View From the Bench

Workers’ Comp Docket

A round-up of key workers' comp decisions from around the country.
By: | February 21, 2014 • 9 min read
Example Image

Employer fails to show worker intentionally severed finger on meat grinder

Ashworth v. Big Easy Foods of Louisiana, No. 13-650 (La. Ct. App. 12/11/13)

Ruling: The Louisiana Court of Appeal held that a worker was entitled to benefits and penalties for the employer’s arbitrary termination of benefits and failure to pay the first week of indemnity benefits.

What it means: In Louisiana, no compensation is owed to a worker who intentionally injures himself. The employer bears the burden of proving the worker had a willful and wanton intent to injure himself.

Summary: A worker for a sausage making company was attempting to clean the end plate of a meat grinder when the blades severed the tip of his finger. Doctors deemed him temporarily and totally disabled. The employer paid him indemnity benefits one week after he was deemed disabled and initially paid for medical benefits. After one month, the employer terminated payment of benefits, claiming that the worker intentionally injured himself. The Louisiana Court of Appeal held that the worker was entitled to benefits and penalties.


The court found that the employer failed to prove that the worker intentionally injured himself. The employer asserted that the worker was stressed financially and learned that a coworker received a settlement after he was injured while cleaning a meat grinder. The worker stated that he was merely cleaning excess meat from the grinder as he was instructed to do. A supervisor said that employees were required to clear excess meat with their bare hands.

The court also found that the employer arbitrarily and capriciously terminated the worker’s benefits. The court rejected the employer’s contention that the penalties were “inordinately high.” The court found that the worker was entitled to a $2,000 for the employer’s failure to pay the first week of benefits, noting that the law allows a penalty of up to $8,000 for a failure to timely pay benefits.

Mesothelioma suit can proceed despite manifestation rule

Tooey v. AK Steel Corp., No. 21 WAP 2011 (Pa. 11/22/13)

Ruling: The Pennsylvania Supreme Court held that the exclusivity provision did not bar a suit brought by workers with occupational disease claims that manifested after the 300-week period prescribed by the workers’ compensation law.

What it means: In Pennsylvania, claims for occupational disease are covered by workers’ compensation only when the disability or death resulting from the disease occurs within 300 weeks after the last date of employment. Therefore, the exclusivity provision of workers’ compensation does not preclude a worker with an occupational disease that manifested outside the 300-week period from suing his employer.

Summary: Two workers were exposed to asbestos products in the workplace and developed mesothelioma more than 15 years after the last day of their employment. The workers sued their employers. The employers argued that the exclusive remedy provision of workers’ compensation barred the suit. The workers argued an occupational disease that manifested more than 300 weeks after the last occupational exposure to the hazards of the disease did not fall under workers’ compensation. Therefore, the exclusivity provision did not preclude their suit, the workers asserted. The Pennsylvania Supreme Court held that the workers’ suit could move forward.

The court ruled that the claims for occupational disease manifesting outside of the 300-week period did not fall within the purview of the workers’ compensation law. Therefore, the exclusivity provision did not apply to preclude a worker from suing his employer.

The court considered the remedial purpose of the workers’ compensation law and the consequences of the employers’ and the workers’ proposed interpretations. The court explained that the employers’ argument would leave the workers with no remedy and that contravened the workers’ compensation law’s purpose of benefitting injured workers. The court found that the legislature did not intend the workers’ compensation law to apply to claims for disability or death resulting from occupational disease that manifest more than 300 weeks after the last occupational exposure.

Manager’s termination does not cut off entitlement to benefits

Hawkins v. McDonald’s, No. 32,635 (N.M. Ct. App. 12/17/13)

Ruling: The New Mexico Court of Appeals held that a manager was entitled to temporary total disability and permanent partial disability benefits after her termination.

What it means: In New Mexico, an employer’s obligation to pay TTD benefits to an injured worker does not cease because the worker was terminated.

Summary: A shift manager of a fast food restaurant suffered an accident arising out of and in the course of her employment when she injured her low back. The restaurant provided her with a light/modified duty job at her preinjury wage. She worked in the modified job for four weeks until she was terminated for violating a company policy. She reached maximum medical improvement after her termination. The manager sought benefits that accrued after her termination. The New Mexico Court of Appeals held that she was entitled to TTD and PPD benefits.


