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.

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

Things you should know

NCCI report: National Medicare Set Asides and Workers Compensation: 2018 Update

A new report from the National Council on Compensation Insurance (NCCI), Medicare Set Asides and Workers Compensation: 2018 Update analyzes trends in the submission of Medicare set-asides (MSA) to understand the cost drivers and the medical care of workers injured on the job who are or are likely to become eligible for Medicare based on 11,500 Medicare set-asides.

About 64% of claimants are eligible for Medicare, not because of age but because they have been on Social Security Disability for at least two years. Another 29% of claimants are eligible due to age, and about 7% are likely to become eligible within 30 months. Overall MSAs represent more than 40% of total submitted workers’ compensation settlement costs. More than half of MSA’s involve an attorney.

Estimated future drug costs are the main reason that the Centers for Medicare & Medicaid Services are requiring increases of Medicare set-aside amounts.

New CPWR database shows 42 percent of construction worker deaths involve falls

In a 33-year period, falls accounted for nearly half of all construction worker deaths and more than half of the workers killed lacked access to fall protection mostly in the residential building, roofing, siding and sheet metal sectors, according to the Center for Construction Research and Training (CPWR). The new searchable database includes reports of fatality reports for 768 construction industry fatalities.

ISHN’s annual hand protection update

Industrial Safety and Hygiene News has released its annual hand protection update.

First blood test for concussions approved by FDA

The Food and Drug Administration (FDA) recently approved a blood test to evaluate and diagnose concussions, the first of its kind. This new kind of testing is quick and may reduce reliance on CT scans which can expose patients to radiation.

Up to 21 percent of asthma-related deaths may be from on-the-job exposures: CDC report

Occupational exposures may have contributed to 11 percent to 21 percent of all asthma-related deaths among 15- to 64-year-olds between 1999 and 2016, according to a recently released report from the Centers for Disease Control and Prevention.

Musculoskeletal disorders widespread among plastic surgeons

Nearly 80 percent of plastic surgeons experience work-related musculoskeletal issues or injuries, according to the results of a recently conducted survey of practitioners.

Cyber incidents top list of ten highest threats to U.S. businesses

Allianz’s Risk Barometer 2018 has released its annual survey of risk experts from 80 countries. For the first time, the No. 1 risk in the U.S. (with 45% of the vote) is cyber incidents (moving up from No. 2 last year), with business interruption the largest loss driver after a cyber incident.

Depression and fatigue increase risk of work-related injuries in women: report

A new study in the Journal of Occupational and Environmental Medicine found that women who suffer from depression, anxiety and fatigue are more likely to be injured at work. Nearly 60 percent of women, as compared to 33 percent of men, reported that they experienced a behavioral health condition before they were injured.

State News

Massachusetts

Nebraska

  • The Supreme Court has signed off on changes to Rule 15: Records Checked Out governing the procedures for filing workers’ compensation appeals. It also adopted changes to non-adjudicatory Rules 26, 47 and Addendum 2. View amendments.

New York

Pennsylvania

  • A bill that would have created a drug formulary for injured workers failed to pass the House ending in a split 98-98 vote.

Tennessee

  • The Bureau of Workers’ Compensation has produced a bullet-point summary to help explain the changes to the medical fee schedule rules, which are now in effect.

Wisconsin

  • Employers now subject to tort claims for temp workers’ injuries (see Legal Corner).

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

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.

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

Getting LOTO wrong is costly: Here’s how to get it right

Many companies believe they are in compliance with OSHA’s Lockout/Tagout (LOTO) standard; yet, it is one of the most difficult to comply with and is the number five violation in general industry and construction. To give you an idea of the standard’s complexity, a compliance directive to explain the enforcement policy and inspection procedures for compliance officers is 136 pages long, whereas the standard is only a few pages.

An increased focus on violations of Lockout/Tagout (1910.147) and Machine Guarding (1910.212, .213, .217, and .219) began in 2006 with the Amputations National Emphasis Program (NEP). This became even more pronounced when OSHA changed the requirements for reporting work-related fatalities and severe injuries in 2015. Employers must report any in-patient hospitalization, amputation or loss of an eye within 24 hours of learning of the incident.

When an amputation is reported, it’s almost certain that an inspection will take place. In 2017, more than 10% (3,596) of all OSHA inspections were under the Amputations NEP, 75% of which were in manufacturing, and 1,247 were triggered by employer reports.

What’s important to note is that this resulted in 7,850 citations, including 302 willful and repeat violations, which carry maximum fines of $126,749. The proposed total cost of the citations is over $55 million. In addition to the potential for costly fines is the even more ominous possibility of being placed in OSHA’s Severe Violators Enforcement Program (SVEP).

One of the criteria OSHA uses to place an employer in the SVEP is 2+ Willful, Repeat, or Failure to Abate violations related to high emphasis hazards. There are only nine high emphasis hazards and amputations is one of them. According to a Conn Maciel Carey PLLC webinar, 68% of the SVEP cases fall under this qualifying criterion.

