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

Things you should know

Opioid abuse rises with length of prescription

According to a study by the U.S. Centers for Disease Control and Prevention, the risk of opioid abuse rises with lengthy prescriptions. If received a one-day prescription, 6% were still on opioids a year later; when prescribed for 8 days or more, this rises to 13.5%; when prescribed for 31 days or more, it increases to 29.9%.

Blacklisting rule repealed

President Trump repealed the so-called “blacklisting rule” that required federal contractors to disclose labor violations. The executive order had required employers bidding for federal contracts worth at least $500,000 to disclose any of 14 violations of workplace protections during the previous three years.

FMCSA will not reinstate overnight rest regulations for commercial drivers

The Federal Motor Carrier Safety Administration’s (FMCSA) regulation that required CMV (Commercial Motor Vehicle) drivers to take breaks in the hopes of preventing driver fatigue has been suspended since 2014 so that further research could be done to understand the efficacy of the program. A study from the Department of Transportation found that stricter mandated breaks did not do much to reduce driver fatigue or improve safety. Thus, the rule will not come out of suspension.

Study reveals occupations with sleep deprived workers

If your industry is health care, food service, or transportation, your workers are probably not getting adequate sleep, according to a study published March 3 in the Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Report. Workers who averaged fewer than seven hours of sleep per night were classified as having short sleep durations. Occupation groups that failed to average seven hours of sleep included:

  • Communications equipment operators: 58 percent
  • Rail transportation workers: 53 percent
  • Printing workers: 51 percent
  • Plant and system operators: 50 percent
  • Supervisors, food preparation and serving workers: 49 percent
  • Extraction workers: 45 percent
  • Nursing, psychiatric and home health aides: 43 %

The American Academy of Sleep Medicine and the Sleep Research Society recommend that adults 18 to 60 years old get at least seven hours of sleep every day. A lack of sleep can contribute to cardiovascular disease, obesity, diabetes, depression, and other health issues, as well as contribute to more injuries on the job.

NIOSH announces free health screenings for coal miners

A series of free, confidential health screenings will be available for coal miners as part of the NIOSH Coal Workers’ Health Surveillance Program. The first set of screenings will take place from March 26 to April 15 in coal mining regions throughout Alabama. The second set will occur from May 10 to May 31 throughout Indiana and Illinois. Finally, testing will take place from July 30 to Aug. 26 throughout Eastern Kentucky.

NIOSH updates mine hazard assessment software

Mine operators and workers now have access to updated hazard assessment software from NIOSH. According to the agency, EVADE 2.0 – short for Enhanced Video Analysis of Dust Exposures – offers a more comprehensive assessment of the hazards miners face by pulling together video footage and exposure data on dust, diesel and other gases, as well as sound levels.

Study: PT as effective as surgery for carpal tunnel

Physical therapy is as effective as surgery in treating carpal tunnel syndrome, according to a new study published in the Journal of Orthopaedic & Sports Physical Therapy. Researchers in Spain and the United States report that one year following treatment, patients with carpal tunnel syndrome who received physical therapy achieved results comparable to outcomes for patients who had surgery. Further, physical therapy patients saw faster improvements at the one-month mark than did patients treated surgically.

When hospital inspectors are watching, fewer patients die

A recent report in the New York Times cited a study in JAMA Internal Medicine which found death rates dropped when inspectors were onsite. In the non-inspection weeks, the average 30-day death rate was 7.21 percent. But during inspections, the rate fell to 7.03 percent. The difference was greater in teaching hospitals – 6.41 percent when the inspectors were absent, and 5.93 percent during survey weeks. While the difference may seem low, an absolute reduction of only 0.39 percent in the death rate would mean more than 3,500 fewer deaths per year.

Although the reasons for the effect are unclear, it was suggested when docs are being monitored, diligence ramps up.

Wearing eye protection can prevent 90 percent of work-related eye injuries, experts suggest

Ninety percent of on-the-job eye injuries could be avoided if workers wore eye protection, according to the American Academy of Ophthalmology (AAO). AAO offers the following tips for avoiding workplace eyestrain or injury:

  • Wear protective eyewear appropriate for the type of hazard you may encounter
  • Position your computer monitor 25 inches away
  • Follow the 20-20-20 rule: Every 20 minutes, take a break by looking at an object 20 feet away for 20 seconds
  • Reduce glare on your cell phone or digital device
  • Adjust environmental lighting near your workstation

 

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

Legal Corner

Workers’ Compensation
Worker has right to obtain medical report from doctor of his choice – California

In Davis v. WCAB (City of Modesto), Davis filed two workers’ compensation claims stating his prostate cancer developed because of his exposure to carcinogens while working as a firefighter. A qualified medical examiner (QME) issued opinions that the cancer was not work-related and Davis then hired a doctor to review the reports, which were sent to the QME for review. The city protested that this violated the discovery process and the Workers’ Compensation Appeal Board (WCAB) rescinded a judge’s order that had allowed the review.

Upon appeal, however, the WCAB filed a letter brief to the Court of Appeals, asking for review to be granted and for its decision to be vacated, since the decision had not addressed Labor Code Section 4605. Section 4605 says there is no limitation on the right of a worker to obtain a medical report, at his own expense, from the doctor of his choice. While the report cannot be “the sole basis of an award of compensation,” Section 4605 specifically allows a QME to address the report and respond to its contents.

Traveling worker denied benefits for fall in motel parking lot – Georgia

In Avrett Plumbing Co. v. Castillo, an hourly employee lived in Atlanta, but his job required him to work in Augusta. The company paid a weekly rate to provide him a hotel room and allowed him to use it on weekends at no cost. On a Sunday evening when returning from grocery shopping he tripped and fell in the parking lot, breaking his ankle. When he filed for workers’ comp, the company argued that the accident had not occurred during the course of employment, since it happened outside of normal work hours and the employee was engaged in activities unrelated to his job.

An administrative law judge disagreed and found the injury compensable under the “continuous employment” doctrine, because the employee was “required by his employment to live away from home while working.” The case went through several more appeals, and benefits were ultimately denied with the court finding the employee was there “merely as a personal convenience” (lack of money and transportation prevented travel to Atlanta) and that the errand was for the sole benefit of the employee.

