Within the course of one week, an employee suffered an incident involving her leg at home and then another incident involving her leg at work. She applied for workers’ comp, claiming the injuries were caused by the work incident. Her employer denied her comp claim on the grounds that the first incident at home caused her injuries.

Cathlyn Acker was a meat department employee at a Whole Foods Market in North Carolina. Her job was to stock displays.

One day at work, she was carrying trays of chicken out of a walk-in cooler when her left foot got tangled in shelving. Acker says she “twisted and hopped and landed on her right leg.”

Her right leg became swollen. She was diagnosed with an “extensive post-traumatic bone bruise” and a tear in her meniscus.

She applied for workers’ comp, but Whole Foods denied the claim, saying the injuries could have come from an incident less than a week earlier when Acker stepped in a hole in her back yard and twisted her left ankle.

A workers’ comp hearing commissioner concluded Acker suffered a compensable injury to her right knee, left hip and back arising out of the workplace incident. On Appeal, the North Carolina Industrial Commission affirmed the commissioner’s decision and awarded Acker medical compensation, wage compensation and temporary partial disability payments.

Whole Foods took the case to the North Carolina Court of Appeals.

What did the doctors know?

The appeals court reviewed the evidence in the case.

The first doctor to see Acker diagnosed the bone bruises and meniscus tear and said they were “consistent with a trauma.”

When the doctor testified, he said Acker didn’t tell him about stepping in the hole at home. She only told him about the workplace incident. He said he was unable to know whether the earlier home incident caused her injuries.

Acker saw another doctor for an independent medical evaluation. That doctor testified her injuries were related to the workplace incident and that Acker told her she had no symptoms before she tripped at work. However, this doctor also said Acker didn’t tell her about stepping in the hole at home.

But this doctor observed in his report that, even if the meniscus tear existed before she tripped at work, the incident on-the-job would have aggravated any such pre-existing condition.

The Commission found the independent doctor testified to a reasonable degree of medical certainty that Acker’s injuries were the result of her workplace incident.

Before the appeals court, Whole Foods argued that neither the initial treating physician nor the doctor who performed the independent medical evaluation rendered a competent opinion that the work incident caused Acker’s injuries.

But the court rejected that argument. It noted the independent physician specifically noted that, even if there was a pre-existing injury, the work incident would have aggravated it. Work injuries that aggravate a previous condition are compensable under workers’ comp.

On top of that, the court noted that Whole Foods didn’t present any medical testimony contradicting the evidence presented by Acker.

For those reasons, the appeals court ruled there was competent evidence to support the Commission’s award of workers’ comp benefits to Acker. The court affirmed the workers’ comp benefits for Acker.

The two take-homes from this case:

• Workplace injuries that aggravate an employee’s pre-existing injury are often compensable under workers’ comp, and
• If you’re going to contest medical evidence presented by an employee in a workers’ comp case, you better have your own medical experts to back up your case.

Have you ever had a case in which it was questionable whether an employee’s injuries were caused at work or at home? Let us know about it in the comments below.

(Acker v. Whole Foods, Court of Appeals of NC, No. COA12-757, 1/15/13)

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Another state court has weighed in on the matter.

Brandon Coats worked for Dish Network in Colorado.

Coats was paralyzed as a teenager in a car crash. He has been a medical marijuana patient in Colorado since 2009. He was fired in 2010 for failing a company drug test. Dish Network conducts random employee drug tests. It didn’t claim Coats was impaired on the job. Dish gave no other reason for the firing.

Coats says he used marijuana within the state license, never used it on Dish Network premises and was never under the influence at work.

Claiming it violated the Colorado Civil Rights Act which prohibits an employer from firing an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours,” Coats filed a lawsuit against Dish.

Dish claimed use of medical marijuana wasn’t lawful activity because it was prohibited under federal law.

A trial court agreed with Dish and threw out Coats’ lawsuit which led to his appeal to a higher state court.

How does federal law impact case?

Coats acknowledged to the Colorado Court of Appeals that marijuana use, even with a state medical-use license, is against federal law.

However he argued that his use was lawful because it is allowed under state law and federal law didn’t apply.

The court didn’t agree.

It said for any activity to be lawful in Colorado, it must be lawful under both state and federal laws. So, an activity that violates federal law but complies with state law can’t be lawful in the state.

The appeals court also noted that if the legislature wanted to insulate employees from being fired for activities that are illegal under federal law, it could have done so, but didn’t. Bills to do just that have been introduced in California. However, two times so far the bills haven’t had sufficient support to become law.

So, since Coats’ use of medical marijuana under a state license was — and still is — illegal under federal law, it could not be considered lawful activity. Coats’ lawsuit was thrown out.

The appeals court’s decision was split. One of the three judges dissented, basically agreeing with Coats that whether his marijuana use was legal or not should be measured only by state law.

Coats’ lawyer says they will try to take the case to the Colorado Supreme Court.

Colorado isn’t alone

Colorado made news recently because the state also approved recreational use of marijuana.

In another state where that was done, Washington, courts have also ruled that employers can fire medical pot users.

A Michigan court ruled Wal-Mart was allowed to fire an employee who was permitted to have medical marijuana.

Some states make it slightly more difficult to fire employees who have tested positive for marijuana. In several states, the employer must prove the employee was impaired by the marijuana use for the firing to be legal.

So it appears, overall, that the growing number of laws that allow marijuana use — whether for medical or recreational purposes — don’t change the situation for employers, at least not much. Companies can have zero-tolerance drug-use policies, including those for safety reasons. And employers can enforce these policies by firing employees who violate them. As is the case with all company rules regarding employee conduct, a key is to apply the policies equally to all workers.

What do you think of the Colorado court’s ruling? Should employers be able to fire workers for marijuana use, even if they have a medical license to use it? Should the company have to show that the employee was impaired at work before being able to fire the person? Let us know what you think in the comments below.

(Brandon Coats v. Dish Network, Colorado Court of Appeals, No. 12CA0595, 4/25/13)

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SNA first told you about this story last August.

Officer Kevin Schultz with the Pojoaque Tribal Police Department had taken a day off to chaperone a church youth group on a picnic. While there, he jumped into the Rio Grande River near Pilar, NM, and save a 12-year-old boy from drowning.

Immediately after saving the boy, Schultz collapsed face-down in shallow water.

A medical examiner says while entering the river, Schultz may have hit his head on a rock, and that led to his death.

His wife, Cheryl Schultz, sought workers’ comp death benefits.

A workers’ comp judge (WCJ) found two problems with the request for benefits:

• They were requested more than a year after the officer died, and
• He was off duty when the incident occurred.

‘We’ll take care of it’

Why did Cheryl Schultz wait more than a year to file for the benefits? One reason: The tribal police chief had told her he’d take care of filing the workers’ comp paperwork.

When she realized he hadn’t done that, she filed herself.

Cheryl Schultz appealed the WCJ’s decision to a trial court. Her argument: The delay in filing was caused by the employer’s conduct … or in this case, the lack of it.

But the trial court agreed with the WCJ. Last summer, Mrs. Schultz took her case to the New Mexico Supreme Court (NM SC).

The state’s highest court reversed the judgement of the WCJ and the trial court.

The NM SC noted that the state’s workers’ comp law had an exception to the one-year period for filing a death benefits claim: when the filing delay is caused by the employer’s conduct.

And in this case, the employer’s conduct — promising Mrs. Schultz that it would take care of the workers’ comp filing and then not doing so — did cause the delay.

Now the case will go back to the trial court to determine whether Officer Schultz died within the course and scope of his employment and whether Mrs. Schultz will receive workers’ comp death benefits.

Her attorney says he has a strong case in favor of the comp benefits. Officer Schultz is listed on the National Law Enforcement Officers Memorial in Washington, DC which is only for those who die in the line of duty. A detective with the Schultz’s police force sent the paperwork seeking this honor.

The attorney also has a letter from the lieutenant governor of Pojoaque Pueblo who wrote the tribal government considered Schultz’s death to be in the line of duty.

Do you think Schultz’s widow should get workers’ comp death benefits? Let us know in the comments below.

(Schultz v. Pojoaque Tribal Police Department, Supreme Court of NM, No. 33,372, 4/11/13)

The post Was police officer on duty at time of death? Widow seeks workers’ comp appeared first on Safety News Alert.

Holly Noel-Liszkiewicz worked in customer service for La-Z-Boy Furniture in New Castle, DE. Two years after the company laid her off, she filed for workers’ comp benefits for occupational asthma, pulmonary fibrosis and respiratory failure allegedly caused by exposure to chemicals at La-Z-Boy. The company denied the benefits, and the case went to the state Industrial Accident Board.

The La-Z-Boy facility had a workshop where furniture repairs, including sanding and shellacking, were done. Noel-Liszkiewicz worked in an office area surrounded by concrete walls but next to the workshop. She said she could always smell fumes in the office which caused her to have burning eyes, coughing and headaches. At the Board hearing, two of her former co-workers said they experienced the same symptoms.

After being laid off by La-Z-Boy, Noel-Liszkiewicz found another job, but was forced to stop working because of persistent coughing and shortness of breath.

A pulmonologist diagnosed her with lung disease secondary to chemical exposure. Her family doctor confirmed that diagnosis, and said she also suffered from pulmonary fibrosis caused by chemicals she inhaled at La-Z-Boy.

Another doctor who saw Noel-Liszkiewicz said her prior history of smoking wouldn’t explain her current problems. He also diagnosed her with occupational asthma, pulmonary fibrosis and respiratory failure caused by chemical exposure at La-Z-Boy.

At the Board hearing, a certified industrial hygienist testified on Noel-Liszkiewicz’s behalf. The hygienist hadn’t done any actual measurements of chemicals at the La-Z-Boy facility, but he based his testimony on a comparison to other workplaces where he had measured similar kinds of chemicals and exposures.

In the hygienist’s opinion, there was a causal relationship between Noel-Liszkiewicz’s diagnoses of various breathing disorders and her exposure to chemicals at La-Z-Boy.

Company’s expert disagreed

La-Z-Boy countered that there was very little repair work done on furniture at the facility which was mainly a warehouse. Also, its records showed that in 15 years, there were no workers’ comp claims related to chemical exposure.