When OSHA puts an employer in the SVEP, it issues a press release before employers can contest the citation(s). This can have a negative impact on recruiting employees, obtaining bids and permits, and be devastating to a company’s reputation. Moreover, there are mandatory follow-up inspections, inspections at related facilities, and corporate-wide abatements. It’s not a place employers want to be – once designated as a severe violator, there is no clear-cut method for getting out of the program. And it’s not only large employers that are affected. Small employers make up the majority, with about 75% having 100 or fewer employees and roughly 55% having 25 or fewer employees.

Lastly, LOTO is among the most frequent OSH Act criminal violations.

What employers get wrong

When OSHA conducts an inspection, it’s relatively easy to spot LOTO violations. In 2017, the most frequent standard section cited was related to machine-specific procedures: 1910.147(c)(4)(i) – procedures shall be developed, documented, and utilized for the control of potentially hazardous energy. Employers that are cited often misunderstand the scope of activities covered by LOTO. They often focus exclusively on electrical hazards, but the standard covers a broad range of energy sources, such as mechanical, hydraulic, pneumatic, chemical, thermal, or other types of energy.

The program must include written equipment-specific LOTO procedures for all equipment, including vehicles such as forklifts and trucks, with hazardous energy sources and must include all energy sources. While it is possible to group equipment and machinery that have the same hazardous energy sources and the same or similar methods of controlling the energy, some employers do not understand the criteria for grouping that is set forth in section IX of OSHA’s compliance directive, or may neglect to list all covered machinery in the scope of the energy control procedure.

In some cases, employers neglect to document key elements of the procedure. There are also specific rules that apply when a contractor services the machinery and noncompliance leads to citations.

Employers and employees may mistakenly believe a procedure falls under the minor servicing exception. The standard contains specific criteria that must be met for the minor servicing exception to apply and all elements must be satisfied for an exception. Other common mistakes include not updating the procedures when changes occur, applying the construction rather than general industry standard, and overlooking facility support and operational equipment, such as HVAC machinery, boilers, and compressors.

The second most frequently cited standard is 1910.147(c)(6)(i) – the employer shall conduct a periodic inspection of the energy control procedure at least annually to ensure that the procedure and the requirements of this standard are being followed. In this case, annual means every twelve months. Some companies have the wrong person conducting the inspection. It must be an “authorized employee” other than the workers utilizing the lockout/tagout procedure being inspected.

If machines are grouped together the inspection must be of a representative number of employees implementing the procedure. “Representative” is subject to interpretation, so it’s important to have a rationale for the number chosen (complexity, older procedure, etc.). Moreover, the outcome of the inspection must be reviewed with all authorized employees as part of the periodic inspection. Employers also must “certify” that the inspections include the machine or equipment on which the energy control procedure was being utilized, the date of the inspection, the employees included in the inspection, and the person performing the inspection. And inspections must take place for each one of the LOTO procedures.

The third most cited standard is 1910.147(c)(1) – The employer shall establish a program consisting of energy control procedures, employee training and periodic inspections to ensure that before any employee performs any servicing or maintenance on a machine or equipment where the unexpected energizing, startup, or release of stored energy could occur and cause injury, the machine or equipment shall be isolated from the energy source and rendered inoperative.

A written lockout procedure is not required when a machine only has one energy supply that’s easy to identify and lock out. The machine can’t have any potential for stored energy and locking that one energy isolating device completely de-energizes the machine. Even if an employer uses an outside contractor for servicing and does no in-house servicing, a LOTO program is required because there are affected employees.

Fourth is related to training. 1910.147(c)(7)(i) – The employer shall provide training to ensure that the purpose and function of the energy control program are understood by the employees and that the knowledge and skills required for the safe application, usage, and removal of the energy controls are acquired by the employees.

Employers do a good job of training authorized employees, but sometimes overlook affected employees (who operate equipment being serviced) and all other employees who may be present in areas where LOTO is utilized, including management. Also, temporary employees often are forgotten. Another common problem is failure to develop “Group Lockout” procedures when more than two employees service a machine or to require use of a Group Lockout device.

Other common citations include wrong use of locks, wrong use of tags, and working under someone else’s lock.

Complying with OSHA’s Control of Hazardous Energy policy is difficult and the consequences for violating the regulation can be severe. Proposed changes in the regulation (see next article) may lead to more citations. An effective program will reduce the potential for employee injury as well as regulatory liability.