The restaurant argued that it provided the manager with a light/modified duty job at her preinjury wage, so she was not entitled to TTD benefits. The court rejected the argument, finding it was inconsistent with the purpose and policy of workers’ compensation. The court explained that the restaurant’s position would lead to absurd and unjust results, because it would deny benefits to any worker who was terminated. Such a position would also allow employers to create a job accommodating an injured worker, pay the worker her preinjury wage, and then terminate the worker, avoiding the obligation to pay benefits.

The court explained that the determinative inquiry for deciding entitlement to TTD benefits is whether the worker’s condition is stabilized. Here, the worker continued to be temporarily totally disabled as a result of the accident after her termination.

The court also rejected the restaurant’s argument that its termination of the manager for misconduct rendered her ineligible for post-MMI modified benefits. The manager’s sole occupation for the 10 years before her injury had been in the fast food restaurant business. She did not know of a permanent job in a fast food restaurant that met her lifting restriction. Given that the manager continued to be injured, the court could not say that her decision not to seek employment and to further her education meant that she was voluntarily unemployed. The court said her decision to acquire skills to make her employable in the future met the purpose of workers’ compensation. Therefore, she was entitled to PPD benefits.

Worker’s education, ability to work don’t justify 100 percent disability rating

White v. Bed Bath & Beyond, No. A-2919-12T1 (N.J. Super. Ct. App. Div. 12/17/13)

Ruling: The New Jersey Superior Court, Appellate Division held that a worker was entitled to benefits for a 32 percent partial total disability.

What it means: In New Jersey, the judge of compensation can consider a worker’s education and ability to work in determining whether she is disabled.

Summary: A worker for a retailer was taking inventory while standing on top of a 12-foot ladder. She fell to the ground, landing on her right side. She sustained injuries to her knee and elbow and underwent surgeries. The worker sought workers’ compensation benefits for her injuries and a psychiatric disability. The New Jersey Superior Court, Appellate Division found that the worker was entitled to benefits for a 32 percent partial total disability.

The worker claimed that she was 100 percent disabled. The court found that the judge of compensation properly considered the worker’s education, including a bachelor’s degree in marketing and merchandising, and her ability to work. The judge found it “surprising” that the worker’s orthopedic expert did not think that her education was important and found it “remarkable” that she never applied for any jobs. Also, the court pointed out that the worker declined the retailer’s job offer of work within her restrictions. The court found the judge’s determination of disability was supported by the evidence.

The court found that the worker was not entitled to benefits for a psychiatric disability. The worker said that she never sought psychiatric treatment and it did not affect her sleep.

Although the worker argued that she sustained a hip injury, the medical reports did not discuss treatment for a hip injury. Also, the employer’s doctor said she did not have any disability in her hip.

Incarcerated worker’s claim allowed to move forward

Hart v. Highlines Construction Co., Inc., No. 13-624 (La. Ct. App. 12/11/13)

Ruling: The Louisiana Court of Appeal held that an incarcerated worker was not precluded from filing a claim regarding his establishment to medical benefits he could receive upon his release.

What it means: In Louisiana, an incarcerated worker is not barred from filing a claim to establish his right to collect workers’ compensation benefits upon his release from incarceration.


Summary: A worker for a construction company sustained injuries when he came into contact with a live electrical wire. The company’s workers’ compensation insurer began paying him weekly indemnity benefits. Later, the worker was incarcerated following a parole violation. The insurer stopped paying benefits. While he was incarcerated, the worker filed a claim regarding his entitlement to medical benefits. The company and insurer argued that the claim was premature and had no cause of action. The Louisiana Court of Appeal held that the worker was not precluded from filing his claim. The court sent the case back for further proceedings.

The court explained that a worker’s right to benefits, including medical expenses, is forfeited during a period of incarceration. The worker claimed that his benefits were currently due but he had to forfeit them because of his incarceration. The worker argued that he should be allowed the opportunity to argue that the medical benefits he sought were reasonable and necessary.

He conceded that he would have to forfeit the benefits but argued that he should not be denied access to court to establish his right to medical benefits. The court concluded that if an incarcerated worker has a present right to file a cause of action to preserve his right to later collect benefits should he still be entitled to them upon his release, his claim is not premature.

