January 30, 2015

Moreau v. Transp. Ins. Co. - Asbestos Illness Medical Expense Reimbursement Disputed


In the case of Moreau v. Transp. Ins. Co., the workers' compensation insurance carrier for a Montana mining company had agreed to accept liability for medical expenses of a former worker who died of asbestos-related lung cancer.
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However, the company had established and funded a medical plan to pay for the medical expenses of workers injured by exposure to asbestos, and both the plan and employer declined to accept the insurer reimbursement for this worker. The worker's widow, as personal representative of his estate, asserted the reimbursement should be paid either to his estate or to a charity chosen by the estate.

But the insurer wouldn't pay the money for this purpose, so the estate filed an action with the state Workers' Compensation Court. Initially, the petition was denied on grounds it lacked jurisdiction because the estate lacked standing. However, the Montana Supreme Court disagreed, reversing and remanding.

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January 29, 2015

Making Workplace Accident Prevention a 2014 Goal


The New Year means it is time for resolutions. Employers need to resolve to take workplace seriously safety this year and to do what they can to try to improve work conditions. business-men-silhouette-1014502-m.jpg

Employees can also do their part to protect themselves this year. Workers should resolve to know their rights when it comes to safety issues and to speak up if they believe something is wrong on their job site.

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January 25, 2015

OR-OSHA v. CBI Services, Inc. - Monitoring Workplace Safety


Far too many workers suffer on-the-job injuries because employers fail to obey the industry and legal standards for safety.
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In a recent lawsuit out of Oregon, the federal regulatory agency that oversees workforce safety sued a company for failure to exercise reasonable diligence to avoid a legal violation amounting to a safety hazard. The Occupational Safety & Health Administration operates throughout the country, and will at times take civil action against companies that break various labor laws, including the failure to follow rules that keep workers safe.

Unless a willful violation results in a worker's serious injury or death, criminal action is usually not taken, but a company can be made to pay civil fines and penalties.

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January 19, 2015

Gun Policies affect Workplace Violence Concerns in North Carolina


In the United States, there are now 22 different states that permit employees to bring guns to work and leave the guns in their cars in the office parking lot. North Carolina was one of the most recent states to approve these new gun laws, along with Tennessee and Missouri. According to WBUR, the loosening of gun laws in North Carolina and other states have left employers debating on what to do to ensure the safety of the workplace. black-and-white-gun-1409524-m.jpg

According to the Occupational Safety and Health Administration (OSHA), almost two million Americans report victimization by workplace violence each year. There are likely many more cases of violence that are not reported and tallied.

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January 17, 2015

Schultz v. Workers' Compensation Appeals Board - Coming and Going Rule Exception


While workers' compensation law can vary from state-to-state, generally the coming-and-going rule is universally recognized as barring coverage of benefits. That is, if a worker is on her way to or leaving from her place of employment, any injuries sustained in the course of that commute are not compensable because they don't occur within the ordinary course of employment.
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However, courts across the country have come to different conclusions about what exactly "coming and going" is and how it should be interpreted.

Many states, including North Carolina, have accepted the "premises exception" to the coming and going rule. This essentially holds that injuries arising on the employer's premises (i.e., a parking lot, stairway, etc.) would be payable, even though the worker was hurt while going to or leaving work.

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January 15, 2015

Youth Unemployment in North Carolina Can Exacerbate Work Safety Concerns


In North Carolina, many young people are unemployed. Since 2001, there has been a 255,000 increase in the number of young people in North Carolina who are out of the labor force. Around nine percent, or 22,000, of the youths who are out of the labor force report that they actively are seeking a job. Older adults and adults of prime working age have recovered most of the ground lost during the recession, but the unemployment rate for young workers has only recovered by 55 percent. The decline in young people participating in the labor force has hit multiple age groups, but the youngest group of people aged 16 to 24 has seen some of the biggest drop-offs in labor participation according to NC Commerce. help wanted.jpeg

When young people are not able to find jobs, they do not get the on-the-job training they need to be safe at work.

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January 13, 2015

Paulino v. Chartis Claims - Bad Faith Insurance Claim in Workers' Compensation


Workers' compensation claims in South Carolina are bound by exclusive remedy, meaning you can't sue an employer for negligence resulting in a work-related injury or illness. However, there are some cases in which a workers' compensation insurance company can be sued for acting in bad faith.
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Of course, insurance companies in general are known for practices intended to modify compensation or sidestep paying claims altogether. However, when these efforts are carried out in bad faith, they are considered to be so egregious as to warrant punitive damage payouts equaling up to three times the amount of the original claim (treble damages).

Some examples may include nonpayment of a legitimate claim, mass denial of claims or internal incentive programs that encourage adjusters to deny payouts.

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January 11, 2015

South Carolina Supreme Court Broadens The Scope of Covered Workplace Injuries


Under South Carolina's workers' compensation rules, employees are covered for any injury that happens while doing their jobs. This can include injuries that happen outside of normal worksites or outside of normal working hours as long as the injuries are directly related to job duties. kickball-606231-m.jpg

Sometimes, it is not clear whether a specific instance of getting hurt at work should entitle an employee to workers' compensation benefits. Workforce.com, for example, recently discussed as case in which the South Carolina Supreme Court ruled that injuries that occurred during a voluntary kickball game were covered. This decision broadened the definition of what counts as an injury within the scope of employment.

