Commission Rules Opt-Out Law Unconstitutional, Unenforceable

Vasquez v. Dillard’s Inc., No. CM-2014-11060L (Okla. W.C. Comm. 2016)

Ruling: The Oklahoma Workers’ Compensation Commission held that the opt-out statute is unconstitutional and unenforceable.

What it means: In Oklahoma, the law allowing employers to opt out of the workers’ compensation law is unconstitutional.

Summary: In Oklahoma, Dillard’s opted out of the workers’ compensation law and established an employee benefit plan. A worker for Dillard’s sustained a work-related injury diagnosed as an aggravation of a preexisting spine injury with radiculopathy. The worker was denied benefits under the Dillard’s plan on the basis that her condition was preexisting and not an “injury” as defined by the plan. The worker appealed the denial of benefits and asserted that the opt-out law was unconstitutional. The Oklahoma Workers’ Compensation Commission held that the opt-out law is unconstitutional and unenforceable.

The commission found that the opt-out law permitted a dual system in which injured workers were not treated equally. However, the law appeared to require equal benefits. The commission pointed out that the Dillard’s plan, in defining types of non-covered injuries, made it more difficult for a worker to be entitled to benefits than under the workers’ compensation law. The commission found no rational basis to justify such unequal treatment. The commission pointed out that the legislature defined a qualified plan in such a manner that the employer acts as legislator by defining the “injuries” for which benefits are available.

The commission rejected Dillard’s argument that the dual benefit program and the opt-out process resulted in a more efficient process for adjudicating workers’ compensation benefits.

Sleep Study Requirement Doesn’t Violate ADA

Parker v. Crete Carrier Corp., No. 4:14CV3195 (D. Neb. 01/20/16)

Ruling: The U.S. District Court, District of Nebraska granted summary judgment to a trucking company on a truck driver’s ADA Title I claims. The court held that a medical examination required by the company was job-related and consistent with business necessity.

What it means: Ensuring a safe workplace is a business necessity, and screening employees in “safety-sensitive” positions for medical conditions that may interfere with their ability to do their job will not violate the ADA.

Summary: A truck driver underwent a mandatory physical to determine his eligibility for recertification as a commercial driver. At the visit, his body mass index was recorded as “greater than 35.” Pursuant to the company’s “sleep apnea policy,” all drivers with a body mass index of more than 33 were required to undergo a sleep study to determine whether they had obstructive sleep apnea or another sleep disorder.

The truck driver refused to comply with the requirement and was placed “out of service” and assigned no hours by the company. The company’s stated purpose for the sleep apnea policy was “to comply with the [Department of Transportation] regulations prohibiting the certification of a driver with a disqualifying condition, i.e., respiratory dysfunction,” and to address safety concerns associated with obstructive sleep apnea and fatigued drivers.

Expert witnesses for both sides agreed that: 1) BMI is strongly associated with obstructive sleep apnea; 2) sleep apnea would qualify as a “respiratory dysfunction” under DOT regulations; and 3) sleep studies are the “gold standard” for diagnosing sleep apnea. The truck driver sued, claiming that the company’s policy violated the ADA. The U.S. District Court, District of Nebraska held that the policy complied with requirements under the Americans with Disabilities Act.

The ADA states that an employer shall not require a medical examination of an employee “unless such examination or inquiry is shown to be job-related and consistent with business necessity.” To demonstrate compliance with this requirement, the employer bears the burden of showing that the asserted business necessity is vital to the business, and the request for a medical examination or inquiry is no broader or more intrusive than necessary.

Referring to DOT regulations, which state that a person is physically qualified to drive a commercial motor vehicle if that person “has no established medical history or clinical diagnosis of a respiratory dysfunction,” the court concluded that the sleep study requirement was clearly job-related.