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

Things you should know

Cell phone users twice as likely to be involved in a crash – study

The AAA Foundation for Traffic Safety compared drivers’ odds of crash involvement when using a cell phone relative to driving without performing any observable secondary tasks. The study found that “visual-manual interaction with cell phones while driving, particularly but not exclusively relative to text messaging, was associated with approximately double the incidence of crash involvement relative to driving without performing any observable secondary tasks.”
Health care environment named top concern in comp – survey

The National Council on Compensation Insurance (NCCI) surveys senior carrier executives in its annual Carrier Executive Pulse. The top challenges that executives identified for 2018 are:

  1. Rising costs, advances, and uncertainty in healthcare
  2. Political, regulatory, legislative, and legal environment
  3. Maintaining profitability both today and tomorrow
  4. The changing workplace and workforce
  5. The future of the workers’ compensation industry
  6. Opioid abuse and medical marijuana

Impact of worker obesity can be managed with prevention, treatment programs: ACOEM

Wellness programs and insurance coverage that includes bariatric surgery can help manage worker obesity and alleviate its economic costs to employers, according to a released guidance statement from the American College of Occupational and Environmental Medicine (ACOEM).
First Edition of NCCI’s court case update

The first edition of NCCI’s Court Case Update provides a look at some of the cases and decisions being monitored by NCCI’s Legal Division, that may impact and shape the future of workers’ compensation.
New guidelines intended to reduce fatigue among EMS workers

The University of Pittsburgh Medical Center and the National Association of State EMS Officials have partnered on a set of guidelines aimed at reducing work-related fatigue among emergency medical services workers.
State News

California

  • Cal/OSHA adopted a new rule to help reduce injuries for hotel housekeepers. The rule will require employers to establish, implement, and maintain an effective written musculoskeletal injury prevention program that addresses hazards specific to housekeeping.
  • The Division of Occupational Safety and Health is moving to create a new safety standard to prevent and handle workplace violence for general industries.
  • The state is drafting workplace safety rules for the burgeoning marijuana industry.

New York

  • State Workers’ Compensation Board is inviting public comment on a proposed Pharmacy Formulary. The comment period expires on February 26, 2018.

North Carolina

  • Industrial Commission recently announced an update in the rules for the workers’ compensation system addressing the opioid crisis. Published January 16, 2018, in Volume 32 Issue 14 of the North Carolina Register, the rules are for the utilization of opioids, related prescriptions, and pain management treatment. A public hearing is scheduled for March 2, 2018 at 2:30 p.m., and the Commission will accept written comments until March 19, 2018.

Pennsylvania

  • The Governor signed a statewide disaster declaration related to the opioid crisis to enhance state response, increase access to treatment, and save lives. It will utilize a command center at the Pennsylvania Emergency Management Agency to track progress and enhance coordination of health and public safety agencies.

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

Legal Corner

ADA
Six-month leave upheld by United States Court of Appeals, 11th Circuit

In Billups v. Emerald Coast Utilities Authority, an Utility Service Technician II suffered a shoulder injury and received physical therapy, but after two months it was determined he required surgery. The surgery was delayed because of his reaction to anesthesia. His company had a policy of 26 weeks of leave for work injuries. Following surgery, the doctor said it would likely take six months for his shoulder to recover to the degree that he could perform the essential functions of the job.

The company sent a notice indicating he would be terminated if he could not return to full duty by June 18, 2014, which was the end of his six-month period of leave. At the time, they were short staffed and dealing with severe flooding damage to the water and sewer infrastructure. At a predetermination hearing, he was given one day to obtain a doctor’s statement regarding his full-duty return to work date. He was able to obtain a note from PT about his release date, but not from his doctor and was fired on June 23, 2014. He was not cleared by his doctor to return to work full duty until October 23, 2014 and it was with limitations.

After losing in district court for not identifying a reasonable accommodation, the employee appealed arguing that a short period of leave would have been a reasonable accommodation under the ADA. The court noted he had not demonstrated that his requested accommodation would have allowed him to return to work “in the present or in the immediate future” and therefore, the request for additional leave could be interpreted as a request for indefinite leave, which is unreasonable.
FMLA
Reassignment of minor job duties does not violate FMLA

In Marsh-Godreau v. State University of New York College at Potsdam, the U.S. District Court for the Northern District of New York ruled reassignment of minor job duties did not violate the FMLA. While the employee was on leave, the university reassigned some entry responsibilities for the annual report and did not return the responsibilities when she returned.

Her suit alleged that the university reduced her responsibilities, her supervisor exerted unwarranted and excessive scrutiny, and the university no longer allowed her to perform essential functions of her role. The court found in favor of the employer, noting the employee continued to be employed and that she received raises annually until her retirement.
Workers’ Compensation
Ruling published on confidentiality of identities of medical professionals performing independent medical reviews – California

The 1st District Court of Appeal has ordered publication of its ruling in Zuniga v. WCAB (Interactive Trucking) that found injured workers do not have a due process right to know the identities of medical professionals performing independent medical reviews. Only published opinions are binding precedent in California.
Pulse Nightclub first responder denied PTSD benefits because there was no accompanying physical injury – Florida

In Florida, witnessing tragic events on the job are classified as within the scope of employment for first responders and, therefore, PTSD must accompany a physical injury in order for first responders to be eligible for benefits. The responder argued that he had been hospitalized for hypertension and this should be considered a physical injury. The judge ruled that since the responder had not reported a physical injury, nor had his blood pressure taken on the night of the shooting, hypertension could not be claimed as a physical injury.
Surgery not compensable when EMA considers it reasonable but counsels against it – Florida

In Ascension Benefits & Insurance Solutions of Florida v. Robinson, the 1st District Court of Appeal ruled that a worker was not entitled to the surgeries that an expert medical adviser had counseled against, even though the adviser acknowledged that the procedures would be reasonable treatment for the worker’s injuries. Based on the report of the Expert Medical Adviser (EMA) and IME, a judge determined surgery on the injured employee’s elbow and index fingers was reasonable.