The company also had a medical toxicologist examine Noel-Liszkiewicz. The doctor disagreed with her doctors’ diagnoses and attributed her abnormal pulmonary tests to morbid obesity and exposure to tobacco smoke.

After hearing medical experts from both sides, the Board concluded that Noel-Liszkiewicz’s symptoms were more consistent with the opinion of La-Z-Boy’s medical toxicologist than with her own doctors’ opinion. For that reason, the Board decided she should not receive workers’ comp benefits for her various respiratory problems.

Noel-Liszkiewicz appealed to the Delaware Superior Court which upheld the Board’s decision. After that, she took her case to the Delaware Supreme Court.

Her argument was that the Board erred in giving more weight to La-Z-Boy’s medical expert than her own doctors. She told the court she proved her disease was caused by exposure to chemicals when she worked at La-Z-Boy.

But the Delaware Supreme Court ruled that the Board had applied the correct standard in determining that Noel-Liszkiewicz had not proven her illness was caused by her work environment. The Board cited specific relevant reasons for accepting the opinion of La-Z-Boy’s expert over Noel-Liszkiewicz’s doctors.

For that reason, the Delaware Supreme Court affirmed the Board’s decision and denied Noel-Liszkiewicz workers’ comp benefits.

Have you ever faced a situation when an employee claimed workplace chemical exposure caused respiratory problems, but you knew that the person was either a smoker or had other health problems? Let us know in the comments below.

(Noel-Liszkiewicz v. La-Z-Boy, Supreme Court of DE, No. 587, 2012, 2/12/13)

The post Were her breathing problems occupational asthma, or caused by smoking/obesity? appeared first on Safety News Alert.

Jean O’Connor was a duty nurse for Med-Center Home Health Care in Connecticut. While in the course of her employment, she slipped on ice in a patient’s driveway and injured her hand, wrist, knee and shoulder. Med-Center accepted and covered these injuries.

Several years later, O’Connor requested coverage for a partial knee replacement. In the course of seeking compensation for her surgery, O’Connor was evaluated by two orthopedic doctors, who both said she was capable of sedentary work. That led Med-Center to request reduction or discontinuation of O’Connor’s workers’ comp temporary total disability benefits. A workers’ comp commissioner heard the case.

O’Connor submitted a report from her treating physician, stating that she was “functionally disabled.” More specifically, the doctor said, “There is little in terms of work capacities that she could tolerate other than sedentary capacities, but her ability to get to and from her house to place of employment is now severely limited.”

Another doctor testified that O’Connor was also at risk of “potentially fatal blood clots.”

O’Connor also testified before the commissioner that she couldn’t perform everyday activities, such as cleaning, doing laundry or driving.

The commissioner ruled that O’Connor was totally disabled and that Med-Center should pay per workers’ comp benefits. On appeal, the workers’ comp board agreed with the commissioner.

Next stop for Med-Center: a Connecticut appeals court.

Doctor’s word or commissioner’s opinion?

The employer argued that the finding that O’Connor should be awarded total disability was made without receiving direct medical evidence that she was totally disabled.

The appeals court noted that no doctor or occupational specialist determined that O’Connor was totally disabled.

But the court disagreed with Med-Center’s assertion that O’Connor couldn’t be found totally disabled without direct medical evidence indicating that.

“The evaluation of whether a claimant is totally disabled is a holistic determination of work capacity, rather than a medical determination,” the court wrote.

Given the medical testimony and O’Connor’s own credible description of what she was capable of doing, the court ruled the commissioner could have found as he did, that she was totally disabled.

“The commissioner reasonably and logically could have concluded that the plaintiff’s inability to sit for long periods, stand for long periods, repeatedly get up from a chair, twist, lift or drive, combined with the pain associated with her condition, rendered her temporarily totally incapacitated from work,” the court said.

For that reason, the commissioner’s decision was affirmed.

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

(O’Connor v. Med-Center Home Health Care, Appellate Court of CT, No. AC30200, 3/5/13)

Duration of temporary total disability increasing

Having workers on temporary total disability (TTD) is costly.

The National Council on Compensation Insurance (NCCI) has found the average duration of TTD benefits has been increasing since the start of the recession in 2008. The rate of increase slowed somewhat in 2010 and 2011, the period for which the most recent statistics are available. The study includes data from 45 states plus Washington, DC.

The mean duration of TTD benefits rose from 130 days in 2005, to 147 days in 2009 and 149 days in 2011.

Some other statistics about TTD from NCCI:

• Contracting (plumbing, construction) consistently has the highest duration of all the industry groups (the other four groups are Manufacturing, Goods & Services, Office & Clerical, and Miscellaneous which includes trucking and public safety workers). Contracting claims tend to be for more severe injuries than claims in other industries because of the relatively high exposure to hazardous work conditions (ex. working at heights).
• The type of injury with the longest duration is fractures. The duration of hernia claims has declined significantly since 2000 because of improved surgical treatments.
• The body part with the longest duration is the wrist. Ankle injury duration has increase more than any other body part from 1998 to present.

The post Doctors didn’t say she was totally disabled; judge says she is anyway appeared first on Safety News Alert.

A Wal-Mart loss prevention employee chased a shoplifter, and in the process, a co-worker was knocked over and killed. Is Wal-Mart liable for the employee’s death? How did employee training factor into this case?

The loss prevention employee, Sean Respass, was chasing a shoplifting suspect at a Wilson, NC, Wal-Mart. The suspect and Respass collided with Wal-Mart greeter Rochelle Pender, who was knocked to the floor and suffered a fatal head injury.

Pender’s estate filed a wrongful death lawsuit against Wal-Mart, Respass and the shoplifter. Wal-Mart and Respass asked for the case to be thrown out, and a state judge agreed. The estate took its case to the North Carolina Court of Appeals.

Normally, death benefits under state workers’ comp law would be the estate’s exclusive remedy. There are some limited exceptions, including if an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees.

Pender’s estate argued that employer misconduct existed because:

• Wal-Mart had a goal for loss prevention workers to catch eight shoplifters a month, and
• Respass violated Wal-Mart’s no-chase police regarding shoplifters.

Was this an egregious case?

Respass testified that all loss prevention employees were expected to reach a quota of eight apprehensions per month. The policy wasn’t in writing. Respass says it was communicated to him verbally.

Pender’s estate argued that the quota created an “incentive for Respass to engage in conduct that was substantially certain to cause serious injury or death.”

But the appeals court didn’t buy that argument. The exception to workers’ comp’s exclusive remedy provision is only applied in the most egregious cases of employer misconduct. The court noted Wal-Mart instituted its no-chase policy regarding shoplifters to protect the safety of its employees and customers. Wal-Mart fired Respass for violating that policy. Also, there was no record of injuries resulting from the monthly quota.

For that reason, the court said there was no evidence of misconduct by Wal-Mart.

The court also ruled that Respass’ decision to chase the alleged shoplifter also didn’t rise to the level of willful, wanton or reckless behavior.

The appeals court affirmed the lower court’s decision and threw out the lawsuits against Wal-Mart and Respass. It allowed a potential wrongful death lawsuit against the alleged shoplifter to go forward.

(Estate of Rochelle Pender v. Respass, Wal-Mart, NC Court of Appeals, No. 11-CVS-1144, 2/5/13)

Benefit of written safety policy

While the quota policy wasn’t in writing, Wal-Mart’s no-chase policy was. It said all loss prevention employees must never:

• chase a shoplifter more than ten feet, and
• engage in a physical confrontation with a customer or shoplifter.

The purpose of the policy was to ensure the safety of all people, employees and customers, on Wal-Mart’s property.

This written policy, and the fact that Wal-Mart followed through on it by firing Respass, was key in the appeals court’s decision to throw out the wrongful death lawsuit against the retailer.

Of course, having your safety policies in writing is an automatic benefit for training your employees on how to work safely.

But it also has another legal benefit besides the one in this workers’ comp case.

What happens if you’ve provided repeated safety training to your employees, yet a worker violates safety rules which leads to an OSHA investigation?

Companies can argue this is a case of unpreventable employee misconduct.

In one recent case, Otis Elevator was able to get an OSHA fine thrown out by the Occupational Safety and Health Review Commission.

A mechanic and apprentice were repairing an elevator. The mechanic told the apprentice to wait on the elevator’s roof until a replacement part arrived.

At some point, the apprentice climbed onto a railing on top of the car and looked into the shaft of an adjoining elevator. At that moment, an elevator car descended and struck the apprentice in the head, killing him.

OSHA issued one General Duty Clause violation. But on appeal, an Occupational Safety and Health Review Commission decision said there was nothing more Otis Elevator could have done to prevent the fatality. The commission threw out the OSHA citation.

The post Employee knocked over, killed in shoplifter chase: Is employer liable? appeared first on Safety News Alert.

Kyle Kinsey worked as a welder for Apex Bolt & Machine Co. in Ohio.

One day at work, Kinsey felt gradually increasing pain and stiffness in his right wrist. That night at a hospital ER, a doctor diagnosed a wrist strain with a possible fracture in the carpal area. The doctor immobilized the wrist and prescribed medication for pain and swelling and wrote on a workers’ comp form that the injury was likely work-related.

Two days later, Kinsey saw an orthopedic specialist, Dr. Kalb, who suspected a fracture and carpal tunnel syndrome due to swelling.

A few days later, Kinsey returned to Kalb with extreme pain, swelling and nausea. The doctor noted redness and swelling due to abscesses within the wrist. Kalb admitted Kinsey to the hospital.

MRIs and x-rays didn’t show a fracture. Tests revealed pockets of infection in the wrist. The abscesses were drained and cleaned. Kinsey was prescribed antibiotics and physical therapy.

More than five years later, Kinsey says he’s has yet to regain the full use of his hand.

He applied for workers’ comp benefits for carpal tunnel syndrome and the wrist infection.

Caused by work, or just at work?

Initially, Kinsey received workers’ comp benefits. However, Apex appealed.

A hearing officer denied benefits for the carpal tunnel syndrome and infection but allowed it for wrist strain.

A second appeal resulted in benefits being restored for all the conditions.

Eventually, Apex sought summary judgment against Kinsey from an Ohio appeals court, arguing that his workers’ comp claim should be thrown out without any further consideration. The company said Kinsey failed to prove his injuries were work-related.

Kinsey faced a problem proving that his injuries were work-related: In his own deposition testimony, he denied receiving a cut or abrasion to his wrist at work that would have led to the infection.

