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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

Pharma Under Fire

Opioids Give Rise to Liability Epidemic

Opioids were supposed to help. Instead, their addictive power harmed many, and calls for accountability are broadening.
By: | May 1, 2018 • 8 min read

The opioid epidemic devastated families and flattened entire communities.

The Yale School of Medicine estimates that deaths are nearly doubling annually: “Between 2015 and 2016, drug overdose deaths went from 33,095 to 59,000, the largest annual jump ever recorded in the United States. That number is expected to continue unabated for the next   several years.”

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That’s roughly 160 deaths every day — and it’s a count that’s increasing daily.

In addition to deaths, the number of Americans struggling with an opioid disorder disease (the official name for opioid addiction) is staggering.

The National Institute on Drug Abuse (NIDA) estimates that 2 million people in the United States suffer from substance use disorders related to prescription opioid pain relievers, and roughly one-third of those people will “graduate” to heroin addiction.

Conversely, 80 percent of heroin addicts became addicted to opioids after being prescribed opioids.

As if the human toll wasn’t devastating enough, NIDA estimates that addiction costs reach “$78.5 billion a year, including the costs of health care, lost productivity, addiction treatment, and criminal justice involvement.”

Shep Tapasak, managing principal, Integro Insurance Brokers

With numbers like that, families are not the only ones left picking up the pieces. Municipalities, states, and the federal government are strained with heavy demand for social services and crushing expenditures related to opioid addiction.

Despite the amount of money being spent, services are inadequate and too short in duration. Wait times are so long that some people literally die waiting.

Public sector leaders saw firsthand the range and potency of the epidemic, and were among the first to seek a legal reckoning with the manufacturers of  synthetic painkillers.

Seeking redress for their financial burden, some municipalities, states and the federal government filed lawsuits against big pharmaceutical companies and manufacturers. To date, there are more than 100 lawsuits on court dockets.

States such as Ohio, West Virginia, New Jersey, Pennsylvania and Arkansas have been hit hard by the epidemic. In Arkansas alone, 72 counties, 15 cities, and the state filed suit, naming 65 defendants. In Pennsylvania, 16 counties, Philadelphia, and Commonwealth officials have filed lawsuits.

Forty one states also have banded together to subpoena information from some drug manufacturers.

Pennsylvania’s Attorney General, Josh Shapiro, recently told reporters that the banded effort seeks to “change corporate behavior, so that the industry can no longer do what I think it’s been doing, which is turning a blind eye to the effects of dumping these drugs in the communities.”

The volume of legal actions is growing, and some of the Federal cases have been bound together in what is called multidistrict litigation (MDL). These cases will be heard by a judge in Ohio. Plaintiffs hope for a settlement that will provide funding to be used to help thwart the opioid epidemic.

“From a societal perspective, this is obviously a big and impactful issue,”  said Jim George,  a managing director and global claims head with Swiss Re Corporate Solutions. “A lot of people are suffering in connection with this, and it won’t go away anytime soon.

“Insurance, especially those in liability, will be addressing this for a long time. This has been building over five or six years, and we are just now seeing the beginning stages of liability suits.” 

Basis for Lawsuits

The lawsuits filed to date are based on allegations concerning: What pharma knew or didn’t know; what it should have known; failure to monitor size and frequency of opioid orders, misrepresentation in marketing about the addictive nature of opioids; and false financial disclosures.

Opioid manufacturers, distributors and large drugstore chains together represent a $13 billion-a-year industry, meaning the stakes are high, and the pockets deep. Many have compared these lawsuits to the tobacco suits of the ’90s.

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But even that comparison may pale. As difficult as it is to quit smoking, that process is less arduous than the excruciating and often impossible-to-overcome opioid addiction.

Francis Collins, a physician-geneticist who heads the National Institutes of Health, said in a recorded session with the Washington Post: “One really needs to understand the diabolical way that this particular set of compounds rewires the brain in order to appreciate how those who become addicted really are in a circumstance where they can no more [by their own free will] get rid of the addiction than they can get free of needing to eat or drink.”

“Pharma and its supply chain need to know that this is here now. It’s not emerging, it’s here, and it’s being tried. It is a present risk.” — Nancy Bewlay, global chief underwriting officer for casualty, XL Catlin

The addiction creates an absolutely compelling drive that will cause people to do things against any measure of good judgment, said Collins, but the need to do them is “overwhelming.”

Documented knowledge of that chemistry could be devastating to insureds.

