She quits then wants larger workers’ comp payments
September 12, 2011 by Fred HosierPosted in: In this week's e-newsletter, Injuries, Latest News & Views, Special Report, What do you think?, Workers' comp, new court decision
What happens when a worker quits after an injury and then decides she deserves bigger workers’ comp payments?
Alicia Howell worked for Nissan North America on an assembly production line.
After working on the line for three years, she began feeling pain, numbness and tingling in both of her hands.
An orthopedic surgeon diagnosed Howell with carpal tunnel syndrome in both hands. He operated on her right hand first, then on her left hand two months later.
The surgeon released Howell to return to work with the restriction that she not operate a pneumatic gun. Howell says Nissan didn’t allow her to return to work because they wanted her to come back without restrictions.
Six weeks later, the surgeon released her without restrictions.
Howell returned to work, however she said the symptoms in her hands continued, she couldn’t hold onto things and she was unable to keep up with the speed of the assembly line.
She left work again, and the doctor determined she had a permanent partial impairment of 5% in each hand. Howell and Nissan settled a workers’ compensation claim for her carpal tunnel injuries using the 5% impairment rating.
When the doctor said she could return to work the second time, Howell was assigned to a particular production line with a faster pace. She told her supervisor there was no way she could work on that line because of her hands.
Howell believed she would be offered work on another line, but her supervisor said that option wasn’t available.
Knowing that she couldn’t keep up with the faster production line, Howell resigned. She searched for a new job, and after six months she was hired at minimum wage.
Howell filed a petition for reconsideration of her earlier workers’ comp settlement.
Under the Tennessee Workers’ Compensation Law, an employee can seek reconsideration if she is no longer employed by the company at her pre-injury wage. To determine whether an employee is eligible, courts look into whether the employee had a “meaningful return to work.” If the employee didn’t have one, workers’ comp benefits could go up.
The case went to trial.
The trial court found Howell intended and wanted to return to work following her injury. She called her job at Nissan the best one she ever had.
Previously, state courts had found that an employee didn’t have a meaningful return to work when the employer refused to accommodate the employee’s work restrictions that arose from the workplace injury.
The court said that was the case here: Nissan didn’t offer Howell a meaningful return to work.
Therefore, her permanent partial impairment rating to each hand was increased from 5% to 25%, and her workers’ comp benefits went up accordingly.
(Howell v. Nissan, Supreme Court of TN, No. M2009-02567-SC-WCM-WC, 6/1/2011)
What do you think about the court’s decision? Let us know in the comments below.
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Tags: assembly line, carpal tunnel syndrome, Nissan, reconsideration of benefits, Workers' comp
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September 13th, 2011 at 6:51 am
This is a case that I call an ambulance chaser case. Doctors today will right any thing you want if you claim pain in any part. She had medical surgery and was released for full duty after time and she said she couldn’t do it. The company offers her the same job she had and it was refused by her. To me this is a way to look for something else that she casn get free. If the company offers and the worker refuses, shame on the worker and she should get what ever wage she ends up with another company. Compensation laws have to get changed in all states, as to protect all, not just a doctors report and a judges ruling. People in todays world are looking every day for a free way out, especially women in the work place. Also family doctors reports should not be used in comp cases, just specialist. Todays insurance cost is rocketing because of cases like this and with our industry and company’s leaving, someone should think better before trying to close another company that can not afford all the problems high insurance cost make
September 13th, 2011 at 7:10 am
I have been doing workers comp for so long, unfortunately, no matter what the company would have done the judge still would have sided for the employee. WC laws need to be revamped since so many individuals have learned how to play the system.
September 13th, 2011 at 7:52 am
Nissan didn’t try very hard to return this employee to their workforce somewhere that would allow her to continue to be employed and not have any further problems.
September 13th, 2011 at 8:48 am
C Harrington - what do you mean especially “women”. Most of my claims are from men but I didn’t single them out. Not a good idea to go on a public web site and make a statement like that. Employees (men and women) learn how to play the system and use it to their advantage all the time. It the laws that need to be changed.
September 13th, 2011 at 8:49 am
Well the court was right on this one. They followed the Tennessee law
September 13th, 2011 at 9:03 am
I would bet a lot of money that this empoyee was an under performer and Nissan was not motivated to find her another position which makes business sense. WC is so far gone it is unrecoverable and many companies have taken the only other option to stay in business and that is to move their manufacturing offshore. Then the politicians who support these employee-favored systems whine that companies are unamerican for moving offshore. What’s the option, close and layoff the entire workforce. The U.S. is beyond saving so get ready, here it comes.
