In a recent case, two employees of the same company sustained the same injuries. But the state’s Supreme Court said one could sue, and the other couldn’t.

Here’s what happened: A guy working for a recreational vehicle dealership was given a makeshift pre-fab “office” that was heated by a propane stove. He complained that the fumes from the stove made him sick, but the company ignored his complaints.

Then one day his girlfriend found him unconscious in the office. He was later diagnosed with numerous debilitating neurological impairments and declared permanently disabled.

A short time later, a new employee was hired to do the same job. He, too, complained that the fumes were making him sick. And he, too, was eventually found unconscious — this time by a co-worker. He was also eventually declared permanently disabled.

In fact, he died a short time later (the decision doesn’t say whether his death was related to the exposure).

When the first employee and the family of the second combined forces and sued, the company was able to get both cases dismissed by a district court, successfully invoking exclusive remedy.

But the state’s Supreme Court saw things differently. The district court was right, it said, to toss the first employee’s complaint. But the second employee, it said, might have had a point. Granted, the company hadn’t intentionally harmed him. But given all the circumstances, the company might have been reasonably certain that harm would occur. And that might be enough to overcome exclusive remedy.

Now, the case will be heard by a jury, if it isn’t settled first.

While noting that it was hard to sympathize with the company in this case, one of the high court justices nonetheless vehemently disagreed with the decision to let the employee’s case be heard, saying, “I believe the legislature intended Workers’ Compensation to be the exclusive remedy except … where the defendant’s conduct arose from specific intent rather than willfulness. In other words, an assault would allow a personal injury action. Gross negligence, such as we have here, would not.”

The case, Alexander v. Bozeman Motors, Inc., was decided by the Supreme Court of Montana.

What do you think? Does exclusive remedy unfairly protect even reprehensibly negligent employers, or does the dissenting justice have it right — unless an employer sets out to deliberately harm an employee, workers’ comp should always be the only remedy? Feel free to comment below.

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

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

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

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

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

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

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

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

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

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

But the California Court of Appeal disagreed with the company’s argument because the worker was an independent contractor.

Jeffrey Tverberg was hired by a subcontractor to install a canopy at a gas station. He fell into a hole at the construction site and was injured.

He sued the general contractor and its subcontractor.

The contractor argued that California case law holds that the hirer of a contractor owes no duty of care to the contractor’s injured worker because his remedy is workers’ comp.

But the court said that case law wasn’t applicable because the plaintiff was an independent contractor, not an employee.

Now the case will either go to trial, or the company will try to reach a settlement. Both options could be quite expensive.

Cite: Tverberg v. Fillner

The makers of the Whizzinator have pleaded guilty in federal court to two conspiracy counts, putting an official end to their product.

The company owned by George Wills and Robert Catalano, Puck Technology, sold the device that helped men pass drug tests.

The Whizzinator is a prosthetic penis that comes with a heating element and fake urine. It was sold from 2005 through this year.

Federal prosecutors claim the product helped people circumvent federal workplace drug-testing programs. They cited customer testimonials on the company’s Web site, including one in which an employee bragged about using the device to pass a drug test required by Department of Transportation regulations.

The men will be sentenced in February and face up to eight years in prison and a $500,000 fine each.

The Whizzinator entered public consciousness three years ago when former Vikings running back Onterrio Smith was caught with one in an airport.

The device made news a second time when a couple asked a convenience store clerk in McKeesport, PA, to heat one in a store microwave so the fake urine would attain body temperature. The store clerk called police. The woman, who wanted the fake urine to pass a pre-employment drug test, pleaded guilty to disorderly conduct and agreed to pay to replace the store’s microwave.

OSHA regulations prohibit use of microwaves to heat food once bodily fluids have been in them.

Meat factory worker Hans Kelders cut off a chunk of his hand in a ham slicer while chatting with a co-worker.

Kelders took Kerry Foods to court, claiming he was put to work on dangerous machinery.

But the judge dismissed the case, saying Kelders himself was responsible.

The judge noted Kelders had been trained on the machine, which was “straightforward” and found in many delis.

Kelders said he’d let his mind wander while talking to a colleague and when he went to grab the cutter’s handle, his hand came into contact with the spinning blade.

It tore a piece of skin off his right hand.

The judge said Kerry Foods was in no way negligent in this injury case.