Legal Corner

Posted on by davidrleng

Workers’ Compensation 

WCAB does not have authority to overturn award of medically necessary housekeeping services – California

When housekeeping services are requested by a physician and are reasonably required for an injured worker, they qualify as medical treatment. As such, the Court of Appeals for the 2nd District ruled that if a physician makes a request for a medical treatment, an employer cannot deny it unless a utilization reviewer determines that it is medically unnecessary.

In Allied Signal Aerospace, Constitution State Service Company v. Workers’ Compensation Appeals Board and Maxine Wiggs, the injured worker was receiving housekeeping services twice a month, but the physician requested a change to every week. The company submitted the request to utilization review. The reviewer found the more frequent schedule was not medically necessary. However, the WCAB supported a judge’s ruling to submit the records to a registered nurse who had made an earlier assessment of need for review.

The 2nd DCA vacated the WCAB’s ruling noting that since there was no stipulation to displace the provision of housekeeping from the UR-IMR process, the WCAB had no jurisdiction to review the medical necessity and reasonableness of service.

Exclusive remedy bars personal injury claim by firefighter kicked in the groin by supervisor – California

In Tibbett v. Los Angeles County Fire Department an appellate court affirmed a jury’s ruling that a firefighter’s unintentional injuries were barred by the exclusive remedy of workers’ compensation. The incident occurred when the firefighter complained to a supervisor about how a situation with a hostile victim was handled. The fire captain said he was showing a maneuver to keep volatile patients away by obstructing their vision, but the firefighter moved and he kicked him in the groin with a steel-toed shoe.

The firefighter had emergency surgery to remove his left testicle and underwent more surgeries that rendered him sterile. The court agreed with the jury, finding the fire captain did not intend to harm the firefighter; therefore, workers’ comp was the exclusive remedy.

Challenge to the presumption of correction for the opinions of EMAs rejected – Florida

In De Jesus Abreu v. Riverland Elementary School, the 1st District Court of Appeal rejected a constitutional challenge to the statutory presumption of correctness for the opinions of expert medical advisers (EMA). The employee suffered a compensable injury to her shoulder and an arthroscopic shoulder surgery was performed to address a partial rotator cuff tear.

While the physician deemed she had reached MMI, she continued to report pain and she sought care from an unauthorized orthopedic physician who recommended further surgery. The company authorized another orthopedist, who did not recommend further surgery. However, the employee obtained an IME from a doctor who thought surgery was appropriate.

Because of the conflicting opinions, a JCC appointed an EMA who opined that no further surgery was recommended or medically necessary. The JCC denied surgery because state statutes provide that the opinion of an EMA is presumed to be correct unless there is clear and convincing evidence to the contrary.

The employee appealed, arguing that the presumption improperly usurps the rulemaking authority of the state Supreme Court and that the presumption interferes with the executive branch’s ability to fairly adjudicate workers’ compensation claims. The court disagreed.

Restaurant manager shot in off-hours robbery can receive benefits – Georgia

In Kil v. Legend Brothers, the Court of Appeals overturned a denial of benefits to a restaurant manager who was shot as he was arriving home from work with the day’s receipts, which he regularly reviewed when he got home. The worker lived with the restaurant owner and his coworker. When he arrived home with his coworker, they were attacked by three men who demanded money. When the attackers realized the worker had a gun, they fled, but shot him in the forearm and he has not been able to work.

Both an administrative law judge and later the state Board of Workers’ Compensation awarded him comp benefits, ruling that his injury arose within the scope and course of employment. However, a state superior court reversed, finding that he was not at work at the time of the armed robbery and shooting-that he was home and that he was shot because he had a gun, which “had nothing to do with performing his duties for his employer.”

The Court of Appeals disagreed, noting one of the worker’s key job responsibilities was to spend around an hour every day going over the restaurant’s daily sales, receipts, accounts and inventory and that he was continuing his duties as manager.