Officer secures benefits for mental injury due to harassment

Schenectady County Sheriff, 113 NYWCLR 202 (N.Y. W.C.B., Full Board 2013)

Ruling: The New York Workers’ Compensation Board affirmed the workers’ compensation law judge’s decision establishing an officer’s claim for adjustment disorder, depression and anxiety due to harassment by coworkers over a period of more than three months.

What it means: In New York, a claim for a mental injury is compensable when the stress is greater than that which occurs in the normal work environment.

Summary: The board affirmed the WCLJ’s decision establishing a corrections officer’s claim for adjustment disorder, depression, and anxiety due to harassment by coworkers over a period of more than three months. The officer provided testimony and evidence of harassing notes in his locker, harassment over the radio, and vandalism to his personal property. The board found that if the coworkers were actively or passively engaging in, or allowing, the harassment, it was not unreasonable to believe that those coworkers would deny the harassment or discredit the officer’s allegations. Based on the officer’s testimony, the record supported a finding that the stress experienced by the officer due to harassment by his coworkers was greater than that which occurs in the normal work environment.

The board also noted that the medical experts all agreed that if the officer’s description of the incidents of harassment was accurate, the incidents caused him to suffer adjustment disorder, depression, and anxiety.

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]

Exclusive | Hank Greenberg on China Trade, Starr’s Rapid Growth and 100th, Spitzer, Schneiderman and More

In a robust and frank conversation, the insurance legend provides unique insights into global trade, his past battles and what the future holds for the industry and his company.
By: | October 12, 2018 • 12 min read

In 1960, Maurice “Hank” Greenberg was hired as a vice president of C.V. Starr & Co. At age 35, he had already accomplished a great deal.

He served his country as part of the Allied Forces that stormed the beaches at Normandy and liberated the Nazi death camps. He fought again during the Korean War, earning a Bronze Star. He held a law degree from New York Law School.


Now he was ready to make his mark on the business world.

Even C.V. Starr himself — who hired Mr. Greenberg and later hand-picked him as the successor to the company he founded in Shanghai in 1919 — could not have imagined what a mark it would be.

Mr. Greenberg began to build AIG as a Starr subsidiary, then in 1969, he took it public. The company would, at its peak, achieve a market cap of some $180 billion and cement its place as the largest insurance and financial services company in history.

This month, Mr. Greenberg travels to China to celebrate the 100th anniversary of C.V. Starr & Co. That visit occurs at a prickly time in U.S.-Sino relations, as the Trump administration levies tariffs on hundreds of billions of dollars in Chinese goods and China retaliates.

In September, Risk & Insurance® sat down with Mr. Greenberg in his Park Avenue office to hear his thoughts on the centennial of C.V. Starr, the dynamics of U.S. trade relationships with China and the future of the U.S. insurance industry as it faces the challenges of technology development and talent recruitment and retention, among many others. What follows is an edited transcript of that discussion.

R&I: One hundred years is quite an impressive milestone for any company. Celebrating the anniversary in China signifies the importance and longevity of that relationship. Can you tell us more about C.V. Starr’s history with China?

Hank Greenberg: We have a long history in China. I first went there in 1975. There was little there, but I had business throughout Asia, and I stopped there all the time. I’d stop there a couple of times a year and build relationships.

When I first started visiting China, there was only one state-owned insurance company there, PICC (the People’s Insurance Company of China); it was tiny at the time. We helped them to grow.

I also received the first foreign life insurance license in China, for AIA (The American International Assurance Co.). To date, there has been no other foreign life insurance company in China. It took me 20 years of hard work to get that license.

We also introduced an agency system in China. They had none. Their life company employees would get a salary whether they sold something or not. With the agency system of course you get paid a commission if you sell something. Once that agency system was installed, it went on to create more than a million jobs.

R&I: So Starr’s success has meant success for the Chinese insurance industry as well.

Hank Greenberg: That’s partly why we’re going to be celebrating that anniversary there next month. That celebration will occur alongside that of IBLAC (International Business Leaders’ Advisory Council), an international business advisory group that was put together when Zhu Rongji was the mayor of Shanghai [Zhu is since retired from public life]. He asked me to start that to attract foreign companies to invest in Shanghai.