September 13th, 2011 at 9:19 am
Clearly those who have never experienced the WC system haven’t a clue as to how truly awful it is. Want to know what the new government plan is going to be like, read the employee’s rights under the CA WC system. Our son was almost killed on the job and after seven hours of surgery has been visibly and mentally scarred for life. If not for family financial assistance he would have lost his home, car and been on the streets. The insurance company has stalled and done everything possible to delay treatments and payments thereby compounding the injury and destroying all self esteem. Totally treated from day one as a slacker trying to “use” the system. Oh yes, side effects of having to take multiple medications, internal bleeding and development of server sleep apnea. I could right a book and open a lot of eyes.
September 13th, 2011 at 9:30 am
After reading the case file, I can see why automotive assembly lines (such as VW) are making increased use of robots for such repetitive tasks. I think the Court was between a rock and a hard place. As tough as it is for me to write this - they probably decided correctly regarding increasing Ms. Howell’s disability determination.
Having said that, it appears Ms. Howell’s very narrow work history involved mostly manual sewing and similar labor-intensive manual tasks. It would appear that the root cause of her carpal tunnel problems began years before, and was aggravated by the increased speed of the 4-cylinder engine line. 70-76 engines per hour seems like an awful lot of stress on the hands of a 40 year-old worker (or any worker, for that matter). According to the court testimony, this was at least a three-fold increase in speed.
My conclusion is that Nissan’s supervisors set Ms. Howell up to fail - and Nissan should suffer the monetary consequences.
September 13th, 2011 at 10:07 am
@ Chuck C. — You are exactly right, the court did what it was supposed to do by the letter of the TN law. We may not like the law, but in some instances, it allows for behavior such as this.
@ Stacy Martindale — I’m (fortunately) not familiar with CA comp laws, as I’m certain they are just as confusing if not more than the states I have worked with, but it sounds to me like the insurance carrier and the employer are in violation of the law. I’m not a big fan of filing suit, but if the carrier is in violation of comp laws, then there are legal ramifications. I’m certain that in CA, there is a willing and slightly capable attorney that would take your son’s case.
The basis for all work comp laws is to protect the injured employee, provide care for the injury and all issues pertaining to the injury and provide some level of wage during the process. Regardless of your state, the employer has these responsibilities. Back to the employee at Nissan, I think that she did make this situation worse when she declined the work that she was given two times…but if she is not healed, she does have that right. It seems to me that the initial rating was not accurate. Nissan has rights as well and we get into ADA issues when we talk about permanent partial disability. Hard to work on an assembly line if your hands don’t function properly, and Nissan would likely have spent more money to facilitate an inreasonable accomodation. This outcome might just be as good as it gets for both sides. Finally, @ C Harrington, bigotry has no place in America any longer!!
September 13th, 2011 at 10:09 am
Wow, I used the word inreasonable….my 6th grade English teacher would give me detention for that one….
September 13th, 2011 at 10:48 am
Unfortunately there is probably nothing on the line she could have done that would not aggravate her carpal tunnel. Working for Nissan broke her. When you break it, you have to buy it.
C Harrington said in his post “People in todays world are looking every day for a free way out, especially women in the work place.”
What ever company you work for needs to keep an eye on you. You are a lawsuit waiting to happen with that sort of discriminatory remark. You can think it all you want….just dont say it and NEVER put it in writing!
September 13th, 2011 at 11:29 am
It’s not right or fair for some of you to pretend you know what this woman went through and what she was feeling and then to make and post judgements accordingly. I broke my tibia almost a year ago; eight months later over Memorial weekend I went on a hike thinking my knee was as good as new after finishing physical therapy a month prior, just to find out my knee wasn’t up for it. My knee hurt for a week after that hike; so much that I went back in to see my doctor, because it hadn’t hurt like that since I had surgery. Doc didn’t find anything wrong; I just overdid it and didn’t work my way up properly to such a hike…even though I was released by both my doctor and the physical therapist it turned out I still wasn’t 100%. So unless you’ve been in the same shoes I suggest you refrain from judging others and what you think motivates their actions. As for WC, from what I’ve seen it pretty much always sides with the employee…yes, it’s true the laws need to be changed, but consider the possibility that maybe if people had more integrity these days we wouldn’t have so many people taking advantage of WC or any other programs currently being abused…
September 13th, 2011 at 11:39 am
Hooray for Terry - my thought exactly - if C Harrington makes that comment at work he would find himself the object of a law suit
September 13th, 2011 at 12:33 pm
SheilaRock - Very well said! I couldn’t agree with you more.