Another problem for Kinsey: Dr. Kalb testified that, despite an initial tentative diagnosis of a fracture, MRIs and x-rays failed to show one. Kalb said the location of the wrist pain frequently leads a doctor to suspect a fracture. However, in this and other cases, diagnosis eventually shows the pain is due to an infection.

A similar situation existed with the carpal tunnel syndrome, according to Kalb. The swelling that caused the CTS was brought on by the infection, not a fracture.

So while a tentative diagnosis would seem to point to a fracture that might have been caused at work, further investigation determined the problem was an infection for which Kinsey was unable to show a connection to the workplace.

“It is not enough that an illness or injury manifest itself at work,” the court wrote. “There must be a causal connection.”

For that reason, the appeals court ruled Kinsey would not receive workers’ comp benefits.

(Kinsey v. Apex Bolt & Machine Co., Court of Appeals of Ohio, Sixth District, No. L-12-1027, 2/22/13)

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Lindamarie Serraino worked as a medical technologist for Defiance Clinic in Ohio.

To improve the work environment, the Clinic started a lunch program. It periodically invited local caterers to sell food to employees in the Clinic’s break room.

Participation in the lunch program was optional. Employees paid full price for the food — there was no discount to Clinic workers. The Clinic didn’t receive any portion of the caterers’ sales.

During her day-shift job, Serraino had a one-hour, unpaid lunch break.

In the first full week of August 2005, Serraino ate catered lunches on several days. On Saturday of that week, Serraino became ill and sought medical treatment. She was diagnosed with salmonella poisoning.

The County Health Department investigated and found five other confirmed cases of salmonella poisoning. Each person had eaten one or more catered lunches served at the Clinic during the previous week. However, the Health Department was unable to conclusively identify the source of the salmonella, even though its investigation centered around Classic Catering by Kim Brown.

Serraino applied for workers’ comp benefits for the salmonella poisoning.

Five hearings later …

A hearing officer denied Serraino’s claim.

On appeal, so did another hearing officer, the state Industrial Commission and the state Court of Common Pleas.

The fifth hearing: the Court of Appeals of Ohio.

The first test by the appeals court: Did Serraino’s injury “arise out of” her employment.

Serraino argued:

• Her injury occurred on Clinic property
• The Clinic benefited from her presence at the scene of her injury because she was receiving training that week, and eating lunch on site allowed her to return to training faster
• Her doctor said she contracted the salmonella poisoning by eating food prepared by Classic Catering, despite the Health Department’s inability to say so conclusively, and
• The Clinic had control over the scene of the injury.

To counter Serraino, the Clinic said the caterers did serve the food on Clinic property. But the Clinic didn’t have control over the caterers’ activities, including food preparation.

The appeals court noted Serraino could have eaten the food purchased from the caterer anywhere. It also agreed with the Clinic that it didn’t have control over the food preparation activities that apparently gave the worker food poisoning.

For that reason, the court ruled that her poisoning didn’t arise out of her employment. The court awarded summary judgment to the Clinic. The case was dismissed.

Note: The court agreed Serraino staying on site to eat her lunch so she could return to training earlier was a benefit to the Clinic.

Although we don’t know for sure, it appears this case could have had a different outcome had the Clinic employed the food preparers. That way, the Clinic would have maintained control over them, and it would have lost that part of the argument.

What do you think of the court’s decision? Let us know in the comments below.

(Serraino v. Fauster-Cameron dba Defiance Clinic, Court of Appeals of Ohio, No. 4-12-11, 2/4/13)

The post She got food poisoning in the company break room; does she get workers’ comp? appeared first on Safety News Alert.

Odilon Visoso, an undocumented worker, was injured in the course and scope of his employment with Cargill Meat Solutions in Schuyler, NE. A 200-pound quarter of beef fell off an overhead conveyor and struck Visoso on the head.

He had neck surgery.

Shortly after his surgery, he was fired by Cargill when it discovered he was an undocumented immigrant not authorized to work in the U.S.

The Workers’ Compensation Court (WCC) found Visoso suffered a compensable injury and awarded him temporary total disability benefits. The Nebraska Court of Appeals affirmed that ruling.

Almost five years after his injury, Cargill petitioned the WCC for modification of the award because it was determined Visoso reached maximum medical improvement. However, Visoso denied his disability had decreased and argued that he should continue to receive benefits.

The two sides agreed a vocational rehabilitation counselor would prepare a report on Visoso’s loss of earning capacity.

In the meantime, Visoso returned to Mexico.

That’s when things got complicated.

Earning capacity for U.S. or Mexico?

The counselor said she could not obtain information about the rural region in Mexico where Visoso went to live to determine his loss of earning capacity in that area. She did prepare a report based on his situation in Schuyler, NE.

The WCC found the evidence was insufficient to quantify Visoso’s loss of earning power to award permanent disability benefits and that Cargill owed no further liability to Visoso.

Visoso appealed, and now the Nebraska Supreme Court has weighed in on the matter.

The state’s highest court noted that it had recently ruled the Nebraska workers’ comp law didn’t prohibit an award of benefits to an undocumented immigrant for permanent disability. So that was not the issue.

The question is what, if any, permanent disability payments Cargill should pay to Visoso based on his loss of earning potential.

The Nebraska Supreme Court had ruled previously that either the community where the injury occurred or the community where the employee has moved can serve as the “hub” community to establish loss of earning power, if the worker’s move was in good faith.

The court determined Visoso had moved in good faith. Therefore, it remanded the case back to the WCC to allow Visoso to attempt to establish that he should receive permanent impairment benefits. Given the nature of his injuries, it appears likely now that Visoso will get at least some workers’ comp benefits.

The court said allowing companies to not provide workers’ comp benefits to undocumented workers would set up an undesirable situation:

“Allowing an undocumented worker to establish loss of earning capacity based on data where the injury occurred reduces the incentive to hire undocumented workers so as to avoid paying workers’ compensation benefits. If an employer were able to end its obligation to the impaired worker because no reliable data existed in the undocumented worker’s country of origin, employers would be encouraged to hire undocumented workers to avoid paying workers’ compensation benefits.”

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

(Visoso v. Cargill Meat Solutions, Supreme Court of NE, No. S-12-038, 2/22/13)

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Danny Douglas worked as a computer support analyst for Ad Astra, a software company in Overland Park, KS.

On Nov. 3, 2006, an email invited employees to a company-sponsored event that afternoon at an indoor racing facility. Employees could either attend the event or remain at work.

The company covered all of the event expenses, including food. Employees were paid while attending.

At the event, Ad Astra’s owner gave a brief pep talk about one of the company’s upcoming products. The  owner then divided the employees into teams and asked them to compete for prizes. The teams with the fastest go-cart lap times would win.

While racing his go-cart, Douglas had to sharply turn to avoid a collision with another go-cart that was stopped on the track. While traveling at about 25 miles per hour, Douglas crashed his go-cart into a tire wall and was thrown from the vehicle, landing on his right side.

Later that night, Douglas sought medical treatment. He suffered a rib fracture and a lung injury that required surgery.

Douglas applied for workers’ comp benefits. Ad Astra denied his claim because Douglas was injured at a recreational event that he wasn’t required to attend and his activities weren’t work-related.

The employee saw things differently. Douglas said he felt pressured to attend the event. He said he normally wouldn’t race a go-cart, but he agreed to because he wanted to be “part of the team.”

An administrative law judge ruled Douglas could receive workers’ comp benefits for his injuries. Ad Astra appealed to the Kansas Workers’ Compensation Board.

Was event purely recreational/social?

The company pointed to the state workers’ comp law which says:

“The words ‘arising out of and in the course of employment’ … shall not be construed to include injuries to employees while engaged in recreational or social events under circumstances where the employee was under no duty to attend and where the injury did not result from the performance of tasks related to the employee’s normal job duties or specifically instructed to be performed by the employer.”

The Board concluded that Kansas law didn’t define what is a recreational or social event. So it used three factors in Larson’s Workers’ Compensation Law, a law book cited by courts in workers’ comp cases in all U.S. states.

Larson’s lists three factors for determining whether recreational and social activities fall within the course of a worker’s employment:

1. whether the employer expressly or impliedly requires participation
2. whether the employer derives a benefit from the employee’s participation beyond the employee’s health and morale, and
3. whether the activities occur on the employer’s premises during lunch or a recreation period as a regular incident of employment.

Using this three-part test, the Board found the go-cart racing was not a purely recreational or social event. Douglas said he believed participation in the event was required. The only alternative was to remain at work, effectively motivating employees to go to the race park. Also, Ad Astra’s owners gave a speech regarding a new product and assigned employees to racing teams for the event, implying this was a team-building activity.

And while the injury didn’t occur on Ad Astra’s property, it happened on premises the company reserved exclusively for its employees to use on the day of the go-cart races. The fact employees were paid for their time at the track was also a consideration.

For those reasons, the Board found that Douglas’ injuries did not occur during a recreational or social event. Therefore he could receive workers’ comp benefits.

Did Board use correct test?

After the Board decision, Ad Astra took its case to the Kansas Court of Appeals. The company argued the Board shouldn’t have used the Larson’s test. Instead, it should have used the plain language included in the state’s workers’ comp law.

But the appeals court didn’t see it that way. The majority found it was appropriate to use the Larson’s factors.

As you might guess, Ad Astra appealed to the Kansas Supreme Court.

The state’s highest court agreed with Ad Astra that the lower courts unnecessarily used the Larson’s test in this case. The court said the definition of a recreational event in the Kansas workers’ comp law was sufficient. However, this isn’t likely to change the result.

The court noted that, in Kansas law, injuries during recreational activities are only excluded from comp coverage “where the employee was under no duty to attend and where the injury did not result from the performance of tasks related to the employee’s normal job duties or as specifically instructed to be performed by the employer.”

The Supreme Court said there was sufficient evidence to support the idea that Douglas was “under some duty” to attend the go-cart event. The court said Douglas was mandated by his employer to be in one of two places: either at work or at the race facility.

Another problem for the company: The owners divided workers into teams to race the go-carts, effectively telling Douglas to participate in the race.

The supreme court sent the case back to the Board for further consideration. But the high court’s guidance is clear: There was enough evidence this was not purely a recreational activity. It appears Douglas will be able to collect workers’ comp benefits.

