Before the explosion, three of the workers supervised by David Senko told him that they were considering quitting or leaving for other jobs. Senko convinced them to keep their jobs.

They died in the explosion.

Senko was not in Texas when the explosion occurred. After the incident, Senko’s supervisor asked him to return to Texas to help identify those killed.

Senko claims to have suffered mental anguish and physical injuries including anxiety, shingles, hypertension and hypercholesterolemia.

He sued BP, claiming it was liable for negligence and intentional infliction of emotional distress. He wanted damages for physical injuries and mental anguish.

BP asked that the lawsuit be thrown out.

The court agreed with BP and threw out the case. It said someone can not successfully sue unless severe emotional distress was the primary risk created by the company’s reckless conduct.

The court said Senko could not prove that emotional distress was the primary risk of BP’s negligence in maintaining the refinery.

What do you think about the court’s decision? Let us know in the Comments Box below.

Cite: Senko v. BP, Court of Appeals for the First District of TX, No. 01-08-01022-CV, 11/5/09.

An employee is injured while playing volleyball. He files for workers’ comp, saying it was part of his job. His employer disagrees, saying it wasn’t part of his tasks. Does the employee in this case get comp?

Here are the details:

Sean Murphy worked at a fitness facility as a fitness supervisor.

One day while at work, a co-worker asked him to participate in a game of wallyball (volleyball on a racquetball court).

At first he declined, but the co-worker, who wasn’t his supervisor, insisted, saying without him, the game couldn’t go forward “because they didn’t have enough people to participate.”

He agreed to play, and when he jumped up to block a shot, he came down and injured his right leg.

He underwent surgery to repair a fracture.

Since one of his duties was to promote and implement the classes and programs that his employer offered, he filed for workers’ comp.

An arbitrator awarded him comp benefits. The employer appealed for these reasons:

• Murphy had no duties in the racket sports department
• Wallyball wasn’t within Murphy’s responsibilities
• His supervisor never ordered or directed him to play or participate
• The center had a policy prohibiting employees from playing while they were on duty, and
• Playing wallyball was a voluntary recreational activity.

A state court upheld Murphy’s comp benefits, saying his participation in the game “clearly benefited the business of operating a health facility and [Murphy] clearly believed the activity was part of his work duties.”

The court said Murphy’s situation was similar to that of a pro athlete: Recreational activity was part of his job.

What’s your opinion of the court’s decision? Let us know in the Comments Box below.

Cite: Elmhurst Park District v. Sean T. Murphy, Appellate Court of IL, No. 07-MR-947, 10/6/09. (PDF)

A worker at David’s Cookies was assigned one day to pack biscotti into boxes after they passed through a chopping machine. Sometimes small bits of cookie caused the machine to get clogged.

The employee had worked at the cookie production plant for a year, but never near the biscotti machine. She didn’t speak or read English.

The biscotti machine got clogged. While it was still running, the employee reached her hand under the machine’s guard. Her hand came into contact with the blade, and its chopping motion caused her significant injuries.

The worker sued her employer for intentional harm.

David’s Cookies pointed out that the machine had a proper guard and a sign with a pictogram that showed workers they shouldn’t stick their hands into the machine. Workers’ comp should cover this case, the employer said.

The employee argued she’d never been given training on the biscotti machine.

The company won when the court threw out the lawsuit. The judge wrote an employer “could … assume that a rational person is not gonna stick his hand in a machine that’s being operated by electrical power” but would “call somebody or pull the plug or disengage the machinery.”

Cite: Cong Su v. David’s Cookies, Superior Court of NJ, 8/10/09.

In some states, when workers are placed on permanent partial disability, it’s expected that injured employees will make a “good-faith effort” to find alternate employment they can perform. However, one state court just found a reason to overturn that 15-year precedent and allow a worker to keep collecting.

Carolyn Bergstrom worked for Spears Manufacturing Co. as a production janitor. One day, after lifting a garbage can and setting it back down, she felt pain in her back.

The next day the pain became severe, and she was reassigned to sorting parts. She was unable to do that because standing in one place caused her too much discomfort.

An orthopedic surgeon directed her to stop working and file for disability benefits. Initially, she was awarded permanent total disability by an administrative law judge (ALJ).

But the state workers’ comp board set aside that decision, and the ALJ suggested Bergstrom try to return to work. She did, and she was again assigned to the parts sorting job.  She said she wasn’t able to perform the job for more than 3 hours because of pain and went home. The company fired her.