Upon appeal, the court said reasonableness is not the only standard to apply when awarding medical treatment, treatment must also be medically necessary. The EMA never said the surgeries were medically necessary and, in fact, recommended against them. Under Florida law, the opinion of an EMA is presumed to be correct, unless there is clear and convincing evidence that it is wrong.
Employer discovers lower quote does not mean same coverage when out of state accident is not covered – Indiana

Custom Mechanical Construction (CMC) is an Indiana-based mechanical contractor but is authorized to do business in Kentucky. Since its establishment in 2005, it had used the same insurance agent and the same carrier for workers’ comp. In 2015, the agent solicited bids from other carriers and secured a $3,000 lower quote. The company claims that it was led to believe that the coverage was the same. When a CMC worker was injured on a job in Kentucky, the carrier filed suit in a federal trial court in Indiana seeking a judicial determination that its policy does not cover claims from Kentucky. CMC counterclaimed that the carrier wrongly and unreasonably denied coverage, and that the broker is liable for failing to procure adequate coverage. The judge found that CMC had no viable claim for bad faith nor negligence and that the broker was not an agent of the carrier. Accident Fund Insurance Co. of America v. Custom Mechanical Construction
Interactive process not required under Human Rights Act (MHRA) – Minnesota

In McBee v. Team Industries, the Court of Appeals ruled that an employer was not required to engage in an interactive process to determine whether an injured worker could be accommodated, and that the employer had defeated the worker’s claims of discrimination and retaliation under the state Human Rights Act and Workers’ Compensation acts.

A machine operator worked for a foundry and aluminum die-casting facility and was required to do heavy lifting and operate, repair, and maintain heavy machinery. She sought medical attention for severe pain in her hands, back and neck and her doctor found she had disc narrowing, a bulged disc and bone spurs in her vertebrae and he imposed lifting restrictions. A month later, she was fired from the job and sued under the MHRA.

The law requires that employers make a “reasonable accommodation to the known disability of a qualified person.” However, the court found that a “qualified person” must be able to perform the essential functions of the position and there was no reasonable accommodation for her to perform the heavy lifting, which was an essential function of the job.

Since the federal Americans with Disabilities Act pre-dates the MHRA, the court said it had to assume that the Minnesota Legislature consciously refrained from including the ADA’s interactive-process language in the act. This position differs from an earlier decision by the 8th U.S. Circuit Court of Appeals.
Corruption makes suicide workplace related and death benefits awarded – Mississippi

A judge has ruled in favor of the widower of a former state employee, awarding him his wife’s death benefits after she committed suicide. His wife had worked for the state Department of Marine Resources and had grown increasingly distraught over land purchases by the director that benefited family members and felt she was going to be blamed for the corruption.

After her first attempt at suicide failed, she was admitted to the hospital and began undergoing psychiatric treatment, but hanged herself months later. Psychiatrists testified that her employee’s participation in the corrupt land deal – and her concern that she would also be implicated – were clearly the reason for her distress. The judge ruled that the inappropriate actions of the department’s employees caused her to suffer a mental disorder that prompted her suicide and awarded close to $200,000 in death benefits.
Court reverses attorney sanctions but allows quashing of subpoena – Mississippi

In Wright v. Turan-Foley Motors, the appeals court cautioned attorneys against being overzealous in their attempts to prove an employer-chosen medical examiner is biased against their client. It found the Workers’ Compensation Commission was right to dismiss an attorney’s “overly burdensome and unduly broad” subpoena against an employer’s medical examiner, but should not have imposed a $5,000 penalty against the attorney or made him pay the medical examiner’s attorney’s fees.
Pre-existing conditions do not preclude benefits for future medical care – Missouri

In Morris v. Captain D’s, an employee suffered injuries in a car accident and additional injuries in a workplace fall. He quit his job several months later and filed for comp benefits. An administrative law judge found that he was permanently and totally disabled from the combined effects of his injuries and pre-existing conditions, which included knee, back, and neck injuries and high blood pressure and heart disease. The judge found, and the court of appeals agreed, that he that was entitled to future medical treatment on each claim.
Department store skin care specialist and model is employee of Skin Care Company – New York

In Colamaio-Kohl v. Task Essential Corp, the employee worked as a skin care specialist and spokesmodel at a Bloomingdale’s store and fell and suffered injuries while heading to the restroom. He later filed a comp claim and the appellate court upheld an award of benefits, noting that the Skin Care Company had control over his schedule, training, and dress code. Therefore, he was not an independent contractor nor employee of Bloomingdales, but an employee of the Skin Care Company.
Employee who worked only 16 days before injury receives an average weekly wage of $709.15 – New York

