Legal Corner

ADA
Employer takes proper steps to win approval of terminating employee taking opioids

In Sloan v. Repacorp, Inc. (S.D. Ohio February 27, 2018), an employee who worked 10% – 20% of his time on heavy machinery was taking both prescription morphine and non-prescription opioids. The company’s handbook requires all employees to notify management if they are taking nonprescription or prescription medications and testing positive for these could result in termination. However, the employee did not inform his supervisors.

After his company learned of his drug use, the employee voluntarily submitted to a drug test and tested positive for hydrocodone, the opiate found in Vicodin. When he was terminated less than two weeks later, he filed suit on charges including disability discrimination and retaliation under the ADA. He alleged he was disabled because of degenerative disc disease and arthritis in his neck and back and fired because of his disability.

The company, however, had made a good faith effort to involve him in the interactive process. It asked him to consult with his doctor to see if there were alternative medications or treatments for his pain that did not include opiates, but he refused. The court noted that he was not fired because he was a direct threat to himself or others, but because he failed to participate in the interactive process. Thus, he impeded the company’s ability to investigate the extent of his disability and determine whether a non-opiate medication could reasonably accommodate his disability.

This decision serves as a reminder that individualized assessments should always be made and an employee’s lack of cooperation during the interactive process is often a strong defense to both ADA discrimination and retaliation claims.


Workers’ Compensation
Statute of limitations for temporary disability awards clarified – California

In County of San Diego v. Workers’ Compensation Appeals Board and Kyle Pike, a deputy sheriff suffered an injury to his right shoulder on July 31, 2010, and received benefits for five years up to July 31, 2015. He sought to reopen the petition and receive temporary disability benefits and a WCJ awarded the benefits and the Board agreed.

However, a dissenting panel member argued that the statute does not permit an award of temporary disability more than five years after the date of the injury. The Court of Appeal, 4th Appellate District, agreed, noting the language of the statute clearly indicates that temporary disability payments cannot be awarded for periods of disability occurring more than five years after the date of the underlying injury.

Interactive process and accommodation required after injury – California

In Bolanos v. Priority Business Services, an injured worker returned to work with restrictions and suffered a hernia while he was working in the office. He settled a workers’ comp claim for the hernia, but the company told him they could no longer accommodate him. He filed suit alleging disability discrimination and retaliation and a jury awarded him almost $40,000 and attorney fees of $231,470.50, plus $10,697.08 in costs.

The company argued that it could not show it engaged in the interactive process and reasonably accommodated the employee because a trial judge disallowed evidence of the workers’ compensation claim and settlement from consideration by the jury. However, the Court of Appeals found the company was not prejudiced by the trial judge’s ruling.

Implanted surgical hardware does not qualify as continued remedial care – Florida

Under Florida statutes, workers have two years from date of injury to file a worker’s compensation claim, but the time can be extended to one year after the date that the employer last paid indemnity benefits or furnished remedial care. In Ring Power Corp. v. Murphy, an employee who injured his back underwent spinal surgery and doctors used rods and screws to stabilize his spine while the bone grew back together.

A judge determined that a petition for benefits seeking additional medical treatment was not time barred because the company was continuously furnishing remedial treatment as long as the rods and screws remained within the worker’s body. The 1st District Court of Appeal disagreed noting that the pins and screws no longer served a purpose.

Worker’s suspected intoxication not factor when insurer fails to meet 120-day deadline to deny compensability – Florida

In Edward Paradise v. Neptune Fish Market/RetailFirst Insurance Co., an employee fell and fractured his hip while emptying the garbage. The employer was informed of the injury but did not report it to the insurer. The injury was complicated by infections and, ultimately, five surgeries were required. Ten months after the accident, the worker filed the first notice of the injury and the insurer elected to pay and investigate under Florida’s 120-day rule. The insurer did not file a notice denying compensability of the workplace injuries because of intoxication until almost 16 months after the injury. The court noted the failure to meet the 120-day deadline to deny the compensability of an injury claim waived the insurer’s intoxicated-worker rights.

Appellate court misconstrued “arising out of employment” requirement – Georgia

In Cartersville City Schools v. Johnson, a school teacher was denied benefits by the State Board of Workers’ Compensation’s Appellate Division for a fall incurred while she was teaching a fifth-grade class because the act of turning and walking was not a risk unique to her work. Upon appeal, the Court of Appeals noted, “For an accidental injury to arise out of the employment there must be some causal connection between the conditions under which the employee worked and the injury which (s)he received.”

It said the Appellate Division overlooked the proximate cause requirement and focused on the concept of equal exposure – that the teacher could have fallen outside of work while walking and turning, as she did while she was at work. Therefore, it erroneously concluded her injury resulted from an idiopathic fall and was not compensable. Although an employee could theoretically be exposed to a hazard outside of work that mirrors a risk faced while at work, it does not mean an injury resulting from the workplace hazard is non-compensable.

No death benefits for family in asbestos claim – Georgia

In Davis v. Louisiana-Pacific Corp., an employee, who worked at a Louisiana-Pacific facility in Alabama, moved to Georgia after leaving his position. Several years later, he was diagnosed with mesothelioma and died. His family filed a claim for death benefits arguing that, although he was last exposed to asbestos in Alabama, his diagnosis and death occurred in Georgia.

While the court acknowledged that there was not a work-related “injury” until he was diagnosed with mesothelioma, the “accident” that resulted in his condition was his exposure to asbestos while he was employed in Alabama. Had the worker’s contract been executed in Georgia he would have been eligible for benefits, but it was made in Alabama and, therefore, the state did not have jurisdiction over the claim.

Children can sue over birth defects related to father’s on-the-job exposure – Illinois

The exclusive remedy afforded by worker’s comp does not apply to two teenagers who suffered birth defects as a result of their fathers’ workplace exposure to toxins because they were seeking damages for their own injuries, not their fathers’ noted the 1st District Court in reversing the Circuit Court of Cook County. The fathers’ employer, Motorola, had argued successfully to the Circuit Court that the birth defects were derivative of a work-related injury to their fathers’ reproductive systems. However, upon appeal, the 1st District Court noted the children weren’t employees of Motorola, and they were suing over their own injuries, not their fathers’.

Failure of company to get out-of-state coverage nixes death claim – Illinois

In Hartford Underwriters Insurance Co. v. Worldwide Transportation Shipping Co., the Iowa-based shipping company hired an Illinois truck driver who only worked in Illinois. After he died from a work-related injury, his widow filed an Application for Adjustment of Claim against Worldwide under the Illinois Workers’ Compensation Act. Since the company only had workers’ comp coverage in Iowa at the time of the fatal accident and none of the insurer’s conduct suggested that coverage extended to out-of-state drivers, the insurer was not liable for death benefits.

Dismissal of tort claims against co-workers upheld – Missouri

Four cases that occurred during the period (2005 – 2012) when the comp law did not extend an employer’s immunity to co-workers were recently considered by the Supreme Court and the dismissal of the tort claims upheld. “For purposes of determining whether a co-employee can be liable for an employee’s injury between 2005 and 2012, the co-employee’s negligence is assumed,” the court said. The focus needs to be on whether the breached duty was part of the employer’s duty to protect employees from foreseeable risks in the workplace.

In Conner vs. Ogletree and Kidwell, Conner suffered an electrical shock when he came in contact with a live power line. The Supreme Court said the failure of his co-workers to ensure that the line was de-energized was a breach of the employer’s duty to provide a safe workplace. In Evans vs. Wilson and Barrett, the court said that a worker’s negligent operation of a forklift was also a breach of his employer’s duty to provide a safe workplace.

In McComb v. Nofus, the court said the decision of two supervisory employees to send a courier out into a dangerous winter storm was not a breach of any personal duty owed to McComb. In Fogerty v. Armstrong, the court said a worker’s misuse of a front loader was a breach of the employer’s duty of care.

Average weekly wage includes compensation, value of meals and lodging for former pro athlete – Nebraska

Nebraska’s statute states that wages do not include “board, lodging, or similar advantages received from the employer, unless the money value of such advantages shall have been fixed by the parties at the time of hiring.” In Foster-Rettig v. Indoor Football Operating, a professional indoor football player received $225 for each game he played in, plus an additional $25 per game if the team won or played well. The team also paid for him stay at a particular hotel in Omaha seven days a week during the football season and he got 21 meal vouchers for local restaurants.

His career was ended by a back injury and he filed a comp claim. At trial, he provided expert evidence about the value of the hotel room and meals. The Court of Appeals agreed with the compensation court that benefits should be based on an average weekly wage of $903.25, including an average salary of $231.25 per week from playing in games, plus an average of $350 per week for lodging and $320 per week for his meals.

Landlord liable for labor law claim even if tenant contracted for work without their knowledge – New York

In Gonzalez v. 1225 Ogden Deli Grocery Corp. a deli leased retail space, hired a painter to add a decoration to its sign, and set up the A-frame ladder. The painter fell from the ladder and filed a Labor Law action against the landlord for his injuries. Under Section 240(1), property owners have absolute liability for failure to protect workers from elevation-related risk and Section 241(6) imposes a non-delegable duty on owners to comply with the safety regulations of the code. Even if the deli contracted with the painter without the knowledge of the landlord, the landlord was liable, according to the Appellate Court. The landlord only presented unsworn statements from the deli owner and a deli worker and hearsay statements cannot defeat summary judgment if they are the only evidence.

Tort claim against co-employee can proceed – New York

In Siegel v. Garibaldi, an employee who was walking to the campus safety office to clock out was struck by a car driven by a co-worker, who was heading home. The injured worker received comp benefits and filed a tort action against his co-worker. While the appellate court noted that the law ordinarily limits a worker to a recovery of workers’ compensation benefits if he is injured by a co-worker, in this case, the driver was no longer acting within the scope of his employment. The road was open to the public and the risk of being struck in a crosswalk is a common risk shared by general members of the public.

Expert medical evidence is required to establish occupational disease claim – North Carolina

In Briggs v. Debbie’s Staffing, an employee operated a large mixing machine at a refractory manufacturer. Employees were required to wear respiratory protection masks because the process produced a lot of dust. After the employee was fired for attendance-related issues, he filed a workers’ compensation claim, asserting chronic obstructive pulmonary disease and asthma. While a physician initially opined that the asthma was likely caused by the working conditions, he did not know the worker was a smoker and had worn a respirator mask and testified this might affect his opinion on causation.

The employee argued that his own testimony about the working conditions were sufficient to establish a claim, but the appellate court noted only an expert is competent to opine as to the cause of the injury and present medical evidence that the employment conditions placed the employee at a greater risk than members of the general public.

Slip and fall on shuttle bus compensable – Pennsylvania

In US Airways Inc. v. Workers’ Compensation Appeal Board, a flight attendant was trying to place her luggage on the racks in a shuttle bus that was taking her from the airport to an employee parking lot, when she slipped on water on the floor and injured her foot. The airline argued that the incident did not take place on the airline’s property and that the shuttlebus was part of her commute to work, since it did not own the shuttlebus and did not require its employees to park in the parking lot. The Commonwealth Court ruled that her commute ended at the parking lot and work began on the shuttle, thus, her injury was compensable.

Worker was not permanently and totally disabled – Tennessee

For almost twenty years, the employee worked in a factory of General Motors. He suffered several on-the-job injuries and his last injury required surgery on his right shoulder. When he was cleared to return to work with restrictions, GM could not accommodate him and he never returned to work, nor sought other work. He filed a request for permanent total disability benefits, asserting that he had no vocational opportunities.

Two qualifying experts expressed conflicting opinions as to his vocational abilities and the employee said he did not consider himself unable to work, although not in the type of positions he had held in the past. The Supreme Court’s Special Workers’ Compensation Appeals Panel ruled against the benefits, noting it’s the trial court’s discretion to accept the testimony of one expert over another and to consider an injured employee’s testimony concerning his abilities and limitations.

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Legal Corner

FMLA
Adverse actions shortly after medical leave spell trouble for employer

In Schram v. Dow Corning Corp., E.D. Mich., while traveling for business a long-term employee was accidentally struck on the head by another passenger’s luggage, causing a detached retina that required immediate surgery. She had recently changed positions within the company and her new manager asked her to postpone surgery, but she refused and was off work for approximately three weeks. Although no paperwork was filed for FMLA leave, Dow allowed the time off.

When she returned to work, she alleged the manager excluded her for meetings and began questioning her work, moved her office, refused accommodations for ongoing retina issues, and ridiculed her for vision problems in a meeting. Shortly thereafter, she was told her position was eliminated and she found another temporary position in the company for one year and then was terminated. Meanwhile, her former position was filled by a younger male employee with less marketing experience at a salary $40,000 higher than her old salary.

After leaving Dow, she sued alleging retaliation under the FMLA and Michigan workers’ compensation law, as well as disability and gender discrimination under Michigan law. The district court found in her favor, noting the timing of her injury, leave of absence, and her “position elimination” was sufficient to place her retaliation claims before a jury. The judge also found that the assignment of her identical role and job duties to a younger male with significantly less marketing experience could provide sufficient basis for a jury to find in favor on her discrimination claims.
Leave not available for insomnia following death of pet

In Buck v. Mercury Marine Corp., E.D. Wis., a machinist asked for, and was granted, a day off because he was upset that he had had to put his dog of 13 years to sleep. The next day, he called his supervisor and explained he had not been able to sleep since putting his dog to sleep and asked for the day off and was documented for an unexcused absence. The same day, he sought treatment and was diagnosed with “situational insomnia” and the doctor wrote him a note that he was in the clinic for evaluation of situational insomnia. Despite the note, the absence remained unexcused. Over the next three months, the employee accumulated several other unexcused absences that resulted in his termination and he filed suit under the FMLA.