Then her award was reduced to permanent partial disability. The state’s workers’ comp board found that Bergstrom “didn’t exercise good faith” when she failed to perform alternate job duties that her company offered her after her injury.

Bergstrom appealed.

An appeals court upheld the reduction of her award based on the “good-faith effort” doctrine that appeals courts in Kansas had applied to such cases for 15 years. In other words, a workers’ comp award could be reduced if the injured employee didn’t make a good-faith effort to seek out and accept alternate employment.

But a majority on the Kansas Supreme Court ruled that the state’s workers’ comp law contained no such good-faith provision. It ruled that appeals courts in the state had ruled incorrectly for years on the matter. So in this case, it reversed the lower court’s ruling and sent it back for further consideration.

The upshot: It appears until this is corrected by an act of the Kansas legislature, employees can decide they suffer too much pain after a workplace accident, leave their job and collect benefits without looking for alternate employment.

Let us know what you think about this case in the Comments Box below.

Cite: Bergstrom v. Spears, Supreme Court of KS, No. 99,369, 9/4/09.

If one of your employees was injured in an exercise class, you wouldn’t expect that to be covered by workers’ comp. But that’s not how one court saw it.

Frank Torre worked for Logic Technology, a company that performed on-site contracting work for General Electric.

Torre suffered a spinal cord injury while participating in an exercise class at the G.E. fitness center during work hours.

A workers’ comp law judge ruled that his injury arose out of and in the course of his employment.

Torre was off duty when he took the class and wasn’t compensated for nor required to take it.

So to receive workers’ comp, he’d have to prove that his employer sponsored the activity, which required “an affirmative act or overt encouragement by the employer to participate.”

It turns out Torre was encouraged by his employer to have a gym membership. Logic Technology offers reimbursement to its employees for half of their G.E. fitness center membership fees. But in this case, Torre didn’t even seek reimbursement for the membership.

Another factor: Torre’s job required him to develop contacts with current and prospective clients, and the company president stated that participating in the fitness class helped do that.

Not only did the comp board rule in his favor, but on appeal, the Supreme Court of New York did also.

Do you agree with the court’s decision? Since Torre was encouraged to make business contacts at the gym, did that make his workouts part of his job? Let us know what you think in the Comments Box below.

Cite: Torre v. Logic Technology, Inc., Supreme Court, New York, No. 506423, 7/2/09. (PDF)

Here’s what happened: A Home Depot employee in Houston was found lying under a truck in the store’s parking lot. The worker’s job was to gather shopping carts in the lot and help customers load packages into their cars. The worker didn’t have any visible injuries. Other employees said the man was incoherent, lying on the ground and moving, while putting his hands behind his head.

He was taken to the hospital where he died two days later. An autopsy said the cause of death was “blunt head trauma with subdural hematoma and brain contusions.”

OSHA investigated. It issued just one other-than-serious citation for the company’s failure to report the employee’s death to OSHA within eight hours of occurrence.

Home Depot appealed. An administrative law judge upheld the $1,000 OSHA fine. The judge said, “the evidence suggested that the employee fell in the Home Depot parking lot, sustaining the head injuries to which he eventually succumbed.”

Home Depot also appealed that decision. This time, the Occupational Safety and Health Review Commission threw out the citation. Reason: The judge’s finding that the employee fell in the store’s parking lot wasn’t supported by a preponderance of the evidence. The Commission said it was speculation that he fell and hit his head in the parking lot.

OSHA has 60 days to decide if it wants to appeal the Commission’s ruling.

What do you think about the Commission’s ruling? Let us know in the Comments Box below.

Cite: Secretary of Labor v. Home Depot, OSHRC Docket No. 07-0359, 9/16/09. (PDF)

Francisco Moreno Garcia died as the result of an incident at the ADM facility in Decatur, IL, when a waste compression system malfunctioned. He was insulating pipes 15 feet in the air when he was sprayed with steam and hot caustic chemicals.

He struggled to free himself from his harness and tumbled to the ground. Third degree burns covered 90% of his body.

He lived in excruciating pain for a day and a half before doctors decided there was nothing more they could do to save him.

Workers’ comp awarded $60,000 to Garcia’s family in Mexico. Most of that will be returned to an insurance company after the family receives payment from the jury trial.