Willful misconduct may bar comp benefits – Georgia

An employee who disobeys an employer’s instructions and acts in a dangerous fashion may not be entitled to workers’ compensation benefits, the Supreme Court ruled. Chandler Telecom v. Burdette revolved around the question of willful misconduct. A cellphone tower employee sustained serious injuries attempting a “controlled descent” from a tower, even though a supervisor ordered him not to attempt the descent and to climb down and the crew’s lead tower repeatedly protested his actions.

The Board of Workers’ Compensation concluded the employee could not receive comp benefits because he engaged in willful misconduct by defying his supervisor’s instructions, a decision that was affirmed by a Superior Court. However, the Court of Appeals reversed, saying his actions did not constitute willful misconduct because his actions were not of a “quasi criminal nature…”

The Supreme Court found that the appellate court erred in its ruling, noting the proper interpretation of a 1993 decision defining willful misconduct is “an intentional and deliberate action done either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.” The Supreme Court said it did not have enough information to make a determination about whether willful misconduct had occurred. It remanded the case to the Board of Workers’ Compensation for further fact-finding.

Worker killed by exploding shell can only claim comp – Illinois

An employee was killed by the explosion of a live mortar shell that had been transferred from the U.S. Army’s National Training Center at Fort Irwin, California to the Totall Metal Recycling’s (TMR) facility in Granite City. The lawsuit alleged the employer acted intentionally in transporting dangerous materials, but not that the company acted intentionally in injuring the employee. As such, the judge noted any allegation of TMR’s intent to injure the employee would fly in the face of the complaint, which alleges a claim of negligence. Thus, the exclusive remedy of workers’ comp barred the wrongful death claim. Muenstermann v. United States

Exclusive remedy bars negligence suit for borrowed worker – Illinois

An employee of a temporary staffing agency was assigned to work for Lindoo Installations Inc. and suffered a partial amputation of his right index finger when it was trapped between a bundle of shelving and a forklift. He filed for workers’ comp with the staffing agency and filed a negligence claim against Lindoo. While the trial court granted Lindoo’s motion for summary judgment under the exclusive remedy provision, the employee appealed arguing that the staffing agency’s branch manager periodically checked in.

The appeals court affirmed the decision, noting Lindoo met several factors that determine a borrowed employee relationship and qualified as a borrowing employer because it had the right to direct and control the employee’s work. TerranceFalge v. Lindoo Installations Inc.

Undocumented worker due benefits – Kansas

In Mera-Hernandez v. U.S.D. 233, the court found the injuries suffered by an undocumented school custodian were compensable even though she used a false name and submitted falsified documents to the school district when she was hired. The Supreme Court affirmed the Court of Appeals ruling that her immigration status does not dispute the work she performed for the school district and she fits the broad definition of employee under the law.

Clarifying Schoemehl window, court awards widow comp benefits – Missouri

For a very brief time, Missouri espoused a rule, known as the “Schoemehl doctrine,” that allowed for a permanently and totally disabled worker’s weekly benefits to be passed on to his dependents upon his death. The doctrine is limited to claims that were in existence as of January 2007, the date of the Supreme Court’s decision in Schoemehl v. Treasurer, and had not yet been fully resolved by June 2008, when the legislature then abrogated the doctrine.

In Ogden v. Conagra Foods, Ogden suffered serious injuries to his skull and spine in a 2001 motor vehicle accident and collected more than $2.4 million in benefits until his death in 2014. In 2009, the Ogden’s attorney filed a Form 21 Claim for Compensation for the employee and his wife. After Ogden died, his wife demanded payment on her claim for Schoemehl benefits.

The Industrial Commission determined she was entitled to payment, and Conagra appealed. The Court of Appeals approved benefits, explaining it didn’t matter that the wife’s claim for Schoemehl benefits wasn’t filed within the window of January 2007 to June 2008 because the claim was open and active during this time.

 

Credibility of doctors’ conflicting testimony weighed in appeal – Nebraska

In Hintz v. Farmers Cooperative Association, a worker was injured when a tire exploded, but he did not seek medical care and returned to work after a day-and-a-half absence. About three weeks after the accident, he tripped on the stairs at home and sought medical attention, which revealed a labral tear and other problems with his hip. His physician took him off work and performed surgery, and Farmers’ Cooperative terminated him after several months’ absence.

The worker filed a workers’ comp claim, and his physician testified although the worker had given inconsistent accounts about whether the hip injury was caused by the explosion at work or the trip down the stairs, when he performed surgery he observed a serious labral tear that seemed more likely to have been caused by the workplace explosion. An IME disagreed, testifying the injury was more likely caused by the fall down the stairs.

The Workers’ Compensation Court denied the claim, finding the IME’s testimony to be more reliable, but the Court of Appeals overturned, noting the treating physician had personally seen the extent of the injury during surgery.

Country club worker can proceed with lawsuit after general manager struck him in the groin with a golf club – New York

A country club employee whose left testicle was surgically removed after the club’s general manager struck him in the groin with a golf club is entitled to sue for damages beyond workers’ compensation benefits ruled an appellate court. The locker-room attendant was observing the assembly of golf clubs in the pro shop when the general manager entered and picked up a golf club shaft and struck him in the testicle, then left the room laughing.

The employee and his wife sued the general manager, who sought dismissal of the case based on workers’ comp exclusive remedy. The Court concluded that questions of fact existed as to whether the general manager acted in a ‘grossly negligent and/or reckless’ manner when he swung the golf club shaft and struck the employee and whether the country club condoned the action, thus the civil case can proceed. Montgomery v. Hackenburg.

Blackout caused by non-work conditions does not prohibit benefits – New York

In Nuclear Diagnostic Products, 116 NYWCLR 211, the New York Workers’ Compensation Board awarded benefits to a driver, who crashed his work vehicle after losing consciousness. The driver reported that he started coughing due to an asthmatic reaction to a new air freshener in his house and lost control of the car. The Board explained that since the driver’s accident occurred in the course of his employment he was entitled to a presumption that the accident arose out of his employment and that the driving of the employer’s vehicle was an added risk of employment.