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January 9, 2015

Across Big Sky Flow Testing, LLC v. WSI - Greater Weight of Evidence in Workers' Comp Case


Sometimes, there are multiple possibilities for what might have caused an illness, injury or death. When pursuing a workers' compensation claim for benefits, alternative theories of causation presented by your company's insurer could harm your claim. It's imperative to provide ample evidence of your position in order to overcome these alternative theories.
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While in the criminal justice system, the standard of proof is "beyond a reasonable doubt," in workers' compensation cases, the standard is "with a reasonable degree of medical certainty" or "the greater weight of the evidence." It's essentially the court's measure of credible proof on one side versus the amount of credible proof on the other. It's based on the persuasiveness or believability of the evidence, so it's important to make sure expert witnesses are amply certified and experienced and their research is fully supported.

It also means mounting an effective challenge to any alternative theories posed by the other side, casting doubt on their conjectures.

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January 7, 2015

A Look Ahead to Changing OSHA Regulations in 2015


The Occupational Safety and Health Administration (OSHA) is vested with the responsibility to make rules related to workplace safety. OSHA suffers from being understaffed and underfunded, which means inspections of workplaces do not occur with sufficient frequency. The process of making rules can also be prolonged, leaving many lingering work safety issues that endanger employees due to lack of regulation. law books.jpg

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January 5, 2015

Seamon v. Rand and Travelers - Repetitive Motion Injury Compensation Affirmed


In many workers' compensation cases, the illness or injury at issue is one that occurs over time or in some cases can occur naturally for some people, due to genetics or other factors. In these situations, no one doubts the severity of the condition, but proving causation between work-related duties and the injury/illness is central.
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Such was the case in Seamon v. Rand and Travelers, recently reviewed by the North Carolina Court of Appeals, following a decision favoring plaintiff by the North Carolina Industrial Commission.

At issue was a condition known as distal occlusive disease and thrombosis in one hand and aneurysms in both hands, resulting in blood clotting in his fingers. Clots had to be surgically removed from plaintiff's hands, and several fingers were amputated.

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January 3, 2015

New OSHA Injury Reporting Requirements Take Effect for Carolina Employers


January 1, 2015 marks the first day that companies are subject to new reporting requirements established by the Occupational Safety and Health Administration (OSHA). Employers need to be aware of the new reporting requirements so they can fulfill their obligations. Workers also need to know the rules to ensure that their workplace injuries are properly documented. notice-878922-m.jpg

A Charlotte work injury attorney knows that accurate reporting of workplace injuries is essential to increase the safety of employees and improve working conditions. OSHA and other regulators need to know the top causes and types of injuries to try to make effective rules to improve safety. Employers and employees also need to be aware of what the biggest risks to workers are so they can take the necessary steps to correct conditions that cause workplace accidents.

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December 31, 2014

Lipe v. Starr Davis Co. et al. - NC Workers' Compensation for Asbestos Disease


Workers who are exposed to asbestos while on the job in North Carolina should explore the possibility of workers' compensation benefits - even when they don't learn of the related disease until many years later, as is often the case.
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Usually, workers' compensation benefits are something awarded soon after the injury-causing incident. However, exposure to asbestos causes diseases that are latent, and often asymptomatic until years later.

It's worthwhile to explore the possibility of a third-party lawsuit against the manufacturers of asbestos for such injuries, though it's true those are time-consuming and the burden of proof much higher. In workers' compensation cases, plaintiffs needn't show the employer was negligent in exposing workers to the hazardous material, only that such exposure occurred in the course of employment and proximately caused the illness.

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December 26, 2014

Morales v. Zenith Ins. - Wrongful Death Payout Barred by Exclusive Remedy


The exclusive remedy provisions of state workers' compensation law bar the estate of a worker killed on the job from receiving a $9.5 million wrongful death judgment against his former boss and insurer.
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That's according to a recent ruling by the Florida Supreme Court, which, like the courts in South Carolina, recognize the exclusive remedy provision as it pertains to work-related injuries and deaths.

In Morales v. Zenith Ins. Co., decedent worker was crushed to death by a palm tree that was being unloaded form a trailer while working for a lawn maintenance firm in 1997. The man's widow accepted a workers' compensation settlement for her husband's death from the employer and the insurer. The release agreement specifically indicated workers' compensation was the exclusive remedy in the case. Prior to the conclusion of that settlement, however, plaintiff filed a wrongful death lawsuit in state court.

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December 26, 2014

Injuries at Holiday Work Parties May Not be Compensable


Every year at this time, companies across the country are hosting holiday parties, lunches and other gatherings. These events are usually not directly related to work, and are intended to simply give the team a break, boost morale or celebrate a good year and thank all for a job well done.
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But of course, injuries can occur at any time. Holiday parties may in some cases result in an increased risk of injury if alcohol is served or if there is a need to drive off site to the event.

Whether injuries stemming from these incidents will be compensable is a difficult question, and the answer is going to rely on a host of factors, including:


  • Whether the company required or expected workers to attend

  • Employees were paid to participate

  • The incident occurred on company property and the property contained an unsafe condition the employer failed to timely correct

  • The employer directly or impliedly endorsed the event and/or derives a benefit from it

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