View From the Bench

Workers’ Comp Docket

Key workers' comp legal decisions from around the country.
By: | March 7, 2014 • 9 min read
Example Image

Attorney Attempts to Skim Extra Fees Off of Injured Worker’s Benefits

Page v. McCain Foods, Inc., No. 40568 (Idaho 01/03/14)

Ruling: The Idaho Supreme Court held that a worker’s attorney was entitled to a 30 percent attorney’s fees award.

What it means: In Idaho, the Industrial Commission has the discretion to fix the amount of reasonable attorney’s fees awarded.

Summary: An injured worker and her attorney entered into a contingent fee agreement. The agreement stated that the attorney would be entitled to 30 percent of benefits obtained if a hearing in the matter was commenced and 40 percent of benefits obtained if the matter was appealed. After appeals, the worker was awarded benefits. The parties agreed that the worker’s attorney would receive 30 percent of the value of benefits awarded to the worker. The employer issued three checks — two for the worker’s benefits and one for attorney’s fees that equaled 30 percent of the other two checks. Rather than keeping the third check for attorney’s fees, the attorney added the three checks together and deducted 30 percent from the larger total. The calculation resulted in the attorney receiving 39 percent of the worker’s award. The Idaho Supreme Court held that the attorney was entitled to a 30 percent attorney’s fees award.

Advertisement




The court pointed out that the parties stipulated to attorney’s fees of 30 percent. The court noted that the Industrial Commission did not find it reasonable to approve attorney’s fees that would take a portion of the fees from the worker’s awarded benefits rather than from the employer.

The court rejected the attorney’s argument that without the stipulation he would have been awarded a 40 percent award. The court explained that the attorney’s fee agreement recognized that the commission has the final word with regard to attorney’s fee awards.

The attorney also asserted that an attorney’s fees award constituted a “benefit” and he should be permitted to add the award to other benefits awarded before calculating his percentage. The court found that attorney’s fees and compensation are not the same. The attorney’s fees were granted so that the worker did not have to carry the burden of paying attorney’s fees from the benefits she received.

Employer Plays NAFTA Card in Attempt to Avoid Paying Comp

Porteadores Del Noroeste S.A. De, C.V. v. Industrial Commission of Arizona, No. 1 CA-IC 12-0038 (Ariz. Ct. App. 01/14/14)

Ruling: The Arizona Court of Appeals held that a Mexican employer was subject to Arizona’s workers’ compensation laws for a driver’s injury, so the driver was entitled to benefits.

What it means: In Arizona, an employer based in Mexico is subject to the state’s workers’ compensation laws.

Summary: A truck driver, who was a citizen of Mexico, was injured in an accident in Arizona. He received workers’ compensation benefits in Mexico and filed a claim for workers’ compensation benefits in Arizona. The employer, a company based in Mexico, did not have Arizona workers’ compensation coverage for its workers. The employer argued that requiring a foreign employer to comply with the state’s workers’ compensation laws would violate federal law. The Arizona Court of Appeals held that the driver was entitled to benefits and that the state was entitled to a credit for workers’ compensation benefits paid in Mexico.

The employer argued that the North American Free Trade Agreement and the North American Agreement on Labor Cooperation preempted a claim that was covered by Mexican law. The court explained that only the United States can challenge a state law or state action on the ground that it conflicts with NAFTA or NAALC. The prohibition against using NAFTA to invalidate state laws extends to any argument that a state law is “inconsistent” with NAFTA. Therefore, the employer’s argument was rejected.

The employer also asserted that application of Arizona’s workers’ compensation laws would “impair federal uniformity” because NAFTA and NAALC would be undermined. The court found no “specific indications of congressional intent” barring application of Arizona’s workers’ compensation laws to the employer. The court pointed out that NAFTA and NAALC do not discuss workers’ compensation. The court found no authority that the federal government adopted a uniform policy regarding workers’ compensation principles applicable to foreign companies doing business in the United States. Therefore, the court would not presume that the Foreign Commerce Clause barred application of Arizona’s workers’ compensation laws to foreign employers.

Worker Claims Poor Safety Practice Entitles Him to Extra Benefits

Veneris v. Domtar Paper Co., LLC f/k/a Wayerhaeuser Co., No. COA13-649 (N.C. Ct. App. 01/07/14)

Ruling: The North Carolina Court of Appeals held that a mechanic was not entitled to a 10 percent increase in his compensation.

