5/12/2017: Lack of Medical Record Credibility Plays Role in Favorable Defense Outcome
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.
5/1/2017: F&P Launches New Office in Richmond, VA
FOR IMMEDIATE RELEASE
F&P Launches New Office in Richmond, VA
Baltimore, MD, May 1, 2017 – Franklin & Prokopik (F&P), a growing regional law firm, is pleased to announce the official opening of a new office in Richmond, Virginia. The new office will be F&P’s seventh office, and second office in Virginia. Extending the firm’s geographic reach, the Richmond location will focus on serving clients in Central and Southeastern Virginia, including the Richmond Metropolitan and Hampton Roads Areas.
Led by F&P counsel Lindsey Lewis, the Richmond location brings extensive civil litigation experience in the areas of automobile/transportation liability, business, construction, employment, premises liability, and professional liability. This includes the defense of medical malpractice and nursing home claims and the representation of health care professionals before the Virginia Department of Health Professions, and professional regulatory boards. The office will provide individually-tailored legal services for diverse clients ranging from multi-national companies to local small business owners. Richmond will also be part of F&P’s transportation group’s Emergency Response Team, enabling additional clients to utilize this valuable service.
F&P maintains offices in Baltimore, MD, Easton, MD, Hagerstown, MD, Herndon, VA, Martinsburg, WV, and Wilmington, DE, in addition to the new Richmond, VA office.
ABOUT FRANKLIN & PROKOPIK, P.C.
Headquartered in Baltimore City, Franklin & Prokopik is a regional law firm comprised of over 65 experienced attorneys meeting clients’ needs through our seven offices which serve all areas of Maryland, Virginia, Washington D.C., Delaware, and West Virginia. Our mission of providing the highest quality personal service enables us to grow, as we attract and develop other likeminded attorneys to serve our clients. Franklin & Prokopik represents corporate and business entities of all sizes, from small “mom and pops” to Fortune 500 companies across a wide range of industries.
Contact:
Janessa Shaikun, Director of Marketing
410.230.1082
jshaikun@fandpnet.com
4/14/2017: Bert Randall to Discuss Gender Identity at Upcoming USLAW Employment Law Exchange
F&P President, Bert Randall, Jr., will be speaking at next month’s USLAW Employment & Labor Law Exchange. The event will take place from May 1-May 2 at the Langham hotel in Chicago, IL. The session is titled “It’s About More Than Which Bathroom – Gender Identity Issues Changing Ideas, Changing the Workplace from the Canadian and US Perspective,” and employment lawyers from both Canada and the US will discuss the history and current state of the law in both countries with respect to gender identity. They’ll also brainstorm ideas with participants, and address ways to mitigate risk in employment/gender identity claims.
3/15/2017: NYC and London Added to 2017 Trucking Boot Camp Line-up
Now in its ninth year, the “Trucking Boot Camps for the Claims Professional” will kick off next week in Dallas and Houston. The camp will visit eight different cities between March and June of 2017 with attendees from the insurance and transportation industries. After Texas, the camps will visit Denver, Chicago, Atlanta and Orlando, then finish off with newly added locations, NYC and London.
Franklin & Prokopik is one of the original firms involved in executing this event series, alongside Carr Allison, Dowd & Dowd, FSSV, Pion, Nerone, Girman, Winslow & Smith, and Rincon Law Group. All attorneys involved are highly experienced in defending catastrophic trucking and transportation matters. F&P principals Andrew Stephenson and Colin Bell will present on common insurance issues in commercial transportation. The Boot Camps aim to be a resource for the trucking community to respond to claims and efficiently handle high exposure litigation or trials.
The 2017 Trucking Boot Camps are sponsored by Marshall Investigative Group, SEA, US Legal Support, Custard Insurance Adjusters and Atlas Settlement Group.