In many workplace deaths, the family can’t sue because workers’ comp prohibits it – it’s the “exclusive remedy.”

But in this case, Garcia was working for a contractor, so the family could sue ADM. The jury award was one of the largest such judgments in Illinois history for a single man with no spouse or children.

A diabetic employee can’t control his hypoglycemic episodes. In recent episodes, he’s become disoriented around dangerous equipment and threatened violence against co-workers. Can you fire him for safety reasons, or is he protected under disability law?

Martin Onken was a welder for McNeilus Truck & Manufacturing in Iowa. He has Type I diabetes which causes him to have occasional low blood sugar episodes – hypoglycemia.

Onken is among a small percentage of diabetics who are often unable to detect their low blood sugar from physical symptoms.

He suffered several low-blood sugar episodes at work. Co-workers would offer him a soda, candy bar or tube of glucose to bring his blood sugar back up. The company worked with Onken through several episodes and encouraged him to seek medical help to better control his condition, which he did.

However, one hypoglycemic episode in particular proved to be the last straw.

During this episode, some of Onken’s co-workers saw him staggering near his work station.

One co-worker, who was also a paramedic, approached him. Onken lifted his arm into a position that implied he was going to hit his co-worker, laughed and said, “You scared?”

When the plant supervisor approached him, Onken held his left arm back as if he was going to hit the supervisor. Onken lowered his arm, and the supervisor suggested he go to the break room. Onken cursed at the supervisor and said he wasn’t going anywhere.

Then Onken locked himself in a restroom and refused to come out. He came out of the restroom after 25 minutes.

When the co-worker who was a paramedic offered Onken a tube with glucose to bring his blood sugar back up, he knocked it out of her hand. Paramedics took Onken to the hospital.

In his report about the episode, the supervisor wrote that this time he knew those around Onken were at risk.

A doctor evaluated Onken. The doctor wrote Onken “would not be a risk to himself or others if he was able to manage his underlying medical condition without having hypoglycemic episodes. He appears to be unable to appropriately determine when he is becoming hypoglycemic and to take appropriate action.”

Based on the doctor’s report, and the company’s own observance of Onken, they fired him.

Onken sued, claiming discrimination based on his disability.

The court’s ruling: The company had a valid safety reason to fire Onken. The judges wrote that, since Onken presented a direct threat to the safety of others at the plant, he wasn’t a qualified individual with a disability as defined by the Americans with Disabilities Act.

For more information on accommodating employees with diabetes, click here.

Cite: Onken v. McNeilus Truck & Manufacturing, Inc., U.S. District Court, N.D. Iowa, Eastern Division, No. 08-CV-2003-LRR, 7/10/09.

Workers’ comp boards and courts draw a fine line between what is and what isn’t a work-related injury that qualifies for benefits. See if you can guess how the court ruled in this case:

Michael Haley worked in a shipping yard which handled arriving and departing tractor trailers and the loading and unloading of the trucks. Part of his regular duties included climbing into and out of truck cabs.

One day at work, when he stepped into the cab of a truck, he felt a spasm in his left leg.

Haley didn’t climb the step in an unusual or awkward way, and there wasn’t anything strenuous about stepping up a total of 16 inches.

After the spasm, Haley had no strength in his leg and had trouble moving it.

Doctors diagnosed a ruptured quadriceps tendon and performed surgery quickly thereafter. Complications soon developed, causing Haley to walk with a cane for some time after the injury.

He applied for workers’ comp. The state comp commission found that he hadn’t proven his injury “arose out of” his employment and denied his claim for benefits. Haley appealed.

A state appeals court upheld the comp commission’s decision, so Haley didn’t get benefits.

Haley had argued that the 16-inch step was higher than a normal step that most people would encounter outside of work, and for that reason, he should get comp.

However, the court noted that doctors weren’t able to explain any link between Haley’s work duties and the rupture. All they were able to say is that the injury occurred at work.

“At work” isn’t necessarily good enough to qualify for workers’ comp. Case closed: The company won.

Do you think the court made the right decision? Let us know in the Comments Box below.

Cite: Haley v. Springs Global U.S., Inc. and Zurich American Insurance Co., Court of Appeals of Virginia, No. 2841-08-3, 8/18/09.

Imagine this: An employee, who happens to be morbidly obese, is injured at work. Doctors say, before he has surgery to correct the workplace injury, he needs weight-loss surgery.

