CHAPTER 2: CRITICAL THRESHHOLD CONSIDERATIONS
Notice; Statute of Limitations; Attorney’s Fees; Date of Injury
A. NOTICE
2 Things an employee must do immediately: (1) Give Notice & (2) File claim within statutory period
Ø Did employee give notice? – MUST consider this before analyzing substance of claim
o No notice is typically fatal to claim
Ø Did employee file within statutory period?
o Availability of tolling depends on state statute
o More serious than lack of notice
o Much more difficult to tie injury to work
o The longer you're “injured” the more things that could account for your condition
§ How do you know your pain is coming from your work problem?
· Ski trips, yard work, , — all kinds of things could acct for injury
§ Therefore – more strictly construed!
o Gradual injuries – Ex. carpel tunnel
§ Tactical issue: Must find a way to tie the injury to the current employer
· You're going to need an expert witness doctor to testify
Statutory Construction
Ø Consider LIBERAL vs. STRICT construction of the statute in analyzing potential claim
o Factor this into analysis in exam
General Cable Corp v. Levins (1940) – Actual Notice deemed sufficient
· Man is struck in head by a beam – goes to company doctor complaining of eye pain
· Really a detached retina – doctor did not follow-up after several more days of pain
· Discussion: Statutory notice vs. actual knowledge
o Employee did not file claim, but the complainant went to a company doctor – court considers this actual notice
o ER argued no notice – there was no notice of detached retinas, we had notice of a beam striking his head
· Holding: “All you need is information about the time, place, circumstances of the occurrence” Your agent (doctor) KNEW of the occurrence
· Takeaway: The claimant here did enough to put the company on notice
o We are dealing here with very unsophisticated parties here – we are affording them a good amount of leniency
B. STATUTE OF LIMITATIONS
ØMost important thing you have to know as an attorney is when you are close to the deadline
ØWorker required to file claim within SOL in statute – usually 2 years
ØCan sometimes be tolled – if worker could not reasonably have known she experienced work related injury
ØAtty failing to file claim on time could result in malpractice
ØExam Note: Duff has filed many WC claims “protectively”: seeking protection of the Act to fend off SOL claims
Bieber v. Keeler Brass Co.
· Voluntary payments followed by separation from employment in two consolidated cases
· ER's argument: voluntary payments were no “claims” – EE had to file a separate/new claim after leaving employment
· Holding: Once you paid benefits, claim was filed
o You do not have to re-file – we are no longer dealing with SOL issues
o Employer could argue that the original injury resolved and that this is a new injury/situation altogether
C. ATTORNEYS FEES
2 Basic Rules
1. English Rule – If you prevail on an issue, then somebody else is paying the fees – might be employers, the state, or an insurance company – the important point is that YOU DO NOT have to pay
2. American Rule – You pay your own way and attorney's fees – parties bear the costs – usually what's going to happen is the atty is going to take a pre-arranged percentage of anything that is recovered
ØEXAM – HAVE THE FEE STRUCTURE CONVERSATION WITH YOUR CLIENT
ØEXAM – FEE STRUCTURES ARE ALL CREATURES OF STATUTE
o Amount of fees payable to claimants’ attorneys may be subject to statutory cap (often 1/3)
Appeal of Metevier (NH) – EXAM: Fee Factors
· Struggle over the hourly fee awarded by state – insurer (AIG objected to the amount)
· English Rule fee structure
o Attorney is concerned about the fee – he was a seasoned attorney and wanted more hourly than what was awarded
o Multiple factors enumerated when determining fee:
§ Amount involved
§ Nature, novelty, and difficulty of the litigation
§ Attorney’s standing and the skill employed
§ Time devoted to claim
§ Customary fees in the area
§ Extent to which attorney prevailed
§ Benefit bestowed on client
· Holding: Remanded case to use the factors and determine that scale
Pettinato v. Industrial Commission of Arizona (AZ 1984)
· Employee initially wins the case and gets 100% benefits
· American Rule case – if it were English Rule you're getting paid per hour – but no provision like that in American rule
· EE awarded benefits; ER/Insurer appealed – claimant was working/video showing claimant was not impaired – This was all bullshit – “No smoking gun”
· Takeaway: NO statutory provision for a fee – very hard-edged attorney's fees
D. DATE OF INJURY
Usually controls the case – law in effect on date of injury controls
ØIssue: WC is a very political body of law – employers hate it – in a purple state, you have vehemently opposed sides (left and right) –
o Republicans take control of legislature: benefits are cut back, statute of limitations narrower, attorney fee provisions cut, etc.
ØTWO major kinds of complications[1]
o Tactical maneuvering to prove a “favorable date of injury”
§ Legislative modification of general rules
o 1. Procedural amendments – prospective & retroactive effect
o 2. Substantive amendments – prospective effect only
§ Imagine cut in benefits = substantive = normally prospective effect
ØGR of Statutory Construction: Procedural changes to the law operate:
o PROSPECTIVELY & RETROACTIVELY
ØErie Doctrine – cannot choose a federal forum just to escape state law
ØGR of Statutory Construction: Substantive changes operate:
o PROSPECTIVELY ONLY
o Basic notion of fairness – retroactivity in the law is generally disfavored
o Attorney Fees: DO NOT know whether attorney fee provisions are substantive or procedural
Brown v. Industrial Commission of Ohio (OH)
· Incarcerated claimant – after claimant has become permanently disabled
· While in prison
had a bad back; and (2) When you did not
· If you already had a bad back, then you MUST to point to a specific incident
· If you DID NOT already have a bad back, you do not have to point to an incident
· His story: “Yesterday my back didn't hurt, but after work today it did hurt” = Compensable
· You need an accident to distinguish what's happening now from what happened in past
· Holding: Commission went too far!
o “Saunders proved no accident, identifiable incident, or sudden precipitating”
o Fact finder speculated — no credible evidence supporting the Award
o Extremely strict construction
Ross v. Oxford Paper Co. (ME)
· Ross suffered from compression neuropathy” (carpal tunnel)
· Alleged it was caused by years of handling heavy rolls of paper – cannot point to a particular accident – it happened over years and years
· In Maine, they took the accident requirement out of the statute
· Commissioner awarded total WC for period beginning 3/1974 applying law in effect
o BUT even if new law applied, was carpal tunnel an “injury”?
o Note: Mass always compensated gradual injuries and NEVER required injury by accident
· Court: By excising “accident' requirement, legislature meant to cover MORE
o Liberal construction PLUS à Completely difference perspective from Lane
Stenrich Group v. Jemmott (Virginia – 11 years after Lane – Note: 3 consolidated cases)
· (Injury as Disease Case)
· Plaintiff's Bar: If gradual injuries aren't compensable as injury because no accident – let's bring these claims as diseases – PRETTY SMART!
o EXAM: Plaintiff's attorneys kept calling this a disease in their reports! – setting the stage for the court
· Court: Says NO – just because physicians characterized cumulative injury as a disease, does not make it so as a matter of law
o WE get to say whether or not these claims are diseases – and this IS NOT A DISEASE – does not fit under the disease statute
o An injury is not a disease (and just in case you get any more fancy ideas cumulative trauma is NOT compensable under present Act – PERIOD)
o Gradual injuries / carpal tunnel – Ct. is NOT going to accept under WC statute
[1] Why is this concept (date of injury) included in this chapter? When interviewing potential client you need to review all possible dates of injury. If incapacity can be tied to a “bad” date of injury