While the court held that inability to sleep caused by the passing of a pet could arguably constitute a “serious health condition,” it noted the employee failed to show that his condition qualified under the act. Other than the one visit to the clinic, there was no treatment, no prescriptions, and the doctor’s note did not say he was unable to perform the functions of his job. Although the company did not provide the employee directly with information about his FMLA rights or provide him a copy of its FMLA policy, it did not mean the company had violated the act, since the act requires employers to provide an employee with notice only “when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason.”
Other
Supreme Court ruling may mean employees have more time to file state-law claims

While employees can file a single lawsuit in federal court for both federal and state-law claims against an employer, when judges dismiss the federal claims, they can also decline to hear the state claims. The employee can refile the claims in state court, but lower courts have disagreed about how much time employees have to do so.

Federal law provides that state-law claims will be “tolled” or paused while the claims are pending in federal court and for a period of 30 days after they are dismissed-unless state law provides for a longer tolling period. In Artis v. District of Columbia, the relevant state law limitations period had already passed when the employee’s claims were dismissed by the federal judge. The employer, therefore, argued that the worker only had a 30-day grace period to file her claims in state court.

However, the employee argued the tolling period began when the claim was first filed in federal court. In a 5-4 ruling, the U.S. Supreme Court agreed and held that the employee had 30 days plus whatever time had remained under the state statute of limitations when the federal lawsuit was initially filed.
Workers’ Compensation
Landmark decision means employers can face civil penalties for safety violations – California

In Solus Industrial Innovations, LLC v. Superior Court of Orange County, the Supreme Court has upheld the right of prosecutors to seek civil penalties under unfair competition statutes against employers violating work-safety statutes. While the company argued that the state plan for occupational safety and health should govern how employers with work-safety violations are treated, the court sided with prosecutors who argued they were targeting unfair business practices that arose from work-safety violations, not for the work-safety violations themselves. Although the decision is considered a landmark, it essentially validated an avenue that prosecutors have been using to go after unsafe corporate employers for decades.

Grubhub driver ruled independent contractor; judge urges change in gig economy laws – California

When a delivery driver was fired by Grubhub for failure to make deliveries while on the app, he sued for back wages, overtime and expense reimbursement. While he received a fee for each delivery, the company also paid him a minimum hourly rate and, therefore, he argued he was an employee. Grubhub claimed that they are primarily a software development company, not a food delivery service, so delivery drivers are not key to their business and they did not have enough control over their drivers to classify them as employees. Noting the need to update the laws relating to the gig economy, the judge said overall Grubhub did not have control over his work and under current laws he is an independent contractor.

Treatment must be by authorized doctor – Florida

In Hernandez v. Hialeah Solid Waste Department, the treating physician prescribed facet joint injections and the claims adjuster approved, but with a different physician. The 1st District Court of Appeal said the statutes allow an employer to transfer the care of a worker from an attending provider only if the worker is not making appropriate progress in recuperation and the refusal to allow the treating physician to do the injections was “a de facto deauthorization of the doctor” and improper.

Court explains interest rate on benefits when employers unsuccessfully challenge awards – Illinois

In Dobbs Tire & Auto v. IWCC, two employers unsuccessfully contested the award of benefits to two injured workers. The employers paid the awards plus interest, one at 0.11% and the other at 0.13%. The employees contested the rates in different county courts, and one court dismissed the complaint, while the other found the interest rate should be 9%. The cases were consolidated upon appeal.

While the Appellate Court explained that the Code of Civil Procedure Section 2-1303 provides that judgments recovered in any court will draw interest at a rate of 9% per year until satisfied, it only applies “if and when the arbitrator’s award or commission’s decision becomes an enforceable judgment,” because the employer has failed to pay. An employer that makes payment of an award, accrued installments, and Section 19(n) interest before the injured worker files a motion to enforce is not subject to the 9% interest. Section 19(n) provides for interest at a rate equal to the yield on indebtedness issued by the United States government with a 26-week maturity next previously auctioned on the day on which the decision is filed.

After firing an adjuster following a comp claim, insurance company faces ADA and retaliatory termination case – Illinois

In Buhe v. Amica Mutual Insurance Co., a federal judge ruled against an insurance company’s summary judgment in a suit filed by a former adjuster fired after an 11-month, unresolved workers’ comp claim. The adjuster fell off a roof while investigating a homeowner’s claim and suffered injuries to his lower limbs and shoulder, requiring several surgeries and rehabilitation.

The insurance company knew that the adjuster ran a mortgage company on the side.

While he said someone else oversaw the office activities of his mortgage firm when he was injured, an adjuster said surveillance revealed he was working for his own company while collecting workers’ compensation. He filed for bankruptcy but did not include his comp payments, claiming ignorance. He then filed the suit against Amica, asserting claims of discrimination under the ADA when the company allegedly failed to accommodate him, and retaliatory discharge and promissory estoppel, related to his bankruptcy filing. Amica followed with a summary judgment against his claims.

A judge ruled in part against the summary judgment, finding merit in both claims related to the ADA and retaliatory termination: “…A disability leave of absence that an employee seeks as a reasonable accommodation ‘is a factual issue well suited to a jury determination,'” his ruling stated. He also found that “a reasonable jury could conclude that the real reason for the termination was not the violation of company policy but the workers’ compensation claim.”

“Unusual strain” from daily work routine is compensable – Missouri

In Clark v. Dairy Farmers of America, a woman worker who was the shortest worker in the plant broke her rib and doctors discovered she had a lesion near the fracture. Further tests revealed that the lesion was Langerhans cell histiocytosis, a rare malignancy which can weaken a bone to the point where it can fail under a force that is less than normal. While an administrative law judge denied the claim for comp, the Labor and Industrial Relations Commission reversed and the Court of Appeals agreed.

A worker is entitled to benefits if there is “personal injury” that was caused by an “accident.” Although the worker was injured performing her normal job duties, this time was unusual because she felt and heard a pop in her chest and she could not raise her right arm.

Treating physician’s opinion does not have to be given greater weight than others – Missouri

In Blackwell v. Howard Industries, the Court of Appeals ruled that a worker who suffered an elbow injury and who refused to participate in physical therapy (PT) sessions was not entitled to permanent total disability benefits. The Court of Appeals noted the worker received varying levels of treatment, evaluation and medical records reviews from at least 15 different physicians.

All of the doctors, except for the treating doctor, concluded that the best form of treatment was PT. While a treating physician’s opinion is “of great import,” the court said, “the commission is not required to abide by it or required to give it any greater weight than other physicians’ opinions.”

Employer does not have to pay for “unfamiliar and undocumented” treatments – Nebraska

In Escobar v. JBS USA, the Court of Appeals ruled that a worker was entitled to temporary total disability benefits for a back injury but said the compensation court had erred in determining which medical bills the employer had to pay. A tenderloin puller, the worker allegedly injured his back and received treatment from an onsite nurse but continued to complain of pain and saw several doctors, with one stating that the subjective back pain was out of proportion to the physical examination.

The compensation court determined that he suffered a compensable back injury and that he was entitled to temporary total disability benefits. However, the Court found that the compensation court ordered payment for “unfamiliar and undocumented” treatments that were not clearly related to the work injury.

State has jurisdiction for resident injured while working for out of state employer – New York

In Galster v. Keen Transport, an appellate court ruled that the state workers’ compensation system had jurisdiction over a resident’s claim for an out-of-state accident while working for an out-of-state employer. A trucker who resided in New York worked for a Pennsylvania company, making deliveries of highway construction equipment all over the U.S. He injured his shoulder while shifting equipment in his trailer in Illinois.

After his injury, the company secured medical care for him in New York, as well as a light-duty job. The trucker filed a comp claim in New York, while the company filed one in Pennsylvania and contested the New York claim. The Appellate Division’s 3rd Department affirmed lower court decisions, noting New York has jurisdiction over a claim for an injury occurring outside the state where there are “sufficient significant contacts” between the employment and New York.

Compensation for exacerbation of pre-existing fibromyalgia denied – New York

In Park v. Corizon Health Inc., a worker was exposed to pepper spray while working in a prison when a guard discharged a canister to subdue an inmate. She sought medical care for her symptoms, returned briefly to work, and then took off almost one year. She filed a claim, asserting that her exposure to pepper spray had exacerbated her pre-existing fibromyalgia.

The Workers’ Compensation Board overturned the award by a workers’ compensation law judge, finding there was no causal connection. The Appellate Division’s 3rd Department said the board determines the factual issue of whether a causal relationship exists, and its determination will not change when supported by substantial evidence. The court noted there was conflicting medical testimony, there is no known medical cause of fibromyalgia, and that its symptoms are fleeting and vary considerably among individuals. Therefore, the Board’s decision to credit the opinion of the IME rheumatologist over that of the other physicians was entirely reasonable.

Construction worker receives comp for repetitive lifting injury – New York

In Garcia v. MCI Interiors, an employee worked as a plasterer in the construction industry for over 30 years. He filed a comp claim asserting he had suffered injuries to his neck and back from his repetitive heavy lifting. A neurosurgeon and the treating physician found that his chronic back pain was caused by “repetitive use at work.”

The Appellate Division’s 3rd Department said that a worker can establish an occupational disease by demonstrating a recognizable link between the medical condition and a distinctive feature of employment and with no contradictory medical evidence, the worker had succeeded in doing so.

Commission must review its denial of benefits to worker in light of recent Supreme Court ruling – North Carolina

In Neckles v. Harris Teeter, a meat cutter injured his hip, back, and arm at work and a functional capacity evaluation revealed that he would not be able to return to his job. A vocational rehabilitation specialist reported it would be “difficult” for him to secure a job in an open job market because of his limited work history, transferrable skills and age.

A few years later the company filed a motion asserting that the worker was no longer disabled. The Court of Appeals reversed the ruling of the Industrial Commission, which said the worker had not met his burden of proving that it would be futile for him to look for work. When appealed to the Supreme Court, it ordered the matter remanded to the Court of Appeals for reconsideration in light of the 2017 decision in Wilkes v. City of Greenville. In Wilkes, the Supreme Court ruled that a worker who can demonstrate a total incapacity for employment because of physical and vocational limitations does not also need to show that a job search would be futile. The Court of Appeals noted the case has to go back to the commission to make specific findings addressing the worker’s wage-earning capacity in light of his pre-existing and coexisting conditions.

Commonwealth Court ruling denying benefits for mental injury is published – Pennsylvania

The ruling in Frankiewicz v. WCAB (Kinder Morgan) denied benefits to a chemical operator for a psychiatric injury from exposure to a diesel fuel leak. Under state law, a claim must involve a combination of physical and mental injuries in order for mental injuries to be compensable, unless the mental injury was the result of exposure to “abnormal working conditions.” In this case, it was found that the worker only experienced transient symptoms that did not constitute a physical injury. These included headache, nausea, violent vomiting, choking, a runny nose and watery eyes after he was exposed to a discharge of diesel fuel from a plant a mile away. Following the incident, he began to suffer from panic attacks, anxiety and depression and doctors agreed the exposure had caused a mental injury.

The courts determined that he did not prove that he had been exposed to an abnormal working condition and the “transient” physical symptoms were insufficient to support an application of the physical-mental standard.

Failure to undergo surgery does not warrant shift in liability from employer to the Second Injury Fund – Tennessee

In Tankersley v. Batesville Casket Co., a long-term employee injured his arm and shoulder and surgery was recommended. However, the worker had congestive heart failure and decided not to undergo surgery. He returned to work with restrictions but eventually was laid off because the company had no work within his restrictions. A vocational counselor determined he had no transferrable skills and was 100% vocationally disabled because of the restrictions.

When a judge apportioned 90% of the liability for the award to the company and 10% to the state’s Second Injury Fund, the company appealed arguing the disability was caused in large part by pre-existing medical conditions. The court found that the ruling was based solely on the arm and shoulder injuries and the vocational counselor’s findings were based on the restrictions, thus the evidence did not preponderate against the trial judge’s apportionment decision.

Temp workers can choose to sue or apply for workers’ comp – Wisconsin

In Ehr v. West Bend Mut. Ins. Co. (In re Estate of Rivera), the Court of Appeals issued a decision that temporary workers have the right to file a suit against their temporary employer if they do not make a workers’ compensation claim. The case involved Carlos Rivera, a temporary employee of Alex Drywell, who was killed on the job in a one-car accident. Assigned to work for Alpine Insulation, Rivera was in an Alpine-owned vehicle, driven by an Alpine employee when the car crashed. The Alpine employee was later found to be at fault in the accident.

