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View From the Bench

Workers’ Comp Docket

The latest workers' comp court decisions on cannabis reimbursement, safety criteria in hiring practices, attorney fees, interstate claims and more.
By: | May 2, 2018 • 14 min read

Employer’s Concern Over High BMI Boosts Applicant’s Claim

Shell v. Burlington Northern Santa Fe Railway Co., No. 15-CV-11040 (N.D. Ill. 03/05/18)

Ruling: The U.S. District Court, Northern District of Illinois denied summary judgment to a railway company on a worker’s Americans with Disabilities Act claims. The court held that there were triable issues as to whether the employer regarded the worker as disabled and whether it could successfully assert the business necessity defense.

What it means: Where an employer takes adverse action against an employee who does not currently have a disability, but who it fears will develop a disability in the future, the employee may be able to state a claim under the regarded as prong of the ADA.

Summary: A worker with obesity applied for a safety-sensitive position with a railway company. He was offered the job contingent on passing a physical examination.

The company did not hire applicants whose body mass index was more than 40 (Class III obesity) for safety-sensitive positions because they are at a “substantially higher” risk of developing sleep apnea, diabetes, and heart disease, all of which may lead to sudden incapacitation.

The worker did not have these conditions or an underlying disorder, but his BMI was 47.5. The company withdrew its offer “due to the health and safety risks associated with his BMI.”

The worker sued under the ADA. The U.S. District Court, Northern District of Illinois held that there were triable issues as to whether the company regarded him as disabled and whether it could assert the business necessity defense.

The company contended that obesity is an ADA-defined impairment only when it results from an underlying physiological cause. Adopting the majority view, the court agreed.

The company did not believe the worker’s obesity was the result of a physiological disorder or that he was unable to perform his physical job functions as a result of his weight. Therefore, it did not regard him as disabled by his obesity. Rather, it acted based solely on the correlation between obesity and sleep apnea, diabetes, and heart disease.

The worker argued that the company regarded him as disabled because it refused to hire him based on its fears that he might develop one of those conditions.

The court concluded that there were triable issues as to whether the company treated him “as if he did suffer from those conditions” or were a “ticking time bomb” who at any time could be unexpectedly incapacitated by one of those conditions.

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If he actually had any of these impairments, he would fall within the scope of the ADA, and the court saw “no reason why the company should be held to a lesser standard merely because it is engaging in adverse employment actions before an impairment arises.”

The company contended that it was protected by the business necessity defense. The evidence showed that individuals with Class III obesity are at a “substantially higher” risk of developing certain medical conditions that “frequently manifest” as sudden incapacitation.

The court concluded that the terms “substantially higher” and “frequently” were too indefinite to convey the actual risk, and it was therefore impossible to determine whether it was truly necessary to exclude individuals with Class III obesity from safety-sensitive positions.

Regulations Block Officer from Obtaining Reimbursement for Medical Marijuana

Newville v. Michigan Department of Corrections, 32 MIWCLR 6 (Mich. W.C.B.M. 2017)

Ruling: The workers’ compensation magistrate held that an officer suffered personal injuries arising out of and in the course of his employment, he required medical treatment as a result of those injuries, and the treatment he was currently receiving — Oxycodone, Fentanyl, and medical marijuana — was reasonable and necessary.

However, pursuant to the workers’ compensation law and the Medical Marihuana Act, the magistrate could not order the employer to reimburse the officer for the cost of the medical marijuana.

What it means: In Michigan, pursuant to the workers’ compensation law and the Medical Marihuana Act, the magistrate cannot order the employer to reimburse for the cost of medical marijuana even though the worker’s reasonable use of marijuana allows him to reduce his use of prescribed opioids for his work-related pain.

Summary: A corrections officer injured his lower back on several occasions while working. The magistrate found that his injuries, sustained as a result of altercations with inmates, were clearly responsible for the current condition of his back.

As for the officer’s medical treatment, the magistrate found that based on the officer’s condition and level of pain, his prescription of both Oxycodone and Fentanyl were reasonable and necessary. As for the officer’s use of medical marijuana, the magistrate noted that the officer consumed one edible per night along with two puffs per night from a joint.

This was reasonable and necessary as an alternative source to control his pain and to allow him to sleep. With the use of medical marijuana, the officer was able to reduce his Oxycodone by half and eliminate use of the Fentanyl patch. Further, the officer provided unrebutted testimony that there was no drug seeking behavior.

