View From the Bench

Workers’ Comp Docket

Key workers' comp legal decisions from around the country.
By: | April 11, 2014 • 10 min read
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Employer of Undocumented Workers Protected From Liability Suit

New York Hospital Medical Center of Queens v. Microtech Contracting Corp., No. 00897 (N.Y. 02/13/14)

Ruling: The New York Court of Appeals held that an employer was shielded from a third-party claim for contribution and indemnification.

What it means: In New York, the fact that an employer illegally hired undocumented workers will not annul the employer’s statutory rights of being shielded from a third-party claim for contribution and indemnification.

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Summary: New York Hospital Medical Center engaged Microtech Contracting to demolish a basement room housing an incinerator. Two workers, who were undocumented aliens, were hired to perform the work. The vibrations of the tools used by the workers dislodged a metal chimney attached to the wall. The chimney toppled, striking and injuring the workers. Microtech’s insurance carrier paid workers’ compensation benefits to the workers. The workers also sued the hospital. The hospital brought an action for contribution and indemnification against Microtech. Microtech asserted that the hospital’s action was barred. The New York Court of Appeals held that Microtech was shielded from the hospital’s action.

The workers’ compensation law bars third-party suits for contribution and indemnification against an injured worker’s employer unless the worker suffered a “grave injury,” limited to death and an exclusive list of disabilities, or the employer agreed to contribution and indemnification in a written contract entered into with the third party before the accident. The hospital argued that the employment contracts between Microtech and the workers were illegal and unenforceable. The hospital asserted that Microtech could not defend the action on the ground that the workers were its employees and the workers’ compensation law barred the action.

The court explained that the illegality of the employment contract did not annul Microtech’s statutory rights. Also, the workers did not suffer grave injuries, and there was no preexisting agreement for contractual contribution or indemnification. The hospital did not contend that the Immigration Reform and Control Act preempted the workers’ compensation law. Therefore, Microtech was entitled to the safe harbor.

What Happens When TTD Benefits and PPI Benefits Collide

Moore d/b/a Cat Dog Trucking v. Jerrell, No. 93A02-1308-EX-00693 (Ind. Ct. App. 02/07/14)

Ruling: The Indiana Court of Appeals held that a worker was entitled to permanent partial impairment benefits for 500 weeks.

What it means: In Indiana, an employer is not entitled to a credit for temporary total disability benefits it paid to a worker that overlap with permanent partial impairment payments.

Summary: A worker for Cat Dog, a trucking company, was at work when his clothes caught on fire, causing him to suffer burns to 51 percent of his body. One of his legs was amputated above the knee, and the other leg was amputated below the knee. His left hand and arm were seriously impaired. Cat Dog paid him temporary total disability benefits. Eventually, a dispute arose regarding the nature and scope of the relief to which the worker was entitled. Later, the worker moved into a home with his mother, and Cat Dog paid the worker compensation for his mother’s care of eight hours per week. The Indiana Court of Appeals held that the worker was entitled to permanent partial impairment benefits for 500 weeks.

Cat Dog argued that since the worker elected to receive PPI instead of permanent total disability benefits he could not receive his benefits over a period of 500 weeks. The Workers’ Compensation Board pointed out that if the worker received his benefits in the way Cat Dog proposed, payment of his impairment award would take 28 years. The court found nothing in the law prohibited the payment to be made over 500 weeks.

Cat Dog also asserted that it was entitled to a credit for TTD benefits it paid to the worker. The court found that the law did not require a credit to Cat Dog for TTD payments that overlapped with PPI payments. The court pointed out that Cat Dog was credited for TTD benefits it paid after the worker’s injury was “permanent and quiescent.”

The court also rejected Cat Dog’s argument that it should receive a credit for the home health care services it provided to the worker. The court declined to reweigh the evidence.

Icy Slip and Fall Linked to TMJ Syndrome

Vance v. DCCCA, Inc., No. 109,294 (Kan. Ct. App. 01/31/14)

Ruling: The Kansas Court of Appeals held that a worker was entitled to benefits for her temporomandibular joint syndrome caused by her work-related accident.

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What it means: In Kansas, a worker’s delay in seeking treatment will make it difficult for her to establish that her condition was caused by the accident.

Summary: A family support worker was leaving her employer’s office to take some children back to their foster homes when she slipped on ice. She claimed that she injured her teeth, jaw, hip, back, and ribs on the concrete. The worker sought workers’ compensation benefits. The employer agreed that she sustained a work-related injury as the result of an accident arising out of and in the course of her employment. The Kansas Court of Appeals held that she was entitled to benefits for her jaw injury.

The court concluded that the worker established that her temporomandibular joint syndrome was caused by the accident. Multiple doctors diagnosed her with TMJ. A doctor’s opinion established a causal connection between the worker’s TMJ and the accident. The worker’s incident report with the employer stated that she bruised her jaw and chin. She consistently complained of jaw pain.

The court found that the worker failed to prove that her loss of dentition was caused by the accident. A dentist’s testimony did not establish trauma as the cause of her dental problems as opposed to decay. The court also pointed out that the worker did not visit the dentist until two years after her accident. The dentist opined that he was not in a position to state whether her condition was work-related. A doctor’s opinion was not reliable because he saw the worker after an intervening assault and more than one year after the dentist repaired her dental problems.