His estate filed a wrongful death suit against Alpine and the insurance company rather than claim death benefits under workers’ comp. The appeals court overturned a lower court and said that the exclusive remedy portion of the Workers’ Compensation Act doesn’t bar a temporary employee from bringing a claim against their temporary employer, if they had not made a claim for compensation, even if they were a “loaned employee.” The court determined that his estate could not bring a suit against Alex Drywall but was free to bring a suit against Alpine since Alpine was not technically his employer.

It’s expected that the case will be appealed to the Supreme Court.

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Legal Corner

ADA
EEOC settles suit with New York Con Ed for $800,000

New York City and Westchester County’s electricity and gas utility, Consolidated Edison Co. of New York Inc., will pay $800,000 to resolve a disability discrimination suit under the ADA. The EEOC said Con Ed’s doctors violated the ADA by refusing to medically approve qualified applicants to begin employment because of their disabilities, even though they could perform the jobs for which they applied, and by performing medical exams of applicants without first giving them a conditional job offer. The EEOC said also the utility’s doctors imposed improper medical restrictions on some existing employees with disabilities that reduced their earnings and, in one case, led to termination.


Workers’ Compensation

Exclusive remedy bars health care worker from suing employer for patient attack – California

In Mendiola v. Crestwood Behavioral Health, a health care worker contended her employer did not inform staff about a patient who had a history of attacking women and had misrepresented her job duties. The court said that all of her claims, whether based on misrepresentation or concealment, were related to workplace safety and, thus, were covered by the exclusive remedy of workers’ comp.


Insurance companies can recoup benefits from third-party award – California

In Duncan v. WalMart Stores Inc., an employee of a marketing firm fell and injured herself while on business in WalMart. The marketing firm’s insurer, The Hartford, paid roughly $115,000 for medical care and $37,000 in indemnity benefits. The individual successfully sued WalMart and WalMart was ordered to pay her $355,000, which went toward reimbursing her for medical expenses, and pain and suffering. Then,The Hartford sought to take $152,000 from her award.

Her attorneys argued that she hadn’t been awarded wage-loss benefits, so The Hartford wasn’t entitled to take money to reimburse the indemnity benefits it had paid. However, the court followed the legal precedent that allows employers and carriers to seek reimbursement for their workers’ compensation expenses “totally separate and apart from the injured worker’s actions.” The court wrote that allowing insurance companies to recoup their expenses before workers get a chance to see the award is “consistent with the overall purpose of the workers’ compensation system” because of the quid pro quo the system is founded upon.


Exempt corporate officer of subcontractor cannot sue general contractor – Florida

In Gladden v. Fisher Thomas, Inc., an officer of a Florida corporation, who elected to be exempt from workers’ compensation coverage and who was hired by a subcontractor on a construction project, may not sue the general contractor and other subcontractors in tort for the serious injuries he sustained when he fell from the second floor. The trial court concluded the officer was an “employee” under the Workers’ Compensation Law at the time of the accident, notwithstanding his exemption. The defendants were, therefore, entitled to workers’ compensation immunity.

Upon appeal, the court noted that electing the corporate officer exemption did not remove the officer from the entire workers’ compensation scheme and open the door to actions in tort against individuals and entities who would otherwise be entitled to workers’ compensation immunity.


Standards for expert witness testimony in FELA same as personal injury cases – Georgia

In Smith v. CSX Transportation, the Court of Appeals ruled that the same statutory standard for evaluating the reliability of an expert witness applies in cases brought under the Federal Employers Liability Act (FELA) as in any other personal injury case. An employee, who had filed workers’ comp cases for a back injury, a right knee injury and carpal tunnel syndrome in both hands over his 32-year career, filed suit against his company when he developed pain in his shoulders.

He claimed the company had violated the FELA by exposing him to “harmful repetitive motion, cumulative trauma, awkward work postures, vibration and other harmful conditions” that resulted in injuries to both shoulders. His claim was supported by a doctor whom the judge determined did not present reliable evidence.

The Georgia Court of Appeals said it was not an abuse of discretion for the trial judge to exclude the doctor’s testimony from evidence. Although FELA relaxes the standard of causation that would otherwise apply in personal injury cases, the court said that doesn’t mean the standard for evaluating the admissibility of expert testimony is similarly relaxed.


Second Injury Fund shares in the liability for back injury – Missouri

In Barnes v. Treasurer, an employee of an airport parking and shuttle company injured his back in 2009 and returned to work without restrictions. He asked to receive additional care, but was refused and began seeing a chiropractor and neurosurgeon, who recommended surgery. When the company refused to pay, he went through his private insurance, but only received authorization for one-level fusion, even though the doctor had recommended a two-level fusion. Following the surgery, the doctor imposed strict limits on his activity and the company eventually terminated him and he has not worked since.

This was not the first time he had injured his back; in 2000, at another employer, he suffered a back injury in a motor vehicle accident. There were two experts who opined that the permanent and total disability was a result of the last work injury, and there was one expert who opined that at least some of the disability was attributable to the 2000 accident. While a judge ruled that the company was liable for 100% of the costs, the Labor and Industrial Relations Commission disagreed, finding he was disabled by the combined effect of his pre-existing disabilities and the 2009 back injury.


Benefits allowed for staph infection related to epidural injections for lumbar injury – Mississippi

In Lowe’s Home Ctrs., LLC v. Scott, an appellate court noted weighing of the evidence, including expert testimony, was the responsibility of the Workers’ Compensation Commission. The Commission had given greater weight to the testimony of the employee’s medical expert who opined that, more likely than not, the worker’s staph infection was causally connected to epidural injections the worker received as treatment for a work-related back injury, and, thus, the decision to award benefits will stand.


Standards for evaluating appropriateness of vocational rehabilitation plans set by high court – Nebraska

In Anderson v. EMCOR Group, an injured employee had reached maximum medical improvement and was entitled to a vocational rehabilitation evaluation. The counselor determined that the company had no jobs appropriate for the worker and an Internet search of appropriate jobs revealed a much lower pay scale. The counselor, therefore, recommended a vocational training program. The Workers’ Compensation Court ordered the implementation of the plan, the company appealed, and the case ended up in the Supreme Court.

The Court noted that the purpose of the Workers’ Compensation Act is the restoration of an injured employee to gainful employment, although, it acknowledged it has never defined what it means to restore a worker to suitable or gainful employment. Having cited Alabama case law in previous decisions, the Court adopted the definitions used in Alabama, which provide that “restore” means “to put back.” Since the plan was geared toward putting the injured worker back to employment paying wages similar to those earned prior to the injury and in a field that would be compatible with his age, education and aptitude, the Supreme Court said approval of the plan was not “clearly wrong.”


Worker with PTSD entitled to further disability – New York

In the Matter of Perez v. SN Gold Corp, an employee of a jewelry manufacturer was robbed at gunpoint. It was found he was entitled to PTSD benefits. Later, a WC judge and The Workers’ Compensation Board found the employee had a further causally related disability. The company appealed, but the court found substantial evidence to support the finding and noted it found no error in the exclusion of the independent medical examiner’s report at the proceedings because the company had failed to comply with the law, which required that a copy of an IME report be provided to a worker’s treating doctor on the same day that the worker, the board and the employer’s insurance carrier receive it.


Property owner and general contractor liable for fall from scaffold – New York

In Yaucan v. Hawthorne Village, a New York appellate court ruled that a property owner and general contractor were liable under Labor Law Section 240(1) for a construction worker’s fall from a scaffold, and that they were not entitled to summary judgment dismissing the worker’s Section 241(6) claim. The injured employee who fell from the third floor claimed the scaffolding shifted when it was hit by a large piece of material and, although he wore a safety harness and lifeline, it was too long to stop him from hitting the ground. The court said the employee was entitled to summary judgment on his Section 240(1) claim, since he established that he was not provided with adequate safety equipment to prevent him from falling and it was the owners and general contractor’s duty to provide the safety devices necessary to protect workers from the risks inherent in elevated work sites.


Time limits for filing claims against guaranty fund upheld – North Carolina

In Booth v. Hackney Acquisition Co., an employee who died from lung cancer in 2008 worked for a company whose Workers’ Comp carrier was declared insolvent in 2003. His widow asserted the cancer was caused by his exposure to welding rod fumes during the course of his employment and filed a claim with the Insurance Guaranty Association. There are two sections of the statute that set time limits for such claims, but the widow contended the statutes violate principles of due process and equal protection for workers with occupational diseases that do not manifest within the time limits. The Court of Appeals, however, found both sections constitutionally valid, since they further the state’s legitimate interest in protecting the integrity of the guaranty fund.


Ambulatory surgery centers subject to same fee schedules as hospitals – North Carolina

The North Carolina Court of Appeals ruled that Ambulatory Surgery Centers (ASC) are not separate and legally distinct from hospitals, overturning a Wake County Superior Court decision that invalidated a new Medicare-based fee schedule for ASCs.


Employer who alleged violation of safety rules led to fatality must pay benefits to widow – Pennsylvania

In M.A. Beech Corp. v. WCAB (Mann), a bridge inspector suffered a fatal injury when he was pinned between an aerial lift and the beam of an overpass. While the company contended that the use of the lift had been a violation of the company’s safety rules, lower courts awarded benefits to the injured employee’s widow.

Upon appeal, the Commonwealth Court noted a company that relies on an alleged violation of safety rules must prove that the worker’s injury was caused by the violation of the rule, that the worker knew of the rule, and that the worker was engaged in an activity that was wholly foreign to his employment. The court did not find sufficient evidence that a safety rule was violated and also noted it was appropriate to grant benefits to the widow, since her husband was attempting to perform his duties as an inspector at the time of his fatal accident.


Widow receives benefits for unknown occupational exposure – Tennessee

The Supreme Court’s Workers’ Compensation Panel upheld an award of death benefits to a steelworker’s widow whose husband went to Stockertown, Pennsylvania, to work on an installation project at a cement plant and suddenly became very ill. Although he sought treatment at a walk-in clinic, his condition deteriorated and he was hospitalized and went into a coma. Doctors suspected he had pneumonia and septic shock, a serious infection that affects organ function and transferred him to another hospital, but en route he had a heart attack. He died a month later.

The widow petitioned for death benefits, arguing her husband had inhaled something on the job that caused his sudden decline and the treating physicians supported her argument. The trial court ruled, and the Supreme Court of Tennessee Special Workers’ Compensation Appeals Panel upheld in the widow’s favor.

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

Legal Corner

ADA
Another court decision scales back right to take more leave after exhausting FMLA

Last month, we reported on the 7th US Circuit Appeals decision in the Severson case. That same appellate court recently ruled in Golden v. IHA that extended leave beyond what the FMLA requires is not a reasonable accommodation under the ADA.

In this case, an employee with breast cancer, required surgery and an extended leave. When her 12 weeks of FMLA leave was about to expire, she sought an unspecified period of leave, but her employer declined to grant more than four additional weeks of leave. When she could not return from work after 16 weeks off, she was terminated.

It’s important to note that in both cases the employee’s return to work date was unclear. Employers should conduct an individualized assessment of each leave request to determine whether a leave of absence or intermittent leave is reasonable and effective in helping the employee return to work. There is a split in authority among the courts that the U.S. Supreme Court ultimately may have to resolve.


FMLA

Managers’ inaction can be costly

In Boadi v. Center for Human Development an employee was hospitalized unexpectedly for a mental health condition and her son notified her employer four times over the course of one week, including her supervisor, the supervisor’s boss, and the boss’s boss. Although he explained that his mother was unintelligible, a supervisor told him it was unacceptable for him to call instead of his mother. The same supervisor informed the vice president of Human Resources that the employee was hospitalized and later reported her a “no call/no show” when she failed to personally call about her continued absences. A termination letter was written and when the employee returned with her doctor’s medical certification, she was told her employment had been terminated because she abandoned her job.

During the case, the court specifically commented that the managers were “not trained on the FMLA.” Noting the lack of training, the court found that the employer willfully violated the FMLA, and awarded liquidated damages, which doubled the back-pay award to $300,000.

 

Workers’ Compensation
Comp’s ‘going and coming’ rule determines employer’s vicarious liability – California

In Morales-Simental v. Genentech, the court explained that an employer generally will be held vicariously liable for the tortious conduct of its employees within the scope of their employment. However, case law recognizes that an employee commuting to or from work is typically outside the scope of employment, and the employer is not liable for the employee’s torts while traveling. There are some exceptions, but the court found they did not apply and, therefore, the employer could not be held vicariously liable for the alleged negligence of an employee in causing a fatal car accident.


Convicted of fraud, worker still entitled to benefits – California

In Pearson Ford v. WCAB (Hernandez), a worker accidentally slammed a trunk lid on his hand, but did not break any bones. He received workers’ comp for pain and later began wearing a sling and telling his treatment providers that he was unable to use his left arm and hand. A private investigator shot video of him removing his sling after attending doctor’s appointments, using his left hand to drive, carrying groceries, and lifting a washing machine. He pleaded guilty to making materially false statements for the purpose of obtaining workers’ compensation benefits.

Later, a workers’ compensation judge issued, and the Appeals Board approved, an award of permanent partial disability benefits. The court reasoned there was a compensable injury that was not directly connected to the worker’s fraudulent misrepresentation.