Does this throw a wet blanket on recreational and social activities sponsored by companies? Not necessarily. Employee participation must truly be voluntary. And executives should steer very clear from giving work-related speeches at these events. Sticking to the mantra of not mixing work and play is a good idea for any employer looking to avoid workers’ comp claims for employee injuries at company-sponsored fun events.

What do you think of the court’s decision? Let us know in the comments below.

(Douglas v. Ad Astra Information Systems, Supreme Court of KS, No. 101,445, 2/8/13)

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Alfred Napierski, a plumber, injured his leg on the job when a ditch collapsed. His employer, Scobell Co., accepted liability, and Napierski received total disability benefits under workers’ comp.

Scobell referred Napierski to a company that helps employees return to work. The firm found the former plumber a full-time sedentary job in telephone customer service at another company. The job was funded by Scobell.

The location of Napierski’s customer service job moved because of a mouse infestation. When he noticed mouse feces in paperwork that had been transported to the new location, he quit on the spot. He said his employer was “playing games” with him.

A worker’s comp judge (WCJ) found Napierski refused in bad faith to continue in the light duty job. Therefore, his benefits were reduced to a partial disability rate — the difference between what he would have earned as a plumber and the customer service job. His new benefit paid about $375 per week.

Five years later, Napierski asked Scobell to fund the light duty job for him again so he could return to work. When he didn’t hear back from his former employer, Napierski filed a petition to have his total disability benefits reinstated. Scobell said since Napierski left the light-duty job, he wasn’t entitled to it.

The WCJ rejected Napierski’s request, citing state law that said the only way he could get total disability benefits back was to prove that his medical condition had worsened to the point that he could no longer do the sedentary customer service job. That wasn’t the case, here.

The WCJ concluded it wouldn’t be fair to allow Napierski to avoid the legal consequences of refusing the light-duty job by reinstating him to it five years later. The judge denied his request to return to total disability benefits.

Napierski took his case to a state court.

Is a funded light-duty job different?

The former plumber acknowledged that previous court rulings in Pennsylvania stated once an injured employee voluntarily walked out on a light-duty job, the employer no longer had to hold the job open.

But Napierski argued his situation was different because Scobell funded his light-duty job at another company. The former plumber said leaving a funded job in bad faith didn’t mean his employer shouldn’t have to provide him a job because he regrets his earlier refusal of work.

Nice try, said the court. The judges ruled that it didn’t matter whether the job was with his former employer or funded by his former employer at another company. If Napierski walked out — and the mouse droppings didn’t matter — he was no longer entitled to the light-duty position. (PDF of decision.)

It would have been a different case had the company eliminated the light-duty job. In that case, Napierski would have been eligible to have his total disability benefits reinstated.

The take-home: Injured workers can’t just quit a light-duty job. Having a light-duty plan can save your company money in workers’ comp costs.

A side note: Do you have workers’ comp cases that go back several years, or maybe even decades? You’re not alone. This case dates back to 1995 when Napierski was originally injured.

One situation when they can refuse

While it may be difficult for injured employees to refuse light-duty assignments and be returned to workers’ comp benefits, it’s not impossible.

Example: A truck driver injured his shoulder. His employer offered him a light-duty job … 387 miles away in its offices.

The company said it would cover the employee’s costs to allow him to return home every other weekend.

However, the driver was able to return home every weekend when he was on the road, and sometimes during the week, too.

The driver declined the light-duty offer, and the company suspended his workers’ comp benefits.

The employee appealed, and a workers’ comp commissioner ruled the company didn’t offer “suitable” light duty. Therefore, the driver’s workers’ comp benefits had to be reinstated.

The case was appealed all the way to the Iowa Supreme Court, which upheld the workers’ comp commissioner’s initial ruling.

What do you think of the courts’ rulings in these cases? Let us know in the comments below.

(Napierski v. Scobell Co., Commonwealth Court of PA, No. 330 C.D. 2012, 1/10/13)

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Kimberly Laing was making a delivery for FedEx when she fell on uneven pavement and landed hard on her knees. Her right knee suffered significant damage and she needed surgery.

Before she had surgery, Laing’s supervisor became concerned about her job performance. The supervisor had found evidence that Laing may have been “gaining time” — making multiple stops to one address to delivery multiple packages rather than delivering them all at once to artificially pad per pay.

Laing had her surgery. By the time she came back to work, FedEx had finished its investigation, reaching the conclusion she had falsified records. She was placed on investigatory suspension with full pay.

About four weeks later, FedEx fired Laing. The official termination letter stated, “Our investigation found a demonstrated pattern of gaining time.”

FedEx’s policy stated it could fire an employee who engaged in “deliberate falsification of delivery records.” There’s no doubt Laing knew about the policy. One year before her knee injury, FedEx had terminated her for violating the same policy. The decision had been overturned during the company’s internal appeal process.

Laing filed a lawsuit alleging FedEx fired her in retaliation for taking FMLA leave. A trial court granted summary judgment to FedEx. The court noted FedEx provided “voluminous evidence through the reports of what it considers to be termination-worthy falsification of company records.” Laing then took her case to a federal appeals court.

Did FedEx make its case?

The appeals court said Laing met her burden of showing (1) she engaged in a protected activity, (2) FedEx took adverse action against her, and (3) there was link between the protected activity and the adverse action.

After Laing made her case, it was up to FedEx to show a legitimate, nondiscriminatory reason for firing her.

The court ruled FedEx successfully made its case.

The company had plenty of documentation to show it fired Laing for unacceptable conduct, in this case, for falsifying records. Her termination letter identified numerous instances in which Laing “gained time” or padded stops. FedEx’s conduct policy stated it had zero tolerance for such record falsification, and Laing knew about the company’s policy.

For those reasons, the federal appeals court threw out Laing’s lawsuit against FedEx. The court said it wasn’t a case of retaliation — FedEx justified the firing.

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

(Laing v. Federal Express, U.S. Court of Appeals 4th Circuit, No. 11-2116, 1/9/13)

The post Was she fired in retaliation for taking FMLA leave for work injury? appeared first on Safety News Alert.

Is testing positive for pot enough to disqualify an injured employee from receiving workers’ comp benefits?

Vincent Hogg worked at the Oklahoma County Juvenile Detention Center. He suffered an injury to his right shoulder and neck while subduing an unruly, combative juvenile.

The Worker’s Compensation Court (WCC) found Hogg sustained an injury at work and reported it in a timely fashion, four days later. So far, so good on the path to receive workers’ comp benefits.

Hogg was given a post-accident drug screen on the day he reported the injury. He also had a follow-up screening the next day. Both drug tests were positive for marijuana.

Hogg didn’t dispute the test results, but he denied smoking pot. He said he had been around others who were smoking marijuana.

The WCC found there was no evidence presented to show Hogg was high on the day he was injured, nor was there any evidence to show the marijuana in his system was the “major cause” of his injury.

But the WCC denied his workers’ comp benefits anyway. The reason: A newly created Oklahoma workers’ comp law.

Just what does new law say?

The comp judge’s decision was based on the fourth sentence in a paragraph of the revised workers’ comp law:

“For purposes of workers’ compensation, no employee who tests positive for the presence of … alcohol, illegal drugs, or illegally used chemicals, or refuses to take a drug or alcohol test required by the employer, shall be eligible for such compensation.”

Hogg appealed the WCC ruling, arguing the sentence in the new law shouldn’t be read in isolation.

In reviewing the case, the Supreme Court of Oklahoma noted that the first two sentences of the same paragraph in the comp law say:

“The following shall not constitute a compensable injury under the Workers’ Compensation Code: an injury which occurs when an employee’s use of illegal drugs or chemicals or alcohol is the major cause of the injury or accident; the employee shall prove by a preponderance of the evidence that the use of drugs, chemicals or alcohol was not the major cause of the injury or accident.”

The Supreme Court noted that the trial court found there was no evidence presented to show that Hogg was high on the day of his injury, nor was there any evidence to show that marijuana in his system was the major cause of the injury.

For that reason, the Oklahoma Supreme Court reversed the lower court’s ruling and remanded the case back to the WCC for further hearings. In other words, Hogg is now eligible for workers’ comp.

What do you think of the court’s decision? Let us know in the comments below.

(Hogg v. Oklahoma County Juvenile Bureau, Supreme Court of OK, No. 110890, 12/11/12)

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Christine Jones was an employee at St. Elizabeth Medical Center in Youngstown, Ohio.

On April 2, 2007, Billy Jack Fitzmorris, a federal prisoner, was brought to St. Elizabeth’s for treatment. He used a homemade knife to overpower and disarm a prison guard who accompanied him.

Fitzmorris had a gun from a guard and took six people hostage, including Jones.

According to Jones’ own testimony:

“The inmate grabbed my left wrist. I yanked away from him. Then he grabbed my right wrist and pulled it and banged it against a doorway and pressed it there — holding me. That’s when he brought the gun up and said, ‘I’ll f*****g kill both of you.’ … He kept saying over and over that he would kill us — at least 15 times.”

After holding the hostages for 25 minutes, Fitzmorris escaped but was eventually recaptured.

Jones suffered an injury to her wrist. She applied for workers’ comp benefits for the physical injury and for PTSD. Her doctor said the anxiety and constant state of hyper-vigilance Jones experienced after being taken hostage prevented her from working.

Initially, she was granted workers’ comp for the wrist injury but denied for PTSD. Jones appealed the PTSD denial. Her appeal resulted in benefits for both the wrist injury and the PTSD.

Her employer appealed the award of benefits for PTSD.

Sole cause of PTSD?

The case eventually wound its way to the Court of Appeals of Ohio.

Jones’ employer argued her doctor’s testimony failed to show her wrist injury was the sole cause of her PTSD. The company said if the injury didn’t directly cause the psychological injury, PTSD shouldn’t be covered under workers’ comp.

The appeals court said the testimony from her doctor showed that Jones’ physical injury was a direct cause of her PTSD, even if it wasn’t the only cause — she also suffered from the stress of being taken hostage. Previous Ohio Supreme Court rulings held that if a physical workplace injury led to PTSD, it should be covered by workers’ comp.

The appeals court said the injury didn’t have to be the only cause of PTSD. For that reason, the judges upheld the lower court ruling that Jones should get workers’ comp for both her physical injury and for PTSD.