And, in two separate cases, courts rule that comp must cover the weight-loss surgery!

First, the case of Adam Childers. While working at Boston’s Gourmet Pizza in Indiana, he was struck by a freezer door, injuring his lower back. At the time, Childers was six feet tall and weighed 340 pounds.

A doctor said before Childers could have back fusion surgery, he needed lap-band surgery to lose weight.

A workers’ comp panel awarded him benefits to have the weight-loss surgery. His employer appealed, arguing that Childers suffered from a pre-existing health condition of morbid obesity.

However, the court said the restaurant couldn’t prove that Childers had a weight problem that impaired his health and/or required medical intervention. Case closed, he gets the surgery paid for by comp.

In the second case, Edward Sprague injured his knee at work in 1976 and reinjured it in 1999.

During that time span, Sprague’s weight went from 225 to 350 pounds.

Doctors told Sprague his weight would prevent successful treatment of the knee condition, so he sought workers’ comp benefits for weight-loss surgery.

His insurance carrier argued that the claim wasn’t compensable because the obesity wasn’t caused by his 1976 accident.

Last year a state court ruled Sprague’s bypass surgery should be paid for by workers’ comp. The court said the injury was more than a minor cause of Sprague’s need for gastric surgery.

Now, the Oregon Supreme Court has issued the last word in this case. It agrees that comp should cover the weight-loss surgery.

Should state comp laws be amended to prohibit employees from getting workers’ comp benefits to pay for weight-loss surgery in cases like these? Let us know what you think in the Comments Box below.

Georgia-Pacific fired supervisor Ezra Brady for instructing an employee to use an improper lockout procedure. The plant manager claimed the result was that an energy source wasn’t isolated and employees were at risk. The company said Brady willfully violated company policy.

The company had safety rules in its employee handbook that spelled out lockout requirements.

Brady filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that he’d been fired as a result of racial discrimination. Brady says he was fired for a first offense, while two white employees were only suspended for three days for the same offense.

When the EEOC found reasonable cause that Georgia-Pacific had racially discriminated against him, Brady filed a lawsuit against the company. G-P asked to have the case thrown out.

The court agreed to throw out Brady’s lawsuit because he didn’t prove that his employer gave preferential treatment to another employee under nearly identical circumstances.

In one situation in which a white employee was suspended, the worker was making repairs on a conveyor and reached far enough into it to have required a lock-out. The plant manager said this employee was only suspended for three days because he didn’t put any other employees in danger. The court found this didn’t qualify as a nearly identical circumstance.

In the second case, a manager and two other employees were conducting an inspection. One employee turned off a breaker to a machine. None of the three had a lock for the breaker, and the manager decided one wasn’t needed because he was supervising the situation. That manager also received a three-day suspension. Management said this case was not a willful violation of company policy because the manager thought he was doing the right thing. Once again, the court said this didn’t qualify as a nearly identical circumstance.

The take-home: Companies can enforce policies that call for firing employees for certain safety infractions. They just need to be careful that disciplinary measures are applied equally.

What does your company policy say about penalties for safety violations? Has your company ever fired someone for safety reasons? Let us know in the Comments Box below.

Have you ever fired someone for violating a company safety rule? In this case, a company did just that and then found itself in court on a charge of racial discrimination.

Georgia-Pacific fired supervisor Ezra Brady for instructing an employee to use an improper lockout procedure. The plant manager claimed the result was that an energy source wasn’t isolated and employees were at risk. The company said Brady willfully violated company policy.

The company had safety rules in its employee handbook that spelled out lockout requirements.

Brady filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that he’d been fired as a result of racial discrimination. Brady says he was fired for a first offense, while two white employees were only suspended for three days for the same offense.

When the EEOC found reasonable cause that Georgia-Pacific had racially discriminated against him, Brady filed a lawsuit against the company. G-P asked to have the case thrown out.

The court agreed to throw out Brady’s lawsuit because he didn’t prove that his employer gave preferential treatment to another employee under nearly identical circumstances.

In one situation in which a white employee was suspended, the worker was making repairs on a conveyor and reached far enough into it to have required a lock-out. The plant manager said this employee was only suspended for three days because he didn’t put any other employees in danger. The court found this didn’t qualify as a nearly identical circumstance.