Severe disability from Legionnaires’ Disease compensable – Pennsylvania

An employee of Nestle’s New Jersey office did most of his work in Pennsylvania performing maintenance on beverage machines. He fell ill, was hospitalized, lapsed into a coma, and was diagnosed with Legionnaires’ Disease. The illness left him wheelchair-bound, affected his speech, and the treatment he received may have caused brain damage. Nestle denied the allegations that he contracted the disease while working on fountain and soda drink machines that contained contaminated water, and argued the disease was not a result of work-related exposure. After testimony from a number of personal witnesses and medical experts, a workers’ comp judge determined that the employee was temporarily totally disabled and entitled to workers’ comp benefits. The Workers’ Compensation Appeal Board and the Commonwealth Court affirmed. Nestle USA Inc./Vitality vs. Workers’ Compensation Appeal Board

Seasonal worker difficult to prove – Pennsylvania

Two recent decisions of the Commonwealth Court illustrate how difficult it is for an employer to establish that a worker is a seasonal employee. While there is a specific formula for calculating the average wage when a worker is engaged in an “exclusively seasonal” occupation, the law does not provide a definition for the term. The controlling standard comes from a 1927 Supreme Court case which declared seasonal occupations are “those vocations which cannot, from their very nature, be continuous or carried on throughout the year, but only during fixed portions of it.”

In Toigo Orchards v. WCAB (Gaffney), a tractor driver who was hired for a single apple harvest doesn’t fall within the “exclusively seasonal” category. The argument was that the injured employee was “itinerant agricultural labor,” a tractor driver, and that short-term employment is not synonymous with seasonal work. Had he been treated as a seasonal employee his weekly benefits would have been only $31.99, compared to $315.90 weekly, which he was awarded.

In Lidey v. WCAB (Tropical Amusements), a carnival ride fabricator wasn’t an “exclusively seasonal” employee, even though his employer did business only during the summer months. He was awarded $917 per week, based on his weekly wage of $2,000.

Philadelphia Eagles must pay workers’ comp and a penalty for failing to report player’s injury – Pennsylvania

A defensive end for the Philadelphia Eagles ruptured his right Achilles tendon during the team’s training camp and underwent surgery and PT until he became a free agent. The team paid for his treatment and surgery and paid his regular salary until his contract expired, but failed to file workers’ comp documents. As a free agent, he rehabilitated at a private facility, which the team paid for, and ruptured his left Achilles tendon and the team paid for the surgery, but he paid for the rehabilitation. He filed for disability benefits and the team argued it should not be responsible for the second injury because it was not work related.

A workers’ compensation judge, and on appeal the Workers’ Compensation Appeals Board, ruled that the Eagles violated regulations by failing to report his first injury and awarded the claim petition as well as a 50 percent penalty to be paid by his employer on past-due compensation. The Eagles argued it was “not practically possible” to report every injury that occurs as a workers’ compensation claim as they see between 800 to 1,000 injuries during the season and practice. They file workers’ compensation claims only when players need treatment beyond what can be treated in the training facility, and they file NCPs on request.

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

Legal Corner

ADA
Jury verdict for needle-phobic pharmacist overturned

In Christopher Stevens v. Rite Aid Corp. et al. a federal appeals court overturned a $1.8 million jury verdict and ruled Rite-Aid did not violate the ADA when it terminated a pharmacist who was afraid of needles. When the company started requiring pharmacists to perform immunizations in 2011, the pharmacist, who had worked as a Rite Aid pharmacist and its predecessor pharmacies for 34 years, provided a doctor’s note that he suffered from trypanophobia (needle phobic) and would likely faint if he had to administer an injection. Shortly thereafter he was fired and filed a wrongful termination suit.

At trial, a U.S. District Court jury in Binghamton, New York, awarded him a total of $1.8 million. But on appeal, the court found that immunization injections were an essential job requirement for Rite Aid pharmacists at the time of Stevens’ termination and, therefore, Rite Aid did not violate the ADA.

Firing of bad-tempered bipolar employee did not violate ADA

In Michael Waggoner v. Carlex Glass America L.L.C., an employee of Nashville, Tennessee-based Carlex Glass America L.L.C., had been disciplined twice for violent outbursts while working for his plant’s previous owner. The second time he was suspended but allowed to return to work under a “last chance” agreement. After two more outbursts, he was terminated with the employer citing a work rule against using abusive language toward co-workers.

While he cited examples of other employees who had similar violations of the work rule, the court concluded that his outbursts may have posed a greater workplace safety threat and that the other employees did not have a history of infractions.

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

HR Tip: ABA’s summary of 2016 FMLA cases

Every February, the American Bar Association’s (ABA) Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. This handy report summarizes every FMLA decision from 2016 in a user-friendly manner.

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

Seven in ten employers impacted by employee prescription drug use

Seventy-one percent of U.S. employers say drug use among employees has impacted their business, but only 19% of them have comprehensive workplace drug policies in place, according to a survey by the National Safety Council (NSC). While 57% test their employees for drugs, only 41% screen for synthetic opioids – the kind of prescriptions usually found in medicines cabinets and increasingly available on the black market.

The types of incidents experienced in the workplace as the result of prescription drug use are: 39% absenteeism; 39% workers have been caught taking drugs while on the clock; 32% a positive drug test indicated use; 29% a worker had been found to be impaired or showed decreased work output; 29% a family member complained; 22% another employee complained to human resources; 15% an injury or near-miss occurred; and 14% an employee was caught selling drugs in the workplace.

“Employers must understand that the most dangerously misused drug today may be sitting in employees’ medicine cabinets,” Deborah A.P. Hersman, president and CEO of the NSC, said in a statement. “Even when they are taken as prescribed, prescription drugs and opioids can impair workers and create hazards on the job.” Cognitive impairments and physical pain masked by prescription drugs can make employees engage in riskier behaviors and reduce response time.