Failure to train in lockout/tagout leads to $310,000 settlement – California

Growers Street Cooling has agreed to pay $310,000 in costs and civil penalties, maintain and implement written hazardous energy control procedures, and conduct proper training as a result of legal action brought by the Monterey County District Attorney following a 2013 worker fatality at the Salinas-based produce-cooling company. The worker had been working at the company as a machine operator for only 16 days prior to the accident and was never trained on lockout/tagout procedures. Nor did the company maintain a written lockout/tagout policy or training program; thus, they were charged with systematically violating worker safety laws.


Comp coverage uncertain for off-duty police officers at Las Vegas concert shooting – California

Due to some muddy language in the state’s Labor Code, it is uncertain if municipalities are required or even allowed to pay to treat off-duty police who chose independently to intervene in an out-of-state emergency. Orange County rejected workers’ compensation claims from four sheriff’s deputies injured in the shooting and more claims are expected. More than 200 Southern California police officers attended the Las Vegas concert. Had the incident occurred in California, they would be covered, but the Labor Code makes no mention of out-of-state tragedies.


Employer can terminate benefits when employee returns to “baseline” – Georgia

In EMC v. McDuffie, an employee had a significant disability to his knee at the time he took the job, which he did not disclose, and he suffered a subsequent knee injury when he stepped in a hole while working. The Supreme Court ruled that when an employee has a pre-existing condition that limits work capacity, as soon as the employee recovers from “the aggravation”, the employer’s responsibility for workers’ compensation ceases. The court did not define baseline.

This is an important decision because it’s well established that employers are responsible for an aggravation of a pre-existing condition only until the aggravation ends, but there wasn’t a case that said when an employee still has restrictions, which they had before, the employer is not responsible.


Meretricious relationship results in disqualification of death benefits – Georgia

In Sanchez v. Carter, a state appellate court cited a 1990 decision of the Supreme Court of Georgia, Williams v. Corbett, and found within the context of a workers’ compensation claim, a meretricious relationship does not entitle a dependent to death benefits, even if actual dependency exists. In this case, the couple had lived together for 13 years, but never legally married.


Court reduces award in retaliatory discharge claim – Illinois

Two employees suffered work-related injuries and were fired for failing to report to work after an independent medical examiner (IME) cleared them to return to their jobs. They filed suit, asserting they had been discharged in retaliation for having pursued workers’ compensation claims. The Illinois Appellate Court ruled that an employer may not rely solely on an IME in terminating the employee for failing to return to work or for failing to call in his absences when the opinion conflicts with the employee’s doctor. But, the worker must still prove his discharge was causally related to his exercising of workers’ compensation rights.

The men then filed an amended complaint and pursued separate jury trials. While a jury found in favor of the employer in one case, in Francek v. Dominick’s Finer Foods, the jury awarded $156,315.50 in compensatory damages and $2.5 million in punitive damages, plus court costs to the employee. However, the appellate court concluded that the award of punitive damages was unconstitutionally excessive (16:1) under federal due process standard and concluded that a 9:1 ratio would be appropriate.


Workers’ comp precludes security’s guard personal injury suit – Missouri

In Kayden v. Ford Motor Co., U.S. Security Associates provided security services under a contract for a Ford assembly plant. A security guard slipped and fell in the parking lot, where it was determined a pothole was not repaired properly. After she filed a personal injury suit against Ford, Ford moved for summary judgment, asserting that it qualified as the employer for purposes of the Missouri Workers’ Compensation Act and the court agreed.


Exception to schedule loss of use (SLU) allows apportionment – New York

While generally a judge or board may not apportion a PPD award based upon a preexisting condition that did not prevent the employee from effectively performing his or her job duties at the time of a subsequent work-related injury, apportionment may be applicable if the medical evidence establishes that the prior injury – had it been compensable – would have resulted in an SLU finding. In the Matter of the Claim of Sanchez v. STS Steel, there was medical expert opinion that a non-work related surgical procedure involving the excision of the meniscus right knee would have resulted in a 7.5% SLU; therefore, apportionment was appropriate.


Estate can pursue wrongful death claim – New York

In Assevero v. Hamilton & Church Properties, an employee fell from a ladder and filed a Labor Law action asserting an unsecured extension ladder shifted as he was descending and caused the fall. A trial judge granted summary judgement to the employer, and the employee appealed. While the appeal was pending, the employee died from an overdose of pain medication prescribed for his injuries. The Appellate Division’s 2nd Department overturned the grant of summary judgment for the employer and the estate’s administrator filed a motion to amend the complaint to include a cause of action for wrongful death, which was allowed.


Widow of worker killed by street sweeper awarded $41.5m – New York

The widow of a New York City Department of Sanitation worker killed by an out-of-control street sweeper won a $41.5 million negligence lawsuit. The New York Post reports that a Queens jury recently awarded the sum to the widow for the death of her 43-year-old husband who was struck and killed by a colleague’s vehicle inside a garage in 2014. The city plans to pursue legal options to reduce the award.


Death from accidental overdose compensable – North Carolina

In Brady v. Best Buy Co., an injured worker was taking narcotics to treat his compensable low back injury, additional medication for treatment of depression, and other prescription medications. The Court of Appeals upheld a reward of benefits to the beneficiaries noting the unchallenged finding that pain medications established the death as compensable, regardless of whether his medications for depression had a contributory effect.


Going and coming rule does not bar death benefits in case of donut shop manager – Pennsylvania

In Rana v. Workers’ Comp. Appeal Bd, an employee worked as a manager at one of the employer’s three donut shops, but occasionally was called upon to handle issues at the other two shops. He died in a car crash traveling from his residence to one of the other shops to potentially fill in for a kitchen employee who had fallen ill during a work shift. The court found that the manager was a traveling employee and, therefore, his dependent’s death benefits claim was not barred by the going and coming rule. It also noted even if he was considered a stationary employee, the claim would still be compensable, since he was engaged in a special assignment on behalf of the employer.


Commonwealth Court overturns denial of benefits based on ‘going and coming’ rule – Pennsylvania

In Fields v. WCAB (Carl G’s Total Cleanouts), an employee had been working at the same job site doing demolition work for two or three weeks. He and a colleague took a company truck to drop off debris at a scrapyard (they received a percentage of the metal hauled as part of wages) and then the colleague planned to drop the employee at home and return the truck to the employer. En route, the employee sustained injuries in an auto accident. A workers’ compensation judge determined, and the Workers’ Compensation Appeal Board affirmed, that he had a fixed place of work, and the accident occurred during his commute home from the workplace, and was not compensable under the going and coming rule.

Upon appeal, the Commonwealth Court noted exceptions to the going and coming rule include when a worker’s employment contract includes transportation to and from work; when the worker has no fixed place of work; when the worker is on a special mission for his employer; or when the worker’s travel is furthering the business of the employer. While the lower courts focused on the fixed place of employment, the facts supported a legal conclusion that he was furthering his employer’s business when he was injured – to dispose of the material the crew had cleaned out of the job site.


Witnessing workplace shooting caused PTSD – Tennessee

In Evans v. Alliance Healthcare Services, a bus driver was transporting a counselor to a patient’s home in response to a call from the patient’s brother. As they entered the house, the patient shot the counselor. While the counselor survived the attack, the bus driver received mental health care through workers’ compensation but she did not return to work.

The company acknowledged that the shooting initially may have caused the PTSD, but asserted the continuing mental health problems were caused by other events. The trial court disagreed and found she was permanently and totally disabled and that the shooting incident was the cause of her disability. This was upheld by the Special Workers’ Compensation Appeals Panel of the Supreme Court.

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

Legal Corner

ADA
Extended leave not reasonable accommodation for employee who exhausted FMLA leave – 7th Circuit U.S. Court of Appeals

In Severson v. Heartland Woodcraft, an employee who worked a demanding job in spite of a degenerative spine condition injured his back at home and took a 12-week medical leave under the FMLA. On the last day of his leave, he had back surgery and asked for two or three more months to recover. It was denied and the employee filed suit under the ADA. A district court judge found in favor of the employer and, upon appeal, the 7th Circuit Court of Appeals noted “If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a ‘qualified individual'” as is defined in the ADA.

In so doing, the court reaffirmed a 2003 decision in Byrne v. Avon Products and rejected the Equal Employment Opportunity’s Commission’s request to revisit the decision.
FMLA
Workers’ Comp settlement doesn’t bar FMLA lawsuit against employer – 3rd Circuit Court of Appeals

In Zuber v. Boscov’s, an employee injured on the job missed two days of work and when he returned to work requested a week of FMLA leave, which was granted. About a month later, he was fired and filed suit that the company interfered with his rights under the FMLA, and that it had retaliated against him for filing his workers’ compensation claim.

The company argued that the employee waived his FMLA and common law rights in settling his comp claim and a district judge agreed. However, the Third Circuit found the language of the agreement, which stated that it was a final resolution of the work injury claim ‘and its sequela,’ doesn’t necessarily disallow a FMLA suit. Signing the agreement meant he could not bring a future workers’ compensation claim, but didn’t prohibit him from bringing FMLA or Pennsylvania common law claims.

Workers’ Compensation
Workers’ Compensation disability findings not binding in Social Security disability claim – United States

In Derosia v. Colvin, a federal district court found that an Administrative Law Judge (ALJ) had not erred in denying a claim for Social Security Disability Insurance Benefits. It is well accepted that Workers’ Compensation guidelines do not necessarily coincide with federal disability regulations and are not binding. However, the ALJ noted none of the workers’ compensation treating providers focused on work-related functions; rather, they provided statements concerning her ability to return to work.

Court clarifies length of psych benefits related to workplace injuries – Florida

In Utopia Home Care v. Alvarez, an employee was diagnosed with major depressive disorder after suffering a severe shoulder injury at work, but did not decide to seek indemnity benefits for her depression until almost two years after she reached MMI. A judge of compensation ruled that she was entitled to the benefits, believing that she could collect six months’ worth of psychiatric benefits anytime after reaching MMI, however the 1st DCA overturned the ruling. When a worker reaches maximum medical improvement, it “starts a clock” on remaining psychiatric benefits “that stops six months to the day after the date of physical MMI,” the court wrote.

Trial judge erred in overturning denial of authorization for surgery – Georgia

In Autozone v. Mesa, a delivery driver suffered injuries when a vehicle struck her delivery truck from behind. After a doctor cleared her to return to work, she continued to complain of back pain and underwent several MRIs. Four doctors found no abnormalities, but a fifth doctor, while finding no disc herniations or significant desiccation, recommended a surgical sacroiliac joint fusion. An independent medical evaluator disagreed.

An ALJ found that the sacroiliac surgery was not reasonable or necessary and the State Board of Workers’ Compensation agreed. A superior court judge later reversed the Board, finding the record contained “no objective medical evidence” that the proposed surgery was not reasonably required. However, the Court of Appeals said there was substantial competent evidence to deny the surgery and that the judge improperly took on the role of “fact finder”.

Pastor’s salary cannot be included in weekly wage calculations – Illinois

A worker at Nestle USA suffered two serious work-related injuries that led to temporary total disability benefits, temporary partial disability benefits, and medical expenses as well as wage differential benefits. During the time of his injuries, he also worked as a pastor and received a $600 per week housing allowance; however, the employer was not aware that he was being compensated, although they knew of the job. The 4th District Court of Appeals upheld earlier decisions, saying that his employer did not know he was being compensated for his duties as a pastor; therefore, his job as a pastor could not be included in the weekly wage calculations.

Slip and fall on wet pavement in employer’s parking lot not compensable – Illinois

In Dukich v. Illinois Workers’ Comp. Comm’n, an appellate court found that an employee who slipped and fell in a wet parking lot could not collect workers’ comp. The parking lot was clear of ice and snow and had no defects that caused the fall; therefore, the slip and fall accident arose from an activity of daily living. There was also no evidence that the employee was rushing to complete a work task or carrying items required for her work.

Requirements for employer to terminate rehabilitation clarified – Minnesota

In Halvorson v. B&F Fastener Supply, an employee injured her right elbow and knee and was awarded benefits that included rehabilitation. She took a part-time job with another employer and B&F Fastener Supply took steps to end the rehabilitation services. A compensation judge granted B&F’s request to discontinue rehabilitation services, but the Court of Appeals and the Supreme Court disagreed.

The company relied upon the argument that she no longer met the definition of a “qualified employee” under Minnesota Administrative Rule 5220.0100. But the court noted this rule does not provide an independent mechanism for an employer to terminate rehabilitation benefits. It also rejected the argument that a compensation judge could review, approve, modify or reject rehabilitation plans, noting this only applied to initial plan reviews.

Plan modification or termination may be accomplished only by meeting the requirements of Minn. Stat. § 176.102, subd. 8(a), which provides a nonexclusive list of reasons for terminating rehabilitation services under the good-cause standard, including “that the employee is not likely to benefit from further rehabilitation services.” The company acknowledged this might have been a better approach, since it could be argued her return to part-time employment eliminated the need for further rehabilitation services.

Testimony of worker’s colleagues leads to denial of claim – Mississippi

In Walker v. Kinder Morgan, an employee had a long history of back pain, which he had not shared with his employer. He was in a non-work motor vehicle accident and had to stay out of work because he was taking a muscle relaxer and pain medication and the employer did not allow mood-altering drugs. The day he returned to work, he said he experienced a sharp pain in his back, but did not report an injury because he had just returned to work. After a few days, he reported the injury and sought care from his family doctor, who recommended surgery.