Regarding the requirement that the examination be consistent with business necessity, the court stated that “‘business necessity’ includes public and workplace safety.” The court concluded that because the company’s sleep apnea policy served to directly rule out or confirm obstructive sleep apnea for a narrowly defined class of its employees who met an objective BMI standard, was no broader or more intrusive than necessary, and achieved the business necessity of ensuring the safety of the drivers, the cargo, and the public, the inquiry did not violate the ADA.

Surveillance Footage Unravels Claim for Back Injury

Calumet GP, LLC v. Garrett, No. 50,341-WCA (La. Ct. App. 01/20/16)

Ruling: The Louisiana Court of Appeal held that a loader was not entitled to compensation for his alleged injury.
What it means: In Louisiana, a worker can establish a compensable accident where he suffers from a gradually deteriorating or progressively degenerative condition.

Summary: A blender and loader of boxcars for Calumet stopped working for four months because of increasing low back pain. He did not assert that he suffered a work-related injury during that period. Three months after he returned to work, he alleged that he felt a sudden pain in his lower back and leg while he was crouching down under a boxcar to hook up a hose.

Calumet treated the incident as a work accident and began paying workers’ compensation benefits. Later, a claims adjustor terminated the loader’s benefits based on surveillance footage of him walking without his walker, doing work with a mailbox and wheelbarrow, and walking to a metal rake. The loader asserted that he was entitled to benefits. The Louisiana Court of Appeal denied compensation for his alleged injury.

The court concluded that the loader suffered a continuation of his ongoing painful condition and not an aggravation caused by the accident. A neurosurgeon examined the loader both before and after the alleged incident and concluded that there was no objective evidence that the loader’s preexisting condition had been aggravated.

The court also found that two medical examiners originally concluded that the loader had aggravated his preexisting condition based on their physical examinations after the incident. However, they discounted their conclusions after they viewed the surveillance, conceding that what they saw on the surveillance was different from how the loader presented himself at his examinations.

No Comp for Injuries Sustained in Fitness Program

Darin v. Illinois Workers’ Compensation Commission, et al., No. 3-14-0536WC (Ill. App. Ct. 12/18/15, unpublished)

Ruling: In an unpublished decision, the Illinois Appellate Court held that a fire chief’s injuries while participating in a voluntary recreational program were not compensable.

What it means: In Illinois, where the employer encourages the worker to maintain physical fitness as an example for others, but the manner and method in which the worker does so is at his discretion, and there is no evidence that the claimant would suffer any repercussions for not participating in the employer’s physical fitness program, sufficient evidence existed that the claimant’s participation in the program is voluntary.

Summary: A fire chief for the City of East Peoria sought benefits for injuries he allegedly sustained on two occasions while exercising during the Fall Fitness Challenge — a physical fitness program offered by the city to its employees free of charge.

The chief testified he enrolled in the program because his supervisor told him to stay fit and to set an example for the firefighters under his command by participating in a fitness program. The supervisor admitted he encouraged the chief but denied that he ever directed or ordered the chief to enroll.

The workers’ compensation arbitrator found the chief’s injuries were excluded from coverage because they occurred during the performance of a voluntary recreational activity that the city did not order or direct the chief to perform. The Workers’ Compensation Commission affirmed, and the Circuit Court confirmed the commission’s decision. The Illinois Appellate Court also agreed with the commission’s decision.

Evidence showed that the program was a fitness and weight management competition that promoted teamwork and healthy lifestyle changes. Program participants exercised with a personal trainer. The chief described the fitness activities he performed while engaging in the program as stretching, jogging, using an elliptical machine, box jumps, squats, and weight lifting.

The chief’s exercise activities fell within the definition of the term “athletics,” and the workers’ compensation law expressly included athletic events as an example of a recreational activity for which compensation is precluded.

In addition, the program fell within the dictionary definition of “recreation” since it may be engaged in for the purpose of “refreshment of the strength and spirits,” “diversion,” or “play.” Accordingly, the commission committed no error in finding the Fall Fitness Challenge constituted a recreational program. Next, the court addressed the issue of whether the chief’s participation in the program was voluntary.