 

What employers can do

Develop a drug-free workplace policy, including prescription drugs

Most employers have a drug-free workplace policy directed at illegal drugs and an alcohol abuse policy, but most don’t have a prescription drug policy. Since prescription drugs are legal, it’s been difficult to craft a policy, but many addictions begin with legal prescriptions. Even when taken as prescribed, they can impair workers and create hazards on the job.

The NSC provides a free Prescription Drug Employer Kit to help employers create prescription drug policies and manage opioid use at work. The kit recommends actions including:

  • Define the employee’s role in making the workplace safe. A drug-free workplace program (DFWP) should state what employees must do if they are prescribed medications that carry a warning label or may cause impairment. The employer can create a plan around not operating vehicles or machinery while the prescription is in use. The DFWP should also spell out the steps an employer will take if it suspects a worker is using certain medications without a prescription, in larger doses than prescribed, or more frequently than prescribed.
  • Add prescription drug testing to illicit drug testing. Working with legal counsel, the employer should decide if additional testing is warranted for pre-employment screening, or for pre-duty, periodic, at random, post-incident, reasonable suspicion, return-to-duty, or follow-up situations.
  • List the procedures or corrective actions the employer will follow when an employee is suspected of misusing prescription drugs or for an employee with confirmed prescription drug abuse.
  • Obtain legal advice. An attorney experienced in DFWP issues should review the policy before it’s finalized.
  • Train supervisory staff and educate employees. Educate managers and supervisors about prescription drug abuse and what to do if they suspect an employee has a problem. Training also is an underused tool that companies can use to make employees aware of the risks and signs of prescription drug misuse, along with company policies.
  • Review service coverage for behavioral health and/or employee assistance program (EAP) needs. Evaluate the behavioral health portions of health insurance policies and EAP contracts to ensure employees are covered for abuse of prescription drugs.

 

Work with insurers to cover alternative approaches

Hersman advised employers to work with their insurers to cover alternative therapies so that employees can avoid taking opioids or other addictive medications for chronic pain. Alternative therapies include acupuncture, guided imagery, chiropractic treatment, yoga, hypnosis, biofeedback, and others.

While 88 percent of survey respondents were interested in their health insurer covering alternative pain treatments, only 30 percent indicated they would not act on that interest by negotiating expanded coverage with insurers.

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

Five ways employers derail claims with poor medical choices

“An injured employee treated by the wrong medical provider is like a stripped down “to save money” fire policy with more exclusions than inclusions. Right doctor. Right time. Right treatment. Always.” – Preston Diamond, Institute of WorkComp Professionals

A poor choice in medical care can break a worker’s compensation case and result in significant higher premiums for several years. While the rules vary, in many states employers have the ability to direct injured employees to a doctor of the employer’s choice. Even if this is not possible, having a relationship with a competent occupational physician who understands your business and can develop confident relationships with employees will help insure your injured employees get the proper care.

Yet, many employers find the process of choosing physicians outside their expertise and defer the choice to insurers or employees. Here are five ways this leads to unnecessary higher claims costs:

  1. Apathetic commitment to Recovery-at-WorkWhile medical treatment guidelines have gained traction in many states, they are only mandatory in a few states and often permit discretion for the treating physician. As a result, there is significant variability in quality of care and outcomes among physicians. Moreover, today many doctors seek to treat workers’ comp injuries because it is more lucrative than healthcare.

    Given the option, employees will choose to go to their primary care doctor who, most likely, will grant their request. Want a few days off for work to rest? Why not grant it when it keeps the patient happy? Yet, those few days can cost the employer big bucks.

    When there is a strong Recovery-at-Work commitment and the injured worker returns to work before becoming eligible for wage benefits, claims are known as medical-only claims. In 39 states (ERA states), medical-only claims are reduced by 70% on the experience modification worksheet, and usually have minimal effect on the final Mod. On the other hand, claims that also include indemnity payments are known as lost-time claims and often have a significant impact on the Mod.

    This hypothetical example gives an idea of the impact on costs. A small claim ($2,791) that included indemnity had a .0360 impact on the Mod and increased the annual premium by $1,771. Since this increase affects the premium for three years, the employer will pay a total of $5,265! A second small claim ($3,230) was medical only and impacted the Mod by .0125, raising the annual premium by $615 and increasing the premium $1,845 over three years.

    It takes more than lip service for physicians to partner with employers effectively in a Recovery-At-Work program. Look for physicians who:

    • Know the state’s Workers’ Comp rules
    • Come and tour your facility to understand the requirements of the job
    • Develop a good understanding of your Recovery-at-Work program and recognize the value of work in the healing process as well as factors that can keep injured employees out of work longer, such as anxiety, family issues, financial issues, and so on
    • Follow best practice guidelines for each type of injury (typically Occupational Medicine doctors)
    • Have strong communication skills with all parties – employer, injured workers, and claims examiner
    • Engage the injured worker in thinking about recovery and what they can do, not what they can’t do
    • Have objective standards to measure outcomes, such as claims duration, total costs, percentage return to full duty within disability guidelines, litigation, recidivism, and patient satisfaction
    • Have strong capabilities, both in-house and referral network, so that wait times are minimized
    • Do not dispense drugs
    • Have a clear policy regarding opioids
  2. Limited or no focus on outcomesWhile there is a growing focus on developing outcome-based networks for workers’ compensation, fee schedules are the norm for controlling costs. When insurers point out “savings” below fee schedules, this can divert employers from focusing on the real issue – how much they are paying. Physicians and hospitals squeezed by the health care system look to maximize revenues from other sources and workers’ comp is one of the most vulnerable.

    The answer is to direct care to providers who have measures of quality and outcome and deliver the best value, by delivering consistently excellent outcomes and competitive pricing. Insurance adjusters often handle upwards of 250 claims at one time; it’s unlikely they are going to have the time to identify the best provider for each of their clients.

  3. Not a good fit for the employer or workforceWhile Occupational Medicine doctors are a good starting point, it makes sense to drill down further. From past claims employers know where their exposures are the greatest and should identify physicians with specific proficiencies needed for the injuries and hazards in their work setting. In addition, if the employer is in a regulated or hazardous industry, the physician must be familiar with regulatory compliance issues.