While an administrative judge found the injury compensable, the Workers’ Compensation Commission reversed and was upheld by the Court of Appeals. It found the testimony of coworkers, which raised question if he was involved in horse play, how much pain he was in, and whether the pain was a result of the car accident, more compelling.

Standard for compensability of psyche injuries clarified – Missouri

In Mantia v. Missouri Department of Transportation, the Supreme Court unanimously overturned an award of benefits to a worker for her psychological injuries from witnessing horrific accidents on the state’s highways, saying she needed to prove her distress was “extraordinary and unusual” as compared to other similarly situated employees. According to her testimony on average, at least one accident a week involved a fatality and she graphically described some horrific scenes. She had worked for the Transportation Department for 20 years and had begun suffering from panic attacks and nightmares. She acknowledged her co-workers witnessed similar gruesome accidents, but they sometimes joked about it.

In reversing earlier decisions, the Supreme Court explained that Section 287.120.8 of the Workers’ Compensation Law limits the availability of benefits for mental injuries to those that are caused by work related-stress that is “extraordinary and unusual.” The court decided that the appropriate objective standard for determining whether the stress was compensable was “whether the same or similar actual work events would cause a reasonable highway worker extraordinary and unusual stress.”

Blind worker’s volunteer activities did not warrant misrepresentation and forfeiture of benefits – New York

In the Matter of Eardley v. Unatego Central Sch. Dist., a janitor injured his right shoulder and neck and a WCJ found he was entitled to permanent total disability benefits. A surveillance video showed the employee walking around at a concession, helping to move a popcorn machine, and, on a separate occasion, helping his disabled daughter take money at a secondary admission for a non-profit’s football event.

After viewing the video footage, the school district accused him of having violated Workers’ Compensation Law Section 114-a(1), which provides for the forfeiture of a benefits if the worker has knowingly made a false statement or representation of material fact in order to secure the payment of benefits. A WCJ found that he had not violated Section 114-a(1), since the video footage did not demonstrate he had the ability to work, finding that such activities were minimal and not inconsistent with the representations that the employee made to the insurance carrier. This was upheld on further appeals.

Summary judgment on claim for fall overturned – New York

In Valente v. Lend Lease (US) Construction LMB, a construction worker slipped and fell on grease that had gotten on to the planks he was using as a makeshift ramp to descend five feet from the top of a building to a scaffold. A Supreme Court Justice and the Appellate Division’s 1st Department granted partial summary judgment, finding Valente’s fall was “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” However, the Court of Appeals noted the testimony of the foreman conflicted with the employee’s claim about the safety devices available and, therefore, raised question as to whether the employee’s conduct was the sole proximate cause of the accident. The case was reversed and remanded.

Veteran airline mechanic entitled only to disability benefits based on federal minimum wage – North Carolina

In Myres v. Strom Aviation, an employee of an employment agency providing contract labor or temporary staffing to companies in the aerospace and aviation industry injured his ankle and a received 25% permanent partial disability rating. Several months after returning to work, he stopped working because of ankle pain. While working for the agency he received per diem payments as well as a wage. A deputy commissioner determined that the per diem payments were for business-related living expenses, not payments made in lieu of wages and the Court of Appeals agreed.

Without the per diem payments, his hourly rate of pay was $7.25, the federal minimum wage. Although the court recognized “it seems obvious that an aircraft mechanic with specialized training and over 20 years of experience would be paid far more than minimum wage,” it suggested the arrangement had benefits to both parties, but is a problem when an injury occurs.

Presumption of causal relation does not apply, but claims compensable – North Carolina

In Pine v. Wal-Mart Associates, a Wal-Mart employee tripped and fell and Wal-Mart accepted liability for injuries to her right shoulder and arm, but it denied liability for her other alleged medical conditions. The Industrial Commission said it was Wal-Mart’s burden to prove all the injuries were not causally related to her fall, since Wal-Mart had accepted liability for the injury to the right shoulder and arm.

This past summer the General Assembly abrogated the Supreme Court’s decision that an admission of compensability by an employer gives rise to a presumption that additional medical treatment received by a worker is causally related to the compensable injury. The Court of Appeals said the statutory amendment applied to this case, since the amendment applied to all claims “accrued or pending prior to, on, or after” the date on which the amendment became law. However, the court, in a divided opinion, found that the worker proved her injuries were causally related to her accident.

Terms of settlement extend employer’s obligation to treatment of condition it did not accept – Pennsylvania

In Haslam v. WCAB (London Grove Communication) an employee suffered multiple injuries and the company entered into an agreement accepting liability for fractures of the right and left feet, and it settled the indemnity portion of workers’ compensation claim for a lump sum of $110,000. The employee was taking compound medication prescriptions for complex regional pain syndrome and the company filed a request for a utilization review (UR), since this was a condition for which it had not accepted liability.

After a series of appeals, the Commonwealth Court ruled the UR process is the proper method for determining whether disputed treatment is reasonable and necessary, but it is not the proper method to determine the cause of an injury or condition shown in a settlement agreement. The court explained that once a settlement agreement is approved by a WCJ, it is final and binding on the parties, unless there is fraud, deception, duress or mistakes.

The court wrote, “In this case, Employer accepted responsibility for treatment for Claimant’s fractured feet. Thereafter, Claimant sought treatment for pain in those feet. There exists an obvious connection between the injury and the pain. For Employer to avoid responsibility for the medical expenses resulting from treatment of the pain in Claimant’s feet, Employer must prove that the treatment is for an injury that is distinct from the acknowledged injury.”

Retaliation claim fails when employee cannot prove he intended to file comp claim – Pennsylvania

In Runion v. Equipment Transport, LLC, a federal district court construing Pennsylvania law, found that a former employee, who undisputedly suffered a work-related injury, had not established a prima facie case of retaliatory discharge. He had not filed a workers’ comp claim and the employer contended the dismissal was on unrelated grounds. While the former employee argued he had told his employer he intended to file a claim, he offered no support to corroborate his claim. In denying the retaliation charge, the court relied on findings in an earlier case that the worker must (1) report the work-related injury and (2) express the “intent to file” a workers’ compensation claim to the employer in order to trigger the protection of the public policy exception.

Award for disability and last employer’s liability for 90% upheld – Tennessee

In Gibson v. Southwest Tennessee Electric Membership Corp., an employee injured his back, reached a settlement, and returned to work. He continued to experience pain and a few months later his doctor took him off work and declared him to be permanently disabled. When a petition to modify his settlement was filed, a trial judge found the combined effects of his injury and pre-existing medical conditions permanently and totally disabled him. The judge assessed 90% of the liability to Southwest, and the remaining 10% to the Tennessee second Injury Fund and the Supreme Court’s Special Workers’ Compensation Appeals Panel agreed. In so doing, it noted that he is no longer able to walk for exercise, that he cannot work, that he takes pain medication and muscle relaxers, and that he has no other vocational skills or training, but he was able to work with no restrictions prior to his injury.

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

EEOC ordered to reconsider wellness rules

The Equal Employment Opportunity Commission’s (EEOC’s) rules about the fees employers can assess workers who do not participate in wellness programs were ruled arbitrary by the U.S. District Court for the District of Columbia on Aug. 22. Rather than vacate the rules, the court sent them back to the agency for redrafting. The court’s decision does not vacate the EEOC rules and employers are obligated to comply with existing rules, but should be alert to future changes.


Work conditions ‘unpleasant, potentially hazardous’ for more than half of Americans: study

Nearly 55 percent of American workers claim they encounter “unpleasant and potentially hazardous” conditions on the job, according to a study from nonprofit research institute RAND Corp., Harvard Medical School, and the University of California, Los Angeles. Nearly 1 in 5 workers reported exposure to a “hostile or threatening social environment at work” and 1 in 4 said they do not have enough time to complete job tasks.


National survey on fatigue indicates it is a hidden, but potentially deadly workplace epidemic

Some 43 percent of Americans say they do not get enough sleep to mitigate critical risks that can jeopardize safety at work and on the roads, including the ability to think clearly, make informed decisions, and be productive, according to a new National Safety Council survey-based report, Fatigue in the Workplace: Causes & Consequences of Employee Fatigue. An estimated 13 percent of workplace injuries could be attributed to fatigue.


CDC launches website on worker wellness programs

To help employers start or expand employee health promotion programs, the Centers for Disease Control and Prevention has created the Workplace Health Resource Center website.


New app from NIOSH: Lifting Equation Calculator

In an effort to prevent work-related musculoskeletal disorders, NIOSH has released a mobile app based on the Revised NIOSH Lifting Equation, an internationally recognized standard for safe manual lifting.


Updated ergo guide from NIOSH offers strategies for preventing MSDs

The NIOSH Musculoskeletal Disorders Research Program has updated its guidance document on the formation and function of ergonomics programs. Intended for both workers and employers, it provides strategies for identifying and correcting ergonomic hazards, as well as references, forms and questionnaires.


Guide offers best practices for safely using bleach to clean and sanitize

A new safety guide published by the Michigan State University College of Human Medicine, Occupational and Environmental Medicine Division offers best practices for workers exposed to bleach, including janitors, housekeepers, environmental engineers, and hospital, restaurant, maintenance and agricultural workers.


FMCSA, FRA withdraw rulemaking on sleep apnea

The Federal Motor Carrier Safety Administration and the Federal Railroad Administration have withdrawn an advance notice of proposed rulemaking on obstructive sleep apnea. “The agencies … believe that current safety programs and FRA’s rulemaking addressing fatigue risk management are the appropriate avenues to address OSA,” FMCSA and FRA stated in a notice published in the Aug. 4 Federal Register.


Operation Safe Driver Week set for mid-October

Law enforcement officers are expected to keep a particularly sharp eye on the roads Oct. 15-21 during the Commercial Vehicle Safety Alliance’s Operation Safe Driver Week. Officers will be looking for commercial motor vehicle and passenger vehicle drivers engaging in dangerous behaviors such as speeding, texting, following too closely and not wearing seat belts.


Opioids updates

  • One in 12 US physicians received a payment involving an opioid during a 29-month study of pharmaceutical industry influences on opioid prescribing, according to researchers who will publish their findings in September’s American Journal of Public Health. During the study, 375,266 non-research opioid-related payments were made to 68,177 physicians, totaling $46,158,388.
  • A study from the Worker’s Compensation Research Institute examines the prevalence and trends of longer-term dispensing of opioids in 26 state workers’ compensation systems. It also documents how often the services (i.e., drug testing, psychological evaluation, and treatment, etc.) recommended by treatment guidelines were used for managing chronic opioid therapy.

Study casts doubts on effectiveness of marijuana in combatting chronic pain

Research funded by the U.S. Department of Veterans Affairs was published on the Annals of Internal Medicine website. Limited evidence suggests that cannabis may alleviate neuropathic pain in some patients, but insufficient evidence exists for other types of chronic pain. There was also sufficient evidence to conclude that cannabis use among the general population probably increased the risk of car accidents, psychotic symptoms, and short-term cognitive impairment. It was noted more research is needed.

CSB releases animated video on Louisiana refinery fire

The Chemical Safety Board has released an animated video that examines the cause of last year’s ExxonMobil refinery fire, which severely burned four workers in Baton Rouge, LA.

State News

California

  • New regulations aimed at preventing incidents such as the 2012 Chevron Corp. fire at oil refineries will take effect Oct. 1.
  • Ratings bureau proposes small workers’ comp premium increase for 2018.
  • Workers’ comp bill safeguarding pregnant women put on hold.

Florida

  • NCCI recommends comp premium decrease of 9.6% effective Jan. 1, 2018.

Illinois

  • The National Council on Compensation Insurance (NCCI) recommends a 10.9% workers’ compensation premium rate decrease for Illinois.
  • Governor vetoes state-funded comp insurance plan.

Minnesota

  • Effective August 1, patients with post-traumatic stress disorder can purchase medical marijuana.
  • Department of Labor and Industry adopted the final rule from the federal Occupational Safety and Health Administration about walking-working surfaces and personal fall-protection systems.

New York

  • Employers should prepare to comply with the Paid Family Leave that goes into effect Jan. 1, 2018.

Pennsylvania

  • The Compensation Rating Bureau filed an emergency 6.06% loss cost increase in the wake of a state Supreme Court decision that blocks impairment rating evaluations.

 

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

Legal Corner

FMLA
Company properly terminated teller using intermittent FMLA leave

In Walker v. J.P. Morgan Chase Bank N.A., the U.S. District Court for the Northern District of Illinois ruled that a bank teller who received intermittent leave for hypertension and requested removal of the notary duties of her job did not show Family and Medical Leave Act (FMLA) retaliation or interference in her firing. On her intermittent leave, she was permitted to come in late, leave early, or miss a day when she was not feeling well and acknowledged that she was never denied FMLA leave approval. She did not request an ADA accommodation.

While she was working she received low or unsatisfactory job performance reviews, warnings for overall unsatisfactory performance, including poor customer relationships and failure to follow procedures to protect confidentiality. She was fired approximately two years after she requested intermittent leave and filed suit.

The court found that she was terminated because of her performance failings, not because she took intermittent leave. The company had properly continued to enforce its progressive disciplinary policy during the period of intermittent leave.


