trademark you have, possibly creating significant hardship and expense for your company in the future. For instance, if someone else registers the same trademark before you do, that person or company is given advantages if you ever decide you need to sue that party for improper use of “your” brand. Suddenly, your business’ reputation is at risk. If your brand grows and you dispute the rights your competitor has in the trademark, there is a good chance the ensuing disagreement will be more expensive and difficult than if you had simply registered your trademark first.

Filing an application to register your trademark with the USPTO places the whole country on notice of your trademark use. Thus, if someone attempts to register the same trademark later, you are given priority due to the earlier filing date. Accordingly, moving quickly and early will provide you some peace of mind.

Additionally, federal registration provides more benefits than common law trademark protections. Among other perks, federal registration provides: 1) a legal presumption that the registrant has exclusive right to use the mark nationwide in connection with the good and services listed in the registration; 2) significant limitation on competitors’ ability to argue against your ownership of the mark after five years of registration; and 3) a basis to sue a competitor in federal court for trademark infringement.

I Have Already Registered – What Else Can I Do?

The above is only one small piece of a larger intellectual property puzzle, but generally, the above is helpful. Even after you have registered a trademark, there are certainly other problems that can spin out of control if you do not take steps to enforce your rights, but that is best left for a discussion with an attorney to review the specifics of any dispute. You should also review the differences between trademark, patent and copyright protections, all of which an attorney could advise you with regard to the specific intellectual property needs of your business.

As a business owner, you are often not aware of legal protections that may be very helpful in the future. Naturally, you focus on the most pressing issues – putting out fires. The tendency is to concentrate on growing your business. The problem is you must always assume someone is looking to profit from your hard work. Register a trademark before your company grows more lucrative. Think of good fences and neighbors – draw the boundaries now by registering your trademark and limit the parasites later. Without registering, you are stuck with more limited trademark protections.

Hopefully, you never need to litigate trademark issues, but if you do not register, defending your trademark will generally be more expensive and stressful than need be. You care deeply about your company and its future, so take steps now to protect your brand. Do not let a bored millennial down the street register first because you never bothered to do so. It is guaranteed someone will see your business is profitable and try to take advantage. Although you cannot control a competitor’s nefarious efforts, you can take preventive measures such as registering a trademark with the USPTO.

For more information about this article or F&P’s business law practice, please contact Michael J. Lentz at 410.230.1080 or mlentz@fandpnet.com.

Owner-operators are an integral part of the trucking industry. With approximately 350,000 owner-operators registered in the United States, their contribution to the trucking industry is significant. Most importantly, owner-operators provide motor carriers with flexibility.

The Federal Motor Carrier Safety Regulations (“FMCSR”) afford owner-operators significant protections and dictate the requirements of owner-operator leasing agreements and certain aspects of the business relationship. A motor carrier’s failure to comply with the FMCSR provisions applicable to leasing agreements exposes them to disciplinary action, as well as lawsuits brought by owner-operators. As new federal regulations governing the transportation industry are constantly proposed and adopted, it is imperative that motor carriers adjust their owner-operator leasing agreements in light of the ever-evolving regulations to ensure compliance with all applicable FMCSR provisions. Motor carriers should be aware that the recent ELD Mandate may require modifications to their owner-operator leasing agreements.

The ELD Mandate

In December 2015, the Federal Motor Carrier Safety Administration (“FMCSA”) published a rule requiring commercial truck drivers to log their hours of service using an electronic logging device (“ELD”) approved by the FMSCA (“ELD Mandate”). The ELD Mandate was effective as of February 16, 2016 with a compliance date of December 18, 2017 for most carriers and drivers (carriers and drivers who were using automatic on board recording devices prior to the ELD Mandate may continue to use those devices through December 16, 2019).

The motor carrier must select and use an ELD that is approved by and registered with the FMCSA. The approved ELDs range significantly in price for the unit itself as well as the monthly service fees associated with its use. Many motor carriers are choosing to purchase the ELDs in bulk from the manufacturers at a discounted rate then offering to pass the savings through to their owner-operators by selling the ELDs to them as a convenience and at the discounted rate. Additionally, many motor carriers are choosing to pass the cost of the ELD’s associated monthly service fees to their owner-operators. Motor carriers must be mindful of the applicable regulations governing owner-operator lease agreements and ensure that their lease agreements and their actions are compliant with the regulations.

Owner-Operator Lease Agreement Requirements

FMCSR dictates the terms that must be contained in every lease agreement between an owner-operator and a motor carrier. Specifically, the FMCSR, and the case law interpreting the applicable provisions, require that all items charged back to the owner-operator be specifically identified in the lease agreement, along with how the amount charged back will be calculated or determined. This must be done within the lease agreement itself or through an addendum modifying the lease agreement, signed by both the owner-operator and the motor carrier. Additionally, the FMCSR prohibits a motor carrier from requiring an owner-operator to purchase any products or services from the motor carrier as a condition of entering into the lease agreement.

