View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | November 28, 2016 • 12 min read

Benefit Limit for Undocumented Workers Unconstitutional

Martinez v. Lawhon, et al., No. M2015-00635-SC-R3-WC (Tenn. 11/21/16, unpublished)

Ruling: In an unpublished decision, the Tennessee Supreme Court held that a law limiting the maximum permanent partial disability benefits an injured undocumented worker can receive is unconstitutional.

What it means: In Tennessee, the law limiting the maximum permanent partial disability benefits an injured undocumented worker can receive is unconstitutional.

Summary: An undocumented worker was operating a lawn mower on a hillside in the course of his employment when he slipped on wet grass and fell, losing control of the mower. The mower ran over his left arm, causing severe injuries.

Because of the worker’s undocumented status, the employer did not return him to work after the injury. The worker sought workers’ compensation benefits and challenged the constitutionality of a law limiting his award to one and one-half times the medical impairment rating. The Tennessee Supreme Court held that the provision is unconstitutional.

According to the law, the permanent partial disability benefits that a worker who is not legally allowed to return to work because of federal immigration law can receive are limited to a cap of one and one-half times the medical impairments rating. The court pointed out that other workers who do not fall within this exception are entitled to a multiplier of up to six times.

The court found that the provision was preempted by federal immigration law. The legislative history of the provision showed that the legislature intended for an additional sum to be paid by employers as a penalty. The court explained that the provision was preempted by federal law because the legislature intended and attempted to establish what amounted to a state immigration policy.

The court also explained that by reducing the liability of employers of undocumented workers to one and one-half times the medical impairment rating, the law made it less costly to hire those workers and potentially created an incentive for employers to hire undocumented workers, especially in high-risk jobs that often result in workers’ compensation claims.

In this case, the court found that the worker sustained an 84 percent permanent partial impairment to the left arm as a result of his work injury.

Attorney Fees Warranted When Employer’s Actions Delayed Surgery

Bockus v. First Student Services, et al., No. S-15784, 7137 (Alaska 12/02/16)

Ruling: The Alaska Supreme Court held that a driver was entitled to attorney’s fees because the employer resisted furnishing medical care by unreasonably delaying his third surgery.

What it means: In Alaska, an employer’s acquiescence to a claim before a hearing does not prevent a finding that the employer resisted providing the benefit.

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Summary: A school bus driver injured his back while pulling open a chain-link gate. He felt a pop in his back and severe pain radiating into his legs. He had two spinal surgeries, and his surgeon recommended a third. At about the same time, the employer scheduled an independent medical examination. This delayed the surgery because the surgeon would not schedule the surgery while the IME was pending.

The driver filed a workers’ compensation claim for the third surgery, and the employer’s doctor ultimately agreed that a third surgery was appropriate. The Alaska Supreme Court held that the driver was entitled to attorney’s fees because the employer resisted furnishing medical care by unreasonably delaying the third surgery.

The driver asserted that the employer delayed his surgery because it “had ample information” about the compensability of the surgery before the IME. The employer argued that it was merely exercising a statutory right to an IME and it rescheduled the IME at the driver’s request.

The court pointed out that the employer authorized the third surgery when it was required to answer the driver’s claim. The court pointed out that an employer’s acquiescence to a claim before a hearing does not prevent a finding that the employer resisted providing the benefit.

The court explained that the IME was not directed at an opinion about the surgery itself. Instead, the adjustor listed nine treatment options and asked for an opinion about the reasonable necessity of all treatments.

The court found that this broad request was not reasonable because the driver and his surgeon, after trying conservative care, had decided that surgical treatment was the best option for addressing his condition.

The court pointed out that the employer had adequate information about the reasonable necessity of the surgery well before the surgery was authorized. The information the employer sought from the IME was not reasonably related to the narrow question of the compensability of and the need for the requested surgery.

Inability to Obtain Job Doesn’t Warrant Benefits for 100 Percent Loss

Hathorn v. ESCO Corp., No. 2015-WC-01528-COA (Miss. Ct. App. 11/15/16)

Ruling: The Mississippi Court of Appeals held that a grinder was entitled to benefits for a 50 percent industrial loss.

What it means: In Mississippi, the fact that an injured worker is unable to obtain employment is not conclusive proof that he is unemployable.

Summary: A grinder for ESCO suffered a compensable injury to his right hand while operating his grinder. He returned to work with medical restrictions, including not using a grinder and to not lift more than 50 pounds. At work, he performed various janitorial and maintenance duties and ran errands.

After he claimed that his hand swelled from driving a forklift, the grinder was terminated for insubordination when he did not provide a written work restriction stating that he could not operate a forklift. The Workers’ Compensation Commission awarded him benefits for a 50 percent industrial loss. The Mississippi Court of Appeals affirmed the commission’s decision.