Let’s relate this case to the Connecticut school shooting. There were several first responders and school personnel who had to face the horror of 20 dead children inside the school. However, those workers weren’t physically injured.

Under the guidance of the Ohio appeals court ruling in the Jones case, these workers would not received workers’ comp for PTSD. There is question whether the first responders and school personnel in the Newtown massacre can receive workers’ comp for PTSD. Lawmakers have introduced bills in the Connecticut legislature to address this.

Do you think workers should get workers’ comp for PTSD if they witness violent situations at work? Let us know what you think in the comments below.

(Jones v. Catholic Healthcare Partners, Court of Appeals of Ohio, No. 11 MA23, 12/31/12)

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The Ohio Bureau of Workers’ Compensation received a tip that Jason Dross was lifting heavy weights at the YMCA in Celina, Ohio. The BWC’s Special Investigation Department took a look.

Sure enough, agents were able to videotape Dross bench pressing more than 500 pounds consistently over a period of a month.

The investigation led Dross to plead guilty to one felony count of workers’ compensation fraud. He was sentenced last week to nine months in jail, suspended for three years of community control under the conditions that he maintain employment and pay restitution of $31,736.

Wage loss benefits are available to injured workers who are unable to find a job within their doctor-ordered physical restrictions. A worker must demonstrate a good faith effort to get a job before becoming eligible for these benefits.

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Ricardo Moyera suffered injuries when a forklift ran over his right foot at Quality Pork International (QPI) in Nebraska.

The forklift broke several bones in the top of his foot.

Moyera was placed on light duty until he reached maximum medical recovery.

Moyera continued to suffer pain. A rehabilitation consultant concluded he didn’t have transferable skills that would qualify him for sedentary jobs in the Omaha job market. Because of his permanent restrictions — a 20% whole body impairment — and his inability to speak English, she concluded he wasn’t employable and he experienced a 100% permanent loss of earning capacity.

When it became apparent he would continue to have some impairment — his foot would swell if he had to stand on it for too long — QPI’s personnel manager audited Moyera’s employment files and determined he didn’t have proper immigration documents. In fact, at QPI, Moyera had been known by another name: David Gutierrez.

QPI fired Moyera after he couldn’t produce the required paperwork.

At a hearing, a judge awarded Moyera future medical care benefits for treatment of his injury. QPI appealed, but a review panel agreed with the judge.

Recently, the case went to the Nebraska Supreme Court.

Temporary vs. permanent benefits

In a previous case, a Nebraska court had ruled that an illegal alien was able to collect temporary total disability benefits through workers’ comp.

But QPI said Moyera’s case was different because he was seeking permanent disability benefits. The company said temporary benefits are limited to an employee’s healing period.

QPI said benefits for permanent loss of earning power should be barred because Moyera couldn’t legally get a job in the U.S. because he was an undocumented worker. Temporary benefits focus on medical costs. Permanent benefits are also for wage replacement.

Interesting argument, but as has been happening from state to state, the Nebraska Supreme Court ruled an undocumented worker is eligible for workers’ comp. Among the observations made by the court in its ruling:

• “Even if undocumented employees cannot legally work in the United States, they could have worked elsewhere but for their work-related injury.”
• “Excluding undocumented workers from receiving disability benefits creates a financial incentive for employers to continue hiring them.”
• “Allowing an employer to escape liability for the work-related injuries that its undocumented employees sustain gives the employer an unfair advantage relative to competitors who follow the law.”
• “Employers bear the costs of their employees’ work-related injuries because they are in the best position to avoid the risk of loss by improving workplace safety. We agree that public policy weighs against allowing employers to avoid the costs of their workplace hazards.”

So Nebraska joins other states where the highest courts have ruled undocumented workers aren’t an exception when it comes to workers’ comp.

What do you think about the ruling? Let us know in the comments below.

(Moyera v. Quality Pork International, Nebraska Supreme Court, No. S-12-208, 1/4/13)

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OSHA inspected a work site in Stuart, FL, where Custom Built Marine Construction was renovating a boat.

During the inspection, the OSHA inspector saw a Custom employee using a jackhammer to chip away concrete while his supervisor stood nearby. Pieces of concrete were flying into the air. Neither the employee nor the supervisor were wearing eye protection.

Two pairs of protective eye wear were on site. The employees told the OSHA inspector they knew they could have used the eye protection if they felt they needed it.

OSHA issued a serious violation to Custom because the two employees weren’t wearing eye protection while operating a jackhammer. OSHA said Custom violated construction standard 1926.102(a)(1) which says the employer should “provide” eye protection in such a situation.

The case went to an administrative law judge (ALJ) of the Occupational Safety and Health Review Commission (OSHRC). The judge ruled, “the word ‘provide’ is not ambiguous and is commonly understood to mean ‘furnish’ or ‘make available.’”

For that reason, the judge vacated the violation against Custom, effectively saying the company had abided by the standard by simply providing the PPE. OSHA disagreed with the judge’s ruling and appealed it to the entire OSHRC.

Compliance doesn’t mean ‘available on request’

The OSHRC noted that it had addressed this issue 30 years ago.

In a previous ruling, the commission rejected the “contention that making such protection available ‘on request’ constitutes compliance.”

The OSHRC said 1926.102(a)(1) must be read in context with the “General Safety and Health Provisions” of Part 1926 which states, “the employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees.”

For that reason, the OSHRC reversed the decision of the ALJ. The serious citation and $2,400 fine were affirmed.

What do you think about this decision? What do you do in a situation when you supply PPE but an employee chooses not to wear it? Let us know in the comments below.

(Secretary of Labor v. Custom Built Marine Construction, OSHRC No. 11-0977, 12/20/12)

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Glenn Brantley was employed as an iron worker at the Oak Grove SES Power Plant construction project in Franklin, Texas.

One morning at the job site, he was looking over blueprints next to a “job box,” when he felt a sting on the inside of his left knee.

The sting made him flinch, and he fell against a piece of metal protruding from the job box which punctured his leg.

Brantley says the sting was a spider bite. He developed an infection from the bite and the puncture wound.

He sued Oak Grove Power Co. and two other firms for negligence, using the doctrine of “animals ferae naturae.”

The doctrine says a landowner can’t be held liable for the acts of animals in their natural habitat — at least under most circumstances.

Brantley noted that in a previous opinion, a Texas court wrote:

“A premises owner could be negligent with regard to wild animals found in artificial structures or places where they are not normally found.”

Brantley argued that the construction site owner provided building materials that had been left in a field and were infested with spiders and that he was in an artificial structure.

But the court didn’t buy it. It said Brantley was bit by a spider in its natural habitat in the normal course of its existence. The presence of the spiders wasn’t due to any negligent act by the land owner — it didn’t bring or draw them onto the property.

For that reason, the court granted Brantley summary judgment and tossed his negligence lawsuit.

(Brantley v. Oak Grove Power Co. et al, Texas 10th Court of Appeals, No. 10-12-00135-CV, 11/29/12)

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The U.S. Court of Appeals, Second Circuit, let stand the award to Becky McClain.

The court said McClain, a molecular biologist, presented sufficient evidence at the jury trial to prove Pfizer retaliated against her speech regarding workplace safety.

At that 2010 trial, the jury awarded McClain $1.37 million. The judge increased the amount for attorneys’ fees and punitive damages.

One of McClain’s concerns was that Pfizer had exposed her to an unsafe lab in Groton, CT, leading to an illness that left her dangerously sick.

Pfizer disagrees with the court’s conclusion but “respects its decision,” the company said in a statement. The pharmaceutical maker is “evaluating its options,” which include an appeal to the U.S. Supreme Court. Pfizer said it fired McClain because she abandoned her job.

An interesting side note: One member of the three-judge 2nd Circuit panel was retired U.S. Supreme Court Justice Sandra Day O’Connor, who has filled in on various U.S. courts during her retirement.

It’s been a long road for McClain. She became ill in 2004 and filed her lawsuit in 2006.

McClain also filed a whistleblower complaint with OSHA. After an investigation, OSHA said it couldn’t substantiate her claims of safety problems. McClain said OSHA didn’t have the staff expertise to determine lab hazards.

OSHA has said lab safety is an area in which it needs to improve.

(McClain v. Pfizer, U.S. Court of Appeals, Second Circuit, No. 11-3002-cv, 12/13/12)

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A second court has now ruled the woman should get the comp benefits.

The woman, a government worker, was on a business trip. She suffered injuries to her nose, mouth and a tooth as well as psychiatric injury, when a wall-mounted lamp in the motel where she was staying fell on her during sex.

The woman argued she deserved comp because she was injured “during the course of her employment” because she was required to travel.

The government’s insurer, Comcare, argued she shouldn’t receive comp, and an administrative tribunal agreed.

The unidentified woman appealed in Australia’s Federal Court, which overturned the tribunal’s ruling. The court said if the applicant had been injured while playing cards in her motel room, she would have been entitled to compensation. The fact that she was having sex at the time didn’t matter.

Comcare appealed again. On Dec. 13, the Full Bench of the Federal Court agreed with the previous ruling.

No word on how much the woman will be paid in comp.

Comcare says it’s considering an appeal to Australia’s highest legal authority, the High Court.

The post Workers’ comp for injury during motel tryst upheld appeared first on Safety News Alert.

Robert Decourcey Jr. worked for the California Department of Corrections and Rehabilitation (CDCR) as a correctional officer.

On Jan. 6, 2009, another correctional officer contacted Decourcey and asked him to take his 6 a.m. to 2 p.m. shift so he could take his grandmother to the hospital. The other corrections officer would then work Decourcey’s 2 to 10 p.m. shift.

Decourcey agreed. On the way to work, he hit a patch of black ice and spun off into a ravine, suffering severe injuries.

He applied for workers’ comp, which was denied on the basis of the coming and going rule. However, the Workers’ Compensation Appeals Board reversed the ruling and awarded Decourcey comp benefits.

CDCR took the case to a state appeals court.

Special mission exception

The WC Appeals Board had decided that Decourcey should get comp because the special mission exception applied.

This exception says an injury suffered by an employee during his regular commute is compensable if he was also performing a special mission for his employer.

The appeals court said Decourcey’s shift swap didn’t meet one part of the special mission test: He wasn’t providing “extraordinary service to his employer simply by showing up for work in another’s place to perform routine duties.”