Insurer must pay for injuries despite misinformation in policy – Georgia

In Grange Mutual Casualty Co. v. Bennett, several mistakes were made when an insurance agent took the company’s business information from its policy with a former insurer. She misclassified the company that was a construction company involved in greenhouse repair and maintenance as providing janitorial services and erroneously noted that employees did not travel out of state and that workers did not perform work above 15 feet. While the owner signed the policy, there was a dispute whether it was complete at the time.

When an injury that occurred out of state was denied, the company told the agent the policy had to be changed because most of its business was out of state. When the insurer learned more about the business operations it said it would not have issued the policy if the application had correctly stated that the company operated in 30 states because Grange Mutual was not licensed to issue policies in all of those states. It sent a cancellation notice but gave the company 90 days to find an alternative.

In less than 90 days, another worker was injured out of state, suffering extensive injuries in a truck accident. An administrative judge held that Grange Mutual’s policy covered the employee’s injuries and that by agreeing to pay for workers’ comp claims under the laws of Georgia, the Georgia-based company’s workers were covered even when out-of-state. Further, an appellate court held that Grange Mutual waived its void policy defense when, after discovering the inaccurate information on the application, it informed the company that its coverage would continue for 90 days. The court said that if the insurer “believed that the policy was void based on fraud, it should have immediately rescinded it.”

Borrowing employer’s immunity from tort liability not dependent on insurance – Illinois

In Holten v. Syncreon North America, an appellate court ruled that a temporary staffing service’s employee could not pursue a negligence suit against his borrowing employer for work injuries. The worker received comp benefits from the staffing agency for injuries resulting from a forklift accident, but filed suit against the borrowing employer, asserting its negligence had led to his injuries.

The state Workers’ Compensation Act provides that the lending and borrowing employers are jointly and severally liable for workers’ compensation benefits, but both do not have to provide the insurance. As long as one of the employers pays benefits, both have civil immunity. The immunity springs from the borrowed-employee relationship itself.

Employee can sue Canada – Massachusetts

Federal law immunizing foreign governments from liability does not protect Canada from being sued as an uninsured employer under the state’s workers’ compensation statute for injuries suffered by a consulate employee in Boston, the 1st U.S. Circuit Court of Appeals ruled in a 2-1 decision. In Merlini v. Canada, the Court found that the Foreign Sovereign Immunities Act provides an exception to immunity for a foreign state that engages in a “commercial activity.” The court said Canada entered into a contract for commercial services by hiring Merlini and failed to carry workers’ comp insurance as required of commercial employers in the state.

Worker who resigned after injury can collect unemployment – Minnesota

In Interplastic Corp. v. Rausch, a long-time employee injured his back and was transitioned to a lower job but received the same wage and accompanying pay raises over the next three years. He was then notified his wage was being reduced to align with the position and he was ineligible for future raises. About the same time, the workers’ compensation claim was settled and he received a $25,000 payout and agreed to “voluntarily terminate his employment.”

When he applied for unemployment benefits, he was denied because he had voluntarily quit. However, a three-judge appellate court panel affirmed an unemployment law judge’s decision that a substantial pay reduction, the lack of future earnings potential, and the claim settlement allowed the worker to fall under the state’s statutory exception for unemployment eligibility.

Worker’s manufacture of meth does not forfeit comp benefits – New York

In Robert Stone v. Saulsbury/Federal Signa et al., an appellate court ruled that a worker’s conviction for manufacturing methamphetamine did not forfeit his entitlement to benefits for two industrial injuries. The court upheld the WCB ruling that the man who had been collecting indemnity benefits for a compensable injury prior to his conviction and incarceration did not violate state workers’ compensation laws when he became involved in the production of illegal drugs.

The insurer contended that the manufacture of methamphetamine constituted “work”. The court disagreed, “substantial evidence supports the Board’s finding that the conviction alone is insufficient to establish any work activity by claimant or that he received any type of remuneration.”

