March 28, 2015

Bike v. Johnson & Johnson Health Care - Workers' Comp Benefits in Spite of Underlying Injury

A man who suffered an injury at work caused by an underlying knee condition unrelated to his job will receive workers' compensation, the Tennessee Supreme Court ruled.
In Bike v. Johnson & Johnson Health Care Systems Inc., the worker was employed at a warehouse, and duties included wrapping pallets, packing boxes, loading trailers and making sure packing lists were accurate. One day in October 2009, he stepped onto a pallet in order to compare the pack list tags when his knee cap moved out of place, and then back. He fell to the floor.

The only injury he suffered was to his knee, and this was not caused by the fall, but rather by an unrelated, underlying condition. He received a myriad of treatments, including emergency treatment right after the incident, physical therapy, braces and activity restrictions. When conservative treatments were unsuccessful, employee proceeded with surgery.

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March 26, 2015

Report: Fast-Food Workers Suffer Many Burns, OSHA Complaints Pending

If you work in the fast-food industry, chances are, you have suffered a burn. Most likely, you endured more than one. fastfood1.jpg

That's according to a recent survey conducted on behalf of the National Council for Occupational Safety, which indicated 79 percent of the 1,430 workers polled indicated they had been burned on the job at some point in the last year. Of those, 73 percent (or 58 percent of the total) reported they had suffered multiple burns at some point in the last year.

What's more, 87 percent of these workers indicated they had suffered some type of injury in the last 12 months, with 78 percent indicating they suffered multiple injuries (including burns).

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March 24, 2015

Atiapo v. Goree Logistics - Penalty for Uninsured Trucking Contractor Affirmed

Almost all companies with more than a few employees in North Carolina must carry workers' compensation insurance. The goal is to ensure that workers injured on-the-job have easy access to necessary medical care, and are adequately supported while they recover. highwaydriving.jpg

Unfortunately, there are a fair amount of employers who flout this rule. The state industrial commission has been cracking down on this problem more aggressively of late, but it can be tricky when it comes to the transportation industry. Trucking in particular is tough because the industry is so fragmented. One company owns the tractor, another owns the trailer, another the cargo, while the trucker is an independent contractor.

Independent contractors are not covered under workers' compensation laws. However, N.C. Gen. Stat. 97-.19.1 spells out cases in which a general contractor may be deemed a "statutory employer" of some workers for purposes of workers' compensation. If that company doesn't carry workers' compensation insurance as required, penalties may be instituted. (The law does not require motor carries to pay for workplace injuries for truck drivers who are independent contractors individually licensed by the U.S. Department of Transportation and who personally operates the vehicle. Only trucking firms with three or more employees have to carry coverage.)

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March 22, 2015

Gonzalez v. Tidy Maids - NC Workers' Comp Decision

In requesting ongoing disability compensation for work-related injuries, North Carolina courts presume plaintiff's pain, discomfort and related medical treatment is directly related to previously-established compensable injuries. cleaning.jpg

This standard was set in the 1997 North Carolina Court of Appeals decision in Parsons v. Pantry, Inc. It's sometimes referred to as the "Parsons presumption."

In the more recent case of Gonzalez v. Tiny Maids, Inc., an employer appealed the reinstatement of disability benefits, applied retroactively, to a worker who had suffered a compensable injury and alleged ongoing medical problems stemmed directly from that same issue. Defendant company and insurer insisted it had successfully refuted worker's evidence under Parsons, but appellate court noted the company presented no evidence to suggest plaintiff's discomfort or pain was unrelated to her prior work injuries.

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March 20, 2015

Shepard v. Dept. of Corrections - Continuing Medical Care

A fair number of workers' compensation claims deal not with the initial injury, but with ongoing injuries. In some cases, workers seek an increase in benefits to cover a worsening condition. Other times, companies file a request to re-open a case to assert the employee is no longer disabled, or at least not as severely as initially determined.
In either situation, the worker has to be prepared to effectively argue the extent of their ongoing injuries and the necessity and reasonableness of continuing treatments and medications.