    There are other considerations as well. If you have a bilingual workforce, the provider staff, including medical staff, should be bilingual. Equally important, the provider must be able to balance patient advocacy with employer concerns. Injured workers will respond positively to a physician if they have trust and believe the physician is their advocate, thus accelerating the return to worker and reducing the likelihood of litigation.

  4. Poor representation in disputed casesContesting cases when it is suspected the injury is not work-related is never easy, particularly when it involves a cumulative trauma injury, pre-existing conditions, or stress. Failing to challenge cases when the injury cause is not work-related leads to paying unwarranted benefits and emboldens others to file similar claims. On the other hand, wrongly challenging injured workers needlessly drives litigation costs up and leads to morale and trust issues among the workforce.

    Doctors are trained to treat injuries; causation is a secondary concern. While many states do not require that medical opinions be expressed with absolute medical certainty, it is expected that opinions be more than mere speculation and there is a probability as to the cause that can be supported.

    A good medical expert will not only be well qualified, but must be able to write a good report that clearly explains their opinions. Understanding how a physician handles disputed cases is key to avoiding unnecessary litigation costs.

  5. Unnecessary use of emergency room servicesWhen injured workers use emergency room services, they are likely to be told to take time off and medical costs are likely to be much higher. The only time an injured employee should go to the emergency room is when there is a 911 emergency or when there are no other available treatment options. Emergency rooms are busy places and their primary task is to make sure people are not in imminent danger. There’s no time to consider Recovery-at-Work possibilities.

    Furthermore, there’s a higher possibility of an inaccurate diagnosis. More than one-third of reports from consulting physicians for orthopedic injuries in emergency rooms were inaccurate, including 30% of open fractures that were described as closed, according to findings detailed in AAOS Now , a publication of the American Academy of Orthopedic Surgeons. According to the author, musculoskeletal conditions, a common workers’ comp injury, are the most commonly missed injuries in emergency departments.

    Emergency departments rarely communicate with the employer, don’t usually set up follow-up visits or provide ongoing care, and common treatment plans often include rest and no work activity for days or weeks following an injury. All of which means delays, lost time, and added cost to the employer.

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

Legal Corner

ADA

Case to watch: Do employers have to offer disabled employees reassignment to another job if there are more qualified candidates?

In December, the 11th U.S. Circuit Court of Appeals (covering Florida, Georgia, and Alabama) ruled in EEOC v. St. Joseph’s Hospital Inc. that the ADA “does not automatically mandate reassignment without competition.” The ruling conflicts with other appellate court decisions, and legal experts speculate that it is an issue likely to be heard by the U.S. Supreme Court.

St. Elizabeth’s Hospital had a best-qualified applicant policy in place and the court found the ADA only requires that an employer allow the disabled employee to compete equally for a vacant position. The EEOC argued that the hospital violated the ADA by requiring the nurse to compete for a vacant position she was qualified to perform. The court stated, “[p]assing over the best-qualified applicants in favor of less-qualified ones is not a reasonable way to promote efficient or good performance.” Further “‘the ADA was never intended to turn nondiscrimination into discrimination’ against the non-disabled.”

The conflicting appellate court rulings on the issue means employers’ obligations will vary depending on the circuit in which they operate.

Broken arm can be considered disability

A U.S. District Court refused to dismiss a discrimination charge filed by a worker who was terminated after she continued to need accommodations for her broken arm, a work-related injury. She worked for Kingsport, Tennessee-based Eastman Chemical and tripped and fell and broke her arm, requiring two surgeries. The company put her on light-duty assignment but eventually terminated her arguing it could not accommodate her temporary activity restrictions on an ongoing basis because there were several essential job duties she could not perform. The worker filed suit under the ADA.

The court refused to dismiss her case noting, “pertinent inquiry is not whether plaintiff’s restrictions were labeled ‘temporary’ or ‘permanent’ or the precise length of time she was under restrictions, but whether she was essentially limited in a major life activity.”

 

FMLA

Failure to provide a fragrance-free work environment does not equate to a failure to provide a reasonable accommodation

In Alanis v. Metra, an employee began suffering from a variety of fragrance-sensitivity symptoms such as difficulty breathing and speaking after ten years on the job. She was seen by her employer’s medical provider who concluded that she could return to work but gave her 30 days to obtain a psychological clearance exam. A week later, she again experienced symptoms and claimed that she was unable to speak and could only communicate through text messages, in writing or by whispering and was determined to be “medically disqualified” from working.

She took FMLA leave and a few months later her treating physician released her to work. However, she had not had the psychological clearance exam and when she did she was diagnosed as having a fragrance sensitivity, but was allowed to return to work a few months later.

The company made every effort to accommodate her requests for accommodation, which included flexible work hours, a modified dress code, limitation on extended talking, periodic rest breaks, self-paced work-load, and efforts to create a fragrance-free workplace. But she was not satisfied and filed suit, alleging discrimination based on the fact that she was Hispanic and retaliated against because of her disability.

The District Court for the Northern District of Illinois found that there was no evidence of discrimination or retaliation because no adverse employment action was taken. Furthermore, the Court found that the company had gone above and beyond to grant her requests for accommodation, specifically noting the changes made to reduce the existence of odors in the workplace.

Workers’ Compensation

Court supports DWC action suspending providers linked to fraudulent activities from workers’ comp system – California

Chiropractor Michael Barri, his company, Tri-Star Medical Group, and a newly formed nonprofit called the Coalition for Sensible Workers’ Compensation Reforms, filed a constitutional challenge seeking a peremptory or alternative writ of mandate blocking the state from suspending providers from the workers’ comp system and staying their medical liens when the providers are linked to fraudulent activities. Barri pled guilty to receiving illegal kickbacks to refer patients to Pacific Hospital during the spinal surgery kickback scheme.

The First District Court of Appeal took only two days in rejecting the request. The Division of Workers’ Compensation is moving to suspend providers and stay liens under new authority granted to it by the passage last year of SB 1160 and AB 1244.