The grinder claimed that because of his injury he was unable to find work and could no longer perform the substantial acts of his usual employment. However, the court found that the grinder’s post-injury employment at ESCO demonstrated that he could perform some of the substantial acts of his usual employment.

He worked for more than a year after he reached maximum medical improvement. The court also pointed out that the grinder’s post-injury employment was consistent with a number of previous jobs he had. Also, many of the grinder’s previous job duties were within his medical restrictions.

The court found that even though the grinder’s job search was not successful, this was not conclusive proof that he was unemployable. The grinder admitted that he did not seek employment in the security, maintenance, or housekeeping fields.

Assault By Student Doesn’t Fall Under Intentional Act Exception

Field, et al. v. Lafayette Parish School Board, No. 16-495 (La. Ct. App. 11/09/16)

Ruling: The Louisiana Court of Appeal held that a teacher’s suit was barred by the exclusive remedy provision of the workers’ compensation law. The teacher failed to establish that the intentional act exception applied.

What it means: In Louisiana, for the intentional act exception of the workers’ compensation law to apply, the worker must prove an employer’s intent, which is defined as consciously desiring the physical results of the conduct or knowledge that the physical results were substantially certain to follow such conduct.

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Summary: A student of a high school English teacher had a dispute with another student and attempted to leave the classroom to fight with him in the hallway. The teacher tried to keep the student inside the classroom by holding the door closed, but the student hit her repeatedly in the stomach.

The teacher was six weeks pregnant. Later, the teacher’s child was born with a congenital kidney condition. The teacher received workers’ compensation benefits but also sued the Lafayette Parish School Board, the principal of her school, and the student.

The teacher asserted that the intentional act exception of the workers’ compensation law applied. The Louisiana Court of Appeal held that the teacher’s suit was barred by the exclusive remedy provision of the workers’ compensation law.

The court concluded that the intentional act exception did not apply. For the intentional act exception to apply, the worker must prove an employer’s intent, which is defined as consciously desiring the physical results of the conduct or knowledge that the physical results were substantially certain to follow such conduct.

In this case, the court found that the teacher failed to prove the school board’s intent for the harm that occurred in her classroom. While the student had an extensive history of disciplinary issues, the school board’s knowledge of his issues and readmittance into the high school did not amount to an intentional act.

The court pointed out that no evidence showed that the student had previously attacked a teacher.

Director Who Tripped on Stairs Not Entitled to Compensation

Mojares v. RK Chevrolet, Inc., No. 1016-16-2 (Va. Ct. App. 11/22/16, unpublished)

Ruling: In an unpublished decision, the Virginia Court of Appeals held that a director’s fall on stairs did not arise out of his employment.

What it means: In Virginia, a worker who trips while walking up a staircase at work cannot recover compensation unless something about the steps presented a hazard or danger peculiar to the work site.

Summary: A finance director for a car dealership was in a hurry to deliver paperwork for a sale when he fell while walking up stairs. The director had preexisting injuries that left him permanently partially disabled. His gait was affected, he had limited use of his right hand, and he walked with a cane.

When the director fell, he was holding files and his cane in his left hand and using the railing for the stairs with his right hand. He could not explain what caused his fall and said that he tripped himself. The Virginia Court of Appeals held that he was not entitled to benefits.

The director argued that his preexisting condition combined with the configuration of the stairs increased his risk of falling. The court concluded that the director failed to establish that his injury arose out of his employment. The record established that the director simply and inexplicably fell.

The court also explained that under the idiopathic fall doctrine, if a fall results from a preexisting condition, any resulting injury is compensable only when the conditions of the workplace aggravate the worker’s injury.

Here, the director fell while simply walking up the non-defective steps. The record showed that the director’s fall was not caused by his preexisting conditions. The court found that his injury was not causally related to his employment.

Intoxication Doesn’t Block Benefits When Flat Tire May Have Caused Accident

Diaz v. National Retail Transportation, Inc., No. A-3927-14T2 (N.J. Super. Ct. App. Div. 11/09/16, unpublished)

Ruling: In an unpublished decision, the New Jersey Superior Court, Appellate Division held that a mechanic was entitled to benefits for his injury.

What it means: In New Jersey, when a worker’s intoxication is the “natural or proximate cause” of an injury, benefits will not be provided. Courts have interpreted the intoxication defense to mean that the worker’s intoxication must be the sole cause of the accident.

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Summary: A mechanic for National Retail Transportation was injured when he attempted to move a heavy metal lift that fell over on him. He said that the lift fell when it tilted to one side. The mechanic said that after the lift fell on him, he noticed that one of the tires on the lift was flat.

National conceded that a tire was deflated. The mechanic filed a claim for workers’ compensation benefits. National denied benefits and asserted the intoxication defense, arguing that the mechanic’s intoxication was the proximate cause of the accident.