September 13th, 2011 at 12:50 pm
In this case the Employer should have provided work that would accommodate the employees 5% disability. I assume the employer measures performance on an assembly line based on a standard that is indicative of an average worker, working at 100%. Returning a permanently disabled worker to that line is simply, for lack of a better word, STUPID. Did they slow the line by 5%? I think not. Instead, It appears the employer attempted to punish the employee by putting the employee on an even faster line making it virtually impossible for her to complete the necessary tasks. Although I do not have all the facts, on face value it looks like this employee is right to appeal. It seems like the employer should count their blessings here. Workers Compensation did just what it was designed to do here, protect the employer from a very large civil case. Had there been no protection for the employer, this case would have more than likely settled for millions in civil court. Shame on Nissan for not catching what this manager was doing before it ended up back in court. Their Risk Management team should have been severely beaten about the head and shoulders for this one.
September 14th, 2011 at 6:49 am
I worked at an auto assembly plant for 12 years before it was closed down, 7 on the assembly line and 5 as a line supervisor. The problem is two fold, first of all, potential employees should be ergonomically screened and placed, on a job that will allow them to be successful. There are many operations in that type of environment that require certain physical characteristics to be successful. Some jobs require a shorter or taller worker, some require brute strength, some require quic, small hands, etc. The problem is that companies need to be more diligent when they assign workers, and do a better job of ergonomically engineering the job process. I know it does not work in all cases, but there is definitely room to improve. As in most cases there are two sides to every story, I experienced both sides being an hourly worker and salary management. I required hernia surgery as a line worker from an on the job injury, but I didn’t come back to work until I was ready, I knew my body, and didn’t rush it. But at the same time I constantly saw workers fraudulently make claims of WC injuries, just to get off of a busy job. The biggest issue as a line worker that I had was some jobs required very little physical exertion, and women were always placed on those jobs, where as the heavy lifting, back breaking, busy jobs were always reserved for men. Discrimination you say? The really difficult part for me to swallow was that the pay for the job that over time was going to cripple you, paid the exact same thing as the job that left you only bored at the end of the day. I’m not saying that women are not equal to men, but there should be different pay for the different levels of work. also, the jobs that will break you down physically, need to be rotated, so that your body has a chance to recover, insteda of being broken down. That’s where WC laws could assist both parties in this case.
September 14th, 2011 at 7:11 pm
I feel for the worker. I had a WC injury - tendonitis - caused by typing 120 WPM for 9 hours per day…. I worked a lot of OT. I had surgery on my wrist and elbow and was released to full duty. 10 years later, I still have pain and numbness in my arm and I don’t type like that anymore. It never goes away despite getting that full release. If I do anything that aggravates it, I have pain for a week. I worked for my employer for 18 years as a legal assistant. Yes, I worked for an attorney. You can only imagine how upset he was with me for filing a claim against him and I ended up leaving his employ. He fought my claim for nearly 4 years before I finally got a settlement and managed to get some rehabilitation into another career.
September 21st, 2011 at 4:18 pm
Not trying to start anything here, but when a company makes a settlement through the WC system, I believe it should be final and binding.
Although I agree that the state of Tenn did follow the law by hearing her case, it does not indicate anywhere within what is written there it is a guarentee.
I am going to leave it with this, and maybe someone can educate me through this process. When she initially settled, her impairment rating was 5%. She did not work for six months thereafter, then the lawsuit, what I am puzzled by is how the employee’s not having a reasonable return to work links up with the increase in disability impairment. Her wrists and hands are a physical problem, did they get worse during that time? And if they did, is it Nissans/WCs responsibility to pay for them getting worse? The return to work program for Nissan seems to have nothing to do with the increased disability….And again, I am not arguing whether the outcome was fair or not, only that the rationale for increased disability does not make sense to me. Thanks in advance for anyone who can provide wisdom….
September 22nd, 2011 at 5:51 pm
Kudos to Craig & Terry, well said. As for C. Harrington, as most have stated in their post, you are a lawsuit waiting to happen. Further, C. Harrington, though it may not be true for other cities and/or states, from where I sit & what I’ve seen it’s mostly MEN who were looking for that free way out that you speak of. You need to open your eyes & get educated. Glad you don’t work for my company!!
October 3rd, 2011 at 12:06 pm
As for Mr. Harrington, poor choice of words that hopefully he is giving serious thought…
As for me - is there anyone out there who can assist with my questions from the post of 9/21 at 4:18pm?