EMA’s opinion that goes beyond the scope of the issues should be considered – Florida

In Hillsborough County School Board v. Kubik, the 1st District Court of Appeal ruled that a Judge of Compensation Claims erred in refusing to consider the opinion of an expert medical advisor (EMA) as to the cause of a worker’s need for medical treatment, and in denying the worker temporary total disability benefits. While the EMA had not been asked to evaluate the major contribution cause of the need for ongoing treatment, the court noted an EMA’s opinion that goes beyond the scope of the issues is admissible but not afforded a presumption of correctness.

Former Congressman collecting $100,000 annually in workers’ comp for bipolar disorder – Illinois

According to the Chicago Tribune, former U.S. Rep. Jesse Jackson Jr., who was convicted of looting thousands of dollars from his campaign fund, is receiving a little more than $100,000 in worker’s compensation payments. Quoting Chicago attorney Barry Schatz, who is representing Jackson in a divorce proceeding, the article notes that the benefits are temporary total disability for bipolar disorder and depression.

The Federal Employees’ Compensation Act gives workers’ compensation benefits for disability “due to personal injury or disease sustained while in the performance of duty,” the Labor Department said. An employment lawyer speculated that Congressman Jackson’s attorneys convinced the government that his bipolar disorder was created by the rigors of being a member of Congress,

Inadequate urine sample did not constitute drug test refusal – Kansas

An employee who was struck in the left arm by an object while grinding a piece of metal was treated at an emergency room and returned to his employer to submit a post-injury urine sample. However, he did not provide enough urine to complete the test and the test administrator threw it away.

Lower courts found that the employee forfeited his benefits by failing to complete the drug test, however the appeals court disagreed. Kansas workers’ comp law says that “refusal to submit to a chemical test at the request of the employer shall result in the forfeiture of” workers’ comp benefits if the employer “had sufficient cause to suspect the use of alcohol or drugs by the claimant or if the employer’s policy clearly authorizes post-injury testing.” The court found no evidence that the employee had been under the influence of alcohol or drugs at the time of the accident and had volunteered to take a drug test while he was at the hospital. Kelley v. Aldine Indep. Sch. Dist., 2017 Tex. App. LEXIS 829 (Jan. 31, 2017)

Psychologist’s testimony valid in workers’ comp denial – Minnesota

In Gianotti v. I.S.D. 152, A16-0629, the Minnesota Supreme Court overturned a decision of the Workers’ Compensation Court of Appeals (WCCA) that the opinion of a psychologist was inadequate to support the denial of a worker’s claim for mental conditions allegedly caused by a concussion and post-concussive syndrome. The employee worked as a school bus monitor and fell and hit her head when the bus stopped short unexpectedly. Medical tests did not reveal a concussion, but she continued to complain of headaches, confusion, and memory problems and eventually sought psychiatric treatment.

While a judge denied the claim for a variety of emotional and psychological conditions, the WCCA questioned the competence of the psychologist as an expert witness, an issue that was not raised on appeal, and awarded benefits. The Supreme Court overturned this ruling noting the scope of the jurisdiction of the WCCA is limited to the issues raised by parties in their notices of appeal and that the psychologist’s opinion had as solid a factual foundation as any other expert in this case.

 

Failure to find work does not mean unemployable – Mississippi

The employee was a grinder and injured his right hand. Following an operation, he was released to work with restrictions, which did not allow him to work as a grinder. He performed largely janitorial and maintenance duties, but at one point was asked to operate a forklift. This irritated the hand and his physician advised him not to do so. When he was asked again, he refused to do so, and was placed on leave and given three days to obtain a written work restriction.

When he did not produce the work restriction, he was fired for insubordination. He filed a petition seeking a higher permanent medical impairment and eventually received a 50% loss rating, which he argued was too low given his permanent work restrictions. However, the Court of Appeals found that he was able to do other substantial job duties and had worked for almost a year after he was declared to have reached maximum medical improvement. Although he had been unsuccessful in finding another job after he was let go, this did not mean that he was unemployable. Harold Hathorn v. ESCO Corporation

Worker fired for failing to report medical only claim can collect unemployment – Mississippi

Although most states protect workers once they are hired from being fired if they file a comp claim, Mississippi does not. In Bedford Care Center of Marion v. Nicholson, the question for the Court of Appeals was whether unemployment benefits are available to a worker who was fired for having misrepresented her claims history. In a previous job, the worker received medical care for her injury in the hospital emergency room, but no indemnity benefits and she argued she did not realize medical benefits were workers’ comp.

While lower courts found she was fired for misconduct and not entitled to unemployment benefits, the Court of Appeals concluded that her inaccurate answers did not rise to the level of “willful and wanton” misconduct necessary to forfeit her entitlement to unemployment benefits.

Employee may sue colleague for work accident – Missouri

A restaurant worker climbed an A-frame ladder into a lofted space at the restaurant and while she was working there, a coworker removed the ladder. The coworker returned the ladder, but did not fully open and lock it. The ladder collapsed and the worker fell and injured her hand, elbow, and shoulder.

While the St. Louis County Circuit Court dismissed a negligence lawsuit, a three-judge panel of the appellate court disagreed, noting that a 2005 amendment to Missouri’s workers comp law “only gives employers immunity against tort claims for work-related injuries and does not afford such immunity to co-employees.”

Suicide bars survivor benefits – Nebraska

A woman who overdosed on drugs prescribed in connection with a workplace injury is not eligible for workers’ compensation survivor benefits, a state appeals court ruled. For five years, she was taking the opioids oxycodone and methadone, along with the sedative Xanax. Shortly before her death, she was told she would lose custody of her daughter and she no longer could live with relatives. She was overheard saying, “I just as well end it all.”

The trial court ruled that the overdose constituted “willful negligence and thus barred any recovery of benefits,” and the Court of Appeals affirmed. Michael B. v. Northfield Retirement Communities

Medical marijuana reimbursement required for comp claim – New Jersey

In Watson v. 84 Lumber, a New Jersey administrative law judge ordered Beaumont, California-based 84 Lumber Co. to reimburse one of its injured workers for medical marijuana prescribed for neuropathic pain in his left hand after an injury suffered while using a power saw at a lumber plant. The medical marijuana was being used to help wean the worker off of opioids. This is a division level case, so this decision is not binding on other New Jersey courts.