Medical Marijuana
Medical marijuana user can sue employer that rescinded job offer based on pre-employment drug test – Connecticut

In Katelin Noffsinger v. SSC Niantic Operating Company L.L.C., doing business as Bride Brook Nursing and Rehabilitation Center, a recreational therapist who suffers from post-traumatic stress disorder was prescribed a capsule form of medicinal cannabis in 2015, which she ingests every evening to help her sleep. Prior to her pre-employment drug test, she informed her future employer that she took medical marijuana. One day before she was to start her new job, after she had quit her former employment, the rehabilitation center rescinded her job offer over a positive drug test.

The company argued that federal law, which bans the use of marijuana, preempts Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes. The court disagreed and found the employee can sue the employer.


Workers’ Compensation
Exclusive remedy protects general and special employer – California

The family of a Fresno paramedic who was killed in an air ambulance helicopter crash filed a wrongful death suit against Rogers Helicopters and American Airborne, claiming they were negligent in the maintenance and operation of the helicopter. A general partnership, ROAM dba SkyLife, existed between the companies, and the helicopters used in this partnership were jointly owned.

If there are dual employers, the second or “special” employer may enjoy the same protection of “exclusive remedy” under workers’ comp as the first or “general” employer. The court found the death occurred during the course and scope of employment, therefore, the family is precluded from suing the companies.


Work comp exclusivity rule does not preempt claim for emotional distress under FEHA – California

In conflict with an earlier decision from Division Three, the Court of Appeal, 4th District, has affirmed that the workers’ compensation exclusivity rule does not preempt employees’ emotional distress claims arising from discrimination or retaliation in violation of the Fair Employment and Housing Act (FEHA). The case, Melony Light vs. California Department of Parks and Recreation, et al., revolved around a co-worker who alleged harassment by supervisors for support of a co-worker who took medical leave for stress arising from harassment by supervisors. The court noted that exclusive remedy provisions are not applicable under various circumstances, including from a risk not reasonably encompassed within the compensation bargain.


Employer may be liable for costs up until denial of claim – Florida

In Mathis v. Broward County School Board, a custodian, who is diabetic and had an abscess on her foot, reported a puncture injury to her foot. When the abscess worsened, she went to the hospital and was operated on for a staph infection.

When the school board denied the claim, the employee appealed, not questioning the denial of compensability but arguing the board was obligated to pay the $116,000 bill from the hospital, which was incurred before the claim was denied. The 1st District Court of Appeal overturned a judge’s finding that the employer wasn’t liable, noting if an employer elects to pay and investigate, then the law requires that it pay all benefits due “as if the claim had been accepted as compensable” until the date of denial. The case was remanded to consider the board’s defenses and if this constituted emergency care.


Comp sole remedy for alleged victim of sexual harassment – Illinois

In Nischan v. Stratosphere Quality, the U.S. 7th Circuit Court of Appeals ruled that workers’ compensation was the sole remedy for a worker’s claim of battery by a corporate representative of a client, but that she had asserted a viable claim against her employer for failing to protect her from the corporate representative’s allegedly harassing conduct.

The Chrysler Group was one of Stratosphere’s biggest clients, and she alleged that Chrysler’s liaison sexually harassed her. The court said the Workers’ Compensation Act barred the claim of battery, since the act is the exclusive remedy for accidental injuries transpiring in the workplace. “Injuries resulting from a coworker’s intentional tort are accidental from the employer’s perspective unless the employer commanded or expressly authorized the tort.”


Use of indefinite article in settlement agreement leads to award of benefits – Indiana

In Evansville Courier Company v. Mary Beth Uziekalla, an injured worker settled a workers’ compensation claim for a neck injury. The settlement agreement allowed a claim for change of condition, at which point she could seek a medical opinion from the independent medical examiner.

When she exercised the provision, the designated doctor declined to give a medical opinion, so the parties agreed on a neurosurgeon, who determined that the change in condition did not result from her work injury. However, the original neurosurgeon, who also examined her, came to the opposite conclusion. The appellate court rejected the argument that the board erred in admitting the second opinion since the use of the phrase “‘a’ procedure for resolving future change of condition claims,” does not mean the agreement established the only such procedure. Indeed, the use of the indefinite article contemplates the contrary.


Longshoreman can pursue both WC and LHWCA benefits – Minnesota

Unless states have laws on the books indicating otherwise, injured longshoremen may seek benefits under both workers’ comp and the federal Longshore and Harbor Workers’ Compensation Act. In Ansello v. Wisconsin Central Ltd., the state Supreme Court ruled that a workers’ compensation judge abused his discretion when he dismissed the case for lack of jurisdiction.

In a dual-jurisdiction case, benefits in both jurisdictions can be pursued, but can’t be collected at the same time. The Longshore Act is more generous than the state’s workers’ compensation and typically would be accessed for wage loss and any residual benefits not paid under the state’s system. The court noted there is no danger of double recovery under concurrent jurisdiction, since employer’s awards under one are credited against any recovery under the second.


Failure to administer drug and alcohol testing in timely manner to injured worker nixes denial of benefits – Mississippi

In McCall v. Sanderson Farms, an appellate court held that an injured worker should not have been denied workers’ compensation benefits because he failed to submit to a post-accident breathalyzer test. The injured worker waited for the breathalyzer technician to arrive at the employer’s premises for more than an hour and one-half following the incident, but pain forced him to leave and seek care at the hospital, where he passed a drug test but was not administered a blood alcohol test. According to the court, the employee had not denied the test.


Drug sentence insufficient to prove worker earned money from dealing drugs – New York

Under Work Comp. Law § 114-a, if a person makes a false statement or representation as to a material fact he or she shall be disqualified from receiving any compensation directly attributable to such false statement or representation. In Pompeo v. Auction Direct USA LP, an injured worker who went to prison on drug-dealing charges would have lost his chance to resume collecting wage-replacement benefits after his release if his employer could prove he hid the drug-sale proceeds. However, the Board was within its powers to find that the criminal convictions alone were insufficient to establish that income had been received from the drug sales.


Widow gets death benefits for unwitnessed fall – New York

In Silvestri v. New York City Transit Authority, an appellate court ruled that a worker’s widow was entitled to benefits for his death from injuries caused by an unwitnessed fall at work that was never reported to his employer. He left prior to the start of the second overtime shift and witnesses said he was holding his stomach when he left, and that he had said he wasn’t feeling well.

His maintenance duties sometimes required him to repair subway cars while they were suspended over a pit that was 4 to 5 feet deep with a concrete floor, through the use of a ladder and he told his wife he had fallen off a ladder into “the pit” at work earlier that day. When he was having difficulty breathing and walking, he went to the hospital and was diagnosed with fractured ribs, was given painkillers and sent home. Three days later he was diagnosed with a ruptured spleen, as well as a punctured lung, and died in the hospital a day later.

While the presumption of compensability could not be used to establish that an accident actually occurred, the widow had established her claim without it.


Calculation of AWW must account for changes in wages, hours – North Carolina

In Ball v. Bayada Home Health Care, the Court of Appeals overturned the calculation of a worker’s average weekly wage that did not account for the fact that she switched from part-time to full-time employment, and that she worked more than three months after her injury at a higher rate of pay. After six months of part-time work, a nurse’s assistant took a full time position and was pushed down the stairs by a patient on her first day.

The statute sets forth five different methods for calculating a worker’s AWW and the Industrial Commission used the method for when less than 52 weeks is worked. This method sets the AWW as the sum of the worker’s earnings divided by the number of weeks actually worked, if this results in an amount that is “fair and just to both parties.” The court found that this method was unfair to the worker and set the AWW as the amount that “will most nearly approximate the amount which the injured employee would be earning were it not for the injury.”


Entire impairment rating evaluation process unconstitutional – Pennsylvania

The recent decision of the state’s Supreme Court in Protz v. Workers’ Comp. Appeal is having widespread implications for the workers’ compensation process. In Thompson v. Workers’ Comp. Appeal Bd, the Commonwealth Court held that one legal effect was to undermine the legal authority for the entire impairment rating evaluation (IRE) process. Accordingly, the Board could not approve a modification of benefits based upon an IRE.


Loss of earning power appropriate standard in reinstatement of benefits case – Pennsylvania

In Schafer v. WCAB (Reese Masonry), the Commonwealth Court overturned lower rulings by reviving a worker’s petition for reinstatement of benefits. It explained the wrong standard was used; the worker did not need to prove a worsening of his condition or inability to perform his regular job to be entitled to wage-loss compensation; he just had to show that his earning power was adversely affected by his disability and that it arose from his original claim.


Worker awarded benefits for fall that aggravated pre-existing arthritic condition – Tennessee

In Jenny Craig Operations v. Reel, a worker tripped and fell, aggravating the pre-existing arthritis in her knee and necessitating knee replacement surgery. The company accepted liability for a temporary injury to the knee, but it denied liability for the total knee replacement and for any permanent impairment. A trial judge found the fall had caused an acceleration, advancement, or progression of her osteoarthritis, such that she required a total knee replacement and a permanent partial disability of 46.5% to her right lower extremity.

The state’s Supreme Court Special Workers’ Compensation Appeals Panel agreed, noting, “an employer takes an employee as is and assumes the responsibility of having a pre-existing condition aggravated by a work-related injury which might not affect an otherwise healthy person.”

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

Legal Corner

ADA
Part-time schedule not required when the essential duties of the job cannot be performed

In Green v. BakeMark USA LLC, 6th Cir., the manager had been granted several leaves for cancer surgery and subsequent complications and returned with hour restrictions for a limited time. Shortly after returning to full duty and working a 24-hr shift, he collapsed and his doctor again issued work restrictions. At the employee’s request, the company provided information on the hours he was expected to work to the treating physician. It also attempted to reach the employee by phone and email, but received no response, which led to mediation.

At mediation, the employee, in effect, requested an indefinite leave of absence. The company terminated the employee who filed several claims under the ADA. A federal district court granted summary judgment in favor of BakeMark and on appeal, the 6th U.S. Circuit Court of Appeals affirmed dismissal.

Based on witness testimony and the job description for the position, the appeals court noted anything less than full-time hours would fundamentally alter the position, which is not required by the ADA. While part-time or flextime schedules can be a reasonable accommodation, they are not required when the essential duties of the job cannot be performed within the restricted hours.

 

Workers’ Compensation
Supreme Court tightens rules on where injury lawsuits can be filed – United States

The U.S. Supreme Court tightened rules on where injury lawsuits may be filed, handing a victory to corporations in a case involving Texas-based BNSF Railway Co. In an 8-1 decision, the justices threw out a lower court decision in Montana allowing out-of-state residents to sue there over injuries that occurred anywhere in BNSF’s nationwide network. State courts cannot hear claims against companies when they are not based in the state or the alleged injuries did not occur there, the justices ruled. In effect this significantly limits the ability to bring claims in friendly courts.
Work Comp policy can be rescinded for misrepresentation – California

A Workers’ Compensation Appeals Court determined that an insurer has the right to retroactively rescind a workers’ compensation policy, even if a worker has already been injured. In this case, the employer’s application for coverage implied that its employees did not travel out of state, but an employee was injured out of state.

In Southern Insurance Co. vs. Workers’ Compensation Appeals Board (WCAB), EJ Distribution Corp. et al., EJ Distribution Corp.’s application indicated covered employees would not travel out of California or outside of a 200-miled radius. After the arbitrator found the policy could not be rescinded and the WCAB adopted the arbitrator’s report, Southern petitioned the court for a writ of review, which was granted.

“Contrary to the arbitrator’s ruling, a workers’ compensation insurance policy may be rescinded,” the court said in its ruling. “A recession is enforced by a civil action for relief based on recession or by asserting recession as a defense. Because the arbitrator and the appeals board did not address and determine whether rescission was a meritorious defense to the employee’s claim, we annul the appeals board’s decision and remand the case with directions to hear and determine whether the insurer was entitled to rescind, and did rescind, the policy.”
Court of Appeals allows apportionment to genetics – California

In City of Jackson v W.C.A.B., a police officer injured his neck and was diagnosed with cervical degenerative disc disease and cervical radiculopathy. A physician concluded that his injury was cumulative and caused by a combination of work and personal activities as well as a personal history of “heritability and genetics”, among other things.

After the neck surgery, the doctor changed the apportionment to 49 percent; saying that there was new evidence that showed genetics played a more significant role in cervical spine disability than previously thought, citing several studies. The WCAB did not agree, but the Court of Appeals noted employers are able to base apportionment on other factors such as a preexisting disability or the natural progression of a non-industrial condition. The Court determined that there was substantial medical evidence to justify the apportionment, since new medical studies showed that heritability had a role in about 75 percent of degenerative disc disease cases.
Injured employee gets lawn care but not home renovations for treatment – Florida

An employee was injured on the job, had a compensable spinal fusion surgery, after which she developed a dropped foot, and experienced balance issues and falls. She also suffered from depression. A Judge of Compensation Claims awarded her lawn care, home renovations, attendant care, a podiatrist, an AFO brace, and evaluation of the need for specialized shoes based on medical necessity.