In the second case, a manager and two other employees were conducting an inspection. One employee turned off a breaker to a machine. None of the three had a lock for the breaker, and the manager decided one wasn’t needed because he was supervising the situation. That manager also received a three-day suspension. Management said this case was not a willful violation of company policy because the manager thought he was doing the right thing. Once again, the court said this didn’t qualify as a nearly identical circumstance.

The take-home: Companies can enforce policies that call for firing employees for certain safety infractions. They just need to be careful that disciplinary measures are applied equally.

What does your company policy say about penalties for safety violations? Has your company ever fired someone for safety reasons? Let us know in the Comments Box below.

The provision has been on-again, off-again since 2008.

Recently, a federal court ruled that transportation safety was a compelling reason to mandate observation when employees who previously failed or refused to take a drug test are retested.

The rule requires observers to check people producing urine samples for prosthetic or other cheating devices. This provision takes effect Aug. 31, 2009.

The court took into account the recent development of a wide array of available cheating devices (see our previous article here). It also said the rule didn’t violate the Fourth Amendment prohibition on unreasonable searches and seizures. The judges on the court stated unanimously that employees who had failed or refused a previous drug test had diminished expectation of privacy.

Transportation Department (DOT) data show that the violation rate for return-to-duty and follow-up testing is two to four times higher than that of random testing.

DOT’s rule negates any collective bargaining agreements that prohibit or limit the use of direct observation collections for return-to-work and follow-up testing.

(Click here for the Federal Register notice on the new regulation.)

Do you support DOT’s decision to require observed collections in these circumstances? Let us know in the Comments Box below.

The West Virginia Supreme Court of Appeals has upheld a $1 million punitive-damages award against a mining company accused of retaliatory discharge against a worker who’d filed a comp claim.

One key: what the jury viewed as unreasonable suspicion. It saw the company’s surveillance efforts as evidence of malicious conduct.

Specifically, the court noted, the company had “placed (the employee) under surveillance” and had “continued its surveillance” even after the employee said he could return to work.

And that was a contributing factor in the jury’s decision that the employee was “severely harmed” by the company’s actions.

The court added in a footnote: “That is not to say …  that an employer may not use surveillance techniques to investigate the veracity of an injured employee’s claim for workers’ compensation benefits.”

Maybe not, but it certainly raises questions.

Where should companies draw the line? Is routine surveillance of comp cases reasonable, or should companies have to justify their suspicions before going to such lengths? Tell us what you think in the Comment Box below.

Have you ever been suspicious of a workers’ comp claim? Be careful. A recent ruling appears to draw an important — and, in this case, extremely expensive — distinction between “reasonable” and what you might call “reflexive” suspicion.

The West Virginia Supreme Court of Appeals has upheld a $1 million punitive-damages award against a mining company accused of retaliatory discharge against a worker who’d filed a comp claim.

One key: what the jury viewed as unreasonable suspicion. It saw the company’s surveillance efforts as evidence of malicious conduct.

Specifically, the court noted, the company had “placed (the employee) under surveillance” and had “continued its surveillance” even after the employee said he could return to work.

And that was a contributing factor in the jury’s decision that the employee was “severely harmed” by the company’s actions.

The court added in a footnote: “That is not to say …  that an employer may not use surveillance techniques to investigate the veracity of an injured employee’s claim for workers’ compensation benefits.”

Maybe not, but it certainly raises questions.

Where should companies draw the line? Is routine surveillance of comp cases reasonable, or should companies have to justify their suspicions before going to such lengths? Tell us what you think in the Comment Box below.

You hear it all the time: Sedentary, overweight and out-of-shape employees can be a huge drain when it comes to health insurance, workers’ comp and other costs. Whip ‘em into shape and you’ll save, save, save!

True, but be careful. A recent court decision offers a cautionary tale.

The bottom line: An employee who suffered a spinal cord injury while exercising at a gym was awarded workers’ comp.

Now, under most circumstances, employees who get hurt in voluntary off-duty activities aren’t entitled to comp. But there are three exceptions: Comp can be awarded if an employer requires the employee to participate, compensates him or her for doing so, or sponsors the activity.

In this case, the employee was neither required nor compensated for his gym membership — though he had the option to be reimbursed for half of his membership (he chose not to take it).

And the company didn’t exactly “sponsor” the activity.

What it did was encourage the employee to participate. Why? To help develop contacts with current and prospective clients.