In Bain v. New Caps, an employee had earned just $2,950 in 16 days of employment when he was in a car accident. The company submitted a wage earnings statement indicating it had paid $2,950 during the 52-week period preceding the accident and that the employee had earnings of $2,121.81 from other employers during the same period. The law says a worker’s annual earnings shall consist of not less than 200 times the average daily wage or salary earned during the days when he was employed, as divided by 52. Thus, the appellate court found that Board’s determination of the AWW of $709.15 was correct.
No reimbursement to employer for overturned attorney fee – Pennsylvania

In County of Allegheny v. Workers’ Compensation Appeal Board, the Supreme Court ruled that an employer cannot recover attorneys fees erroneously paid to an injured worker’s lawyer. The employer was ordered to pay $14,750 in attorneys fees under Section 440 after the Workers’ Compensation Appeal Board determined that it had unreasonably contested its liability. However, the Commonwealth Court reversed the decision and also overturned the attorney fee award.

The county sought reimbursement for the erroneously awarded attorneys fees, but the Supreme Court found that the General Assembly, in enacting the Workers’ Compensation Act, did not provide any mechanism by which employers can recoup erroneously awarded counsel fees once paid.
Treating physician’s failure to mail medical records means UR company will automatically declare the treatment “not reasonable or necessary” – Pennsylvania

In Allison v. Workers’ Comp. Appeal Bd. (Fisher Auto Parts, Inc.), the Commonwealth Court found a utilization review doctor did not violate the due process rights of an injured worker by denying a medication and injection regimen after a treating physician failed to submit medical records to justify the treatments.The law requires physicians to mail documents to a utilization review organization (UR) within 30 days of receiving a company’s request. In past cases, the Commonwealth Court ruled that workers’ compensation judges don’t have jurisdiction to review UR denials due to a lack of medical records. This case argued that denying treatment due to circumstances outside the employee’s control when he had no way to appeal the decision was a due process violation, but the court disagreed.
Earning potential calculation clarified – Pennsylvania

In Smith v. WCAB (Supervalu Holdings PA), an employee was injured when falling items from a shelf hit him on his head. He suffered a cervical strain/sprain and received $662 per week, based on his average weekly wage. The employer filed to suspend his benefits when he refused to undergo a second surgery they deemed was highly likely to cure his disability. The judge said refusal to undergo the surgery was not a refusal of reasonable medical treatment and there was no guarantee that new treatment would decrease the disability. Therefore, he did not suspend benefits but agreed to modify based on a vocational rehabilitation counselor’s recommendations.

The counselor identified five open and available positions within the vocational and medical restriction and recommended modifying the benefits to $396.63. The court said the question of whether the jobs could serve as a basis for modifying benefits depended on whether the jobs were available to him and found that since the worker interviewed for two of the identified positions there is substantial evidence that the job is available.
Opinion of worker’s medical expert insufficient to rebut the opinion of treating doctor – Tennessee

In Goodman v. Schwarz Paper Co., an employee suffered a back injury and after receiving treatment was released to work with no restrictions. She later experienced radiating pain originating in her right sacroiliac and buttock and the doctor conducted a nerve conduction study, but the result revealed no abnormalities. Another doctor examined her at the request of her attorney, and opined that she had lumbar radiculopathy in addition to a traumatic back injury. He assigned a 12% impairment rating for her back and a 3% impairment rating for the bursitis, compared to the 2% assigned by her treating physician.

A trial judge found the new opinion was not enough to overcome the statutory presumption of correctness afforded to the original opinion and awarded benefits based on the 2% impairment rate. The Supreme Court’s Special Workers’ Compensation Appeals Panel agreed.

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

HR Tip: Less stringent test for intern pay adopted by DOL

On Jan. 5, the Department of Labor (DOL) introduced a less stringent test to determine whether employers must pay their interns at least a minimum wage and overtime. The new approach involves a primary-beneficiary test and abandons a rigid test where six parts all had to be met for someone to be considered an unpaid intern and not an employee. Four appellate courts rejected the DOL’s six-part test and the newly adopted seven factor primary-beneficiary test was used by these courts.

The new test does not require each of its factors to be met and the seven factors to be considered are the extent to which:

  • Both parties understand that the intern is not entitled to compensation
  • The internship provides training that would be given in an educational environment
  • The intern’s completion of the program entitles him or her to academic credit
  • The internship corresponds with the academic calendar
  • The internship’s duration is limited to the period when the internship educates the intern
  • The intern’s work complements rather than displaces the work of paid employees while providing significant educational benefits
  • The intern and the employer understand that the internship is conducted without entitlement to a paid job at the internship’s end

The new standard is more flexible and aligned with court rulings. It’s expected to be easier to defend unpaid internships if they’re set up properly and there’s a good agreement between the intern volunteers and the employer. However, it is not a license to use unpaid interns without restraint. The test still exists and the question of who’s the primary beneficiary of the program – the employer or the intern – ultimately needs to be answered.

Companies that use internships should revise all program-related documentation-such as policies, advertisements and recruiting materials-to use the language of the seven factors in the primary-beneficiary test and the student intern and the employer should sign agreements incorporating the language.