The magistrate explained that case law allows an employer to terminate an employee who tests positive for marijuana even though the employee has a registry card and the use was after a compensable workers’ compensation injury.

Also, the workers’ compensation law specifically excludes from reimbursement any professional service that was not subject to state registration or licensure before Jan. 1, 1998. The registration and licensure of medical marijuana services did not commence until 2008.

In addition, the Medical Marihuana Act specifically disallows forcing a carrier or employer to reimburse the costs. Therefore, the magistrate could not order the employer to reimburse the cost of the medical marijuana even though this result encourages the officer to decrease his use of addictive opioids.

Educator Wins Benefits for Spider Bite at Correctional Center

Jeffers v. State of Illinois/Tamms Correctional Center, 26 ILWCLB 23 (Ill. W.C. Comm. 2017)

Ruling: The Illinois Workers’ Compensation Commission held that the worker, who was teaching at a correctional center, established that she sustained a work-related accident arising out of and in the course of her employment. The commission awarded medical expenses and found the claimant permanently partially disabled to the extent of 5 percent loss of use of the right arm.

What it means: In Illinois, an educator at a prison is exposed to a greater risk of encountering insects and spiders at the facility than the general public, especially where the worker’s classroom is not open to the public and the classroom has had a pest and insect problem in the past.

Summary: An educator at a correctional center worked in a classroom that was not open to the public. The educator was in the classroom when she felt a bite or sharp pinch on her right arm. She testified she was wearing sleeves but noticed “little legs or something.”

She knew that an insect had bit her. She had previously seen spiders in the classroom, and the employer had provided her with glue traps to trap them. She sought treatment and was diagnosed with a brown recluse spider bite and treated with antibiotics, pain medication, and steroids.

The arbitrator denied benefits, reasoning that the educator failed to prove her injury arose out of and in the course of her employment.

Upon review, the commission reversed and awarded benefits.

The commission noted that the educator’s injury was not an employment-related risk or a risk that was incidental to the employment. The risk of a spider bite had no relation to her job duties as a classroom teacher or what she was required to do to fulfill those duties.

The commission also found that the claim did not involve a personal risk, such as a physical disability, that led to her injury. The evidence supported a finding of accident under a neutral risk quantitative analysis. The educator was exposed to a greater risk of encountering insects and spiders at the prison than that of the general public.

The area where the claimant was injured was not open to the public. In addition, the employer was on notice and aware of its pest problem as it had previously sprayed for pests and had provided the educator with glue traps to trap the insects. The commission found the educator sustained a work-related accident arising out of and in the course of her employment.

Employer Must Pay Attorney’s Fees from Benefits Awarded to Worker

Arkansas Game & Fish Commission v. Gerard, No. CV-17-896 (Ark. 03/29/18)

Ruling: The Arkansas Supreme Court held that an employer was required to pay one-half of the attorney’s fees and one-half from the benefits awarded to the worker before any offset.

What it means: In Arkansas, an employer must pay one-half of the attorney’s fees and one-half from the benefits awarded to the worker before any offset for disability retirement compensation.

Summary: A worker for the Game & Fish Commission suffered a compensable injury. His treating back surgeon opined that he attained maximum medical improvement with a 16 percent impairment. The employer accepted liability for the 16 percent impairment rating and a 10 percent wage loss.

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Later, two doctors independently evaluated the worker and determined that his impairment rating was 23 percent. The employer accepted the 23 percent impairment rating. The worker claimed that he was entitled to additional benefits due to the 7 percent increase in his impairment rating.

The administrative law judge found that the worker was entitled to additional benefits and attorney’s fees. The ALJ found that the employer was liable for one-half of the attorney’s fees and one-half would be paid out of the benefits awarded to the worker.

The worker argued that his disability retirement compensation exceeded the amount of additional benefits, and an offset depleted the benefits from which attorney’s fees should be paid. The Arkansas Supreme Court held that the attorney’s fees should be paid from the benefits awarded before the offset was applied.

The court explained that based on the plain language of the statute, the worker’s one-half of attorney’s fees was derived from the sum the employer paid him for his injury. The amount comes from the payable amount owed to the worker before any offset.

The court said that to hold otherwise would defeat the purpose of the workers’ compensation law and would punish an injured worker involved in a controverted claim.