The sergeant in charge at the correctional facility said every shift must be fully staffed, therefore every shift was a special need.

But the appeals court said characterizing every shift as special made the concept of special meaningless.

The sergeant allowed officers to swap shifts without his approval. Decourcey said he swapped shifts an average of about ten times per year.

The court said shift swapping was therefore a normal part of the job and the special mission exception could not apply. For that reason, the court reversed the appeals board and said Decoursey should not receive workers’ comp benefits for the injuries he received in the car crash.

Note: There is a fine line, at least in California, when it comes to the special mission exception. The court noted it might have ruled differently if Decoursey’s boss had requested he report to work at a special time, especially if it was because of an emergency.

What do you think of the ruling? Let us know in the comments below.

(CDCR v. Decoursey, Court of Appeal of CA, 4th Dist., No. E054153, 8/28/12)

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Jorge Tavares was a technician for Dish Network working out of an office in Farmers Branch, Texas.

One day, a supervisor observed Tavares on a ladder without a bump cap, safety glasses and gloves.

Just a month earlier, Tavares had received a final warning about safety after three infractions.

So the ladder incident was the last straw.

Tavares was also involved in union negotiations with Dish.

After his firing, the union took the case to the National Labor Relations Board (NLRB), claiming Tavares was unfairly fired for his union activities.

Can PPE fly off a worker?

At a hearing before an NLRB judge, Tavares told a story that was different from what the supervisor reported.

He says he had gloves on, and he also claims that when he heard the supervisor call to him, he turned his head so quickly that his bump cap and safety glasses flew off his head.

Tavares and his union also claimed that safety rules had been enforced haphazardly.

The general manager of the Farmers Branch Dish office admitted that safety enforcement had been lax in the past.

But the GM said when he began supervising the facility five months before the incident that led to Tavares’ firing, he decided to turn around the office that was one the worst performing for Dish.

Part of his efforts revolved around safety. The GM decided to re-educate workers about safety and enforce disciplinary action for violators.

Following the new emphasis on safety, several technicians were fired for safety infractions. Tavares wasn’t the only one.

The GM said he fired Tavares because he:

• received a final written warning for 3 serious safety violations shortly before his firing
• received extensive prior training about safety rules and was aware that safety had been elevated to a top priority, and
• committed the offense in question and fabricated the story that his bump cap and glasses fell off.

At the hearing, the supervisor who caught Tavares without the PPE put on one of the bump caps and bent over. The cap stayed on his head.

The NLRB judge said:

• He believed the testimony of the supervisor who was straightforward and honest.
• Tavares’ claim that his PPE fell off was implausible. “It is improbable that he turned his head with such torque that his PPE rocketed off,” the judge wrote. And the supervisor demonstrated that the bump cap would be difficult to shake off.

The judge said Dish proved it would have taken the same action against Tavares even if he hadn’t participated in union activity.

For these reasons, the judge ruled Dish lawfully disciplined and fired Tavares.

Note (especially for those of you who also deal with HR): Dish lost a part of this case. The judge ordered Dish to rescind its policies prohibiting its workers from

• posting critical comments about the company online
• talking to the media without permission from management, and
• contacting government agencies without permission from management.

What do you think about the ruling (PDF)? Let us know in the comments below.

(Dish Network Corp. v. Communication Workers of America, NLRB No. 16-CA-62433, 11/14/12)

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Ashley Schutz worked for O’Brien Constructors in Oregon as an office manager. She reported to several project managers.

One of them, Keeley O’Brien, the son of the company’s owner, invited Schutz for drinks after work.

She declined four or five times, but finally decided to go because she believed getting along with her boss and being a “team player” was important to advancing at the company.

Schutz drank at least four 24-ounce beers. Her boss paid for her drinks.

On her way home, she drove the wrong direction onto a highway and collided head-on with another car.

Schutz suffered severe injuries, including quadriplegia. Her blood-alcohol level was .24 when she was admitted to the hospital.

She filed a workers’ comp claim. O’Brien Constructors denied the claim, and Schutz appealed. An administrative law judge upheld the denial, as did the Workers’ Compensation Board.

The most recent development in this case: Schutz went to an Oregon appeals court which has handed down its decision.

‘Motivation to participate?’

The WC Board determined that, because O’Brien hadn’t pressured or encouraged Schutz to drink alcohol, becoming intoxicated wasn’t a risk that resulted from the nature of her work as an office manager or a risk she was exposed to in her work environment.

Schutz said the real question was whether she was motivated to drink because of work-related reasons. If she was, Schutz says she should receive comp benefits.

The court rejected that line of thought. Its decision says:

“Even if [Schutz's] injuries would not be excluded from compensability because her primary motive to attend the after-work event was work-related, it does not follow that her intoxication and the injuries that resulted from it arose out of her employment.”

For that reason, the appeals court agreed with the WC Board that Schutz shouldn’t receive workers’ comp benefits for her injuries (opinion PDF).

What do you think about the decision in this case? Let us know in the comments below.

(Schutz v. O’Brien Constructors, Court of Appeals of OR, No. A148840, 11/15/12)

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A Delaware employer tried three arguments to stop workers’ comp payments to a former employee who was deported.

Saul Melgar Ramirez was injured on the job in January 2011. He fell down six steps landing on his back, suffering back fractures and a herniated disk.

Before he could complete treatment, he was deported to Honduras and is now “excluded” from the U.S. A doctor in Honduras confirmed Ramirez still needed treatment for the back conditions after he was deported.

Delaware’s Industrial Accident Board (IAB) awarded comp benefits to Ramirez and ruled they should continue even after he was deported.

His former employer, Delaware Valley Field Services (DVFS), appealed the IAB decision. Delaware’s Superior Court took a look at this “case of first impression” for the state.

How does his status affect benefits?

DVFS made these three arguments that Ramirez shouldn’t continue to receive comp benefits:

1. Because of his undocumented immigrant status, there can’t be a valid, enforceable employment contract between Ramirez and DVFS.
2. Ramirez’s deportation and exclusion from the U.S. is the same as being incarcerated. Delaware law says workers’ comp benefits may be suspended for as long as an employee is incarcerated.
3. Ramirez “refused” to submit to an employer medical evaluation.

The court addressed each argument.

1. The court said there’s nothing in Delaware law that would break an employment contract, written or verbal, between a worker and employer. The definition of employee in state law says nothing about excluding illegal immigrants. Also, the federal Immigration Reform and Control Act doesn’t specifically bar undocumented immigrants from receiving workers’ comp benefits, according to the Delaware court.
2. Ramirez isn’t in jail in Honduras, the court noted, and deportation and exclusion from the U.S. isn’t the same as incarceration.
3. The court said Ramirez hasn’t refused to submit to medical evaluation. He saw two doctors, one in the U.S. before he left, and one in Honduras. Both said he was totally disabled because of his back injuries.

For those reasons, the Delaware court ruled there was no reason to terminate Ramirez’s workers’ comp benefits.

Note: This is the way most state courts are deciding workers’ comp cases involving illegal immigrants. As part of its decision, the Delaware court quoted a similar case from a Washington D.C. court, in which a judge wrote,  “As many courts have concluded, denying compensation coverage to undocumented aliens creates powerful incentives for employers to hire such individuals.”

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

(Delaware Valley Field Services v. Saul Melgar Ramirez, DE Superior Court, No. 12A-01-007-JOH, 9/13/12)

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Brenda Miller worked as a certified nurse assistant for Christus St. Patrick Hospital (CSPH) in Louisiana. She injured her back on June 29, 2010.

CSPH never disputed that she was injured.

When a doctor said she could do so, Miller returned to work on light duty.

According to CSPH, Miller was fired on Oct. 14, 2010, because she made threatening statements about her supervisor on Facebook while she was at work.

Miller doesn’t deny that she posted on Facebook while at work, but she says her post wasn’t directed at her supervisor. CSPH fired her for violating its standards of employee behavior.

When Miller filed for continuation of her workers’ comp benefits, CSPH sought to deny them on the grounds that she was fired for cause.

A workers’ comp judge (WCJ) ruled in Miller’s favor. CSPH took its case to a state appeals court.

Did WCJ get it right?

In reviewing the case, the appeals court said previous case law had established the following:

• Workers’ comp benefits end when an employee refuses employment
• If a company fired a worker for cause unrelated to an injury, workers’ comp benefits can be terminated, and
• If a company fired an employee for reasons other than cause, workers’ comp benefits don’t end because allowing that might encourage some employers to fire workers to bring an end to comp benefits.

Although CSPH said it fired Miller for cause, Miller disputed part of the hospital’s reason for firing her.

The appeals court called the circumstances involving Miller’s firing “obscure or murky.” It said the only job of the WCJ was to decide whether Miller met the burden of proof to get workers’ comp benefits. It’s not up to a WCJ to determine whether a firing for cause was justified.

The appeals court said Miller’s workers’ comp benefits should continue because it wasn’t clear if her firing was justifiably for cause.

Notes: Miller lost one other part of her case. Her physical therapy was being provided at CSPH. She said, given the circumstances, that was a conflict of interest and she should be allowed to choose her own physical therapist. The court denied her request. However, Miller was awarded $5,000 in attorney fees for work performed on her appeal.

(Miller v. Christus St. Patrick Hospital, Court of Appeals of Louisiana, 3rd Circuit, No. 12-370, 10/24/12)

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In 2010, a Chicago jury awarded Gerardo Solis $32 million in damages from BASF Corp., a distributor of diacetyl that sold the flavoring used in microwave popcorn and other food products to Solis’ employer, Flavorchem. The jury said Solis was 5% at fault, so it subtracted $1.6 million from the damage award.

To this day, it’s still the largest individual verdict in a popcorn lung disease case.

In 2006, doctors diagnosed Solis with bronchiolitis obliterans, an incurable lung disease that often requires victims to receive a lung transplant.

Solis sued BASF in 2007.

The company says the jury award should be thrown out because the two-year statute of limitations for Solis to file a lawsuit had expired. The trial court had ruled that the statute of limitations had not run out and directed the jury to consider the case in that light.

BASF says, even though Solis didn’t receive his official diagnosis until 2006, he knew before then that his work was causing him to have severe breathing problems.