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

Legal Corner

FMLA
Employee can be terminated for unexcused absences while entitled to FMLA absences

In Bertig v. Julia Ribaudo Healthcare Group, a nurse was certified for FMLA leave for cancer and asthma. Her employer, a local hospital, had a policy that employees are subject to termination when they accrue seven absences in a rolling 12-month period. She incurred a total of 13 intermittent absences in a 12-month period, only three of which were related to her cancer or asthma.

The hospital had thoroughly documented the reasons for each absence, made its expectations clear, and the nurse acknowledged most of her absences were not related to her cancer or asthma. The court found that she was properly terminated.

Workers’ Compensation
Exclusive remedy does not bar suit against employer under Insurance Fraud Prevention Act (IFPA) – California

In The People ex rel. Mahmoud Alzayat v. Gerald Hebb et al., the 4th District Court of Appeals’ Second Division allowed a workers’ IFPA claim to proceed, noting the act contains qui tam provisions, which allow private citizens to file civil suits on behalf of the state. In this case, an employee argued he suffered a legitimate workplace injury, but his supervisor lied on the reports causing the claim denial. While the company argued that the suit was barred based on the litigation privilege of a workers’ compensation proceeding, the Court of Appeal reversed and found in favor of the worker, holding that the IFPA is an exception to the litigation privilege.

Exclusive remedy doesn’t protect supervisor from assault claim – California

In Lee v. Lang, three employees of the Christian Herald filed suit against the director of the publication for multiple wage-and-hour violations and one asserted claims for assault, battery and the intentional infliction of emotional distress. The Court of Appeals reversed in part the judgement in favor of the director, noting “the Labor Code provides an employee may sue his or her employer, notwithstanding the exclusive remedy provision of workers’ compensation, ‘[w]here the employee’s injury – is proximately caused by a willful physical assault by the employer.”

Injuries in vanpool accident limited to workers’ comp – Illinois

In Peng v. Nardi, a buffet restaurant provided a 15-passenger van for workers, which an employee drove and was paid for his driving duties. He wasn’t allowed to use the vehicle for personal errands and he was not allowed to let anyone else drive. A passenger suffered a pelvic fracture in an accident and filed a negligence suit against her co-worker and the other two drivers involved in the accident.

While the court noted accidents when an employee is traveling to or from work generally are not treated as occurring within the course of employment, there is an exception when the employer provides a means of transportation or controls the method of the worker’s travel. Although the injured worker was not required to use the van, she relinquished control over the conditions of transportation and, thus, the exclusive remedy of workers’ comp applies.

No loss of wage earning capacity means no benefits – Mississippi

In Pruitt v. Howard Industries, a worker suffered a back injury, received conservative treatment, and returned to work without restrictions in the same plant, with the same job title, and a higher wage. He filed for PPD benefits, but was denied. The Court of Appeals explained that except for scheduled-member cases, indemnity benefits are made for diminished wage-earning capacity and not medical impairment.

Heart attack not accident and not compensable – Missouri

In White v. ConAgra Packaged Foods, a long-term machinery worker collapsed and died on a particularly hot day in the machine shop, which was not air-conditioned. His widow filed a claim for benefits, asserting that his death was the result of heat stroke and/or his physical exertions in the machine shop. While it was acknowledged that the worker had high cholesterol, hypertension, and other risk factors for a heart attack, the question was whether work activities were the prevailing factor that caused the fatal heart attack.

After two denials, the Court of Appeals awarded benefits to the widow, but the Supreme Court reversed. It noted that the worker’s death must have been caused by an “accident.” An accident is defined as an unexpected traumatic event or an unusual strain that is identifiable by time and place of occurrence and that produces objective symptoms of an injury. Further, the law provides that a cardiovascular event is an injury only “if the accident is the prevailing factor in causing the resulting medical condition.”

Long-term exposure to dust leads to PTD benefits – Nebraska

In Moyers v. International Paper Co., a worker suffered respiratory problems over his 42- year employment at a paper company. When a pulmonologist suggested he stop working, he filed for comp. The court found he had a compensable occupational disease and referred him to a vocational counselor who opined that his breathing problems would prohibit working. He was found to be permanently and totally disabled by his occupational disease and this finding was upheld by the Court of Appeals.

Fall while in line for security log in and pass compensable – New York

In Hoyos v. NY-1095 Avenue of the Americas, a worker for a subcontractor slipped and fell off an elevated loading dock while standing in line with other workers at a security check point to obtain a pass to enter the building and get to his job site. Four feet off the ground, the loading dock had no guardrails, chain, rope or other indication where its platform ended and the ledge began.

The court found that even though the worker was not working at the time, he was following the rules of the contractor and had no alternate place to check in. Refusal to treat that spot as a “construction site” under the circumstance of the case would place an “unintended limitation” on the scope of Section 240(1).