In affirming a lower court decision, the state Supreme Court cited two factors:  (1) The company at least offered to pay half of its employees’ membership fees; and (2) it encouraged participation as a way to further business interests.

It did not say whether either factor alone would have been enough to carry the day.

What do you think? Should you worry about crossing a line when you urge employees to lead active, healthier lifestyles? Let us know in the Comment Box below.

A lawyer representing the three men said the message to businesses is clear: If a company employs an illegal immigrant and that person gets hurt on the job, the employer is still responsible financially.

All three were in construction but working on different projects.

An illegal immigrant from Mexico was scalded over large portions of his body by an exploding pipe at a Wall Street construction site and settled his case for $2.5 million.

A second undocumented Mexican worker suffered severe injuries to his left foot and other parts of his body when a beam fell on his lower body at a building site in Manhattan. The worker settled his case for $750,000.

The third worker, from Ecuador, was injured at a construction site in Queens when three 44×10-foot trusses, each weighing 200 pounds, fell on him. He suffered a fractured hip and other injuries. His settlement is for $600,000.

This worker said at a news conference, “The contractor tried to blame me.” When asked what message he would give to other workers, he said, “Don’t be afraid to talk to a lawyer.”

Joel Magallan of Asociacion Tepeyac, an immigrant advocacy group, said, “They [undocumented immigrants] have to know today that they have rights — the same rights as other workers who are U.S. citizens or permanent residents.”

Let us know what you think of this story in the Comments Box below.

Employee Noel Collins was injured due to a fall while installing ceiling tile in a movie theater owned by West 13th Street Owners Corp. He sued, claiming he wasn’t provided with an appropriate safety device, in this case a scaffold.

Collins had constructed a makeshift scaffold consisting of one piece of plywood on top of an A-frame ladder with the other end of the plywood resting on a wall that was the same height as the ladder.

The company argued that Collins was the sole cause of his injuries because he didn’t use materials on hand to construct a proper scaffold.

But the court said expecting the employee to build his own scaffold from scratch “improperly shifted the responsibility for creating a proper safety device” from the employer to the employee.

Now a jury will decide on damages.

Cite: Collins v. West 13th Street Owners Corp., Supreme Court, Appellate Division, First Dept., NY, 6/30/09.

A district court has ruled that a company doesn’t have to pay workers for donning and doffing personal protective equipment (PPE). However, the employer may have to pay for the time spent walking from where the gear is stored to their work areas.

Three employees sued U.S. Steel Corp. seeking pay for the time spent donning and doffing PPE, showering, and walking to and from their workstations after donning and before doffing. The company asked the district court to throw out the case.

In Steiner v. Mitchell, the Supreme Court ruled “activities, such as the donning and doffing of specialized protective gear that are performed either before or after the regular workshift, on or off the production line, are compensable if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.”

However, federal law says there are exceptions if two conditions are met:

1. There must be a bona fide collective bargaining agreement that excludes such payment, and
2. The activities at issue must constitute “changing clothes” within the meaning of the statute.

The employees in question did have a collective bargaining agreement that excluded time spent donning and doffing PPE.

So the matter came down to this: Were the employees just changing clothes or putting on specialized PPE?

The court found, after looking at photos and video of the PPE at issue, that flame retardant jackets and pants, glasses, boots, and hard hats unquestionably fell within the common definition of clothes.

For that reason, the court partially granted U.S. Steel’s request and threw out the part of the lawsuit regarding donning, doffing and showering.

But the district court didn’t throw out the question of whether to pay for the time walking from changing areas to workstations. It cited the Supreme Court’s decision in Alvarez that “during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity” is compensable.

The question over walking time will now go to trial.

Let us know what you think of the court’s decision and the issue of whether to pay employees for donning and doffing PPE in the Comments Box below.

Cite: Andrako v. U.S. Steel, U.S. District Court, W.D. PA, No. 07-1629, 6/22/09.

A new federal court ruling further complicates whether you have to pay employees for the time they spend putting on and taking off safety gear. This recent ruling is a split decision for employers.

A district court has ruled that a company doesn’t have to pay workers for donning and doffing personal protective equipment (PPE). However, the employer may have to pay for the time spent walking from where the gear is stored to their work areas.

Three employees sued U.S. Steel Corp. seeking pay for the time spent donning and doffing PPE, showering, and walking to and from their workstations after donning and before doffing. The company asked the district court to throw out the case.