Other states that have allowed comp payments for medical marijuana include New Mexico, Maine, Connecticut and Minnesota. In most of these cases, physicians only recommended marijuana after other treatment regimens for chronic pain were attempted without success.

Cautious language of medical expert dooms claim for stress-related stroke – New York

In Matter of Qualls v Bronx Dist. Attorney’s Office, 2017 N.Y. App. Div. LEXIS 409, a state appellate court affirmed the Workers’ Compensation Board’s determination that a worker did not sustain a causally related disability resulting from his stroke because his physician repeatedly used cautious and indeterminate language, such as stress “may have been” or “could’ve been a contributory factor.” While the court acknowledged that the law did not require that medical opinions be expressed with absolute or reasonable medical certainty, the expert must signify a probability as to the cause and his or her opinion must be supported by a rational basis.

“Last act” in employment contract key in determining workers’ comp jurisdiction – North Carolina

An Oklahoma-based union hall of a welder who lived in North Carolina sent her a notification to report to an assignment in Texas, where she was to undergo a drug test and complete forms when she arrived. The North Carolina Industrial Commission ruled it did not have jurisdiction to hear her injury claim since her injury occurred outside North Carolina and under North Carolina’s “last act” test, her employment contract was made in Texas, and not in North Carolina. Submission to the drug test was more than an administrative formality, had she not passed, she would not have been hired. Holmes v. Associated Pipe Line Contrs., 2017 N.C. App. LEXIS 52

Off-duty convenience store clerk due comp benefits – Pennsylvania

The Commonwealth Court panel has ruled that a convenience store clerk who is permanently disabled is eligible for workers’ compensation after being shot several times while sitting in his supervisor’s parked car outside of the store after the pair had just closed up shop. Earlier in the week, he had called the police on a shoplifter, whose relatives threatened retaliation, so his supervisor had been driving him home.

The Commonwealth Court panel upheld the decision of the workers’ compensation judge, saying that the shooting was retaliation-related. The court also said that the spot he was parked in constituted the employer’s property, at a location that was a reasonable means of access and egress to employer’s store, and he was within the course and scope of employment while he was in the car.

Exception to going and coming rule applies for sick employee – Pennsylvania

In Lutheran Senior Services Management Company v. Workers’ Compensation Appeal Board (Miller), the Director of Maintenance for a nursing home had a serious motor vehicle accident while going into work. At times he was called in for emergencies and received “comp time.” On this particular day, he was sick and planned to call in, but his employer called that a security camera had malfunctioned and needed to be fixed and no one else was available to do so.

While the carrier denied the claim arguing that he was commuting, the Workers’ Compensation Judge (WCJ) granted the Claim Petition, noting “Claimant was sick on March 13, 2014, and except for the special need of the Employer to assure [that the] surveillance cameras became operative . . . Claimant would not have gone to work.” This would represent an exception to the “coming and going rule.” Upon appeal the Workers’ Compensation Appeal Board (WCAB), affirmed the decision of the WCJ but felt the facts represented more “special circumstances” than a “special mission,” but, still met an exception to the “coming and going rule.” The Commonwealth Court affirmed.

Third party recovery limited to injuries caused by negligence – Pennsylvania

In Serrao v. WCAB (Ametek Inc.), the Commonwealth Court ruled that an employer is not entitled to recovery of the full amount of its comp lien from a worker’s settlement unless the employer can prove the third party was responsible for all of the worker’s compensable injuries. An employee, wearing protective overalls, suffered burns when a can of powder ignited and caused a flash fire. The employee filed a third party suit against the manufacturer of the coveralls and received a $2.7 million settlement, and the employer asserted a lien against the recovery for all of its costs related to the injury.

There was a dispute if the costs related to burns to his hands and head caused by the melting of his gloves, face shield and hood should be included. The case made its way to the Commonwealth Court that concluded an employer has the burden of proving its obligation to pay comp benefits was caused by the negligence of the third-party tortfeasor and that the tortfeasor’s payment of damages are for the same injuries for which the employer paid benefits.

How a carrier can exercise its subrogation rights – Pennsylvania

In The Hartford Insurance Group on behalf of Chunli Chen vs. Kafumba Kamara, Thrifty Car Rental, and Rental Car Finance Group, the court considered how a carrier could go after a culpable third party. A carrier wanting to exercise its subrogation rights cannot force the issue by bringing a third party action on its own. Chen was waiting to rent a car in the Thrifty Car rental parking lot when Kamara accidentally hit her with one of Thrifty’s rental vehicles. Through her employer’s workers’ comp, Hartford paid almost $60,000 in medical and wage benefits. The Hartford filed a tort action against Kamara and Thrifty, asserting their negligence was responsible for Chen’s injuries, but Chen had not assigned her cause of action to Hartford and was not a party to the lawsuit.

Although a judge dismissed Hartford’s complaint, the Superior Court ruled that the case could proceed. The court noted that the Hartford was not pursuing a subrogation claim on its own behalf – it was seeking to establish the defendants’ liability to Chen. Because the carrier also was not limiting its requested recovery to the value of its subrogation claim, the court reasoned that it was not impermissibly “splitting” the cause of action Chen would have had. It’s important for carriers to use the right language in the complaint to make it clear that it is bringing the employee’s suit.

In this case, Chen is cooperating with Hartford’s effort to obtain recovery, but did not want to pursue the claim on her own. Such action could be more difficult in cases where a recalcitrant employee does not want to cooperate.

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

OSHA watch

Silica safety standard for construction industry delayed

The crystalline silica standard that applies to the construction industry, which was scheduled to go into effect June 23, 2017, has been delayed until September 23, 2017.

Effective date of new beryllium rule delayed again

Employers will have some additional time to comply with the new beryllium rule as the effective date has been extended 60 days to May 20, 2017. The extended effective date will not affect compliance dates.

Website for electronic submission of injury and illness records delayed – employers advised to sign up for email notification

The online reporting system for the electronic submission rule of injury and illness data, which became effective January 2017, has not yet been completed. While the site was planned for February 2017, there is no date or estimate for the reporting site to become live.