Right off the bat, the appeals panel said previous Illinois court decisions said an official diagnosis isn’t required to start the statute of limitations clock. An injured person “need not know the full extent of [her] injuries before the statute of limitations is triggered.”

The court then considered the following facts presented by BASF at trial:

• Between 2000 and 2004, Solis’ symptoms were severe: He had several emergency room visits and a period of hospitalization.
• A pulmonary function test provided to Solis by his employer in 2004 showed he had decreased lung function. A doctor recommended Solis be taken out of a certain area of the Flavorchem plant as a result.
• In December 2004, Solis met with his own pulmonologist. He told the doctor “he was having some problems while he was at work with breathing.”
• Sometime in late 2004 or mid-2005, Solis filled out a medical questionnaire. He was asked if there were particular tasks in his job that he felt were likely to cause breathing problems. He checked “yes.”

In response, Solis said he simply thought he had severe asthma and never connected his condition with anything “wrongful” caused by the workplace.

The appeals court concluded the lower court erred and it should be up to a jury to decide whether Solis concluded he had severe asthma from a non-occupational cause or if he knew there was a work-related cause to his breathing problems.

The case now goes back to a lower court for retrial.

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

(Solis v. BASF, IL Appeals Court 4th Div., No. 2006 L 012105, 10/4/12)

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Was a widow able to show that work stress triggered her husband’s fatal heart attack? That’s what she needed to prove to get workers’ comp death benefits.

The employee was a receiver at a Waldbaum’s grocery store.

However, he was assigned to be the acting store manager during the afternoon and evening shift on Super Bowl Sunday, 2007.

Being a fill-in store manager on one of the busiest days of the year is stressful enough. On top of that, an irate customer put up a fuss that the fill-in manager had to deal with.

At about 7 p.m. that day, the employee collapsed to the floor of the store and died soon after of a heart attack.

His widow applied for workers’ comp death benefits. A WC law judge ruled the employee’s death was not causally related to his employment.

The WC board reversed that decision and awarded the benefits. Waldbaum’s took the case to a state appeals court.

Is timing a factor?

Waldbaum’s noted that the confrontation with the angry customer occurred hours before the employee’s death.

An expert witness for the store argued significant work-related stress or aggravation had to occur immediately before the employee’s collapse for it to be considered causally related to work. Since the incident happened hours before the heart attack, the store’s expert testified that the comp claim should be thrown out.

An expert for the widow testified that the employee’s fatal heart attack was triggered by the stress resulting from the responsibility of running the entire store on Super Bowl Sunday as well as the argument with the customer. Therefore, there was a causal connection to work.

The appeals court upheld the WC board’s ruling that the widow should receive death benefits. The court noted the board relied on medical evidence and testimony to reach its decision and that the employer’s expert admitted it is possible for an event that didn’t occur right before a heart attack to be a trigger.

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

(Roberts v. Waldbaum’s, Supreme Court, Appellate Div., New York, No. 513795, 9/27/12)

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Keith Lawrence, an employee of the City of Youngstown, Ohio, was injured on the job. He filed for workers’ comp.

The city suspended Lawrence from his job on Jan. 7, 2007. Two days later, the city terminated his employment.

Youngstown prepared a letter, dated Jan. 9, 2007, telling Lawrence he was fired, effective on that date. The letter says copies were sent to various city offices and departments and to Lawrence’s union.

However, Lawrence says he didn’t receive word that he was fired until Feb. 19, 2007.

On April 17, 2007, his attorney sent a letter to the city advising it that Lawrence intended to file a lawsuit alleging unlawful workers’ comp retaliation. The city received the letter the next day.

After he filed his lawsuit, the city asked the court to throw out Lawrence’s claim because his written notice wasn’t sent within the required 90 days immediately following the discharge.

Lawrence argued that the clock shouldn’t start ticking until he learned he was fired on Feb. 19, 2007.

However, the trial court found Lawrence missed the 90-day window, and it threw out his lawsuit. An appeals court upheld that ruling, and then the case went to the Ohio Supreme Court.

The law is clear, but …

Ohio’s highest court noted the law specifically requires notice of a retaliation lawsuit be received by the employer “90 days immediately following the discharge.” It said it was clear the law refers to the discharge date and not the date the employee receives the notice.

But the court also noted that, normally, a company will use personal notification, hand delivery of notice or a certified letter to communicate a firing promptly. The court said the law implies employers have a responsibility to provide its employee notice of firing within a reasonable time after the discharge actually occurs to avoid impeding the employee’s 90-day notice obligation.

The method of notification is particularly important in workers’ comp cases, according to the court, because the employee may not be at work due to his injuries.

In Lawrence’s case, there was no evidence of face-to-face or other oral notification of the termination, and there is no indication the city sent the letter directly to the fired employee.

So, the court ruled, this case does require an exception to the otherwise clear law.

“In general, ‘discharge’ in [Ohio law] means the date that the employer issued the notice of employment termination, not the date of the employee’s receipt of that notice,” the Ohio Supreme Court’s opinion states.

But in this case, the court recognized a very narrow exception because of the way the notice of termination was delivered. For that reason, the court refused to throw out Lawrence’s case and remanded it back to the lower court for more hearings.

The court took pains in several places within its opinion to state that this exception is very limited. “The prerequisites for this exception are that an employee does not become aware of the fact of his discharge within a reasonable time after the discharge occurs and could not have learned of the discharge within a reasonable time.”

Did the court get this one right? Let us know what you think in the comments below.

(Lawrence v. Youngstown, Ohio Supreme Court, No. 2011-0621, 9/20/12) (PDF)

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Asen Negriev was a bartender at the Big Inning Sports Pub in Las Vegas. One day he slipped and injured his back when walking into the pub’s kitchen.

He made $8.00 an hour plus any tips he received.

Big Inning’s workers’ comp insurance company didn’t include his tip income when it calculated his comp payments.

Negriev appealed that decision. The insurance company said since the bartender hadn’t reported the tips for federal income tax, they shouldn’t be included in calculations for workers’ comp.

But Negriev was able to show that even though he didn’t report the tips for tax purposes, he did report them daily to his employer at the end of each shift.

Initially, a hearing officer agreed with the insurance company that Negriev’s comp payments should be based only on his $8 hourly wage because his paychecks didn’t indicate he had declared his tips to Big Inning as required by law.

Negriev appealed. An appeals officer reversed the ruling, finding Negriev had faithfully reported his tips to Big Inning, but the pub failed to include the tips on his paychecks or declare them to the IRS.

The insurance company took the case to a state appeals court which upheld the appeals officer’s decision, and then to the Nevada Supreme Court.

Average monthly wages should include tip income only if the IRS has taxed the tips, according to the insurance company’s point of view.

But the state’s highest court disagreed. “Under a plain reading of the statute, we conclude that [the law] requires a workers’ compensation carrier to include tip income in an employee’s average monthly wage calculation if the employee reported the tip income to his of her employer,” the court wrote. “Whether an employee actually paid taxes on the tip income is irrelevant.”

So the Nevada Supreme Court said Negriev’s workers’ comp payments should be calculated using his hourly wage and tips.

What do you think about this case? Let us know in the comments below.

(Sierra Nevada Administrators v. Negriev, Supreme Court of NV, No. 57645, 9/13/12)

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Specifically, a case about an exotic dancer, or as the Court of Appeals of South Carolina noted, “what most people would call being a stripper.”

LeAndra Lewis worked as a dancer at strip clubs.

On June 23, 2008, she was shot while dancing at the Boom Boom Room in Columbia, SC. A stray bullet from an altercation inside the club struck her. She was only 19 and suffered serious injuries to her intestines, liver, pancreas, kidney and uterus. Surgeons removed one kidney and said the damage to her uterus may prevent her from having children.

The scars from the injury left her unemployable as a stripper.

Lewis applied for workers’ comp benefits. A workers’ comp commissioner denied her claim, finding she wasn’t an employee. An appellate panel agreed. Lewis took her case to a state appeals court.

4-part test

South Carolina applies a four-part test to determine whether someone is either an employee or contractor for purposes of workers’ comp coverage:

1. Exercise of control. Lewis said the club told her when to dance, selected the music, set the order in which the dancers performed, told her to try to get V.I.P. dances and set the rate for the V.I.P. dances. However, the judges found the club didn’t tell her how to dance. “While the dance is going on, she has complete discretion,” the judges noted.
2. Furnishing of equipment. Lewis noted the club provided the stage, poles, chairs and couches for the dancing. But the court found “the club did nothing more than allow her onto its premises.”
3. Method of payment. The club didn’t pay Lewis. She had to pay the club a fee ($70 a night) to dance there, and then she kept a portion of the tips she made.
4. Right to fire. Lewis said there were several reasons the club would fire strippers for disobeying the club’s rules. However, the judges found “the employment ‘relationship’ Lewis claims existed was never contemplated to last more than one night in the club.”

In the eyes of the judges, Lewis failed on all four parts of the employee-contractor test. It ruled she was a contractor and therefore should not be eligible for workers’ comp benefits.

One judge of the three-member panel dissented. The judge noted that other states, including Oklahoma and Virginia, had previously found strippers to be employees. The dissenter noted Lewis had to sign a form agreeing to comply with club rules; the club did provide all of the necessary equipment for the dancers to perform; they could not choose what order they performed on stage; the club set fees for dances; and the club fired dancers if they left before a certain time or danced out of turn.

What do you think? Was Lewis an employee or contractor? Should she get workers’ comp? Let us know what you think in the comments below.

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Anthony Sapko worked as a corrections officer in the Connecticut prison system.

He was injured four times on the job. Following the third injury, a doctor prescribed medication for back pain.

Sapko had also been prescribed medication for major depression for more than five years before he started taking the pain meds.

Sapko died of what was ruled to be an accidental overdose. At the time of his death, the level of Oxycodone (pain med) in his system was 20 times higher than the prescribed dosage, and the level of Seroquel (depression med) in his system was five times the prescribed dose.

Sapko’s widow applied for workers’ comp death benefits on the grounds that his work injuries were the proximate cause of his death.

A workers’ comp commissioner found that, since the overdose was the combination of both drugs, not just the pain medication, there was a superseding cause of death, and survivor’s benefits should not be awarded. The commissioner also found that both drugs could be taken safely if taken in the proper dosages. The record showed Sapko received counseling on the proper use of pain medications.

