Legal Corner

Workers’ Compensation

$2.8 million award for emotional and financial damages upheld – California

In Reynaud v. Technicolor Creative Services USA Inc., an appellate court upheld a $2.8 million award to a United Kingdom citizen for emotional and financial damages related to delays in processing a green card application, finding the claims were not barred under the workers’ comp act. The company had arranged and sponsored a series of temporary work visas for the employee which his family also used to come to the U.S. In 2013, the employee asked the company to sponsor him for a green card and the company delayed and was very slow to implement the requirements.

The company told him that he would no longer remain employed after his visa expired in May 2016 and the employee and his family returned to England. Unable to find work, he developed depression and his wife sought counseling for depression and anxiety. The employee sued the company for negligence, alleging that it breached its assumed duty of due care “by failing to initiate the green card process.” A jury awarded $2.8 million to the couple.

The company argued it was protected by the exclusive remedy of the workers’ comp act, but the court found that the injuries were not caused by job-related duties or responsibilities, therefore the workers’ compensation law was inapplicable.

Truck driver is employee and cannot file personal injury claim – Georgia

In Estes v. G&W Carriers LLC, a married couple rotated driving responsibilities on their trips. The wife was injured while in the sleeping compartment when her husband was driving and rolled the truck.She filed a personal injury claim against the company. The company argued that the suit was barred by the exclusive remedy provision of workers’ comp and the court agreed.

While the wife argued she was an independent contractor because the company did not mandate a specific route be taken and that she could decline loads, the court found that the company had the right to control the time, manner and method of executing the work. It was the right to control, not necessarily the actual level of control, that governed the decision.

Widow can pursue tort claim against farm and forklift company, but not employer – Georgia

In Mullinax v. Pilgrim’s Pride Corp., the Court of Appeals reversed a trial court’s decision and allowed a tort case to proceed against two companies. The worker was a truck driver who was at a farm to transport chickens for processing by Pilgrim’s Pride Corp. A forklift operator employed by Rising Inc., which was contracted by Pilgrim’s to catch chickens and load them onto the trucks, left the forklift running when he went to the bathroom, and a co-worker of the truck driver, who was not authorized to drive a forklift, got into the forklift and ran over him.

The court upheld the dismissal of the case against Pilgrim’s, but allowed it to proceed against the owner of the farm and Rising as a jury could conclude that they had breached their duty of care.

Going and Coming rule clarified – Michigan

In Smith v. Chrysler Grp., LLC, an auditor was injured in a car accident while driving from home in his personal vehicle to a manufacturing plant owned by his employer. The employer reimbursed the auditor for his travel expenses. In reversing a decision of the Appellate Commission, a state appellate court found the auditor’s travel was an integral part of his work duties within the course and scope of the employment.

It noted while generally the going and coming rule prohibits workers’ comp benefits, there are exceptions. Each exception should be examined on its own merits and not as factors to be weighed. The situation met two exceptions: the employee was on a special mission for his employer and the employer paid for or furnished employee transportation as part of the employment contract.

High court denies benefits for school teacher – Missouri

In Annayeva v. Special Administrative Board of the Transitional School District of the City of St. Louis, a teacher slipped and fell inside the main entrance of the school, while carrying a bag of school-related papers. A security guard witnessed the fall. Although initially the teacher indicated she did not know the cause of the fall, after questioning by her attorney, she claimed the floor was covered with ice, dirt, and moisture.

The Commission did not find her testimony credible and denied the claim, but an appeals court overturned and the case made its way to the Supreme Court. The court found her not credible, that the accident did not involve a risk greater than any other and, therefore, was not compensable.

“Post-injury misconduct” does not include absence from the workplace – Missouri

In Hicks v. State of Missouri, an injured correctional officer was awarded temporary total disability (TTD) benefits after being terminated for unexcused absences. The employee injured his arm and shoulder during a training program and did not initially report the injury, but when an inmate asked what was wrong with his “wing”, he felt vulnerable and reported it. He had surgery and was eventually released for full duty, but informed his supervisor he was a risk to himself and others and requested light duty.

