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
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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.

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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.

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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.

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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]

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]