“It turns out that it is harder [for China] to change, because they have one leader. My guess is that we’ll work it out sooner or later. Trump and Xi have to meet. That will result in some agreement that will get to them and they will have to finish the rest of the negotiations. I believe that will happen.” — Maurice “Hank” Greenberg, chairman and CEO, C.V. Starr & Co. Inc.

Shanghai and China in general were just coming out of the doldrums then; there was a lack of foreign investment. Zhu asked me to chair IBLAC and to help get it started, which I did. I served as chairman of that group for a couple of terms. I am still a part of that board, and it will be celebrating its 30th anniversary along with our 100th anniversary.


We have a good relationship with China, and we’re candid as you can tell from the op-ed I published in the Wall Street Journal. I’m told that my op-ed was received quite well in China, by both Chinese companies and foreign companies doing business there.

On August 29, Mr. Greenberg published an opinion piece in the WSJ reminding Chinese leaders of the productive history of U.S.-Sino relations and suggesting that Chinese leaders take pragmatic steps to ease trade tensions with the U.S.

R&I: What’s your outlook on current trade relations between the U.S. and China?

Hank Greenberg: As to the current environment, when you are in negotiations, every leader negotiates differently.

President Trump is negotiating based on his well-known approach. What’s different now is that President Xi (Jinping, General Secretary of the Communist Party of China) made himself the emperor. All the past presidents in China before the revolution had two terms. He’s there for life, which makes things much more difficult.

R&I: Sure does. You’ve got a one- or two-term president talking to somebody who can wait it out. It’s definitely unique.

Hank Greenberg: So, clearly a lot of change is going on in China. Some of it is good. But as I said in the op-ed, China needs to be treated like the second largest economy in the world, which it is. And it will be the number one economy in the world in not too many years. That means that you can’t use the same terms of trade that you did 25 or 30 years ago.

They want to have access to our market and other markets. Fine, but you have to have reciprocity, and they have not been very good at that.

R&I: What stands in the way of that happening?

Hank Greenberg: I think there are several substantial challenges. One, their structure makes it very difficult. They have a senior official, a regulator, who runs a division within the government for insurance. He keeps that job as long as he does what leadership wants him to do. He may not be sure what they want him to do.

For example, the president made a speech many months ago saying they are going to open up banking, insurance and a couple of additional sectors to foreign investment; nothing happened.

The reason was that the head of that division got changed. A new administrator came in who was not sure what the president wanted so he did nothing. Time went on and the international community said, “Wait a minute, you promised that you were going to do that and you didn’t do that.”

So the structure is such that it is very difficult. China can’t react as fast as it should. That will change, but it is going to take time.

R&I: That’s interesting, because during the financial crisis in 2008 there was talk that China, given their more centralized authority, could react more quickly, not less quickly.

Hank Greenberg: It turns out that it is harder to change, because they have one leader. My guess is that we’ll work it out sooner or later. Trump and Xi have to meet. That will result in some agreement that will get to them and they will have to finish the rest of the negotiations. I believe that will happen.

R&I: Obviously, you have a very unique perspective and experience in China. For American companies coming to China, what are some of the current challenges?


Hank Greenberg: Well, they very much want to do business in China. That’s due to the sheer size of the country, at 1.4 billion people. It’s a very big market and not just for insurance companies. It’s a whole range of companies that would like to have access to China as easily as Chinese companies have access to the United States. As I said previously, that has to be resolved.

It’s not going to be easy, because China has a history of not being treated well by other countries. The U.S. has been pretty good in that way. We haven’t taken advantage of China.

R&I: Your op-ed was very enlightening on that topic.

Hank Greenberg: President Xi wants to rebuild the “middle kingdom,” to what China was, a great country. Part of that was his takeover of the South China Sea rock islands during the Obama Administration; we did nothing. It’s a little late now to try and do something. They promised they would never militarize those islands. Then they did. That’s a real problem in Southern Asia. The other countries in that region are not happy about that.

R&I: One thing that has differentiated your company is that it is not a public company, and it is not a mutual company. We think you’re the only large insurance company with that structure at that scale. What advantages does that give you?

Hank Greenberg: Two things. First of all, we’re more than an insurance company. We have the traditional investment unit with the insurance company. Then we have a separate investment unit that we started, which is very successful. So we have a source of income that is diverse. We don’t have to underwrite business that is going to lose a lot of money. Not knowingly anyway.

R&I: And that’s because you are a private company?