In Steiner v. Mitchell, the Supreme Court ruled “activities, such as the donning and doffing of specialized protective gear that are performed either before or after the regular workshift, on or off the production line, are compensable if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.”

However, federal law says there are exceptions if two conditions are met:

1. There must be a bona fide collective bargaining agreement that excludes such payment, and
2. The activities at issue must constitute “changing clothes” within the meaning of the statute.

The employees in question did have a collective bargaining agreement that excluded time spent donning and doffing PPE.

So the matter came down to this: Were the employees just changing clothes or putting on specialized PPE?

The court found, after looking at photos and video of the PPE at issue, that flame retardant jackets and pants, glasses, boots, and hard hats unquestionably fell within the common definition of clothes.

For that reason, the court partially granted U.S. Steel’s request and threw out the part of the lawsuit regarding donning, doffing and showering.

But the district court didn’t throw out the question of whether to pay for the time walking from changing areas to workstations. It cited the Supreme Court’s decision in Alvarez that “during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity” is compensable.

The question over walking time will now go to trial.

Let us know what you think of the court’s decision and the issue of whether to pay employees for donning and doffing PPE in the Comments Box below.

Cite: Andrako v. U.S. Steel, U.S. District Court, W.D. PA, No. 07-1629, 6/22/09.

Leonidas Gomez was performing demolition work on a building in New York City.

The building was already partially demolished, and he had to remove a window from the remaining structure.

The only way for him to do that was to stand on a fire escape.

While he was trying to remove the window, the fire escape detached from the building, and Gomez fell to the ground.

The worker sued for his injuries, claiming that the fire escape should be considered a scaffold under New York law.

The court agreed. It said the fact that a fire escape is usually a permanent structure and a scaffold is a temporary one didn’t matter in this case.

Since a scaffold couldn’t be erected on the partially demolished building, the fire escape acted as a scaffold and the law applied.

New York’s unique scaffold law requires building owners and general contractors to provide workers with proper scaffolds, hoists, harnesses and other appropriate PPE for use when working at elevations.

Cite: Gomez v. City of New York et al, New York Supreme Court, 6/11/09.

Four employees of furniture manufacturer Franklin Corp. of Houston, MS, sued the company for injuries they suffered from a hazardous glue they used.

Franklin argued that the lawsuit shouldn’t be allowed. It said the matter should have gone before the state’s Workers’ Compensation Commission.

The employees said Franklin ignored their complaints and information about exposure contained on the glue’s Material Safety Data Sheet (MSDS). They also claimed the company didn’t properly ventilate the factory.

A court allowed the case to go to trial, and a jury awarded damages totaling $9.5 million to the workers. A judge reduced that amount to $3.76 million.

The company appealed to the Mississippi Supreme Court which found that the lower court had ruled correctly in letting the case go to a jury trial because there were “genuine issues of fact as to whether there was intent to injure.”

You can download the court’s decision here (free Adobe Acrobat Reader required).

A judge has sentenced former Atlantic States Cast Iron Pipe Co. plant manager John Prisque to 70 months in federal prison in connection with safety and environmental violations at the facility.

Prisque, the company and three other managers were convicted of engaging in conspiracy to pollute the Delaware River, expose employees to dangerous conditions and impede federal investigations. The company and three other managers will be sentenced later this week according to the Express-Times.

Among Prisque’s safety violations, he:

• instructed an employee to lie to OSHA about a safety shield that had been changed after an incident in which a worker lost an eye and suffered a fractured skull when a saw blade broke
• concealed facts from OSHA about a forklift fatality
• instructed an injured worker to tell OSHA he didn’t break his leg in a forklift accident, and
• concealed from OSHA that an emergency shutdown device on the plant’s cement mixer had been bypassed, which led to the amputation of three of a worker’s fingers.

Prisque was also found guilty of allowing oil waste to be pumped into a storm drain that created an 8.5-mile slick on the Delaware River and of burning waste paint in the plant’s main furnace.

Atlantic States is a subsidiary of McWane, Inc.

An employee developed psoriasis after being exposed to chemical cleaning agents at work.

After leaving her job voluntarily, she sought workers’ comp benefits on the grounds that her psoriasis was an occupational disease.

A workers’ comp judge awarded her temporary total disability benefits, vocational rehabilitation and payment of all related medical treatment. The judge found that the employee “suffers from an occupational disease which was either caused or aggravated by her work.”