Comp claim for PTSD upheld for claims adjuster – New York

In Matter of Kraus v. Wegmans Food Markets, the company had an internal policy that was unpopular with union drivers regarding no-fault benefits. Claims that arose out of a motor vehicle accident were automatically assigned to a workers’ compensation claims service provider that administered the employer’s no-fault claims, but claims that involved the use or operation of a motor vehicle, however, were not.

The in-house adjuster received threats from unionized drivers and was known to be inconsistent in applying the policy, which contributed to his termination. He filed a workers’ comp claim, asserting he had suffered a psychiatric injury from the stress caused by the drivers’ threats and accusations of dishonesty. The case went through several appeals and the Appellate Division’s 3rd Department found he was entitled to benefits for PTSD, noting he was in “an extremely stressful and untenable situation” because of his employer’s “questionable” no-fault policy.

Civil case settlement does not bar workers’ comp claim – North Carolina

In Easter-Rozzelle v. City of Charlotte, the Supreme Court overturned a state appeals decision that questioned whether a worker who sues a third party gives up the right to comp. The case involved a city employee who suffered a work-related injury and was in a serious car accident on his way to a doctor’s appointment to obtain an “out of work” note. He settled his civil suit and the case to continue to collect comp worked its way through a series of appeals.

Ultimately, the Supreme Court ruled that pursuing a third-party action does not affect a worker’s ability to bring a comp claim. The law does not require that an employer consent to the worker’s settlement of a third-party action, and the city is entitled to reimbursement of its lien from benefits due to the worker per state law.

Two-year jurisdiction rule includes out-of-state medical care – North Carolina

In Hall v. United States Xpress, Inc., payments to out-of-state medical care providers meet the criteria that a claim must be filed within two years after the last payment of medical compensation when no other compensation has been paid and when the employer’s liability has not otherwise been established. The injured worker met the “no other compensation has been paid” criteria since the benefits he had received, which exceeded $8 million in medical care, were provided under Tennessee’s-not North Carolina’s-Workers’ Compensation Act.

Massage service covered by comp – Pennsylvania

In Schriver v. WCAB (Commonwealth of Pennsylvania Department of Transportation), an injured worker received benefits for treatment of a back injury, including chiropractic services. The chiropractor referred him to a licensed massage therapist within the office, and the worker paid $60 for each massage session, but requested reimbursement. The case made its way to the Commonwealth Court, which reversed lower decisions denying payment for the massage services. It noted workers’ comp obligates an employer to provide payment for all reasonable services that an injured employee receives from “physicians or other health care workers,” including chiropractors and their employees or agents.

Earning power, not employment, determines reduction in benefits – Pennsylvania

In Valenta v. WCAB, a worker was collecting total disability benefits for a back and shoulder injury. The former employer’s comp carrier ordered a labor market survey (LMS) and earning power assessment (EPA) performed and six available jobs were identified. The employer then filed for, and was awarded, a modification of payments.

The Commonwealth Court explained the law does not require a worker be offered a job in order to have “earning power,” but meaningful employment opportunities must be available. The court said failure to be hired did not mean that the positions were not open and available, although the evidence of lack of success was relevant to the issue of earning capacity.

Pressured to quit, employee’s disability claim is upheld – Tennessee

In Alicia Hunt v. Dillard’s Inc., a manager of a makeup counter was denied surgery when her work-related ankle and knee injury did not heal. While working with restrictions, she said her supervisor pressured her to take a lower paying job. She resigned, had surgery, and sought to get her job back, but the company indicated she had voluntarily quit.

A trial court judge’s decision that the worker was pressured to resign and had not had a meaningful return to work at a wage equal to or above her pre-injury wage, was upheld by the Supreme Court. Therefore, she was entitled to permanent partial disability benefits up to six times the medical impairment rating, not, as argued by Dillard’s, the cap of 1.5 times the impairment rating when there is a meaningful return to work.

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

OSHA watch

Industry challenge to silica rule rejected by court

The U.S. Court of Appeals for the District of Columbia Circuit has rejected all industry challenges to the silica rule and ordered the agency to explain why it omitted medical removal provisions. Industry groups had challenged the rule on several points, including whether there was evidence it would reduce a significant risk of material health impairment, whether it was technically and economically feasible, and if it violated the Administrative Procedure Act. It also challenged whether substantial evidence supports two ancillary provisions of the rule: allowing workers who undergo medical examinations to keep the results confidential from their employers; and prohibiting employers from using dry cleaning methods unless doing so is infeasible.

Labor unions challenged two parts of the silica rule: the requirement that medical surveillance for construction workers be provided only if the employee must wear a respirator for 30 days for one employer in a one-year period; and the absence of medical removal protections. The court rejected the first, but asked for an explanation of the second.


New and revised fact sheets on silica now available

More than a dozen fact sheets that provide guidance on the respirable crystalline silica standard for construction have been released.


Redesigned webpages make it easier to find training resources

Employers and employees can get information on job safety classes, trainers, tools, and 10-hour and 30-hour cards on the redesigned training webpage.

Tips to protect workers from winter hazards

The Winter Weather webpage provides information on protecting employees from hazards while working outside during severe cold and snow storms, including information on staying safe while clearing heavy snow from walkways and rooftops.