The First District Court of Appeals upheld the award for lawn care because there was evidence that it would improve her depression and anxiety, both of which were compensable. The home care, podiatrist, AFO brace and specialized shoes were also upheld because the employer failed to contest their medical necessity in a timely manner. The home renovations proposed by a registered nurse, however, were denied. The court reasoned that while the orthopedic surgeon indicated that he agreed with some of the suggestions in a home assessment report completed by a registered nurse, the physician never identified which ones should be provided and the registered nurse was not qualified to establish the medical necessity.
Worker can request change in doctor even after discharge from medical treatment – Florida

In Dominguez v. Compass Group, the1st District Court of Appeals ruled that a worker was entitled to exercise her statutory right to a one-time change in physicians, even though her doctor had discharged her from care.
School employee due benefits for fall when senior prank day necessitates different parking location – Illinois

In Field v. Pinckneyville Community H.S. Dist. 101, a teacher was walking from her car to the building where she worked when she fell and fractured her lower leg. She was walking a much further distance than usual because vehicles blocked the entrances to the school parking lot as part of a senior prank day. The Workers’ Compensation Commission awarded the teacher permanent partial disability benefits based on 35 percent loss of use of the left leg and medical expenses of $80,791 for injuries. It noted the prank day is implicitly approved by the school administrators, and the blocking of the teachers from parking in their customary parking spaces is a known activity, therefore, the teacher was within the scope of her employment.
Chicago Bears pay over $12.5 million to settle comp claims – Illinois

According to an article in the Chicago Sun-Times, over the past 20 years the football team has spent nearly $12.5 million to settle worker compensation claims filed by 141 players. And the team it still grappling with 144 additional claims from 55 other players. The Chicago sports teams have been arguing that the state’s laws regarding wage differential payments create a financial burden.
Highest court restricts admissibility about immigration status – Indiana

The Supreme Court ruled that an injured worker could pursue a damage claim for his lost future earnings in the U.S. job market, even though his immigration status did “not allow him to be legally employed.” It also restricted the admissibility of evidence about his immigration status to the jury unless the preponderance of the evidence establishes that he is likely to be deported and that his future lost earnings would therefore be limited to what he could earn in his native Mexico. Escamilla v. Shiel Sexton Co.
EMT suspended for criminal charges due benefits – Massachusetts

In Brian Benoit v. City of Boston, an EMT suffered an ankle injury and one year later was indicted on charges relating to misuse of controlled substances intended for his emergency patients. The city refused to pay benefits citing a 1972 state law banning public-sector workers facing criminal charges from receiving compensation from a government agency. However, the court ruled unanimously that the benefits are not salary, but an insurance agreement between the injured worker and the insurer and benefits were due.

Request for work with a different employer in rehabilitation plan nixes termination of TTD benefits – Minnesota

In Gilbertson v. Williams Dingmann, LLC, an employee who had given her notice, was injured prior to her departure date. The employee’s rehabilitation plan stated that her vocational goal was to return to work, but with a different employer. Although her employer offered her the same position at the same pre-injury wage, with reasonable accommodations for her physical restrictions, it was not completely consistent with the rehab plan as required by law. The employer’s offer could not, under any circumstances, be consistent with that plan.
Teacher cannot sue school district for injuries incurred during student fight – Minnesota

There are three exceptions to Minnesota’s workers’ comp exclusive remedy provision, including an assault exception, an intentional act exception and a co-employee liability exception. In John Ekblad vs. Independent School District, a high school teacher also served as lunchroom supervisor for additional compensation. While his duties included intervening to break up fights if he could do so safely, he was not required to do so. He received workers’ comp benefits when he intervened in a fight and was injured.

He sued the school district, alleging negligence and negligent supervision. The assault exception covers injuries inflicted for personal reasons and he argued the students made references to his race, but the court found that racial animosity is insufficient to establish a personal connection. The court also ruled the intentional act exception did not apply because even if the district’s policies were substandard or ineffective, that did not establish a conscious and deliberate intent to inflict injury. Further, the co-employee liability exception did not apply because the duty to provide a safe workplace is a non-delegable duty held by the employer as part of workers’ comp law.
Employee’s death does not negate settlement agreement not yet approved by Commission – Mississippi

In Taylor v. Reliance Well Service, the Court of Appeals ruled that an employer must honor a $71,659.43 settlement for a comp case even though the worker died before the Workers’ Compensation Commission approved of the deal. The agreement was submitted to the commission for review on May 13, 2016, the employee was killed on May 16, and the Commission approved the settlement on May 18, assuming the employee was still alive. The company filed a motion to have the approval order vacated, which was initially granted.

Upon appeal, the court reversed noting Workers’ Compensation Law specifically provides that settlement agreements “shall not be made except when determined to be in the best interest of the injured worker” and therefore, the sole statutory basis for disapproval of a settlement is a finding that the settlement would not be in the best interest of the worker. The employee’s death wouldn’t affect the commission’s determination of this issue.
Eastern District refuses to approve post-award settlement, in direct conflict with the Western District – Missouri

In the Western District, cases have determined that the Labor and Industrial Relations Commission must sign off on a joint proposal to commute an award so long as it was not made as a result of undue influence or fraud, the employee understood his rights and benefits, and he voluntarily agreed to accept the terms of the agreement. In Andrew Dickemann v Costco Wholesale Corporation, the Eastern District says these criteria, derived from Missouri Revised Statutes Section 287.390.1, apply only when there is an unresolved claim for benefits.

If the worker has established his entitlement to an award, the Eastern District said the applicable Section is 287.530, which says that commutations are to be granted only in “unusual circumstances,” and it requires that the value of the commutation be equal to the present value of the future installments due to the employee. In this case, there was no evidence of “unusual circumstances” and the terms of the agreement did not provide a payment equal to the present value of the future benefits, therefore, the Labor and Industrial Relations Commission properly refused to authorize the deal. The Eastern District panel said it believed the case setting precedent in the Western District had been wrongly decided.

Liability for asbestos-related condition can not be apportioned – New York

In Matter of Manocchio v ABB Combustion Eng’g, the Workers’ Compensation Board appropriately refused to apportion liability for an employee’s asbestos-related disease despite some evidence that he had been exposed to asbestos at multiple employers over a long period of time. While a medical expert indicated that apportionment was appropriate in terms of exposure, the expert admitted that determining the exposure to asbestos at each employer was impossible. Therefore, the appellate court concluded there was no objective way to prove that the employee contracted pleural plaque while working for another employer, and could not be apportioned.
Employer stops negligence suit on labor law technicality – New York

In Robinson v. National Grid Energy Mgt. LLC, an electrical foreman’s negligence suit was thrown out after his employer argued that Labor Law § 240(1) did not require it to protect workers from electrical shock. The employee was installing wires for a company hired by T-Mobile, when he fell 12-15 feet to the ground from a faulty aerial bucket. Noting that the bucket was not equipped with the proper electrical protection and that the lift function on the truck was malfunctioning, he decided to climb down, but his foot became stuck in the part of the bucket typically covered by the electrical protection, and he slipped and fell.

When he sued, T-Mobile petitioned to dismiss the complaint, arguing the bucket was faulty because it did not provide adequate protection from electrical shock, not because it provided inadequate fall protection and that the Labor Law did not guarantee a protection from electrical shock. While a lower court dismissed the complaint on the grounds that the decision to exit the bucket had caused his fall, the Supreme Court of the State of New York’s 2nd Judicial Department Appellate Division disagreed, but dismissed the case based on T-Mobile’s reasoning regarding the Labor Law.
Protz decision does not automatically nullify IRE rating – Pennsylvania

In William Gillespie vs. Workers’ Compensation Appeal Board (WCAB) (Aker Philadelphia Shipyard), the Commonwealth Court affirmed the decision of the WCAB, reversing the decision of the Workers’ Compensation Judge (WCJ), who upheld the employee’s constitutional challenge to his impairment rating evaluation (IRE). The Commonwealth Court ruled that its 2015 decision in Protz v. WCAB (Derry Area School District) does not automatically allow injured workers who had their disability status converted through the impairment rating evaluation process to undo this change.

While the court’s decision in Protz declared the IRE rating standard unconstitutional, the court said workers who have already gone through the IRE process have 500 weeks to appeal the conversion of their disability status, and they need evidence of a full-body impairment above 50% to support their claim, which the employee did not provide. The court said it had already rejected the idea that the Protz decision invalidated all IREs performed using the fifth edition of the guides late last year, in the case Riley v. WCAB.
Lay testimony sufficient to prove exposure – Pennsylvania

In Kimberly Clark Corporation v. Workers’ Compensation Appeal Board (Bromley), the injured worker was an electrician who was diagnosed with metastatic bladder cancer in the summer of 2005, and died a year later. His widow filed a Fatal Claim Petition and relied upon the testimony of two co-workers who detailed the various chemicals and substances known to cause cancer that her husband worked with, as well as an oncologist, who explained that the bladder cancer developed due to the exposure to these carcinogens. This testimony was considered more credible than that presented by the “environmental manager” for the Employer’s plant and the insurance company’s expert physician. The Fatal Claim Petition was granted by the WCJ and upon appeal, affirmed by the Commonwealth Court.

One issue addressed by the Court was whether the death took place within 300 weeks of the “injury.” When viewed as a repetitive or cumulative trauma case, the date of the “injury” is the date of the last exposure to the harmful source; thus, the death did take place within that period.
Co-employee immunity protects unpaid volunteer – Wisconsin

In Fitzgerald v. Capezza, an employee of a catering company suffered injuries in a car accident while en route to a work site as a passenger in a truck driven by a volunteer for the catering company. The employee filed a workers’ compensation claim, which she eventually settled. About a year later, she filed a personal injury action against the volunteer and her automobile liability insurance carrier. The case went through several appeals, but all concurred that the unpaid volunteer for the catering company was still a co-employee. As long as she received something of value in exchange for her work, and she received food, lodging and free admission into events, the court said she would be a “paid” worker for purposes of Wisconsin comp law.

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

Things you should know

Attention motor carriers: “Roadcheck” annual event – June 6 – 8

Nearly three times more roadside inspections take place during the 72 hours on June 6 – 8 than on any other time of the year. Sponsored by the Commercial Vehicle Safety Alliance (CVSA), the intensive annual “Roadcheck” is a good opportunity for those in the motor carrier industry to improve their Compliance, Safety, Accountability (CSA) scores. In 2016, 62,796 truck and bus inspections were completed throughout the United States, Canada, and Mexico.

Top construction risks: geopolitical instability, workforce management issues

In a survey of executives in the construction sector, Willis Towers Watson P.L.C. found geopolitical instability and workforce management issues as the biggest challenges facing the industry. Geopolitical issues included uncertainty of government support and financing, postponement and delays, changes in strategy, and commitment to project pipelines. Workforce management issues include increasing need for digital skills, a global employee network, disparate labor laws, difficulty to attract talent, and an aging population. The Construction Risk Index report can be downloaded here.

New pamphlet spotlights Hypothenar Hammer Syndrome

Scientific research organization IRSST has released a pamphlet intended to help workers recognize Hypothenar Hammer Syndrome. Aimed at workers who use vibrating tools or frequently strike, press or twist objects with the palms of their hands, the free pamphlet outlines syndrome warning signs and prevention methods.

Mayo Clinic study: second opinion leads to new or refined diagnosis for 88% of patients

Many patients come to Mayo Clinic for a second opinion or diagnosis confirmation before treatment for a complex condition. In a new study, Mayo Clinic reports that as many as 88 percent of those patients go home with a new or refined diagnosis – changing their care plan and potentially their lives. Conversely, only 12 percent receive confirmation that the original diagnosis was complete and correct.

These findings were published online in the Journal of Evaluation in Clinical Practice.

Study links participation in weight-loss programs to reduced absenteeism

Obese workers who took part in a structured weight-loss program reported fewer hours missed on the job after six months, a recent University of Michigan study shows.

Researchers surveyed 92 people who had an average body mass index of 40 and worked in various occupations. Before entering the program, participants stated in a self-evaluation that they worked an average of 5.2 fewer hours a month than their employers expected. After six months and an average of 41 pounds shed, participants reported working 6.4 more hours a month than expected.

WCRI’s CompScope™ Benchmark 2017

The 17th edition of CompScope™ Benchmarks Report is available from the Workers’ Compensation Research Institute (WCRI). The report looks at the impact of state workers’ compensation reforms on things like claim costs, rate of litigation, and disability duration and included 18 states: California, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Texas, Virginia and Wisconsin. In California and North Carolina, the total costs per claim have been steady between 2010 and 2013. Illinois saw total costs per claim decrease by 6.4 percent since 2010, which researchers attribute to a 30 percent reduction in fee schedule rates for their medical services. Indiana’s total costs per claim decreased by 4 percent from 2014 to 2015, a product of a 10 percent decrease in medical payments, but a 5 percent increase in indemnity benefits per claim. In Florida, total costs per claim increased between 2010 and 2015, but there were decisions last year from the Florida Supreme Court that may slow or stop those increases in costs.

Rising pedestrian death toll

The latest report on U.S. pedestrian deaths, from the Governors Highway Safety Association, estimates that last year’s total rose 11.6 percent to nearly 6,000, or more than 16 fatalities a day. If that projection proves accurate – it is based on fatality records from only the first half of 2016 – it would mark the sharpest yearlong increase since records have been kept.