The chief failed to show he was ordered or assigned by the city to participate in the Fall Fitness Challenge. Although the city encouraged the chief to maintain physical fitness, the manner and method in which he chose to do so was at his discretion. There were many options available to the chief to stay fit.

Furthermore, there was no evidence that the chief would have suffered any repercussions for not participating in the program. Based on these findings, the commission properly found that the chief’s participation in the program was voluntary and not compensable under the workers’ compensation law.

Employer Wins Right To Subrogate Against Uninsured Motorist Settlement

Davis v. Workers’ Compensation Appeal Board, No. 216 C.D. 2015 (Pa. Commw. Ct. 12/30/15)

Ruling: The Pennsylvania Commonwealth Court affirmed the Workers’ Compensation Appeal Board’s decision granting the employer’s petition to offset workers’ compensation benefits against an uninsured motorist settlement received by the injured worker from a coworker’s policy for injuries sustained as a passenger in a work-related motor vehicle accident.

What it means: In Pennsylvania, a workers’ compensation carrier is entitled to subrogation against a worker’s recovery of uninsured motorist benefits from a nonnegligent coworker’s personal automobile policy for which the employer or carrier did not pay.

Summary: The Pennsylvania Commonwealth Court affirmed the Workers’ Compensation Appeal Board’s decision granting the employer’s petition to offset workers’ compensation benefits against an uninsured motorist settlement received by the injured worker from a coworker’s policy for injuries sustained as a passenger in a work-related motor vehicle accident.

The workers’ compensation judge determined that an employer is entitled to subrogate against a uninsured motorist settlement received by a worker under a motor vehicle insurance policy purchased by someone other than the worker. Because the coworker purchased the policy under which the worker was paid for uninsured motorist coverage, the WCJ concluded that the employer was entitled to subrogation against those proceeds.

The worker argued that the employer should have the right to subrogation only where it paid for the uninsured/underinsured motorist coverage. However, the court previously ruled that an employer has the right to subrogation not only where the employer paid for the policy but also where a third party such as a customer or a coworker paid for the policy.

Because the coworker paid for the uninsured motorist insurance policy, the employer was entitled to subrogate against the worker’s settlement proceeds.

Worker Loses Claim for Workplace Assault by Ex-Husband

Rosario v. State of New Jersey, No. A-4526-13T3 (N.J. Super. Ct. App. Div. 01/28/16, unpublished)

Ruling: In an unpublished decision, the New Jersey Superior Court, Appellate Division held that a caseworker’s injuries sustained in an assault by her ex-husband in her employer’s parking lot were not compensable.
What it means: In New Jersey, if a worker’s assault arises out of a personal relationship, it does not arise out of her employment and is not compensable.

Summary: A field caseworker for the state of New Jersey was assaulted with a knife by her ex-husband in her employer’s parking lot. At the time of the attack, the caseworker had recently been transferred to a new office, and her divorce had been finalized days before. The caseworker had a domestic violence restraining order against her ex-husband, and the state was aware of the threat of danger posed by him.

Supervisors, security personnel, and receptionists were made aware of the caseworker’s concerns, and she was told that she could request an escort when leaving the building. However, a receptionist told the ex-husband that the caseworker had been transferred to a new location. The caseworker sought workers’ compensation benefits for her injuries.

The New Jersey Superior Court, Appellate Division held that she was not entitled to compensation.

The court found that the attack was related solely to the caseworker’s personal relationship with the attacker. Her job had nothing to do with why she was attacked, and her position did not “exacerbate” her problems with her ex-husband.

The court rejected the caseworker’s argument that the state was negligent in allowing her location to be disclosed by a receptionist and failing to provide adequate security to prevent the attack. The court explained that whether an employer commits a negligent act are irrelevant to compensability. The sole issue is whether the injury is work-related.