2/21/2017: F&P Adds New Attorney to Liability Practice Group
Franklin & Prokopik is pleased to announce that we have added a new associate to the firm, Dana Miller. Dana brings extensive knowledge and trial experience to F&P in the field of general liability, including, construction, automobile liability, premises liability, products liability, and toxic torts. Her experience also includes subrogation, bad faith, insurance coverage, appeals, and alternative dispute resolution. Dana graduated with a Bachelor of Arts degree from Vanderbilt University in 2006 and from the University of Baltimore, School of Law in 2009. During law school, Dana represented clients as a Rule 16 Student Attorney for the Office of the Public Defender in Baltimore City. She also worked as a law clerk for a boutique defense firm in Alexandria, Virginia, and was a research assistant in the torts department. Following law school graduation in 2009, Dana served as a judicial law clerk for the Honorable Judith C. Ensor, in the Circuit Court for Baltimore County. Dana is admitted to practice law in Washington, D.C. and the state of Maryland.
2/8/2017: F&P Associate Sheds Light on the Debate Over Drug Testing Commercial Truckers Using Hair Samples
The Debate Over Drug Testing Commercial Truckers Using Hair Samples
By Lauren Evens
After the 2016 elections, 28 states and the District of Columbia have legalized the medicinal use of marijuana. At least seven states have legalized the recreational use of marijuana. The national trend of legalizing marijuana use, at least for medicinal purposes, is raising a number of issues in the trucking industry, which explicitly bans the use of marijuana for commercial drivers, regardless of whether a physician has prescribed its use.
The Federal Motor Carrier Safety Regulations (FMCSR) mandates that “no driver shall be on duty and possess, be under the influence of, or use, any substance set forth in Schedule I of the regulations….” Marijuana qualifies as a Schedule I drug under the Controlled Substances Act, 21 U.S.C. § 801. In November 2015, the Department of Transportation reiterated its zero tolerance policy when it comes to marijuana by issuing a ‘Medical’ Marijuana Notice in which the Department stated that “Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use ‘medical marijuana.’ … It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”
Commercial drivers are required to submit to drug and alcohol testing. Currently, the Department of Transportation provides specific procedures for urine drug testing and breath alcohol testing. Some large commercial carriers go above and beyond the minimal testing requirements set forth by the Department of Transportation and test prospective drivers using hair samples, which can detect the presence of marijuana up to 90 days after use. The urine analysis presently approved by the Department of Transportation can detect marijuana approximately two to three weeks after use. The Department of Health and Human Services has been studying hair testing since 2004 and has been tasked with adopting a hair-testing standard for federal employees, which many hope will lead to the Department of Transportation adopting a hair-testing requirement for commercial truckers.
Many people in the trucking industry are eager for the Department of Health and Human Services to pass a hair-testing standard that can be utilized for all commercial drivers because it would help to identify more marijuana users and ideally prevent accidents that can be linked to intoxication. Critics of this method of drug testing argue that hair testing will not yield the type of results necessary in the transportation industry; that is, whether the driver was under the influence of marijuana while operating a vehicle. Rather, the results show a broad picture revealing whether a driver was under the influence at any point in the three months preceding the test. Hair testing also draws criticisms because results can come back positive even if the hair was simply environmentally exposed to marijuana, as opposed to the individual actually ingesting the drug.
Although it remains unseen whether the Department of Transportation will adopt a hair-testing methodology for drug testing drivers, it seems likely that there could be a dwindling pool of eligible commercial drivers if tests get more stringent while states get more lenient regarding the use of marijuana.
1/31/2017: F&P Names New Firm Principals and Counsel
Four of Franklin & Prokopik’s counsel have been elected to firm principal level this month, along with an associate promotion to counsel. They have all distinguished themselves in the courtroom, the legal community and the F&P family. The firm looks forward to many years of ongoing success knowing that the F&P tradition of client service remains in good hands.