There was no light duty and the prison denied a request for a second medical decision. He stopped working after five days and was terminated for unexcused absences. He obtained another medical opinion, which suggested further treatment was needed. The prison authorized further treatment and additional surgeries were performed and two years later he was found capable of full duty without restrictions.

While the prison contested his claim for TTD because he was terminated for “post-injury misconduct,” the court noted the statute says the phrase “‘post-injury misconduct” does not include absence from the workplace due to an injury unless the employee is capable of working with restrictions and, therefore, his absences were attributable to his injury.

Drivers for Postmates are employees – New York

The Court of Appeals recently ruled that drivers for online food delivery service Postmates Inc. were employees eligible for unemployment insurance. The ruling noted, “Postmates has complete control over the means by which it obtains customers, how the customer is connected to the delivery person, and whether and how its couriers are compensated.”

Injured worker must be weaned from high dose of opioids – New York

In Matter of Forte v. Muccini, an automotive repair shop employee injured his back and received permanent partial disability. After undergoing surgery in 2005, he continued to receive opioids for over ten years and developed a tolerance to high dosages. The employer’s carrier sought an order directing that he be weaned from the opioid medications based upon the medical opinion of an IME. However, the employee’s physician warned that weaning him could result in increased blood pressure and other medical problems and that the employee was experiencing high levels of pain and following his own tapering regiment.

The Workers’ Compensation Board ruled that he should be weaned per the program developed by the IME. An appellate court upheld the ruling, noting it was for the Board to resolve the conflict in medical opinion and it had done so.

Workers’ Compensation Board will reopen SLU/Non SLU decisions after landmark court decisions – New York

Earlier this year, the Supreme Court’s 3rd Department, which handles workers’ compensation appeals, issued rulings in Saputo v. Newsday, Fernandez v. New York University Benefits, and Arias v. City of New York, which found that the Workers’ Compensation Board failed to abide by a 2018 decision, Taher v. Yiota Taxi. The ruling found that some workers were entitled to simultaneous schedule loss of use (SLU) and non-schedule loss (Non-SLU) classifications.

The Board had a policy that barred a worker, who had received benefits for a Non-SLU and was back at work at regular wages, from receiving SLU benefits. If the Board issued a prior decision contrary to the newly issued court decisions, the Board will reopen the cases upon request as stated in this bulletin.

Settlement of claim nixes civil action of assaulted residential counselor – Pennsylvania

In Grabowski v. Carelink Community Support Services Inc., the Superior Court upheld the dismissal of a worker’s civil action against her employer seeking damages for injuries from an assault by a patient at a residential treatment facility. She received over $75,000 in workers’ compensation and then entered into a compromise and release agreement and received a $40,000 lump sum from the employer.

She then filed a negligence action. However, the court noted the employer would liable only if she was attacked for purely personal reasons that were not related to her employment. While the passive receipt of workers’ compensation benefits does not bar an employee from suing the employer for negligence, she actively pursued and agreed to a settlement. In effect, this constituted an admission that the incident occurred in the course and scope of her employment.

Spider bite compensable – Virginia

In James Madison Univ. v. Housden, an appeals court found that a bite by a brown recluse spider was compensable. Noting that the employee had previously reported spiders in the building and that construction work in a boiler room located below her office may have disturbed insects and spiders, the court found she faced a greater risk than that experienced in ordinary life.

Failure to wear seatbelt nixes compensation – Virginia

In Mizelle v. Holiday Ice, an appellate court confirmed the decision of the Workers’ Compensation Commission that a truck driver’s conduct – not wearing a seatbelt – was considered “willful” under state case law and, therefore, compensation was barred. The “willful misconduct” provision in the state’s comp law states that an employer can prevail when asserting a defense of willful misconduct if the employer proves that the safety rule, or other duty, was reasonable, was known to the employee, was for the employee’s benefit, and that the employee “intentionally undertook the forbidden act.”

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