Required Action of Motor Carriers

Motor carriers utilizing owner-operators must take action to ensure that their leasing agreements, and their actions, are compliant with FMCSR in light of the ELD Mandate.  A motor carrier must remember that it is permitted to offer to sell the ELD unit to the owner-operator as a convenience, but cannot require the purchase of the unit from the motor carrier itself. The motor carrier can dictate the type of unit the owner-operator must purchase, but the owner-operator must be free to purchase the unit from any source available. Additionally, if a motor carrier is going to charge back the cost of the ELD unit, or the associated monthly service fee, the motor carrier must ensure that these items are specifically included in the lease agreement. If the ELD and/or service fee is not specifically identified as an item that will be charged back to the owner-operator, an addendum to the leasing agreement, signed by both the motor carrier and the owner- operator, is required.

If you have questions regarding whether your owner-operator leasing agreements are compliant with FMCSR in light of the ELD Mandate, or you need assistance in modifying the agreements to bring them into compliance, please contact Renee Bowen at rbowen@fandpnet.com or 410.230.3943.

Last Tuesday, May 2, F&P associate Tony Villeral received a favorable decision from the District of Columbia Administrative Hearings Division following a two day formal hearing.

The claimant, a graduate student, alleged to have sustained an accidental work related injury to the low back on 3/15/15 while working part time for the employer. On that date, a co-worker took her chair and when Claimant went to sit, she fell on her buttocks and back.  In addition to  radicular low back complaints, the claimant also alleged she hit her head causing vision, balance and concentration problems, and neck issues resulting in radicular upper extremity complaints.

The claimant’s treating physicians causally related all of the claimant’s symptoms to the work accident, recommended low back surgery, and disabled the claimant from her part time job with the employer and her concurrent job as a research associate for Georgetown.  As a result, she was entitled to wage stacking per the District of Columbia Workers’ Compensation Act.

A formal hearing was held on 10/24/16 and 11/7/16, on the claimant’s request for TTD from 3/16/15 to 3/18/15 and 3/31/16 to the present and continuing; causally related medical treatment including lumbar spine surgery and post concussive therapy and payment of causally related medicals.  Several defenses including causal relationship, reasonableness and necessity, nature and extent and voluntary limitation of income were raised.

The very thorough Compensation Order explained the basis for finding that the claimant was not credible, and rejected the opinions of the treating physicians due to “sketchiness, vagueness and imprecision in the reports”.  Judge Knight explained how Claimant produced a 3/19/15 illegible note with a diagnostic code for a concussion, but the corresponding 3/19/15 and 4/2/15 medical reports from Dr. Mullner state the claimant did not hit her head.  Moreover, it wasn’t until May of 2016 that Dr. Heinke began producing reports indicating the claimant did hit her head, but the treatment was more focused on the low back. The claimant testified that she did not correspond with her treating physician about medical notes at the formal hearing.  However; an email was obtained by the defense indicating the claimant did in fact review her medical records prior to her physician placing them on letterhead.  The Compensation Order findings reflect that the claimant’s communication with her physician resulted in serious credibility issues. Specifically, the treating physician emailed the claimant with medical notes for Claimant’s review and requested Claimant’s approval prior to placing them on letterhead.

Judge Knight also rejected treating physician Dr. McGrail’s opinions because they relied heavily on Claimant’s subjective symptoms in light of the evidence indicating the claimant may be exaggerating her symptoms.   Dr. McGrail noted a new onset of cervical symptoms related to the work injury on 1/12/16, 10 months after the work accident, and diagnosed the claimant with cervical radiculopathy.  Judge Knight felt his reports lacked explanation regarding causal relationship in the face of his minimal physical examination findings.  Specifically, Dr. McGrail failed to explain how the symptoms are related to the work injury in the face of a normal MRI, lack of any previous complaints and his limited findings upon physical examination.

Judge Knight rejected the opinions of the Claimant’s treating physicians in favor of the opinions of the employer’s independent medical evaluators.  Judge Knight indicated that the independent medical evaluations provided by the employer deserved more weight than the treating physicians because they were thorough with clear explanations for findings. Moreover, each of the three IME doctors obtained by the employer independently opined the claimant was exaggerating her symptoms and had nonphysiologic findings.

Ultimately, the Administrative Law Judge agreed with the defense and denied the claim in its entirety, finding that the alleged low back, neck, and post concussive symptoms are not causally related to the work injury and all other issues were therefore moot.