Unexpected, Unusual Weight of Cheese Box Leads to Compensable Injury

Doran v. The Fresh Market, Inc., et al., No. COA17-836 (N.C. Ct. App. 04/03/18)

Ruling: The North Carolina Court of Appeals held that a specialist suffered a compensable injury by accident when he lifted a heavy box of cheese.

What it means: In North Carolina, lifting a box that is heavier than expected and heavier than usual can constitute an interruption in a worker’s usual lifting routine leading to an unforeseen event and accident.

Summary: A cheese specialist for The Fresh Market had worked in his position for nine weeks. He entered the store’s walk-in cooler to unload the day’s delivery of cheeses from a shipping pallet onto the cooler’s shelving.

He looked at a large box of cheddar cheese and believed it was light enough for him to lift and move without difficulty. He said the box was the heaviest thing he had lifted as a cheese specialist and was “significantly heavier” than other boxes. The box did not have the weight printed on it.

As the specialist was maneuvering to place the cheese on the shelf, he heard a snap and felt sharp pain in his right shoulder and arm. He was later diagnosed with a proximal biceps tear, a torn rotator cuff, and impingement with AC arthrosis. He filed a workers’ compensation claim. The store denied the claim.

The North Carolina Court of Appeals held that he suffered a compensable injury by accident.

The specialist testified about his usual work routine. He said that the pallet was typically loaded with boxes of various weights, but none were more than 25 pounds, and most were between five and 10 pounds.

The evidence showed that the 40-pound box of cheddar cheese was heavier than those usually lifted by the specialist and heavier than expected, and that lifting the box was not within his usual work routine. The court found that the unusual and unexpected weight of the box constituted an unusual condition resulting in an injury by accident.

The store argued that a worker’s routine would expand each time he performed a new task and that a new worker would “basically have no regular routine.”

The court rejected this argument, explaining that new conditions of employment don’t become part of a worker’s regular course of procedure until he “has gained proficiency performing in the new employment and become accustomed to the conditions it entails.”

Texas Insurer Not Liable for Worker’s Injury in Louisiana

O’Bannon v. Moriah Technologies, Inc. et al., No. 2017 CA 0728 (La. Ct. App. 03/29/18)

Ruling: The Louisiana Court of Appeal held that an insurer was not obligated to defend, indemnify, or reimburse an employer for a worker’s claims.

What it means: Applying Texas law in Louisiana, a worker who lived and was injured in Louisiana is not covered by an insurance policy that covers only Texas employees.

Summary: A worker who lived in Louisiana was injured in Louisiana while in the course and scope of his employment. He worked for Moriah Technologies, a Texas corporation that was insured by the Texas Mutual Insurance Co. The worker filed a workers’ compensation claim in Louisiana.

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Moriah sought reimbursement for attorney’s fees and costs incurred in the defense of the matter and reimbursement for benefits paid to the worker from Texas Mutual. The Louisiana Court of Appeal held that Texas Mutual was not obligated to defend, indemnify, or reimburse Moriah for the worker’s claims.

The court noted that while a prior appeal was pending, Texas Mutual obtained a judgment in Texas finding that Texas Mutual had no duty to defend, indemnify, or reimburse Moriah regarding the worker’s claim for workers’ compensation benefits in Louisiana. In this case, the court pointed out that “Louisiana courts are required to give full faith and credit to judgments of its sister states.”

The court found that the worker and Moriah were not entitled to coverage under the policy based on the limited reimbursement endorsement for Texas employees injured in other jurisdictions. The endorsement applied only to Texas employees.

There was no evidence that the worker’s injury would have been compensable if it had occurred in Texas. Also, the worker did not have significant contacts in Texas. He was hired following a meeting in Texas but immediately departed to Tennessee to begin work. The court also noted that his employment was not principally located in Texas.

Claim Not Undermined by Fact That Teacher Could Have Fallen Outside of Work

Cartersville City Schools v. Johnson, No. A17A1469 (Ga. Ct. App. 03/16/18)

Ruling: The Georgia Court of Appeals held that a teacher’s injury arose out of the course of her employment and was compensable.

What it means: In Georgia, in considering whether an injury arose out of the employment, the focus should be on the causal link between the injury and the worker’s work-related conditions or activity.

Summary: While instructing students, a fifth-grade teacher walked to her desk to put an image on the smartboard. She then turned from her computer and desk to walk back to the front of the classroom and fell, injuring her knee. Following surgery, she filed a workers’ compensation claim.