In the recent case of Shepard v. Dept. of Corrections, the Oklahoma Supreme Court ruled an employer unconstitutionally applied new workers' compensation law that restricted a worker's access to medical treatment. (Of course, this is indicative of a greater problem, detailed recently in investigations by OSHA and ProPublica, which involves the dramatic slashing of workers' compensation benefits in 30 states in the last 10 years). Nonetheless, worker's injury occurred prior to the passage of the more restrictive new law, and her employer wasn't allowed to argue application of the new law in her case.

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March 19, 2015

Shubert v. Macy's West, Inc. - Failure to Adhere to Care Plan

In a workers' compensation case, it is important that the worker abide by the recommendations of his or her treating physician. To do otherwise may jeopardize the employee's ongoing benefits. walking4.jpg

This was seen recently in the case of Shubert v. Macy's West, Inc., reviewed by the Idaho Supreme Court.

This case was riddled with a number of issues, including the fact that she failed to present an expert witness at a hearing, argued too late on the issue of admitting evidence of an award of Social Security Disability Insurance (though the standard of determining disability is different than for workers' compensation) and had not followed through on numerous occasions with physicians' advice for treatment.

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March 17, 2015

Arrowhead v. Kainz - Work Fall Injury Weighed

Falls are among the most common - and perilous - workplace hazards. While construction industry falls garner the most attention, everyday falls are suffered by everyone from restaurant workers to sales employees to office managers.
Although the severity of injuries may vary, falls that arise out of and in the course of employment should be compensable.

Recently in South Carolina, the state high court weighed the case of Nicholson v. SC Dept. of Social Services, in which a social worker was injured in an office fall and sought workers' compensation benefits. Her employer argued the fall could have happened anywhere, and thus wasn't compensable. The workers' compensation commissioner initially denied her benefits, but she prevailed in her case when the South Carolina Supreme Court ruled that just because the cause of her fall was unexplained didn't mean it was idiopathic.

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March 14, 2015

Multiple Reports Detail Workers' Compensation Program Reductions

About one year ago, investigative reporters at NPR and ProPublica teamed up to examine in-depth the impact of recent legislative changes to the workers' compensation system nationwide. Numerous state-level reforms in more than 30 states appeared to be targeting protections that once provided the critical foundation of the programs.
What those investigators did not know was at the same time, federal investigators launched their own inquiry - and released their almost identical findings on the very same day.

Both reports - one from NPR/ProPublica and the other from the Occupational Safety and Health Administration - detail changes that have had devastating consequences for hundreds of thousands of people who suffer serious on-the-job injuries each year. These changes have been almost exclusively driven by large corporations and insurance companies, which have pushed the narrative that costs for these programs are out-of-control - despite direct evidence that workers' comp payouts have never been lower.

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March 11, 2015

Report: Reforms Gut Workers' Compensation Programs Nationwide

Workers' compensation began as a kind of revolutionary agreement in the modern world: Employees would forfeit their right to sue their employer, if in turn they are guaranteed their on-the-job injury would be compensated with coverage of medical bills and enough wages to help them sustain while they recovered.
And for a long time, the system worked well.

However, a series of state-level reforms occurring over the last 10 years have resulted in numerous states dismantling these protections one-by-one, in many cases resulting in workers waiting years to receive necessary surgeries, prescriptions and other care, while battling with insurers and plummeting into poverty. This phenomenon was tackled in-depth by reporters at NPR and ProPublica, whose joint investigation - "The Demolition of Workers' Comp" - was published this month.

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March 8, 2015

Patton v. Sears Roebuck - NC Appeals Court Weighs Asbestos Work Injury Case

Workers who have suffered injury as a result of asbestos exposure on the job are likely to be facing serious health consequences and do have several avenues for compensation.
That may involve product liability litigation against the makers of the dangerous products, but in some cases it can also involve claims for workers' compensation. While workers' compensation is the exclusive remedy for work-related claims, that only pertains to liability of an employer. Third party claims (such as those against manufacturers of dangerous products) are not barred by this rule.

Recently, the North Carolina Court of Appeals affirmed an award of worker's compensation death benefits to survivors of a worker who died of illness caused by decades-old work-related exposure to the deadly asbestos fibers.