Denial of occupational disease does not prevent new theory of accidental injury – New York

In Matter of Connolly v. Covanta Energy Corp., an appellate court reversed the state Workers’ Compensation Board’s finding that a worker suffered from an occupational disease (allergic bronchopulmonary aspergillosis) and remitted the matter to the Board for further proceedings. However, this would not prevent the worker from arguing an accidental injury claim on essentially the same facts. After remand, the Board was free to consider the new theory for the claim.

Elimination of labor attachment requirement for PPD not retroactive – New York

In Matter of the Claim of Scott v. Visiting Nurses Home Care, a worker who was classified as having a permanent partial disability, was found to have voluntarily withdrawn from the labor market and benefits were suspended twenty-two years after her injury. In 2017, the law was amended to provide that proving attachment to the labor market was no longer necessary for permanent partial disability compensation.

After the amendment took effect, she filed a request for reinstatement of benefits. A law judge, the Board, and the Appellate Division’s 3rd Department all agreed that the amendment did not apply retroactively.

Failure to mention side business not fraud – New York

In Matter of Permenter v. WRS Envtl. Servs. Inc., a truck driver’s failure to disclose his involvement in an online and retail flower business was not the sort of misrepresentation that should disqualify him from receiving workers’ compensation benefits according to an appellate court ruling. The employee had freely admitted that he owned a company engaged in the flower business, but the employee did not consider it work because it was not profitable.

Termination of benefits OK for a minor physical deformity, but no physical impairment – Pennsylvania

In Paolini v. Delaware County Memorial Hospital, the Workers’ Compensation Appeals Board held that the workers’ compensation judge (WCJ) did not err in awarding benefits to a nurse who sustained physical injuries and post-traumatic stress disorder as a result of a dog bite while performing a home visit. Her doctor provided unequivocal medical testimony that she had sustained PTSD as a result of her work injury, even though her Facebook page showed her swimming and parasailing.

However, the board reversed the WCJ’s denial of the employer’s termination petition, as the employer’s examining physician found that although the nurse had slight discoloration and subjective, mild numbness, she had fully recovered from the physical dog bite.

Injuries incurred on railroad bridge not covered by longshore comp – Virginia

In Muhammad v. Norfolk Southern Railway Co., a three-judge panel of the 4th U.S. Circuit Court of Appeals reversed and remanded a district court’s holding that the worker’s negligence claim was barred by the exclusive remedy under the Longshore and Harbor Workers’ Compensation Act (LHWCA). While working on a bridge that crosses a navigable river, a portion of the walkway collapsed beneath the employee and he sustained serious injuries.

He filed suit against the railway, asserting a negligence claim under the Federal Employers Liability Act, but the company argued the claim was subject to the LHWCA. The district court agreed, finding repairing and rebuilding the bridge was an “essential and integral element” of the maritime traffic flowing under the bridge, therefore, his work constituted as engaging in maritime employment.

Upon appeal, the 4th U.S. Circuit Court of Appeals reversed and remanded the district court’s decision. It noted that the LHWCA requires employee work “upon navigable waters” and that a bridge would not be covered by the statute.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Posted on by davidrleng

Controversial ruling on Process Safety Management Standard being appealed

A controversial ruling by the Occupational Safety and Health Review Commission (OSHRC) that extended the Process Safety Management Standard beyond hazardous chemicals has been appealed by Oklahoma-based Wynnewood Refining Co. LLC and its successors, the refinery at the center of the ruling. The OSHRC affirmed citations under the standard, even though the explosion occurred at one of the refinery’s boilers, an onsite utility operation workplace that safety and legal experts say is typically not included in process safety management.

The case was appealed to the 5th U.S. Circuit Court of Appeals.

Free online course on preventing workplace violence

The Muskie School at the University of Southern Maine launched a free online programto train retail workers and employers on preventing and responding to violence in the workplace. The course offers tips on how to respond to violence or the threat of violence by reading body language and using de-escalation techniques, and how to establish a workplace violence prevention program. Participants may register and complete the training at their own pace.