Hank Greenberg: Yes. We attract a different type of person in a private company.

R&I: Do you think that enables you to react more quickly?

Hank Greenberg: Absolutely. When we left AIG there were three of us. Myself, Howie Smith and Ed Matthews. Howie used to run the internal financials and Ed Matthews was the investment guy coming out of Morgan Stanley when I was putting AIG together. We started with three people and now we have 3,500 and growing.

“I think technology can play a role in reducing operating expenses. In the last 70 years, you have seen the expense ratio of the industry rise, and I’m not sure the industry can afford a 35 percent expense ratio. But while technology can help, some additional fundamental changes will also be required.” — Maurice “Hank” Greenberg, chairman and CEO, C.V. Starr & Co. Inc.

R&I:  You being forced to leave AIG in 2005 really was an injustice, by the way. AIG wouldn’t have been in the position it was in 2008 if you had still been there.


Hank Greenberg: Absolutely not. We had all the right things in place. We met with the financial services division once a day every day to make sure they stuck to what they were supposed to do. Even Hank Paulson, the Secretary of Treasury, sat on the stand during my trial and said that if I’d been at the company, it would not have imploded the way it did.

R&I: And that fateful decision the AIG board made really affected the course of the country.

Hank Greenberg: So many people lost all of their net worth. The new management was taking on billions of dollars’ worth of risk with no collateral. They had decimated the internal risk management controls. And the government takeover of the company when the financial crisis blew up was grossly unfair.

From the time it went public, AIG’s value had increased from $300 million to $180 billion. Thanks to Eliot Spitzer, it’s now worth a fraction of that. His was a gross misuse of the Martin Act. It gives the Attorney General the power to investigate without probable cause and bring fraud charges without having to prove intent. Only in New York does the law grant the AG that much power.

R&I: It’s especially frustrating when you consider the quality of his own character, and the scandal he was involved in.

In early 2008, Spitzer was caught on a federal wiretap arranging a meeting with a prostitute at a Washington Hotel and resigned shortly thereafter.

Hank Greenberg: Yes. And it’s been successive. Look at Eric Schneiderman. He resigned earlier this year when it came out that he had abused several women. And this was after he came out so strongly against other men accused of the same thing. To me it demonstrates hypocrisy and abuse of power.

Schneiderman followed in Spitzer’s footsteps in leveraging the Martin Act against numerous corporations to generate multi-billion dollar settlements.

R&I: Starr, however, continues to thrive. You said you’re at 3,500 people and still growing. As you continue to expand, how do you deal with the challenge of attracting talent?

Hank Greenberg: We did something last week.

On September 16th, St. John’s University announced the largest gift in its 148-year history. The Starr Foundation donated $15 million to the school, establishing the Maurice R. Greenberg Leadership Initiative at St. John’s School of Risk Management, Insurance and Actuarial Science.

Hank Greenberg: We have recruited from St. John’s for many, many years. These are young people who want to be in the insurance industry. They don’t get into it by accident. They study to become proficient in this and we have recruited some very qualified individuals from that school. But we also recruit from many other universities. On the investment side, outside of the insurance industry, we also recruit from Wall Street.

R&I: We’re very interested in how you and other leaders in this industry view technology and how they’re going to use it.

Hank Greenberg: I think technology can play a role in reducing operating expenses. In the last 70 years, you have seen the expense ratio of the industry rise, and I’m not sure the industry can afford a 35 percent expense ratio. But while technology can help, some additional fundamental changes will also be required.

R&I: So as the pre-eminent leader of the insurance industry, what do you see in terms of where insurance is now and where it’s going?

Hank Greenberg: The country and the world will always need insurance. That doesn’t mean that what we have today is what we’re going to have 25 years from now.

How quickly the change comes and how far it will go will depend on individual companies and individual countries. Some will be more brave than others. But change will take place, there is no doubt about it.


More will go on in space, there is no question about that. We’re involved in it right now as an insurance company, and it will get broader.

One of the things you have to worry about is it’s now a nuclear world. It’s a more dangerous world. And again, we have to find some way to deal with that.

So, change is inevitable. You need people who can deal with change.

R&I:  Is there anything else, Mr. Greenberg, you want to comment on?

Hank Greenberg: I think I’ve covered it. &

The R&I Editorial Team can be reached at [email protected]