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March 7, 2015

Thomas v. 5 Star Transportation - SC Workers' Comp Award Affirmed

The South Carolina Court of Appeals recently affirmed workers' compensation death benefits awarded to the surviving spouse of a deceased worker who died after suffering an aneurysm while driving a tour bus for defendant.
Employer argued the grant of benefits was an error because worker's death was caused by an idiopathic injury and further, decedent's wife wasn't actually his spouse because he was already married to someone else when he married her. Appellate court rejected these arguments in its decision in Thomas v. 5 Star Transportation.

According to court records, worker was a tour bus driver who, on Nov. 19, 2007, lost control of the bus and collided with a tree. He was pronounced dead at the scene. Witnesses described him as slumped over and unresponsive prior to careening off the road. A doctor who performed the autopsy determined worker died as a result of full body trauma complicating a ruptured brain aneurysm.

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March 5, 2015

Bowden v. Young - Bad Faith by Workers' Compensation Insurer Weighed

Insurance companies are required by law to deal with their consumers fairly and honestly. When they do not, it called "bad faith," and if proven, it can result in an insurer paying triple the amount of damages they might otherwise have paid.
This is true of carriers of workers' compensation insurance just as it is for auto insurers and others.

However, outcomes in these cases can vary extensively from state-to-state.

Recently, the North Carolina Court of Appeals weighed one such case, Bowden v. Young, reaching a wholly different outcome than the 5th Circuit Court of Appeals last year applying another state law in Williams v. Liberty Mutual, a similar case.

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February 26, 2015

Lambdin v. Goodyear Tire & Rubber Co. - Job-Related Hearing Loss Compensated

Workers' compensation law in each state has a fairly straightforward method for how certain permanent disabilities should be rated and compensated. For example, if your left hand is permanently injured but the injury is not severe, you may be rated with a 10 percent permanent disability. Meanwhile, a more serious injury would warrant a 60 percent disability. Compensation would be based on that percentage, factoring in your average weekly income prior to injury.
Still, there is a broad degree of discretion granted to hearing officers, commissions and courts in determining the extent of injury and benefits.

In the recent case of Lambdin v. Goodyear Tire & Rubber Co., plaintiff suffered hearing loss and requested workers' compensation loss after retirement. Although there were no strict guidelines for the degree of hearing loss beyond a certain point, plaintiff successfully made a claim for higher benefits based on the submission of expert witness testimony regarding methods for rating impairment that are accepted by the medical industry.

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February 24, 2015

L & L Enterprises v. Arellano - Worker Legal Resident Status Irrelevant

Some employers hire workers whose resident status and right to work in the U.S. is in question do so because they assume the worker will be far less likely to file a workers' compensation claim in the event of an injury.
They rely on the fact that these workers may have few other options and might be intimidated into not filing a claim. These employees also tend to be at higher risk for injury because employers will often sidestep worker safety laws and procedures where they are concerned.

But the fact is, companies who hire non-legal workers assume the responsibility for those workers' injuries. Courts have held time and again companies cannot skirt their duty to cover work-related injuries on the basis of a worker's resident status.

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February 22, 2015

Silva v. Lowes - Penalties, Fees and Other Awards in Workers' Compensation Claims

In making a North Carolina workers' compensation claim, the primary issue is typically securing benefits. Beyond that, there may be additional compensation for late payments, attorney's fees and other expenses. These expenses can add up to a significant sum, so it's certainly worth exploring. However, there needs to be sufficient proof that the additional compensation is warranted. aislephoto.jpg

In the recent case of Silva v. Lowes, plaintiff fought a years-long battle for continued benefits after he was terminated from the job for unrelated reasons. The employer argued that because he was fired for reasons unrelated to his disability, workers' compensation benefits, including temporary total disability and coverage of medical expenses, should be revoked.

Plaintiff ultimately prevailed and, after several defendant appeals, received a lump sum payment for about $221,000, or $460 a week from the time of his termination to when the final decision was issued. However, the commission denied plaintiff's request for compensation on certain other fronts. Specifically, he had requested a 10 percent late payment penalty for defendant's alleged untimely payment after it lost the final appeal, plus reimbursement for attorney's fees and certain other expenses.

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