Franklin & Prokopik’s new principals and counsel are:
Imoh E. Akpan, principal, Baltimore
Michael J. Lentz, principal, Baltimore
Stephen J. Marshall, principal, Baltimore
Alex M. Mayfield, counsel, Herndon
Helen D. Neighbors, principal, Herndon
1/16/2017: Andrew Stephenson to Co-Chair ABA Transportation Megaconference
F&P principal Andrew Stephenson will once again be one of the program chairs for the 2017 American Bar Association Transportation Megaconference. The conference will be held March 8-12 at the Sheraton in New Orleans. Andrew will be participating in the program introduction, as well as moderating “the Top Ten List 2017” panel which will provide an update on the most significant legal devleopments impacting trucking companies and litigation over the last two years.
The Transportation Megaconference was the first and continues to be one of the leading continuing education programs for those involved in all aspects of trucking company-related litigation, providing attendees with practical, nuts-and-bolts approaches to transportation litigation, a national forum to learn from the experts, and an opportunity to meet, network, and exchange ideas with industry leaders and outstanding industry lawyers, executives and those involved in the decision-making process.
Sponsored by the Tort Trial & Insurance Practice Section (TIPS) Commercial Transportation Litigation Committee, Transportation Megaconference XIII marks the thirteenth in a series of highly successful biennial programs and presentations on trucking and motor carrier related issues. Building on a tradition of excellence over the last 24 years, the program planners have again assembled some of the nation’s leading trucking litigation experts, from inside and outside trucking companies, to address the wide variety of subjects which influence the daily operations of trucking business and impact critical litigation decisions and activities.
From the Keynote address and popular Top Ten and Corporate Counsel Roundtable segments to the Bench-Bar exchange, Litigation Management, Courtroom Expectations, Large Verdict, and handling the High Exposure/Subjective Complaint case segments, the Megaconference always presents the best and brightest. This year, additional segments include Technology and Science in the Courtroom, On-Board Cameras, and a novel segment on Google Self-Driving Technology. This TIPS National Program, again held in New Orleans, is an industry event not to be missed.
12/20/2016: “Exempt” is Over – A Review of the New Regulations for “Overtime-Ineligible” Employees
As featured in Behind the Wheel, a quarterly publication of the Maryland Motor Truck Association.
Written by Franklin & Prokopik attorneys Albert B. Randall, Jr. and Matthew George Kuspa
Editor’s note: On November 22, 2016, just as this magazine issue was being printed, a federal judge issued a preliminary injunction that temporarily halts implementation of the overtime rule discussed below. The injunction, coupled with the outcome of the U.S. elections, places the rule in doubt. Until such time as the injunction is lifted, the December 1 implementation date is temporarily suspended.
The U.S. Department of Labor (“DOL”) has issued new overtime regulations which are currently scheduled to go into effect on December 1, 2016. In Maryland alone, an estimated 79,630 currently nonexempt employees (1.9% of the working population) will become entitled to overtime under the new regulations.
Under the old regulations, executive, administrative, or professional employees (EAPs) were generally “exempt” from overtime if they performed certain job duties (the “duties test”) and were paid a salary (the “salary basis” test) of not less than $455 per week (the “salary level” test). Highly compensated employees (HCEs) were exempt from overtime if they were paid at least $100,000 and passed a “minimal duties” test, meaning that they customarily and regularly performed at least one of the exempt duties of an exempt EAP.
Under the new regulations, the DOL will now refer to nonexempt employees as “overtime-protected” or “overtime-eligible,” and exempt employees will be referred to as “overtime ineligible” or “not overtime-protected.” The new regulations do not make any changes to the duties tests for either EAPs or HCEs, however, the salary levels will be raised substantially for both overtime-ineligible EAPs and HCEs. Finally, in meeting the new standard salary level for overtime-ineligible EAPs, employers will be allowed to include nondiscretionary bonuses and make “catch-up” payments as needed.