Driver’s Heart Attack Found to Be Compensable

Star Insurance Co. v. Workers’ Compensation Appeals Board, et al., No. H042244 (Cal. Ct. App. 01/21/16, unpublished)

Ruling: In an unpublished decision, the California Court of Appeal held that a driver’s death due to ischemic heart disease was compensable.

What it means: In California, even if a worker’s underlying heart disease was not caused by his employment, his disability or death is compensable if the disease is aggravated or accelerated by his work.

Summary: A tractor driver arrived at work and drove a tractor. Later, he was pressure washing the mud off the tractor and disc when he complained of chest pain to a manager and the foreman. The foreman was going to take the driver to a doctor, but the driver first asked to use the restroom. The driver entered a portable toilet, and coworkers forced the door open when he did not come out.

First responders pronounced him dead after they attempted advanced cardiac life support. The driver’s widow sought workers’ compensation benefits. The California Court of Appeal found that the driver’s death was compensable.

The court found substantial evidence that the driver’s employment was a contributory cause of the cardiac event. A physician concluded that the driver’s performance of work duties was a contributing causal factor in his death. A postmortem examination revealed significant heart disease.

The court pointed out that the driver had complained about having chest pain about the time he engaged in the physical activity of power-washing the tractor. His death due to a heart attack was close in time to that activity. The physician’s report indicated that the physical exertion of power-washing contributed to the driver’s heart attack.

The court found that the physician’s opinions were based on correct law. Even if a worker’s underlying heart disease was not caused by his employment, his disability or death is compensable if the disease is aggravated or accelerated by his work.

Also, where a worker suffers a heart attack brought on by strain and physical exertion incidental to his employment, the injury or death is compensable even though the condition previously existed and no traumatic injury occurred.

The court pointed out that the physical exertion or strain need not be “unusual or other than that occurring in the normal course of the employment.”

Comp Denied for Traveling Laborer Injured Walking Back to Hotel

Atkins v. Webcon, No. 113,117 (Kan. Ct. App. 01/21/16, unpublished)

Ruling: In an unpublished decision, the Kansas Court of Appeals held that a laborer was not entitled to benefits for his injuries.

What it means: In Kansas, an exception to the going and coming rule exists when travel is an intrinsic part of the job or is required to complete a special work-related errand or special purpose trip.

Summary: A general laborer for Webcon worked on a roofing project located away from his home. The crew would meet at Webcon’s premises on Monday morning and drive company vehicles to the area where the project was located, where they would stay in hotels paid for by Webcon during the week. Once the crew arrived at the hotel in the evening, they were no longer on the clock and were free to do whatever they chose.

The laborer and a foremen walked to another hotel to have drinks and play darts in the bar. The foreman later left the bar, but the laborer stayed. When the laborer failed to report for work the next day, the foreman went to look for him and learned that he had been hit by a car at about 2 a.m. The laborer sustained numerous injuries and was in a coma. He sought workers’ compensation benefits. The Kansas Court of Appeals held that he was not entitled to benefits.

The laborer argued that an exception to the going and coming rule applied because travel was an intrinsic part of his work. The court rejected the argument, finding that the laborer was a fixed-situs employee because his work site was static.

The court pointed out that Webcon chose to house its employees in a hotel. The fact that Webcon chose the hotel did not prevent a finding that the laborer was a fixed-situs employee and that his walking to and from recreational activities during personal time in the evening was not part of his job.

The laborer noted that he was paid $25 for each night he stayed in the hotel as an incentive to work at a fixed site out of town. He argued that this showed that Webcon derived a benefit from the fact that employees stayed overnight.

The court pointed out that he did not cite any cases establishing that an employer’s decision to provide a monetary incentive for employees to work at a fixed site out of town brings those employees within the intrinsic travel exception.

The court also explained that any special work purpose that existed on the laborer’s trip to and from the area where the project was located disappeared once he took up residence at the hotel. At the time he was injured, he faced no greater risk than any other person walking home to his permanent residence.