What it means: In North Carolina, if an employer believed that it provided appropriate safety gear to workers, it will not be liable for a willful failure to follow safety regulations.

welder230X300Summary: A utility mechanic for a paper company was often exposed to welding light while assisting welders. The company provided with him with safety glasses not rated for welding. Welders were provided with welding shields. The mechanic’s eyes were burned by the welding arc. He noted an impairment to his central vision. A neuro-opthamologist concluded that he probably suffered from welder’s arc retinopathy, a condition caused by exposure to intense welding light. The deputy commissioner found that the mechanic’s eye injury was compensable. The mechanic asserted that he was entitled to a 10 percent increase in compensation because of the company’s willful failure to follow occupational safety and health regulations. The North Carolina Court of Appeals held that he was not entitled to a compensation increase.

The court found that the company’s safety and security manager’s testimony indicated that the company believed it was providing OSHA compliant protective gear to workers and that the company was unaware of the hazard faced by mechanics.

Advertisement




The mechanic asserted that the company knew the hazards of welding light, knew he worked in close proximity to welding light, knew he would be affected by the welding light, and knew about the safety regulation, yet provided him with safety glasses that were not rated for welding. The court found it did not follow that the company deliberately avoided its obligation to provide the mechanic with appropriate eye protection. The company could have believed, even mistakenly, that utility mechanics exposed to welding light did not require the same level of eye protection that it afforded to welders.

Benefits Payer Claims Man Was Already Totally Disabled Before Back Injury

Scott v. Treasurer of the State of Missouri, No. WD76602 (Mo. Ct. App. 01/14/14)

Ruling: The Missouri Court of Appeals held that an owner could be entitled to benefits from the second injury fund.

What it means: In Missouri, the second injury fund is liable where a worker establishes that his preexisting partial disability combined with a disability from a subsequent injury to create a permanent and total disability.

Summary: The owner of an excavation company had impaired hearing and several preexisting physical injuries, including a hernia which was diagnosed but not treated. While driving a bulldozer over rough terrain, the owner injured his back. He underwent surgery. In the course of treating him for his back problems, his doctor diagnosed him with two hernias and he underwent surgery for the hernias. The owner eventually returned to work operating machinery and supervising his employees. Later, he injured his chest and shoulder while attempting to position a 115-pound battery in a piece of equipment. He stopped working after that injury. The owner sought workers’ compensation benefits for his back injury, hernias, and chest and shoulder injuries. He settled his claim with the company, but his claims against the second injury fund remained. The Missouri Court of Appeals held that he could be entitled to benefits from the second injury fund.

The Industrial Relations Commission denied the owner’s claim, finding that he was already permanently and totally disabled before his back injury. The court reversed the commission’s decision, finding that several of the factual findings underlying the decision were not supported by the evidence.

The medical evidence did not support a finding that the owner’s doctors told him to stop working before his back injury. Before the back injury, he resumed performing lifting, loading, and vehicle maintenance duties and operated heavy equipment. Even after his hernias, his doctor released him to return to his general activities. His doctors’ records did not show that the doctors believed he was completely and totally disabled before his back injury. The owner said he was not advised to stop working until after the back injury. The court said if a doctor advised him to stop working after the back injury, part of that consideration would have involved the restrictions resulting from the back injury.

Also, the court found that a vocational expert’s report did not show that the owner was unemployable in the open labor market before his back injury. The vocational expert’s opinion took into account the owner’s restrictions as a result of his back and shoulder injuries.

Employer Must Pay for Surgery It Didn’t Authorize

Downing v. McDonald’s Sirloin Stockade, No. SD32683 (Mo. Ct. App. 01/17/14)

Ruling: The Missouri Court of Appeals held that a waitress was entitled to an award for past medical expenses.

What it means: In Missouri, an employer must provide medical treatment as may reasonably be required after a worker’s injury to cure and relieve the effects of the injury.

waitress230X300Summary: A waitress had back pain. Later, she had a constant, sharp pain in her hip and leg and thought the pain was related to her work. The employer referred her to a surgeon, who ordered an MRI. A claims representative for the employer’s workers’ compensation insurer authorized payment for the MRI. The MRI revealed a herniated disk. The waitress requested permission to undergo surgery. The claims representative told the waitress the surgery was not authorized because the insurer needed more information. The waitress underwent surgery and filed a claim for compensation. The Missouri Court of Appeals held that she was entitled to an award for past medical expenses.

Advertisement




The court rejected the employer’s argument that it should not pay past medical benefits because the treatment was not authorized and the surgery was not needed on an emergency basis. The court explained that the surgery was performed by the employer-authorized treating doctor. The claims representative said that the surgery was not authorized because she needed additional time to make the decision whether to deny the claim.

The court found that the medical evidence showed the surgery was reasonable and necessary in light of the worker’s job-related condition. The employer never asserted that additional investigation would have changed that determination.

The court pointed out that the waitress notified the employer of her condition, and the claims representative and employer were notified of her need for surgery before the surgery.

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.

Advertisement




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.

Advertisement




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]