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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

High Net Worth

High Net Worth Clients Live in CAT Zones. Here’s What Their Resiliency Plan Should Include

Having a resiliency plan and practicing it can make all the difference in a disaster.
By: | September 14, 2018 • 7 min read

Packed with state-of-the-art electronics, priceless collections and high-end furnishings, and situated in scenic, often remote locations, the dwellings of high net worth individuals and families pose particular challenges when it comes to disaster resiliency. But help is on the way.

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Armed with loss data, innovative new programs, technological advances, and a growing army of niche service-providers aimed at addressing an astonishingly diverse set of risks, insurers are increasingly determined to not just insure against their high net worth clients’ losses, but to prevent them.

Insurers have long been proactive in risk mitigation, but increasingly, after the recent surge in wildfire and storm losses, insureds are now, too.

“Before, insurance was considered the only step in risk management. Now, our client families realize it is one of the many imperative steps in an effective risk management strategy,” said Laura Sherman, founding partner at Baldwin Krystyn Sherman Partners.

And especially in the high net worth space, preventing that loss is vastly preferable to a payout, for insurers and insureds alike.

“If insurers can preserve even one house that’s 10 or 20 or 40 million dollars … whatever they have spent in a year is money well spent. Plus they’ve saved this important asset for the client,” said Bruce Gendelman, chairman and founder Bruce Gendelman Insurance Services.

High Net Worth Vulnerabilities

Laura Sherman, founding partner, Baldwin Krystyn Sherman Partners

As the number and size of luxury homes built in vulnerable areas has increased, so has the frequency and magnitude of extreme weather events, including hurricanes, harsh cold and winter storms, and wildfires.

“There is a growing desire to inhabit this riskier terrain,” said Jason Metzger, SVP Risk Management, PURE group of insurance companies. “In the western states alone, a little over a million homes are highly vulnerable to wildfires because of their proximity to forests that are fuller of fuel than they have been in years past.”

Such homes are often filled with expensive artwork and collections, from fine wine to rare books to couture to automobiles, each presenting unique challenges. The homes themselves present other vulnerabilities.

“Larger, more sophisticated homes are bristling with more technology than ever,” said Stephen Poux, SVP and head of Risk Management Services and Loss Prevention for AIG’s Private Client Group.

“A lightning strike can trash every electronic in the home.”

Niche Service Providers

A variety of niche service providers are stepping forward to help.

Secure facilities provide hurricane-proof, wildfire-proof off-site storage for artwork, antiques, and all manner of collectibles for seasonal or rotating storage, as well as ahead of impending disasters.

Other companies help manage such collections — a substantial challenge anytime, but especially during a crisis.

“Knowing where it is, is a huge part of mitigating the risk,” said Eric Kahan, founder of Collector Systems, a cloud-based collection management company that allows collectors to monitor their collections during loans to museums, transit between homes, or evacuation to secure storage.

“Before, insurance was considered the only step in risk management. Now, our client families realize it is one of the many imperative steps in an effective risk management strategy.” — Laura Sherman, founding partner, Baldwin Krystyn Sherman Partners

Insurers also employ specialists in-house. AIG employs four art curators who advise clients on how to protect and preserve their art collections.

Perhaps the best known and most striking example of this kind of direct insurer involvement are the fire teams insurers retain or employ to monitor fires and even spray retardant or water on threatened properties.

High-Level Service for High Net Worth

All high net worth carriers have programs that leverage expertise, loss data, and relationships with vendors to help clients avoid and recover from losses, employing the highest levels of customer service to accomplish this as unobtrusively as possible.

“What allows you to do your job best is when you develop that relationship with a client, where it’s the same people that are interacting with them on every front for their risk management,” said Steve Bitterman, chief risk services officer for Vault Insurance.

Site visits are an essential first step, allowing insurers to assess risks, make recommendations to reduce them, and establish plans in the event of a disaster.

“When you’re in a catastrophic situation, it’s high stress, time is of the essence, and people forget things,” said Sherman. “Having a written plan in place is paramount to success.”

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Another important component is knowing who will execute that plan in homes that are often unoccupied.

Domestic staff may lack the knowledge or authority to protect the homeowner’s assets, and during a disaster may be distracted dealing with threats to their own homes and families. Adequate planning includes ensuring that whoever is responsible has the training and authority to execute the plan.

Evaluating New Technology

Insurers use technologies like GPS and satellite imagery to determine which homes are directly threatened by storms or wildfires. They also assess and vet technologies that can be implemented by homeowners, from impact glass to alarm and monitoring systems, to more obscure but potentially more important options.

AIG’s Poux recommends two types of vents that mitigate important, and unexpected risks.

“There’s a fantastic technology called Smart Vent, which allows water to flow in and out of the foundation,” Poux said. “… The weight of water outside a foundation can push a foundation wall in. If you equalize that water inside and out at the same level, you negate that.”

Another wildfire risk — embers getting sucked into the attic — is, according to Poux, “typically the greatest cause of the destruction of homes.” But, he said, “Special ember-resisting venting, like Brandguard Vents, can remove that exposure altogether.”

Building Smart

Many disaster resiliency technologies can be applied at any time, but often the cost is fractional if implemented during initial construction. AIG’s Smart Build is a free program for new or remodeled homes that evolved out of AIG’s construction insurance programs.

Previously available only to homes valued at $5 million and up, Smart Build recently expanded to include homes of $1 million and up. Roughly 100 homes are enrolled, with an average value of $13 million.

“In the high net worth space, sometimes it takes longer potentially to recover, simply because there are limited contractors available to do specialty work.” — Curt Goetsch, head of underwriting, Private Client Group, Ironshore

“We know what goes wrong in high net worth homes,” said Poux, citing AIG’s decades of loss data.

“We’re incenting our client and by proxy their builder, their architects and their broker, to give us a seat at the design table. … That enables us to help tweak the architectural plans in ways that are very easy to do with a pencil, as opposed to after a home is built.”

Poux cites a remote ranch property in Texas.

Curt Goetsch, head of underwriting, Private Client Group, Ironshore

“The client was rebuilding a home but also installing new roads and grading and driveways. … The property was very far from the fire department and there wasn’t any available water on the property.”

Poux’s team was able to recommend underground water storage tanks, something that would have been prohibitively expensive after construction.

“But if the ground is open and you’ve got heavy equipment, it’s a relatively minor additional expense.”

Homes that graduate from the Smart Build program may be eligible for preferred pricing due to their added resilience, Poux said.

Recovery from Loss

A major component of disaster resiliency is still recovery from loss, and preparation is key to the prompt service expected by homeowners paying six- or seven-figure premiums.

Before Irma, PURE sent contact information for pre-assigned claim adjusters to insureds in the storm’s direct path.

“In the high net worth space, sometimes it takes longer potentially to recover, simply because there are limited contractors available to do specialty work,” said Curt Goetsch, head of underwriting for Ironshore’s Private Client Group.

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“If you’ve got custom construction or imported materials in your house, you’re not going to go down the street and just find somebody that can do that kind of work, or has those materials in stock.”

In the wake of disaster, even basic services can be scarce.

“Our claims and risk management departments have to work together in advance of the storm,” said Bitterman, “to have contractors and restoration companies and tarp and board services that are going to respond to our company’s clients, that will commit resources to us.”

And while local agents’ connections can be invaluable, Goetsch sees insurers taking more of that responsibility from the agent, to at least get the claim started.

“When there is a disaster, the agency’s staff may have to deal with personal losses,” Goetsch said. &

Jon McGoran is a novelist and magazine editor based outside of Philadelphia. He can be reached at [email protected]