New resources

Alerts:

Webpages:

Flyer:

Solar panels do not qualify as roofing work

The United States Court of Appeals for the Ninth Circuit in San Francisco denied a petition to review an Occupational Safety and Review Commission’s final order affirming a citation for violating fall protection standards. Bergelectric was hired to install solar panels on the roof of a hanger in San Diego and argued that the installation was on a low-sloped roof, which has laxer standards than work on unprotected sides and edges. The court determined that the installation of solar panels did not qualify as performing “roofing work” and so Bergelectric violated the fall standard because they failed to use personal fall arrest systems, safety nets or guardrails.

Enforcement notes

California

  • USF Reddaway Inc, a trucking company received four citations and $68,438 in penalties after a worker was fatally struck by a tractor at a truck terminal. Inspectors found that the company failed to ensure operators were competent to operate terminal tractors and did not implement traffic controls.
  • Anaheim-based Nexus Energy Systems Inc., a solar panel installer, faces fines totaling $193,905 for multiple serious workplace safety hazards, including failure to provide fall protection for its employees. One worker fell and suffered a broken wrist and jaw.
  • Hanwha L&C USA, LLC received eight citations and $52,705 in penalties after a forklift crushed a worker’s foot. Citations related to training and evaluating workers.

Florida

  • GA&L Construction Corp. Inc. and The Rinaldi Group of Florida LLC were cited for failing to protect employees from fall hazards after a fatal fall at a construction worksite in Miami. The two companies face $87,327 in penalties.
  • Duda Farm Fresh Foods Inc., based in Belle Glade was cited for exposing employees to workplace safety hazards after a worker required medical treatment due to an anhydrous ammonia leak in the farm’s packaging house. The company faces $95,472 in penalties. The inspection is covered under the National Emphasis Program on Process Safety Management Covered Chemical Facilities.
  • National discount retailer Dollar Tree Store Inc.was cited for exposing employees to safety hazards at its store on Southern Boulevard in West Palm Beach. The company faces $104,192 in penalties for exposing employees to struck-by, trip, and fall hazards due to unstable merchandise stacked in excess of 7-feet high in the path of an emergency exit.

Georgia

  • Evoqua Water Technologies LLC, based in Thomasville, was cited for failing to protect employees working in excessive heat. An employee suffered heat exhaustion and was hospitalized after working in direct sunlight and wearing required protective clothing during welding and fabrication work at a Key West, Florida worksite. The company faces $21,311 in penalties, including the maximum penalty allowed by law for the heat-related violation.
  • An appeals court denied a review of citations issued to Century Communities Inc. for a fatal electrocution at a residential construction site. Although none of its employees were exposed to the hazard, Century was cited under the multi-employer worksite policy.

Illinois

  • Residential homebuilder Florentino Rodriguez of DB Custom Carpentry LLC was cited for exposing employees to falls at a residential site in Wheaton. The contractor faces penalties totaling $196,905 for one serious and two willful safety violations.

Nebraska

  • Discount retailer Family Dollar Store was cited for safety violations at an Omaha store, including failure to secure compressed gas cylinders, follow manufacturer’s instructions when using electrical apparatus, ensure emergency exit doors remain unlocked, cover overhead lights, and allowing equipment to block an exit route. Proposed penalties are $302,147.

Pennsylvania

  • Energy Transportation LLC and MW Logistics Services LLC were cited for serious safety violations after a fatal fire at a natural gas processing plant in Houston. Energy Transportation LLC, the company contracted to clean lines and vessels at the plant faces penalties totaling $51,148. MW Logistics Services LLC, the host employer, faces $47,360 in penalties. Both were cited for violations of the PSM standard.