The mechanic admitted that before going to work, he drank at least two eight-ounce glasses consisting of half whiskey and half ice water. National’s toxicologist opined that, based on the blood sample drawn from the mechanic after the accident, that he was intoxicated and impaired at the time of the accident.

The New Jersey Superior Court, Appellate Division held that the mechanic was entitled to benefits.

The court concluded that substantial credible evidence established that the flat tire may have caused the lift to fall, and therefore, intoxication was not established to be the sole cause of the accident.

The court found there was sufficient evidence that the flat tire may have also contributed to the accident. Without testimony eliminating the flat tire as a cause of the accident, the court found that National did not carry its burden to prove that the mechanic’s intoxication was the sole cause of the accident.

Comp Doesn’t Cover Officer’s Crossfit Injury

Maley v. Borough of Penbrook, 31 PAWCLR 191 (Pa. W.C.A.B. 2016)

Ruling: The Pennsylvania Workers’ Compensation Appeals Board reversed the workers’ compensation judge’s finding that a police officer was in the course and scope of his employment when he was injured while performing box jumps at a CrossFit gym.

What it means: In Pennsylvania, where a police officer is not required by either the employer or the SWAT team to join a CrossFit gym or perform box jumps as a part of any physical fitness test, his injuries sustained while performing this activity do not fall within the course of his employment.

Summary: The board reversed the WCJ’s finding that a police officer was in the course and scope of his employment when he was injured while performing box jumps at a CrossFit gym.

The employer had a wellness and fitness policy, which recommended that the officers stay physically fit so they can perform their duties in a safe and healthy manner. Because the employer did not have a workout room, the officer joined a CrossFit gym.

He also was a SWAT team member for the county. His participation in the SWAT team was not required by the employer. In denying benefits, the board noted that the officer’s participation in the employer’s physical fitness program was completely voluntary.

The employer did not mandate that the officer undergo any physical fitness tests, and choosing not to participate in the testing would not result in disciplinary action.

Also, although the officer’s involvement with the SWAT team required him to undergo periodic fitness testing, his participation in that program was not a mandatory part of his employment.

In addition, the officer was not required by either the employer or the SWAT team to join a CrossFit gym or perform box jumps as a part of any physical fitness test.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

Absence Management

Establishing Balance With Volunteers

It’s good business to allow job-leave for volunteer emergency responders, whether or not state laws apply.
By: | January 10, 2018 • 7 min read

If 2017 had a moniker, it might be “the year of the natural disasters,” thanks to a phenomenal array of catastrophic or severe events— hurricanes, tornadoes, wildfires, ice storms and floods.

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Combined with smaller-scale fires and other emergencies, these incidents tax the resources of local and state emergency services, often prompting the need to call volunteer emergency responders into action.

But as lean as most organizations are already running, volunteer activities can sometimes cause friction between employees and employers. Handling conflicts the wrong way can potentially lead to legal headaches, harm employee morale and batter a company’s reputation.

State by State Variations

Most employers are aware of the various federal and state leave laws protecting their employees, including family and medical leave, pregnancy leave and military leave. But leave laws that protect the livelihoods of volunteer emergency responders are more likely to fly under the radar of some HR managers and risk managers.

Such laws don’t exist in every state, but more than 20 states do have some type of law in place to protect volunteers including emergency responders, firefighters, disaster workers, medical responders, ambulance drivers or peace officers.

Marti Cardi, vice president of Product Compliance for Matrix Absence Management

The laws vary broadly. Nearly all specify that such leave be unpaid, and that employees disclose their volunteer status to employers and provide documentation for each leave. But there is a spectrum of variations in terms of what may trigger an eligible leave. Some, for instance, apply for any emergency that prompts a call from the volunteer’s affiliated responder group. Others may require a government declaration of emergency for the law to be triggered.

While many of the laws do not explicitly require employers to let employees leave work when called to an emergency during a shift, most specify that an employee may be late or even miss work entirely without facing termination or any other adverse employment action.

Some states mandate a maximum number of unpaid leave days that a volunteer can claim. But others may place more significant burdens on employers. In California, for instance, employers with 50 or more employees are required to grant up to 14 days of unpaid leave for training activities in addition to any leave taken to respond to emergency events. For multistate employers, keeping on top of what obligations may apply in each circumstance can be a challenge.

Significant Risks

Large or mid-sized employers may rely on absence management providers to keep them in compliance. For smaller employers though, it may be as simple as looking up a state’s law via Google to find out what’s required. However, checking in with the state department of labor or the company’s attorney may be the best way to get the correct facts.

“I would caution that just because you don’t find something [on the internet], it doesn’t mean it’s not there,” said absence management and employment law attorney Marti Cardi, vice president of Product Compliance for Matrix Absence Management.