Sapko’s widow appealed to the full comp board and then a state appeals court. Both upheld the commissioner’s ruling.

Her final step was to take the case to the Connecticut Supreme Court.

That court also ruled death benefits shouldn’t be provided.

The court noted that the commissioner credited testimony of an expert who said the amount of Oxycodone alone wouldn’t have been enough to kill Sapko. The expert said it was the combination of the excessive amounts of both drugs that claimed his life.

For that reason, there was a superseding cause of death, and therefore workers’ comp benefits should not be provided, the court said.

What do you think of the court’s decision? Let us know in the comments below.

(Sapko v. Connecticut, Supreme Court of CT, No. 18680, 6/12/12)

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In 2002, OSHA issued citations to Loretto-Oswego Residential Health Care Facility. Loretto-Oswego reached an agreement with OSHA settling all matters except one: whether several violations were repeat ones.

At the time of the citations, Loretto Management Corporation (LMC) oversaw a number of nonprofits that operated nursing homes in upstate New York. These corporations all used the Loretto name.

OSHA had previously issued citations to two Loretto facilities, so some of the Loretto-Oswego citations were categorized as repeat.

Loretto-Oswego appealed.

An administrative law judge (ALJ) upheld the repeat status, finding:

• even though the facilities were separate, they shared similar potential hazards
• LMC and Loretto-Oswego had interrelated and integrated operations, and
• a safety manager had oversight of safety at multiple locations.

OSHA took the case to the Occupational Safety and Health Review Commission (OSHRC), which reversed the ALJ’s ruling. The OSHRC noted LMC and its affiliates shared the same president, CEO and CFO, but LMC rarely intervened in Loretto-Oswego operations or dictated policy. The commission said the link between the two was “particularly weak” when it came to safety matters.

This time OSHA appealed to a U.S. circuit court.

OSHA argued LMC oversaw Loretto-Oswego and the two locations that had received previous fines, therefore they functioned as a single employer.

However, the circuit court noted that although LMC had the power to exercise control over Loretto-Oswego, it concluded that it did not. Loretto-Oswego personnel were primarily responsible for safety matters at their own facility.

At the time of the inspection, LMC dictated only one aspect of Loretto-Oswego’s safety policy — its bloodborne pathogen procedures. The facility maintained its own safety committee empowered to make its own safety policy.

The record provides few examples of instances in which LMC directed policy at Loretto-Oswego on matters other than safety.

The circuit court upheld the OSHRC’s finding that the violations should not be categorized as repeat. The fines which had been $56,250 would be only $11,250.

What does this mean for other companies with multiple locations?

OSHA may have difficulty making a repeat categorization stick if local personnel, not corporate employees, are primarily responsible for safety matters at the facility. In particular, absence of a corporate safety policy is key.

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

(Solis v. Loretto Oswego Residential Health Care Facility, U.S. 2nd Circuit, No. 11-888-ag, 8/13/12)

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Michigan requires workers’ comp applicants to satisfy four steps before qualifying for wage replacement benefits. The injured worker must:

1. disclose his work qualifications, including education, skills, experience and training
2. prove what jobs he is qualified and trained to perform within the same salary range as his maximum earning capacity at the time of his injury
3. show his work-related injury prevents him from performing some or all of the jobs identified, and
4. show he can’t obtain any of the jobs if he is capable of performing.

In this case, Joe Holmes was a high school graduate. He had worked mostly as a general laborer before being injured, including construction, maintenance, janitorial and assembly line work.

The most he ever earned was $11.50 per hour. At his last job before his injury, he earned $9.50 per hour.

He had no special qualifications or training to speak of.

To satisfy the four steps under the state’s workers’ comp law, Holmes tried to find a new job by registering at Michigan Works and putting his resume online. He reported to Michigan Works regularly to search for new jobs and sent out resumes for all listed jobs. He also applied directly for other jobs. Some of the jobs he applied for: a truck rental agency, pet control and video stores.

Holmes never saw jobs posted which paid what he made at the time of his injury, let alone the maximum wage he once earned.

When he applied for workers’ comp wage replacement, a magistrate granted the request.

Was he too ‘unfocused’?

On review, the Workers’ Compensation Appellate Commission (WCAC) overturned the magistrate’s ruling. The WCAC said Holmes failed to establish the appropriate range of jobs required by step 2.

Specifically, the WCAC said Holmes’ job search was “unfocused,” or, in other words, too broad. It wasn’t limited to jobs for which he could likely be hired.

The WCAC denied the request for wage replacement. In effect, it said Holmes’ unfocused job search had caused him to look for too many jobs.

Holmes took his case to a state appeals court.

The court noted that Michigan case law called for denial of workers’ comp wage replacement benefits for applicants whose job searches are too restricted.

The court said if Holmes’ job search had been too narrow, it would have been proper to deny his application for wage replacement benefits.

But that wasn’t the case. The court said Holmes shouldn’t be punished for applying for what might be considered too broad a range of jobs.

The appeals court sent the case back to the WCAC with an order to award Holmes wage-loss benefits.

What do you think about the WCAC’s and the appeal court’s opinions? Let us know in the comments below.

(Holmes v. ET4 Inc., State of MI Court of Appeals, No. 303954, 8/2/12)

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Michael Bernard worked for a TGI Friday’s in Virginia as a waiter.

TGIF employees were often encouraged to try new items on the menu so they could recommend them to patrons.

This part of TGIF waiters’ jobs was apparently pretty important to the company. All servers are evaluated on the effectiveness of their recommendations to guests, and failure to do so can result in “counseling” by management. TGIF even employs “secret shoppers” to assess staff members’ performance, including recommendations of menu items.

One day at work, Bernard was sampling two new menu items: rice and a quesadilla. Bernard choked on a partially chewed bit of the quesadilla.

The quesadilla lodged in Bernard’s throat, and it was difficult to dislodge it. He was taken to an ER where he was diagnosed with a perforated esophagus and a collapsed lung. He underwent emergency surgery.

Afterward, he sought workers’ comp coverage for his injuries.

A workers’ comp commissioner denied him benefits, and on review the entire commission agreed.

Bernard took his case to the Court of Appeals of Virginia.

Is a quesadilla a hazard or danger?

As is the case in most states, the Virginia court had to determine whether this case satisfied two requirements: Did the injury (1) arise out of, and was it (2) in the course of Bernard’s employment.

The court said since TGIF provided Bernard with the quesadilla to sample, the injury did occur in the course of his employment.

However, the court questioned whether it arose out of his employment.

Virginia, like several other states, follows the “actual risk” doctrine which excludes an injury which the worker could have been equally exposed to outside of employment.

A common example: tripping on steps. If there’s nothing unusual about the employer’s steps, tripping on steps at work would not be compensable under Virginia law.

So that led to this question: Was there anything unusual about the TGIF quesadilla?

“Bernard’s quesadilla was neither a hazard nor a danger — it was simply a quesadilla,” the appeals court wrote. “No evidence suggested it had unusual properties or was made with defective ingredients. It could not be distinguished from any other quesadilla.”

So the majority on the court found choking on the partially chewed quesadilla did not arise out of Bernard’s employment, so he should not get workers’ comp benefits.

This means the next time your company brings in pizza for workers, if someone doesn’t chew their slice sufficiently and chokes, the employee can’t come after the company for workers’ comp benefits — at least in Virginia and other states with similar “actual risk” tests. That’s because the person could have choked in the same manner by eating pizza at home or in a restaurant.

Note: One judge wrote a dissenting opinion. The judge said sampling the quesadilla benefited the business because the server could recommend menu items to customers. “Claimant’s exposure to the quesadilla was occasioned by the nature of his employment, thus satisfying the actual risk test.” The dissenting judge said Bernard should receive workers’ comp benefits.

What do you think about this case? Do you agree with the majority or dissenting opinion? Let us now in the comments below.

(Bernard v. Carlson Cos. — TGIF, Court of Appeals of VA, No. 2590-11-2, 7/17/12)

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If a logger suffers a snake bite on the job, you might think it would be covered by workers’ comp. But wait until you hear the details on this case before coming to that conclusion.

Johnnie Odom worked for Mercy Logging in Alabama.

One day, his foreman was driving him and two other loggers from their work site to where their cars were parked.

The foreman saw a diamondback snake (a venomous rattlesnake) in the road.

A few things about diamondbacks: They are one of the more aggressive species of rattlesnakes. They rarely back down when confronted by people. Their venom can destroy tissue and affect the heart. A severe bite, while rare, can be fatal.

The foreman tried to run over the snake with the truck but missed. One of the loggers said they should stop the truck and try to catch the snake.

When Odom watched one of the other loggers try to catch the snake, he thought the other worker didn’t know how and was going to be bitten. Odom says he had caught as many as 100 snakes and that he’d never been bitten, so he took over.

Of course, that sounds like the common refrain from a worker who, when told to stop taking a risk, says, “I’ve done this dozens of times and haven’t been hurt.”

This time, the snake bit Odom on both of his hands.

(The same theory about risks applies to alligators, as we noted in an earlier post.)

He was hospitalized for 40 days, 14 of them in a coma and 35 of them in intensive care. He suffered extensive and prolonged swelling of his hands and arms, and a “frozen” shoulder. He continued to suffer pain after being released from the hospital.

Odom applied for workers’ comp. The company denied his request, saying his injury didn’t arise out of and in the course of his employment.

A trial court awarded Odom workers’ comp based on Odom’s argument that he was trying to remove a dangerous snake from the area where loggers were working, and that arose out of and in the course of his job.

Mercy Logging appealed.

Was it really work-related?

An Alabama appeals court said this was the important question in the case: Was Odom “reasonably fulfilling the duties of his employment” in attempting to catch a rattlesnake?

The court said Odom voluntarily left the vehicle to catch the snake, and had he stayed in the truck, he would have been safe. The snake on the road posed no risk to him in the truck. The risk to Odom was caused by his own decision to leave the truck.

So Odom was denied workers’ comp benefits for his permanent, disabling injuries because the injury didn’t arise out of his employment.

In one footnote to the court’s written decision, it says one of the workers was able to skin the snake and saved the hide which the three co-workers were going to make into a belt for Odom … but they never got around to it.

So Odom lost the case and never got his belt.

(Mercy Logging v. Odom, Court of Civil Appeals of Alabama, No. 2101061, 7/27/12)

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