For additional information.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: Depression and suicide: a growing workplace worry

Posted on by davidrleng

It seems daily there are stories about the growing suicide rate and the national decline in health and mental well-being, particularly among young people. There’s no escaping the issue in the workplace; it mirrors that of the general population. While workplace suicide numbers are small, they are rising and are traumatic for everyone in the workplace.

According to Happify, a mental health app, workers’ mental well-being sank to a five-year low in 2018. The analysis of a half million people shows a correlation between age and depression, particularly among employees between the ages of 18-24 who experienced a rise of 39% in depressive symptoms over the past five years. Although the increase was lower (24%), Millennials, ages 25-34, also are a high-risk group. In contrast, older employees between the ages of 55-64 showed improvements in their mental health.

While this analysis did not examine whether the causes were internal or external to their employment, it notes that earlier research found younger adults tend to be more stressed and worried about job-related matters than older workers. It’s a transitional time, figuring out who they are and what they want to do with their lives, which can be challenging.

Further, CDC research identified white, middle-aged, and primarily rural as vulnerable populations. The report also identifies construction workers as high risk – more male construction workers take their lives than any other industry. Some attribute this to a high concentration of “alpha” males who are supposed to be particularly tough but face challenges of a high-pressure environment, a higher prevalence of alcohol and substance abuse, separation from families, and long stretches without work. In response to this problem, the industry has created the Construction Industry Alliance for Suicide Prevention.

Reducing the stigma of mental health is the number one thing companies can do. While it is a devastating moral and social issue, it also has serious economic implications for employers. Some of the signs to watch out for are increased tardiness and absenteeism, decreased productivity and self-confidence, inattention to personal hygiene, isolation from co-workers, agitation, and increased conflict among co-workers.

Educating employees to increase the awareness of the warning signs and providing resources to get help are key. A starting point is simply paying attention to people at work and asking how someone is doing. A new OSHA webpage also offers confidential resources to help identify the signs and how to get help.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Six studies: what does and doesn’t work to improve claims outcomes

Posted on by davidrleng

Recently, there has been a plethora of studies related to claim outcomes in workers’ comp and group health, several with surprising conclusions. Here are six of them:

Workers’ Compensation Medical Prices and Outcomes of Injured Workers – Workers Compensation Research Institute (WCRI)

Study: This study addresses a long-standing policy debate about the role of workers’ compensation prices in outcomes of injured workers; specifically, what happens to outcomes of injured workers when prices increase or decrease. Survey data covered workers’ experiences across 14 states, and claims data provided information from across 30 states. It focused on the pricing of common office visits, which affect most injured workers, rather than specialty medical treatment prices that wouldn’t apply to all injured workers.

When examining the link between workers’ compensation prices and outcomes, the study focused on five specific outcomes:

  • Access to care
  • Nature of medical care
  • Change in physical health and functioning
  • Return to work
  • Temporary disability duration

Findings: There is a strong link between workers’ compensation prices and the first two outcomes – access to care and nature of medical care. For example, when workers’ compensation prices were relatively higher, workers were significantly more likely to receive physical therapy within the first six weeks of being injured and went to more office visits for evaluation and management services.

However, this did not have much of an impact on the last three outcomes. “While prices are related to measures of access to medical care and the nature of medical care provided, changes in these measures when prices increase are not material enough to result in improved recovery and faster return to work,” according to the report.

Takeaway: Factors other than price are important in shaping different outcomes. “Future studies may need to focus on other system features that may explain large differences in outcomes across states.”

Health Insurance and Outcomes of Injured Workers – WCRI

Study: The study provides new empirical evidence about workers with health insurance and what that means for workers after a work-related injury. Researchers surveyed injured workers in 15 states.

Findings: Injured workers with health benefits showed a 2.5% higher return-to-work and returned to substantial work on average one week faster than workers without health insurance. They received evaluation and management services more quickly, had higher rates of satisfaction with primary providers, and had lower rates of hiring an attorney for comp claims. However, there was little difference in the likelihood of workers reporting problems obtaining medical services, or in the kind of care received.