For example, Cardi said, an obscure Texas law provides job-protected leave for volunteer ham radio operators called into service during an emergency.

Cardi said employers should task HR to investigate the laws in each state the company operates in, and to ensure that supervisors are educated about the existence of these laws.

“If a supervisor is told by one of his or her employees, ‘Sorry I’m not coming in today … I’ve been called to volunteer firefighter duty for the [nearby region] fire,’” she said, you want to be sure that the supervisor knows not to take action against the employee, and to contact HR for guidance.

“Training supervisors to be aware of this kind of absence is really important.”

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An employer that does terminate a protected volunteer for responding to an emergency may be ordered to pay back wages and reinstate the employee. In some cases, the employee may also be able to sue for wrongful termination.

And of course, “you don’t want to be the company in the headlines that is getting sued because you fired the volunteer firefighter,” she added.

If an employer bars a volunteer from responding, the worst-case scenario may be a third-party claim. Failure to comply with the law could give rise to a claim along the lines of “‘If you had complied with your statutory obligation to give Jane Doe time to respond, my loved one would not have died,’” explained Philadelphia-based Jonathan Segal, partner at law firm Duane Morris and managing principal of the Duane Morris Institute.

“That’s the claim I think is the largest in terms of legal risk.”

Even if no one dies or is seriously injured, he added, “there could still be significant reputational risk if an individual were to go to the media and say, ‘Look, I got called by the fire department and I wasn’t allowed to go.’”

The Right Thing to Do

What employers should be thinking about, Segal said, is that whether or not you have a legal obligation to provide job-protected leave for volunteer responders, “there’s still the question of what are the consequences if you don’t?”

Employee morale should be factored in, he said. The last thing any company wants is for employees to perceive it as insensitive to their interests or the interests of the community at large.

“Sometimes employers need to go beyond the law, and this is one of those times,” — Jonathan Segal, partner, Duane Morris; managing principal, Duane Morris Institute

“How is this going to resonate with my employees, with my workforce, how are people going to see this? These are all relevant factors to consider,” he said.

There’s an argument to be made for employers to look at the bigger picture when it comes to any volunteer responders on their payroll, said Segal.

“Sometimes employers need to go beyond the law, and this is one of those times,” he said. “Think about the case where’s there’s not a specific state law [for emergency responders] and you say to a volunteer, ‘No, you can’t leave to deal with this fire’ and then people die. You as an employer have potentially played a role, indirectly, because you didn’t allow the first responder or responders to go,” he said.

The bottom line is that “it’s the right thing to do, even if it’s not required by law,” agreed Cardi.

“I feel that companies should have a policy that they’re not going to discipline or discharge someone for absences due to this kind of civic service, subject to verification of course.”

Clear Policy

While most employers do strive to be good corporate citizens, it goes without question that employers need to guard their own interests. It’s not especially likely that volunteer responders will try to take advantage of the unpaid leave allowed them, but of course, it could happen.

That’s why it’s important to have policies that are aligned with state laws. Those policies could include:

  • Notifying the company of any volunteer affiliations either upon hire or as soon they are activated as volunteers.
  • Requiring that employees notify a supervisor as soon as possible if called to an emergency (state requirements vary).
  • Requiring documentation after the event from the head of the entity supervising the volunteer’s activities.

If at some point it becomes excessive – someone has responded to emergencies five times in nine weeks, then it’s time to examine the specifics of the law and have a discussion with the employee about what’s reasonable, said Segal. It may also be time to ask specifics about whether the person is volunteering each time, or are they being called.

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In some cases, the discussion may need to be about finding a middle ground, especially if an employee has taken on an excessively demanding volunteer role.

“We encourage volunteers to pick the style that best fits their schedule,” said Greta Gustafson, a representative of the American Red Cross. “Disaster volunteers can elect to respond to disasters locally, nationally, or even virtually, and each assignment varies in length — from responding overnight to a home fire in your community to deploying across the country for several weeks following a hurricane.

“The Red Cross encourages all volunteers to talk with their employers to determine their availability and to communicate this with their local Red Cross chapter.”

Segal suggests approaching it as an interactive dialogue — borrowing from the ADA. “Employers may need to open a discussion along the lines of ‘I need you here this week because this week we have a deliverable on Friday and you’re critical to that client deliverable,’” he said, but also identify when the employee’s absence would be less critical.

No doubt there will be tough calls. An employer may have its hands full just trying to meet basic customer needs and need all hands on deck.

“That may be a situation where you say, ‘First let me check the law,’” said Segal. If there’s a leave law that applies, “then I’m going to need to comply with it. If there’s not, then you may need to balance competing interests and say, ‘We need you here.’” &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]