“It’s about what big pharma knew — or should have known.  A key allegation is that opioids were aggressively marketed as the clear answer or miracle cure for pain,” said Shep Tapasak, managing principal, Integro Insurance Brokers.

These cases, Tapasak said, have the potential to be severe. “This type of litigation boils down to a “profits over people” strategy, which historically has resonated with juries.”

Broadening Liability

As suits progress, all sides will be waiting and watching to see what case law stems from them. In the meantime, insurance watchers are predicting that the scope of these suits will broaden to include other players in the supply chain including manufacturers, distribution services, retail pharmacies, hospitals, physician practices, clinics, clinical laboratories and marketing agencies.

Litigation is, to some extent, about who can pay. In these cases, there are several places along the distribution chain where plaintiffs will seek relief.

Nancy Bewlay, global chief underwriting officer for casualty, XL Catlin

Nancy Bewlay, XL Catlin’s global chief underwriting officer for casualty, said that insurers and their insureds need to pay close attention to this trend.

“Pharma and its supply chain need to know that this is here now. It’s not emerging, it’s here, and it’s being tried. It is a present risk,” she said.

“We, as insurers who identify emerging risks, have to communicate to clients. We like to be on the forefront and, if we can, positively influence the outcome for our clients in terms of getting ahead of their risks.”

In addition to all aspects of the distribution chain, plaintiffs could launch suits against directors and officers based on allegations that they are ultimately responsible for what the company knew or should have known, or that they misrepresented their products or signed off on misleading financial statements.

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Shareholders, too, could take aim at directors and officers for loss of profits or misleading statements related to litigation.

Civil litigation could pave the way, in some specific instances, for criminal charges. Mississippi Attorney General Jim Hood, who in 2015 became the first state attorney general to file suit against a prescription drug maker, has been quoted as saying that if evidence in civil suits points to criminal behavior, he won’t hesitate to file those charges as well.

Governing, a publication for municipalities and states, quoted Hood in late 2017 as saying, “If we get into those emails, and executives are in the chain knowing what they’ve unleashed on the American public, I’m going to kick it over to a criminal lawsuit. I’ve been to too many funerals.”

Insurers and insureds can act now to get ahead of this rising wave of liability.

It may be appropriate to conduct a review of policy underwriting and pricing. XL Catlin’s Bewlay said, “We are not writing as if everyone is a pharma manufacturer. Our perception of what is happening is that everyone is being held accountable as if they are the manufacturer.

“The reality is that when insurers look at the pharma industry and each part of the supply chain, including the pharma companies, those in the chain of distribution, transportation, sales, marketing and retail, there are different considerations and different liabilities for each. This could change the underwriting and affect pricing.”

Bewlay also suggests focusing on communications between claims teams and underwriters and keeping a strong line of communication open with insureds, too.

“We are here to partner with insureds, and we talk to them and advise them about this crisis. We encourage them to talk about it with their risk managers.”

Tapasak from Integro encourages insureds to educate themselves and be a part of the solution. “The laws are evolving,” he said. “Make absolutely certain you know your respective state laws. It’s not enough to know about the crisis, you must know the trends. Be part of the solution and get as much education as possible.

“Most states have ASHRM chapters that are helping their members to stay current on both passed and pending legislation. Health care facilities and providers want to do the right thing and get educated. And at the same time, there will likely be an uptick in frivolous claims, so it’s important to defend the claims that are defensible.”

Social Service Risk

In addition to supply chain concerns, insurers and insureds are concerned that even those whose mission it is to help could be at risk.

Hailed as a lifesaver, and approved by the Food and Drug Administration (FDA), the drug Naloxone, can be administered to someone who is overdosing on opioids.  Naloxone prevents overdose by blocking opioid receptor sites and reversing the effects of the overdose.

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Some industry experts are concerned that police and emergency responders could incur liability after administering Naloxone.

But according to the U.S. Department of Justice, “From a legal standpoint, it would be extremely difficult to win a lawsuit against an officer who administers Naloxone in good faith and in the course of employment. … Such immunity applies to … other professional responders.”

Especially hard hit are foster care agencies, both by increased child placements and stretched budgets. More details in our related coverage.

While the number of suits is growing and their aim broadening, experts think that some good will come of the litigation. Settlements will fund services for the addicted and opioid risk awareness is higher than ever. &

Mercedes Ott is managing editor of Risk & Insurance. She can be reached at [email protected]