Takeaway: Workers’ comp historically was in one silo, with health programs in another. If you are still organized in traditional silos, it’s time to change. Smart companies have adopted a holistic approach to employee health to drive down costs, improve productivity, boost the bottom line, and help employees enjoy better health.

Effectiveness of a no-cost-to-workers, slip-resistant footwear program for reducing slipping-related injuries in food service workers: a cluster randomized trial – Scandinavian Journal of Work, Environment & Health

Study: This study evaluated the effectiveness of a no-cost-to-workers, slip-resistant footwear (SRF) program in preventing workers’ compensation injury claims caused by slipping on wet or greasy floors.Laboratory tests have shown that slip-resistant shoes designed with a special tread helped prevent slipping, but studies in actual workplaces were lacking. The study population was a dynamic cohort of food service workers from 226 school districts’ kindergarten through 12th-grade food service operations.

Findings: Food services operations where workers received free highly slip-resistant shoes showed a large reduction in workers’ compensation claims for slip injuries compared to food service operations where workers did not receive the shoes. School districts filed 67% fewer claims for slip injuries after being provided the slip-resistant shoes, compared to no reduction in claims for slip injuries at the school districts that did not receive the shoes.

Takeaway: Slips, trips, and falls are the third-leading cause of U.S. non-fatal work-related injuries involving days away from work across all industries. Almost 80% of these injuries are on the same level, and these injuries are estimated to cost nearly $13 billion in direct workers’ compensation-related costs annually. These results show that providing highly rated slip-resistant shoes can help reduce claims for slip injuries.

Opioids, Pain and Absence: The Productivity Implications of Substance Abuse Among US Workers – Integrated Benefits Institute

Study: The Oakland, CA-based research organization surveyed by phone 84,579 American workers over 18 years old between 2015 and 2017, with 74% of them reporting to be working full-time. The goal of the study was to examine productivity and days missed from work due to prescription drug use among workers.

Findings:

  • 33% of workers reported taking prescription painkillers.
  • Less than 1% reported any heroin use.
  • Rates of alcohol abuse and dependence exceed the problematic use of pain relievers and other prescription medications at 7% of the workforce interviewed.
  • Use of cocaine or methamphetamine was relatively uncommon, at less than 3% and 1%, respectively.
  • Excess work absences associated with pain relievers were greater than excess absences associated with any other substance. On average, non-problematic use of pain relievers was associated with 0.8 days of excess absences per month compared with non-users. The problematic use of pain relievers was associated with 2.0 absences, or 1.2 excess days per month compared with non-users.
  • Assuming a 20-day work month, the use of pain relievers was associated with a loss of about 1.3% of the monthly labor capacity of 1,000 workers. The non-problematic use of pain relievers accounted for 96% of those losses.

Takeaway: Managing pain is a major challenge in workers’ comp. The numbers are alarmingly high, suggesting a continued problem of over-prescribing and a workforce grappling with pain issues. Although a small percentage reported abuse of pain relievers or dependence, experts postulate that “problematic behaviors” such as addiction and dependence are likely to follow. Employers should be proactive in educating employees on the risk factors and nonpharmacologic approaches to pain and work with occupational medicine providers to help their employees prevent pain management from becoming abuse and improve productivity.

Association of Opioid, Anti-depressant, and Benzodiazepines with Workers’ Compensation Cost: A Cohort Study – Accident Fund (AF) Group

Study: This analysis evaluated the impact of benzodiazepines and antidepressants in combination with opioids on workers’ compensation claim cost and closure rates.

Findings: Concurrent treatment of chronic pain, depression, and/or anxiety and occupational injuries is associated with large increases in total workers’ compensation claim cost and delayed return to work. The slowest claim closure rate occurred among workers with prescriptions for all three types of medications (58.3%), followed by claims with both opioid and antidepressant (64.8%) prescriptions. The group without any medications had the highest closure rate (91.8%), followed by the group with only opioid (89.1%) prescriptions.