Analysts are putting much of the blame on drivers and walkers who are looking at their smartphones instead of watching where they are going. Tipsy walking also is part of the problem, with one in three victims legally drunk when they were struck and killed.

Workplace death rate hits a 10-year high in Massachusetts

Seventy Massachusetts workers lost their lives last year, marking a 10-year high in the rate of workplace-related fatalities, according to the Massachusetts Coalition for Occupational Safety and Health, known as MassCOSH. Sixty-two of those workers were killed on the job, many in construction; the rest were firefighters who died from occupational illnesses, such as lung cancer and heart disease.

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Legal Corner

ADA
EEOC settles first direct challenge to employer wellness program

The EEOC’s first lawsuit directly challenging an employer’s wellness program-filed in 2014- was against Orion Energy Systems. The company had switched to a self-insured plan and, to save costs, initiated a wellness plan that revolved around three incentives: the employee did not smoke, would exercise 16 times a month, and have a health risk assessment (HRA). There were surcharges for non-compliance, including paying the entire monthly premium if they did not have a HRA, which was $413.43 for single, $744.16 for limited family, and $1,130.83 for family coverage.

One employee raised concerns about the wellness initiative and HRA, questioning confidentiality and how the premium was calculated believing it excessive in light of the service fee Orion paid its third-party administrator (she knew the amount because she paid invoices). She opted out of the program and agreed to pay the premium. However, her supervisor and the HR director spoke to her about comments she made to coworkers about the premium, telling her such negativity was not welcome, and to keep her opinions to herself and eventually she was terminated.

While the court found that Orion’s wellness plan was lawful under the regulations at the time, there were issues of fact as to whether the employee was fired because of her opposition to the wellness plan. Under the consent decree settling the suit, Orion agreed to pay $100,000 to the employee and agreed that it won’t maintain any wellness program in the future that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA and its regulations as well as other provisions.

FMLA
Inadvisable email negates defense to FMLA retaliation claim

An employee at Wells Fargo received an informal and then a formal warning about underperformance and her failure to meet sales goals. One week prior to receiving the formal warning, she was diagnosed with myelopathy, scheduled for surgery, and received FMLA leave. When she returned to work on limited duty, her supervisor warned her that she was still near termination. After her return to full duty, her supervisor determined she had not made sufficient improvement and he documented the problems in an email to the HR department and recommended termination. In this email, he also noted, “Debby submits a request for a leave of absence.”

The employee sued for retaliatory discharge under the FMLA and the federal court found that the email comment about the request for a leave of absence as part of the email justifying discharge was direct evidence of unlawful retaliation. Although Wells Fargo could document the underperformance and warnings, the court concluded for summary judgment motions in cases involving direct evidence of discrimination, an employer’s legitimate, nondiscriminatory business reason for an adverse employment action is irrelevant.

Takeaway: Electronic communications have permanency. Be sure supervisors and managers understand the importance of their choice of words and know what should and should not be included in recommendations for termination.

Temporary work counts as a factor when determining FMLA eligibility

In Meky v. Jetson Specialty Mktg. Servs. Inc., a temporary employee was hired through a staffing agency for about six months and then was hired to work full-time. She requested FMLA, but was told she was not eligible and was terminated a few months later for leaving work early. She sued and one question the court had to decide was the start date of her employment. The 3rd U.S. Circuit Court of Appeals held that the correct date was the date on which she started working as a temporary employee, since the staffing agency and the Jetson were joint employers.

Workers’ Compensation
Finding of compensable injuries to knee and shoulder does not bar later additional claim related to back – California

In Iniguez v. WCAB (Blue Rose Concrete Contractors), a worker was compensated in 2012 for injuries to his knee and shoulder stemming from an accident in 2010. In November 2014, he filed another claim seeking additional benefits for injuries to the neck and back. The WCAB found that compensation should be limited to the knee and shoulder in accordance with the 2012 litigation, but the 2nd District Court of Appeals annulled the board’s decision by saying there was no finding that these were the only industrial injuries sustained and remanded the case for further proceedings.

Vacation and sick time not earned income when calculating impairment benefits – Florida

In Eckert v. Pinellas County Sheriff’s Office, the employer reduced the injured worker’s benefits by 50% for the 23 weeks he used his sick leave and vacation time, arguing that this was allowed as “earned income” under state law. However, the 1st District Court of Appeal said use of sick leave and vacation time could not count toward his average weekly pay for the 23 weeks in question, since sick leave and vacation time were not accrued during the weeks that he drew upon so it was not “earned income.”

“Heart attack waiting to happen” leads to denial of claim – Illinois

A firefighter described, as “a heart attack waiting to happen” should not receive benefits for a heart attack sustained while cleaning his firehouse parking spot of snow ruled an appellate court. The firefighter was a heavy smoker, obese, and had so many risk factors for a heart attack that the cardiac event could have occurred “anytime and anywhere,” said the arbitrator. Those risk factors were enough to overcome the statutory presumption that heart attacks suffered by firefighters are a compensable injury.

Fired for misconduct, employee can still collect benefits – Indiana

In Masterbrand Cabinets v. Waid, a worker who injured his back disagreed with his doctor and supervisor about his level of pain and work capacity. An incident with the supervisor escalated to an altercation. He was suspended and then terminated. He continued to see the doctor and the Workers’ Compensation Board found he was unable to perform work of the same kind he was performing when injured and that he was due TTD payments. The company appealed, arguing the worker was not entitled to TTD benefits because he was terminated for misconduct. However, the Court held that the inability to work was related to his injury and, therefore, he was entitled to benefits.

Statute of limitations not valid defense when injured employee was promised action – Mississippi

An employer and its carrier cannot argue the statute of limitations as a defense when the carrier had assured the injured employee that it would “take care of everything” and there was no need for her to hire an attorney. Moreover, the carrier had paid for medical expenses three days after the expiration. Dietz v. South Miss. Reg’l Ctr.

Long history of medical problems does not preclude PTD for shoulder injury – Missouri

In Maryville R-II School District v. Payton, a school groundskeeper with a history of ailments and multiple surgeries went to the emergency room when he started to have serious shoulder pain after assembling a soccer goal. An X-ray did not reveal any acute fracture or dislocation, and an emergency room doctor tentatively diagnosed him with osteoarthritis. He then saw the school district’s physician who opined that the activity was unlikely to be the prevailing cause of the pain. He then sought treatment from his own physician and an MRI revealed a rotator cuff tear. Surgery was performed but the rotator cuff tore again and he was unable to return to work because the school district could not accommodate his lifting restrictions.

A judge, the Labor and Industrial Relations Commission, and the Court of Appeals all concurred that the injury was permanent and totally disabling.

Tort suit for worker’s heat-related death revived – Missouri

In Channel v. Cintas Corp., a 52-year-old delivery driver died of heat stroke and his widow filed a wrongful death action against the supervisor and the company. She argued that the supervisor ignored the company’s heat safety protocols by placing her husband in a truck without air conditioning on a day when temperatures were over 100 degrees. While a circuit judge ruled that workers’ comp was the only remedy, the Court of Appeals ruled that the Labor and Industrial Relations Commission had not yet ruled on the workers’ comp case and it was improper for the judge to determine that the death was an accident. The suit was reinstated and placed on hold.

Symptoms of heart attack at work not sufficient for death benefits – New York

In the Matter of Bordonaro v Genesee County Sheriff’s Office, a deputy sheriff died at home in his sleep and his widow sought workers’ comp death benefits, contending his initial symptoms occurred at work. Noting the employee had completed his shift and had not sought medical treatment, the appellate court supported the Board’s finding that the death was not casually connected to work.

Benefits denied in two stress related cases – New York

In Matter of Novak v St. Luke’s Roosevelt Hosp., a New York appellate court affirmed a Board finding that a nurse’s work-related stress did not exceed what could be expected in her normal work environment. It was determined that her stress stemmed from her involvement in a disciplinary proceeding, wrongful termination, and subsequent reinstatement after a six-month suspension. She complained about her treatment by co-workers when she returned to work, eventually quit her job, and filed a comp claim asserting the events caused insomnia, depression, posttraumatic stress disorder, and a severe social phobia. The claim was disallowed and the appellate court noted claims for mental injuries based on work-related stress are precluded “if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion or termination taken in good faith by the employer.”

In Burke v. New York City Transit Authority, a subway train operator was denied a psyche claim for harassment from his supervisors. The employee wears glasses, has a sensitivity to light, and has tinted lenses he can flip down over his glasses. Train operators are prohibited from wearing sunglasses for safety reasons, and the employee was being monitored to ensure that he was not wearing his tinted lenses while operating a train. He claimed his supervisors harassed and intimidated him about the lenses, causing him to develop disabling anxiety and panic attacks. The courts determined that the stress created by the investigation was not greater than that which other similarly situated workers experienced in normal work and, therefore, it was not compensable.

Benefits granted for ‘reasonable effort’ for employment – North Carolina

For a worker to receive benefits in the state, it must be shown that the worker was not capable of earning the same money as before the injury due to the injury. In Snyder v. Goodyear Tire & Rubber Co., a tire builder suffered a back injury and returned to work with lifting restrictions. However, the employer was not able to accommodate the restrictions and sent him home. He filed for workers’ comp and the commission found that he met the burden for temporary total disability by proving he could not return to his pre-injury job and had made unsuccessful attempts to obtain employment.

While the company appealed, arguing that the employee had not made reasonable efforts for employment, the appeals court disagreed. The court did note that an employer’s failure to provide light duty work in and of itself is not proof that an injured employee made a reasonable but unsuccessful effort to find employment.

Decision in Heart and Lung claim not binding on workers’ comp – Pennsylvania

A prison guard trainee hurt his knee and filed for benefits under the Heart and Lung Act (H & L Act), which allows certain police officers and other public safety employees to collect full salary and medical benefits for temporary injuries. An arbitrator determined he was eligible for benefits. He later filed a claim for workers’ comp, but the judge found he was entitled to medical benefits, but not disability benefits because he failed to prove a loss of wages.

The guard appealed arguing his disability was established under the H & L Act, but the court noted the laws were quite different and the Workers’ Comp Act could provide significantly greater medical and indemnity benefits, including those for permanent impairment. Therefore, a decision by an arbitrator in an H & L claim filed by a corrections officer was not binding on the workers’ compensation judge. Merrell v. Workers’ Comp. Appeal Bd. Commonwealth Dep’t of Corr.

Non-payment of PT benefits leads to penalties in spite of billing dispute – Pennsylvania

An employee of Derry Township Supervisors received PT for a back and neck injury at a facility owned by The pt Group. The bills, however, came from the Physical Therapy Institute (PTI), which had a contractual arrangement with The pt Group. The Derry Township argued this arrangement was a way to charge higher fees.

As of Jan. 1, 1995, providers are able to bill comp carriers at 113% of the rate established by the Centers for Medicare & Medicaid Services fee schedule, but the Supervisors alleged that providers in business before that date can use a “cost-plus” formula that generally means a higher payment. The pt Group was subject to the 113% cap, but PTI was not.

The Commonwealth Court upheld lower court decisions that there was nothing illegal in this arrangement and ordered an award of $83,400 in attorney fees, and reimbursement of $3,328.32 for litigation costs.

Opioid overdose after injury not compensable – Tennessee

A carpenter was involved in an employment-related motor vehicle accident that caused fractures to the vertebrae in his neck and disc herniation in his lower back. He underwent surgery, but continued to have back pain and further surgeries were denied, as were epidural steroid injections. He was referred to a pain management clinic and restricted from returning to work.

He told the pain management specialist that he began taking extra opioid tablets and consumed alcohol because he felt the medications were no longer effective. Shortly after agreeing to a program to wean off the drugs, his wife found him unresponsive in bed. The medical examiner ruled his death an accident caused by acute oxycodone toxicity with contributory causes of hypertension and alcohol and tobacco use.

His wife filed with workers’ comp benefits and the case went through appeals and ultimately was heard by the state Supreme Court. In Judy Kilburn vs. Granite State Insurance Company, et al., the Supreme Court noted that a worker’s conduct can limit compensability of subsequent injuries that are a direct and natural result of a compensable primary injury and ruled his death not compensable because he failed to take his medications in compliance with physician’s orders.

Disagreement over diagnosis not sufficient to rebut correctness of impairment rating – Tennessee

In Williams v. Ajax Turner Co., an employee was assigned a 21.3% impairment rating from his doctor following surgery of his foot after a forklift accident. The employer requested a second opinion from an orthopedic surgeon who assigned a 5% impairment rating, and a third opinion through the medical impairment registry (MIR) program, which also resulted in a 5% rating. A trial judge accepted the treating doctor’s rating and applied a multiplier of 4.

The Supreme Court’s Special Workers’ Compensation Appeals Panel said an MIR physician’s rating is presumed to be accurate, unless this can be overcome by clear and convincing evidence giving rise to a “serious and substantial doubt” about the accuracy of the rating. A disagreement about the rating, however, is not clear and convincing evidence; therefore, the MIR rating should have been accepted. It also agreed to the multiplier of 4, given considerations of education, job skills, work history, and medical limitations so the award of permanent disability benefits had to be modified to 20%.

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