The administrative law judge found that her injury was causally connected to her employment and granted benefits.

The Appellate Division reversed, concluding that the teacher’s knee injury was not compensable because the act of turning and walking was a risk to which she would have been equally exposed outside of her employment and that her injury was caused by an idiopathic fall. The superior court reversed. The district appealed.

The Georgia Court of Appeals held that the ALJ properly found that the teacher’s injury arose out of her employment and was compensable.

The district did not dispute that the teacher sustained her injury in the course of employment because she fell while she was teaching in her classroom.

The court found that the Appellate Division erred in its analysis with respect to the legal framework for determining whether an injury arises out of employment.

The appellate division found that because the teacher could have fallen outside of work while walking and turning, and nothing particular about the classroom appeared to have caused the fall, her injury resulted from an idiopathic fall and was not compensable.

The court said that just because a worker could be exposed to a hazard outside of work does not render an injury resulting from that workplace hazard noncompensable.

The court explained that to be a compensable injury that arises out of the employment, the injury must either be caused by activity the employee engaged in as part of her job or the injury must result from a special danger of the employment.

The court also found that the teacher’s injury was not idiopathic. She was engaged in the movements and behaviors required of her employment when she was injured as a result of those movements. &

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]

More from Risk & Insurance

More from Risk & Insurance

Cyber Resilience

No, Seriously. You Need a Comprehensive Cyber Incident Response Plan Before It’s Too Late.

Awareness of cyber risk is increasing, but some companies may be neglecting to prepare adequate response plans that could save them millions. 
By: | June 1, 2018 • 7 min read

To minimize the financial and reputational damage from a cyber attack, it is absolutely critical that businesses have a cyber incident response plan.

“Sadly, not all yet do,” said David Legassick, head of life sciences, tech and cyber, CNA Hardy.

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In the event of a breach, a company must be able to quickly identify and contain the problem, assess the level of impact, communicate internally and externally, recover where possible any lost data or functionality needed to resume business operations and act quickly to manage potential reputational risk.

This can only be achieved with help from the right external experts and the design and practice of a well-honed internal response.

The first step a company must take, said Legassick, is to understand its cyber exposures through asset identification, classification, risk assessment and protection measures, both technological and human.

According to Raf Sanchez, international breach response manager, Beazley, cyber-response plans should be flexible and applicable to a wide range of incidents, “not just a list of consecutive steps.”

They also should bring together key stakeholders and specify end goals.

Jason J. Hogg, CEO, Aon Cyber Solutions

With bad actors becoming increasingly sophisticated and often acting in groups, attack vectors can hit companies from multiple angles simultaneously, meaning a holistic approach is essential, agreed Jason J. Hogg, CEO, Aon Cyber Solutions.

“Collaboration is key — you have to take silos down and work in a cross-functional manner.”

This means assembling a response team including individuals from IT, legal, operations, risk management, HR, finance and the board — each of whom must be well drilled in their responsibilities in the event of a breach.

“You can’t pick your players on the day of the game,” said Hogg. “Response times are critical, so speed and timing are of the essence. You should also have a very clear communication plan to keep the CEO and board of directors informed of recommended courses of action and timing expectations.”

People on the incident response team must have sufficient technical skills and access to critical third parties to be able to make decisions and move to contain incidents fast. Knowledge of the company’s data and network topology is also key, said Legassick.

“Perhaps most important of all,” he added, “is to capture in detail how, when, where and why an incident occurred so there is a feedback loop that ensures each threat makes the cyber defense stronger.”

Cyber insurance can play a key role by providing a range of experts such as forensic analysts to help manage a cyber breach quickly and effectively (as well as PR and legal help). However, the learning process should begin before a breach occurs.

Practice Makes Perfect

“Any incident response plan is only as strong as the practice that goes into it,” explained Mike Peters, vice president, IT, RIMS — who also conducts stress testing through his firm Sentinel Cyber Defense Advisors.

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Unless companies have an ethical hacker or certified information security officer on board who can conduct sophisticated simulated attacks, Peters recommended they hire third-party experts to test their networks for weaknesses, remediate these issues and retest again for vulnerabilities that haven’t been patched or have newly appeared.

“You need to plan for every type of threat that’s out there,” he added.

Hogg agreed that bringing third parties in to conduct tests brings “fresh thinking, best practice and cross-pollination of learnings from testing plans across a multitude of industries and enterprises.”