Alliance participants issue alert on use of multi-gas monitors in the oil and gas industry

A new hazard alert explains how multi-gas monitors can protect workers from atmospheric hazards in oil and gas operations.

Enforcement notes

California

  • Following the collapse of a temporary mold and vertical shoring at an Oakland construction site, which hospitalized 13 workers, Cal/OSHA issued serious and serious accident-related citations to subcontractors Largo Concrete Inc. and N.M.N. Construction Inc. for $73,365 and $70,320, respectively. General citations were issued to general contractor Johnstone Moyer Inc. for $3,630.

Florida

  • Inspected under the NEP on Trenching and Excavation, Tallahassee-based, R.A.W. Construction LLC faces proposed penalties of $148,845 for exposing its employees to trench collapse hazards.

Georgia

  • Inspected under the NEP on Trenching, Dustcom Limited Inc., a Garden City construction company, was cited for failing to protect its employees from trench collapse hazards and faces proposed penalties of $130,552.

Illinois

  • Three companies working on the renovation of Chicago’s Old Post Office were cited for failing to comply with respiratory protection, provide training, and properly handle PPE. American Demolition was also cited for failing to establish a written lead compliance program. Proposed penalties for American Demolition Corporation, Valor Technologies Inc., and Tecnica Environmental Services Inc. are $105,765, $64,538, and $50,194, respectively.

Indiana

  • A Jeffersonville home and farm supply center, Rural King Supply, is facing proposed fines of $14,000 after state safety inspectors allegedly found elevated carbon monoxide levels at the facility due to emissions from improperly maintained forklifts.

Kansas

  • A comprehensive settlement has been reached with Bartlett Grain Company LP requiring the company to implement safeguards, training, and audit procedures at its 20 grain handling facilities in six states.The agreement resolves contested citations issued in April 2012 after six individuals were killed and two injured as a result of an explosion at the Atchison grain elevator. Bartlett Grain has also agreed to pay $182,000 in penalties.

Michigan

  • MIOSHA issued a second Cease Operations Order, the strongest enforcement action the agency can levy, against Sunset Tree Service & Landscaping, LLC of Bay City for continuing to operate without abating hazards on the jobsite.

Missouri

  • An administrative law judge of the OSHRC affirmed citations issued against Wentzville-based Auchly Roofing Inc. for failing to use fall protection, but reduced the penalties from $7,482 to $2,494 based on the small size of the employer, good faith safety efforts, and a clean record for 20 years. The company contested the citations, arguing that the violations were de minimis in nature and that compliance with the fall protection standards cited presented a greater hazard to the employees.

New York

  • A jury and judge ordered Albany-based asbestos abatement and demolition company, Champagne Demolition, LLC and its owner, Joseph A. Champagne, to pay $173,793.84 to a former employee who was fired in June 2010 after reporting improper asbestos removal practices at a school worksite in Gloversville.

Pennsylvania

  • US Environmental Inc. was cited for 12 safety violations, including willfully exposing workers to confined space and fall hazards at its Downingtown location. Proposed penalties are $333,756.
  • The owner of Pittsburgh-based, A Rooter Man, pleaded guilty in federal court to a charge of willfully violating an OSHA regulation, resulting in the death of a worker. Sentencing, which could include prison, is scheduled for February 2018.

 

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HR Tip: NLRB overturns Obama-era rulings related to joint employment and handbooks

A newly appointed Republican majority on the National Labor Relations Board (NLRB) returned to the standard that companies must have “immediate and direct” control over a worker to be considered a joint employer. Under the Obama rule indirect control by one organization over another was enough to establish a joint employer relationship (Browning-Ferris decision). Applying the reinstated pre-Browning Ferris standard, the Board agreed with an administrative law judge’s determination that Hy-Brand Industrial Contractors, Ltd. (Hy-Brand) and Brandt Construction Co. (Brandt) were joint employers and, therefore, jointly and severally liable for the unlawful discharges of seven striking employees.

In the employee handbook case, the board overruled a prior decision placing limits on employer handbook policies that could be “reasonably construed” by workers to limit their right to engage in protected concerted activity-so-called Section 7 of the National Labor Relations Act (NLRA) rights.

The underlying case in the ruling involved a policy by The Boeing Company that prohibited employees from taking photos on company property “without a valid business need and an approved camera permit.” The company argued this was necessary to protect sensitive information and the NLRB found that the no-camera rule was lawfully maintained.

In this decision, the board replaced the “reasonably construe” standard with a new balancing test that will consider the following factors with regard to a “facially neutral” handbook policy:

  • The nature and extent of the potential impact on NLRA rights.
  • The employer’s legitimate justifications associated with the rule.

The board outlined three categories of employment policies, rules and handbook provisions:

  • “Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement maintained by Boeing, and rules requiring employees to abide by basic standards of civility. Thus, the Board overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.”
  • “Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.”
  • “Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example would be a rule that prohibits employees from discussing wages or benefits with one another.”

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