Even when controlling for age, chronic pain, medical complexity, and claim development (years), antidepressant claims, to a greater degree, were more likely to remain open at the end of the three-year study period.

Takeaway: The presence of anti-depressant medications on a claim is an indicator of a potentially costly claim. Early intervention is needed to minimize the impact of behavioral issues and psychotropic medications on workers’ compensation claim outcomes.

Integrated Physical Medicine at Employer-Sponsored Health Clinics Improves Quality of Care at Reduced Cost – Center for Primary Care and Outcomes Research, Stanford University, Crossover Health

 

Study: The aim of the study was to evaluate clinical and economic outcomes associated with integrating physical medicine in employer-sponsored clinics.

Findings: Integrating physical medicine in employer-sponsored clinics decreased wait times to access these services to 7 days (2 to 4x faster than in the community). Patients receiving care in employer-sponsored clinics experienced marked improvements in fear of pain avoidance behaviors (a strong predictor of disability) and functional status in eight fewer visits than in the community resulting in $472 to $630 savings/patient episode. Noncancer patients received 1/10th the opioid prescriptions in employer-sponsored clinics compared with the community (2.8% vs 20%). Patients were highly likely to recommend integrated employer-sponsored care (Net Promoter Score = 84.7).

Takeaway: Musculoskeletal complaints represent the second largest cause of short-term or temporary work disability, and employers bear a disproportionate share of these costs, including approximately 290 million lost workdays annually. While the study focuses on how larger employers can strengthen onsite or near-site clinics, it notes employers should consider policies to reduce barriers to accessing physical medicine services such as direct patient access, sufficient availability of appointments, and benefit designs that incentivize use of physical medicine services before elective imaging and specialist visits.

A strategy of early access to physical therapy has been associated with a 36% improvement in patient outcomes, 52% less imaging, 56% fewer spinal injections, 59% fewer lumbar surgeries, and 62% less opioid use.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

“At-will employee” no defense for firing an employee after reporting a safety hazard

Posted on by davidrleng

The U.S. District Court of the Eastern District of Pennsylvania recently denied an employer’s motion to vacate a jury’s award of punitive damages to a former employee of an iron-casting company who claimed he was terminated for reporting alleged safety and health hazards. When no corrective action was taken after he repeatedly complained about a roof leak that leaked directly into an electrical box and created a slipping hazard, he filed an anonymous complaint with OSHA.

The agency conducted an unannounced inspection and a few days later he was fired. He then filed a whistleblower complaint with OSHA that found Hamburg, Pennsylvania-based Fairmount Foundry fired him in retaliation for engaging in a protected activity under Section 11(c) of the Occupational Safety and Health Act. In Acosta v. Fairmount Foundry Inc., a jury awarded $40,000 for lost wages, pain and suffering and punitive damages to the former employee, Zachary Zettlemoyer.

The company argued the jury had not been instructed on at-will employment and another trial was warranted. But the court denied it. “Even if we gave an at-will employment instruction explaining Mr. Zettlemoyer could be terminated for any reason or for no reason at all, Fairmount Foundry could not have terminated him for engaging in protected activity,” the judge stated. “Fairmount Foundry does not explain how an instruction on at-will employment prejudiced it and, given our charge on the elements of a retaliation claim and pretext, we see no prejudice.”

Moreover, in response to a motion by the Department of Labor, the court awarded prejudgment interest on the $25,000 back pay award and ordered Fairmount Foundry to reinstate Mr. Zettlemoyer. It also permanently enjoined Fairmount Foundry from violating Section 11(c) and ordered Fairmount Foundry (to) expunge from Mr. Zettlemoyer’s personnel record any adverse reference to discharge on October 8, 2015; post a court-approved anti-retaliation notice in a common area for a period of sixty days; and provide a neutral reference regarding Mr. Zettlemoyer’s employment, if requested by subsequent employers.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com