“Collaboration is key — you have to take silos down and work in a cross-functional manner.” — Jason J. Hogg, CEO, Aon Cyber Solutions

Legassick added that companies should test their plans at least annually, updating procedures whenever there is a significant change in business activity, technology or location.

“As companies expand, cyber security is not always front of mind, but new operations and territories all expose a company to new risks.”

For smaller companies that might not have the resources or the expertise to develop an internal cyber response plan from whole cloth, some carriers offer their own cyber risk resources online.

Evan Fenaroli, an underwriting product manager with the Philadelphia Insurance Companies (PHLY), said his company hosts an eRiskHub, which gives PHLY clients a place to start looking for cyber event response answers.

That includes access to a pool of attorneys who can guide company executives in creating a plan.

“It’s something at the highest level that needs to be a priority,” Fenaroli said. For those just getting started, Fenaroli provided a checklist for consideration:

  • Purchase cyber insurance, read the policy and understand its notice requirements.
  • Work with an attorney to develop a cyber event response plan that you can customize to your business.
  • Identify stakeholders within the company who will own the plan and its execution.
  • Find outside forensics experts that the company can call in an emergency.
  • Identify a public relations expert who can be called in the case of an event that could be leaked to the press or otherwise become newsworthy.

“When all of these things fall into place, the outcome is far better in that there isn’t a panic,” said Fenaroli, who, like others, recommends the plan be tested at least annually.

Cyber’s Physical Threat

With the digital and physical worlds converging due to the rise of the Internet of Things, Hogg reminded companies: “You can’t just test in the virtual world — testing physical end-point security is critical too.”

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How that testing is communicated to underwriters should also be a key focus, said Rich DePiero, head of cyber, North America, Swiss Re Corporate Solutions.

Don’t just report on what went well; it’s far more believable for an underwriter to hear what didn’t go well, he said.

“If I hear a client say it is perfect and then I look at some of the results of the responses to breaches last year, there is a disconnect. Help us understand what you learned and what you worked out. You want things to fail during these incident response tests, because that is how we learn,” he explained.

“Bringing in these outside firms, detailing what they learned and defining roles and responsibilities in the event of an incident is really the best practice, and we are seeing more and more companies do that.”

Support from the Board

Good cyber protection is built around a combination of process, technology, learning and people. While not every cyber incident needs to be reported to the boardroom, senior management has a key role in creating a culture of planning and risk awareness.

David Legassick, head of life sciences, tech and cyber, CNA Hardy

“Cyber is a boardroom risk. If it is not taken seriously at boardroom level, you are more than likely to suffer a network breach,” Legassick said.

However, getting board buy-in or buy-in from the C-suite is not always easy.

“C-suite executives often put off testing crisis plans as they get in the way of the day job. The irony here is obvious given how disruptive an incident can be,” said Sanchez.

“The C-suite must demonstrate its support for incident response planning and that it expects staff at all levels of the organization to play their part in recovering from serious incidents.”

“What these people need from the board is support,” said Jill Salmon, New York-based vice president, head of cyber/tech/MPL, Berkshire Hathaway Specialty Insurance.

“I don’t know that the information security folks are looking for direction from the board as much as they are looking for support from a resources standpoint and a visibility standpoint.

“They’ve got to be aware of what they need and they need to have the money to be able to build it up to that level,” she said.

Without that support, according to Legassick, failure to empower and encourage the IT team to manage cyber threats holistically through integration with the rest of the organization, particularly risk managers, becomes a common mistake.

He also warned that “blame culture” can prevent staff from escalating problems to management in a timely manner.

Collaboration and Communication

Given that cyber incident response truly is a team effort, it is therefore essential that a culture of collaboration, preparation and practice is embedded from the top down.

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One of the biggest tripping points for companies — and an area that has done the most damage from a reputational perspective — is in how quickly and effectively the company communicates to the public in the aftermath of a cyber event.

Salmon said of all the cyber incident response plans she has seen, the companies that have impressed her most are those that have written mock press releases and rehearsed how they are going to respond to the media in the aftermath of an event.

“We have seen so many companies trip up in that regard,” she said. “There have been examples of companies taking too long and then not explaining why it took them so long. It’s like any other crisis — the way that you are communicating it to the public is really important.” &

Antony Ireland is a London-based financial journalist. He can be reached at [email protected] Dan Reynolds is editor-in-chief of Risk & Insurance. He can be reached at [email protected]