The company appealed.

During the appeal, a doctor testified that psoriasis is often of unknown origin. The doctor said exposure to certain substances, such as cleaning chemicals, may aggravate existing psoriasis.

The appeals court said the workers’ comp judge failed to make a distinction on whether the disease was caused or aggravated by work conditions.

Since no medical evidence could show that the employee’s psoriasis was caused by exposure at work, the appeals court overturned the award of comp benefits.

The court said comp may be awarded to employees who suffer a psoriasis outbreak at the time when symptoms are active and severe.

Cite: Carrodine v. Pilgrim’s Pride Corp. and Louisiana Tech, Court of Appeals of LA, No. 43,902WCA, 3/11/09.

What constitutes loss of use of feet and hands to qualify for permanent disability? A state court says it’s not necessary for employees to actually injure their feet or hands for that to be the case.

The case involves the award of lifetime income benefits (LIBS) to an employee by the Texas Workers’ Compensation Commission.

Carmen Muro was injured at work when she slipped and fell on a bathroom floor. She says she fell backwards and raised her right arm to prevent her head from hitting a toilet.

She injured her neck, right shoulder, lower back and hips, and underwent six surgeries on her back, hips and right shoulder.

The Insurance Company of the State of Pennsylvania denied her LIBS. If she didn’t receive LIBS, disability payments would run out after about eight years. The comp commission ruled in Muro’s favor.

The insurer appealed the case to a state trial court where a jury also decided for Muro. The case then went to the state appeals court.

The insurer argued Muro wasn’t entitled to LIBS because she didn’t suffer a direct injury to her feet and right hand.

The Texas labor code says LIBS are paid for permanent loss of both feet, or permanent loss of one foot and one hand, due to injury in the workplace.

The insurer said Muro’s injuries only affected her feet and right hand indirectly.

The appeals court rejected this argument, saying it was enough that Muro’s limitations on her use of her feet and right hand were due to her injuries and surgeries to her hips and shoulders. As one doctor stated, the hands rely on the shoulders to function and an injury to the hips affect the feet.

You can read the court’s full opinion here.

Have an opinion on this case? You can share it in the Comments Box below.

A federal court has upheld OSHA’s multi-employer policy, which says controlling employers may be responsible for the safety of other employers’ workers, including when a general contractor hires subcontractors.

The court has overturned the Occupational Safety and Health Review Commission (OSHRC) which previously ruled the policy violated OSHA regulations.

Specifically, OSHRC had said the “controlling employer” part of the policy wasn’t valid when applied to general contractors who neither created hazards nor exposed employees to hazards on projects they control. But the court disagreed.

Summit Contractors had subcontracted almost all work on a construction project.

Subcontractors’ employees had been working on scaffolds without personal fall protection or guard rails. Summit’s project superintendent warned the other companies’ employees about using fall protection.

After an inspection, OSHA cited Summit for violations involving the subcontractors’ workers.

Now, the court has upheld OSHA’s ability to cite Summit.

Cite: Solis V. Summit Contractors, Inc., 8th Circuit, No. 07-2191, 2/26/09.

A federal court has ruled against a challenge of the rules by three safety groups. Public Citizen Health Research Group (HRG) and a steelworkers union had argued that the 5 micrograms per cubic meter (ug/m3) PEL is insufficiently protective of workers. The two groups had sued to get a stricter standard for welding, aircraft painting, electroplating and some other tasks.

The Edison Electric Institute also sued and lost. It said OSHA shouldn’t have applied its hex chrome standard to maintenance and repair employees at coal and nuclear electric power plants.

The court did rule in favor of HRG on one point.

OSHA has been ordered to defend its employee notification requirements in the hex chrome standard.

But in the meantime, the employee notification requirements will stand until OSHA studies them.

The standard requires employers to notify workers when monitored exposures exceed the 5 ug/m3 PEL.

HRG wants employees to be notified of all monitoring results, which was part of OSHA’s original hex chrome proposal.

OSHA had originally proposed a 1 ug/m3 PEL but adopted the 5 ug/m3 standard instead. It concluded that the lower limit wasn’t feasible for all industries.

Cite: Public Citizen et al v. U.S. Dept. of Labor, OSHA, U.S. Circuit Crt. 3, Nos. 06-1818 and 06-2604, 2/23/09.