The worker failed to prove that she sustained permanent injuries to her low back and hip as a result of the accident. Substantial evidence showed that the worker’s hip and low back injuries were temporary. Although she initially complaint of back pain, she did not mention it in a later appointment with her doctor.

Employee Who Blew Off Safety Rules Awarded Benefits

Renfro Electric v. Sexton, No. 111711 (Okla. Civ. App. 01/10/14)

Ruling: The Oklahoma Court of Civil Appeals held that a journeyman was entitled to temporary total disability benefits.

What it means: In Oklahoma, a worker’s injury resulting from his negligent or dangerous failure to follow specific safety rules, regulations, or procedures is compensable when evidence shows that the worker had no intention of injuring himself.

Summary: A lead journeyman for Renfro Electric worked on the roof of a two-story structure. Instead of using a ladder to reach the second story roof, he directed that he be lifted to the roof by a materials lift. As the journeyman stepped from the lift to the roof, he fell and sustained significant injury. He admitted that the lift was not intended to lift workers and knew that such use was dangerous and contrary to Renfro Electric’s instructions. He asserted that because the ladders were not rated to bear his 350-pound weight, the lift was more appropriate. The journeyman sought workers’ compensation. Renfro Electric denied liability for the claim. The Oklahoma Court of Civil Appeals held that he was entitled to temporary total disability benefits.

Renfro Electric argued that the journeyman’s injury constituted “an injury occasioned by the willful intention … to bring about injury to himself,” and as such, the claim was barred. The court explained that even if an injury results from a worker’s negligent or dangerous failure to follow specific safety rules, regulations, or procedures, where the testimony shows that he had no intention of injuring himself, the claim is properly allowed.

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In this case, the journeyman admitted that the lift was not intended to lift workers and he knew that such a use was dangerous and contrary to safety rules and Renfro Electric’s instructions. However, while his disregard for his own safety may have been negligent and dangerous, there was no evidence that he “willfully” intended to injure himself.

Delayed Treatment Claim Subject to Exclusive Remedy Doctrine

Holt v. Dana Light Axle Manufacturing, LLC, No. 2013-CA-000287-MR (Ky. Ct. App. 02/14/14, unpublished)

Ruling: In an unpublished decision, the Kentucky Court of Appeals dismissed a worker’s suit against his employer, finding that workers’ compensation provided his exclusive remedy.

What it means: In Kentucky, a worker’s claim alleging that his employer negligently delayed his medical treatment falls under workers’ compensation.

Summary: A worker for Dana Light Axle Manufacturing experienced chest pain while on the job. He notified his supervisor, who did not send him to the on-site medical facility or any other emergency medical personnel. He was persuaded to go back to work. Three hours after he first reported having chest pain, the worker left work and drove himself to the emergency room. The following day, a stent was placed in his artery to improve blood flow and relieve his chest pain. The worker sued Dana Manufacturing, alleging that it negligently failed to allow to him seek medical care, resulting in increased damage to his heart and psychological trauma. The Kentucky Court of Appeals dismissed the suit, finding that workers’ compensation held his exclusive remedy.

The court explained that the injury was not the worker’s heart attack itself but the potential increase in damage to his heart resulting from the delay in treatment as well as the alleged psychological trauma that accompanied his decision to leave work. The court found that the worker’s injuries arose out of and in the course of employment. The delay in receiving medical care and the psychological injury were the result of activity related to his employment.

The court said that if the worker had not been at work and subject to Dana Manufacturing’s on-site medical services facility he might have received more expeditious medical care. The worker’s injuries may not have occurred had he not been at work.

Company Veep Denied Comp for Lobby Wipeout

Grace v. Himes Consulting Group, 21 ILWCLB 212 (Ill. W.C. Comm. 2013)

Ruling: The Illinois Workers’ Compensation Commission denied benefits to a vice president for an injury sustained when she fell in the lobby of the building where her employer’s office was located.

What it means: In Illinois, a worker’s injury in the lobby of a multi-tenant building in which her employer leases office space does not arise out of her employment when the employer does not have exclusive use of the common areas and is not responsible for maintaining such areas, the employer exercises no control over where the worker enters the building, and the lobby is open to the public.

Summary: On her first day of work, a vice present of sales entered a multi-tenant office building where her employer leased space. She walked to the elevator and fell, injuring her right knee and ankle. The vice president testified that the lobby floor was marble and slippery, and she noticed it had some fine, chalky dust on it. The commission affirmed and adopted the decision of the arbitrator denying benefits.

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The lobby was a common area of the building. The employer’s lease provided that it did not have the exclusive use of and was not responsible for maintaining the entrances, lobby, elevators, and hallways of the building. These areas were open to all tenants, visitors, and the general public. The employer exercised no control over where the vice president entered the building, the area where she fell, or the route she took from the street to the employer’s suite.

The arbitrator explained that the vice president’s accident involved a neutral risk and concluded that the vice president was not exposed to a greater risk by walking through the building’s lobby because the lobby was used by the general public. Therefore, the vice president failed to prove her injuries arose out of any risk connected or incidental to her employment.

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]

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

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