Employers are advised to sign up to receive recordkeeping reminders as well as updates on electronically submitting injury and illness logs, and if, when, and how to do it. This year’s deadline is July 1, 2017.

Severe injury reporting stats

The severe reporting rule, which went into effect in 2015, mandated that all workplace fatalities be reported within eight hours and added a new requirement that employers report the hospitalization of one employee, rather than three or more as previously required, as well as all amputations and loss of an eye within 24 hours. In 2016, employers reported 10,887 severe injuries, up from 10,395 in 2015, with the increase driven mostly by a rise in hospitalization reports.

The agency responded to 73% of the hospitalization reports and 51% of the amputation reports filed last year by asking employers to conduct their own incident investigations – known as rapid response investigations – and propose remedies to prevent future injuries.

Overturn of Volks Rule expected

A disapproval resolution of the controversial “Volks” rule, already approved by the House of Representatives, was adopted by the U.S. Senate and is expected to be signed by President Trump. The so-called “Volks” rule increased the threshold for citing employer violations from six months to up to five years.

Campaign to address fatalities in Kansas, Missouri and Nebraska launched

The recently launched Safe and Sound Campaign is designed to make companies more aware of the services available as well as address some common hazards that have led to fatalities, including confined space and struck by incidents. Twelve fatality inspections were conducted in Kansas, Missouri and Nebraska from Oct. 1, 2016 through February 1, 2017, up from seven for the same period last year and there was a significant increase in fatalities associated with confined space entry and trenching and excavating.

New Regional Emphasis Program focuses on crane safety

The OSHA Region VI office in Dallas, Texas, established a Regional Emphasis Program (REP) covering employees in the construction industry who perform crane operations. The program conducts safety inspections of workplaces in Texas, Arkansas, Louisiana, Oklahoma and sites in New Mexico that are under federal OSHA jurisdiction.

$afety Pays Program updated with recent NCCI information

The $afety Pays Program, which helps employers understand the impact of workplace injuries and illnesses on their company’s profitability, has been updated with the most recent NCCI data. This program uses a company’s profit margin, the average costs of an injury or illness, and an indirect cost multiplier to project the amount of sales a company would need to cover those costs.

California Workplace Violence Standard goes into effect April 1

Effective April 1, 2017, a new California Occupational Safety and Health Standards Board requires certain employers in the health care industry to develop and implement a Workplace Violence Prevention Plan.

 

Enforcement notes

California

Aftermath of the CA Soberanes Fire brings Cal/OSHA citations and penalties to two private contractors

Czirban Concrete Construction of Madera County was cited for five workplace violations and fined $20,000 for an incident that resulted in the death of a bulldozer operator. The largest fine was for failure to make sure the operator was wearing a seat belt. Industrial Defense Development of Tuolumne County was fined $6,000 for an incident where an employee suffered serious injuries when the water tender he was operating rolled over and down a hill. Its largest fine was for not reporting the injury.

Georgia

Hitachi Automotive Systems Americas of Monroe cited for numerous violations

Inspected in response to a complaint, Hitachi faces numerous violations, including deficiencies in the company’s hearing protection and hazard communication programs, as well as an emergency eye wash station that wasn’t installed. Citations were also issued to the staffing agency, which supplied the temporary workers.

Kansas

Contract worker dies at Goodyear’s Topeka plant just weeks after company reached $1.75 million settlement in earlier fatality case

A 61-year-old contract worker was fatally injured at Goodyear Tire & Rubber Co.’s Topeka manufacturing facility. The fatality came just weeks after Goodyear Tire reached a $1.75 million settlement after four fatalities occurred at its Danville, Va. plant over the course of a year.

Michigan

Michigan OSHA cites Dunn Paper Company for machine guarding and other violations

MIOSHA inspectors determined that the company failed to adequately protect workers from amputation hazards posed by cooling fan blades, spinning flywheels and belts and pulleys. Other citations included failing to provide fall prevention barriers around an open-sided elevated platform and open holes, and not properly training workers on the safe use of rented aerial work platforms.

Tennessee

Nissan North America fined after worker death

After the maintenance crew of the car manufacturer repaired the roller drive motor for an elevator, which is designed to move car seat pallets from one conveyor system to another, it neglected to place the machine guarding back properly when checking whether the elevator was functioning correctly. An employee’s head was crushed between the counterweight, which weighed 1,275 lbs., and the top of the metal guarding system.

The company faces $29,000 in fines for failure to perform routine equipment inspections and a Repeat-Serious violation because lockout/tagout devices were not replaced once maintenance was completed.

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

Lessons from a small company recognized as one of America’s safest companies

EHS Today, a magazine dedicated to the management of risk in the workplace and environment, has recognized America’s Safest Companies since 2002. Most of the companies are large or mid-sized, but this year’s list included Hunter Site Services of Texas that has 40 employees. Providing construction project management for the design and installation of pre-fabricated blast-resistant buildings, Hunter has a 5+ years injury-free record.

Recognizing that new employees are often the ones who experience injuries, the company instituted the Short Service Employee (SSE) Program, which applies to employees who have less than 90 days with the company and/or within his or her craft. The new employees receive an initial orientation of safety requirements prior to performing work under direct supervision of a designated employee who serves as a mentor and trainer. The new employees also wear a visual designation, so that they easily can be identified on a job site.

According to EHS Today, the company also offers:

  • A behavior-based observation program, in which employees are selected at random to be the safety observer for a week, noting both good and bad safety habits.
  • An Employee Times newsletter that is distributed monthly to all employees. It includes company news, a safety corner, reasons to work safely and a section for employee input and suggestions.
  • Job Safety Analysis that includes input from all employees about hazard recognition, evaluation and control; correct tools for the job, proper PPE, housekeeping, hazard communication, specialized operations and crew suggestions.
  • A Stop Work program that allows employees to stop work, report issues to supervisors and wait until the issue is resolved to start work.
  • To overcome complacency, Hazard Hunts, in which employees visit other work areas and “hunt for any hazard” that may cause injuries.

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