Raising the Salary Levels
The DOL has set the new “standard salary level” for EAPs at the 40th percentile of full-time salaried workers in the lowest-wage Census Region in the United States. Based on data from 2015, the standard salary level will increase from $455 per week to $913 per week (or from $23,660 per year to $47,476 per year), effective December 1, 2016.
The salary level for HCEs will also change, and will now be set to the 90th percentile of full-time salaried workers nationally. Based on census data from 2015, the new salary level for HCEs will be $134,004, also effective December 1, 2016.
Part of the purpose of tagging the salary levels to census data is to allow for “automatic updates” to the salary levels for EAPs and HCEs. The first update to the salary levels will take effect on January 1, 2020, and salary levels will be updated every three years thereafter. The DOL will calculate the new salary levels based on data from the second quarter of the year preceding the update, and will post the new salary levels at least 150 days prior to each update (or August 4th of the preceding year).
Bonuses and “Catch-Up” Payments
Employers are now permitted to count nondiscretionary bonuses, incentives, and commissions toward up to 10% of the standard salary level for overtime-ineligible EAPs. Examples of such “nondiscretionary” payments include bonuses that are announced to employees to encourage them to work more steadily, rapidly, or efficiently (in other words, bonuses tied to productivity or profitability), and bonuses designed to encourage employees to remain with the employer. Examples of “discretionary” bonuses include unannounced bonuses or spontaneous rewards for specific acts.
In order to be counted toward the standard salary level, nondiscretionary bonuses must be paid at least quarterly. In some situations, the bonuses may be less than expected and an EAP’s weekly salary plus bonuses for the quarter will not equal or exceed one-quarter of the yearly salary level. In such a case, the DOL will permit employers to make a “catch-up” payment no later than the pay period after the end of the quarter to raise the employee’s salary to the standard salary level.
Motor Carrier Exemption
Section 13(b)(1) of the Fair Labor Standards Act, also known as the “motor carrier exemption,” continues to provide an overtime exemption for employees regulated by the Department of Transportation (DOT). Drivers who transport goods across state lines and certain other employees whose duties may affect the safety of motor vehicles in interstate commerce generally fall within DOT jurisdiction and are not entitled to overtime under FLSA, even if they also work on intrastate routes. The new regulations do not affect the motor carrier exemption. Under Maryland law, state overtime law does not apply to employees regulated by the Department of Transportation.
Options for Employers
Employers may increase the salary of newly overtime-eligible employees to keep the employee exempt from overtime. This may be a good option for employees who have salaries slightly under the new exempt salary level.
Employers may also choose to keep salaried employees that will now be overtime-eligible at the same rate of pay and pay overtime as needed. There is no requirement that employers convert employees from salaried to hourly in order to pay overtime. Employers may instead calculate an employee’s rate of pay by dividing the total pay for the employee in any workweek by the total number of hours actually worked, and use that rate to pay the salaried employee overtime.
Preparing for the Change
In preparing for the change on December 1, 2016, employers should consider:
- Identifying employees who are at or near the new standard salary level,
- Preparing early by having salaried employees who are newly “overtime-eligible” track their time in anticipation of the change,
- Developing policies for tracking time for employees who work remotely and/or are issued a company computer or cell phone, and
- Evaluating bonuses to determine whether they are “discretionary” or “nondiscretionary” and reviewing and adjusting their compensation schemes and policies accordingly.
Private employers may also refer to guidance issued by the DOL on the final overtime rule (available at https://www.dol.gov/). Whether employees are “exempt,” “overtime ineligible,” or “not overtime-protected,” employers will have to pay much closer attention to employee compensation and overtime work as the regulations continue to update.
What does this mean for employers? For now, the overtime rule will not take effect as planned on December 1, 2016 but it could still be implemented at some point in the future. Employers may continue to follow the existing overtime regulations until a final decision is reached, but should be aware that there is a possibility that the rule could be enforced retroactively, and should carefully track the hours of employees who will be affected by the changes. Those employers who have already reclassified employees have the option of proceeding forward with implementation of the new rules.
