Some of the nation’s biggest companies in the health care, retail, food and trucking industries in Texas and Oklahoma are choosing to opt out of state workers’ compensation laws and implement their own insurance. It seems a radical idea, but it’s gaining traction, with lawmakers in South Carolina and Tennessee weighing similar measures.
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An attorney in Dallas is leading a national effort to “re-engineer” the workers’ compensation system, which guarantees those injured on the job coverage of medical bills and supplemental wages until they can return to work. That attorney, Bill Minick, owns a company that writes about 50 percent of the opt-out plans in Texas and 90 percent of those in Oklahoma.

According to the latest in a collaborative journalistic series by ProPublica and NPR, “Insult to Injury: Inside Corporate America’s Campaign to Ditch Workers’ Comp,” this is a man whose firm not only boasts clientele such as Walmart, McDonald’s and dozens of others, he “pioneered the concept” of opting out of workers’ compensation, and he helped to write the current law in Oklahoma.
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In a split decision made by the U.S. Court of Appeals for the Eighth Circuit, federal justices sided with the Occupational Safety & Health Administration in its interpretation of a statute that sets the standard for machine guarding.
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The law in question in 29 CFR 1910.212(a)(1).

This standard was applied by OSHA inspectors who came to investigate after the death of a worker at a St. Louis manufacturing plant. At the time, worker had been using a machine with an unguarded lathe. The lathe had at one time been equipped with protective guards, but at some point, they had been removed.
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North Carolina law has well established that if a person is injured in the course and scope of employment, he or she is entitled to workers’ compensation benefits to help cushion the financial blow.
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These benefits are available even if the injury involves a pre-existing condition that was aggravated as a result of a work-related incident. It also, as the recent North Carolina Court of Appeals case of Morrison v. Wal-Mart reveals, is applicable in cases where a work-related injury is exacerbated by a non-work-related incident.

The court in Morrison ruled that the commission did not err in granting workers’ compensation benefits to a worker who had suffered a job-related injury that got much worse following a car accident months later.
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A landscaping worker employed by the North Carolina city of Greenville, about 2.5 hours east of Greensboro, was injured while driving a city truck. A third-party driver ran a red light and crashed into him. The force of the collision caused his truck to collide with a tree, breaking the windshield and causing the airbags to deploy with force.
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Plaintiff was transported to a local hospital and treated for bruises on his head, broken ribs and a number of injuries to his pelvis, neck, back and hip. An MRI revealed a concussion, but he was discharged from the hospital the next day.

That was five years ago. The issue of his workers’ compensation benefits has been an ongoing one, recently weighed by the North Carolina Court of Appeals in Wilkes v. Greenville. Plaintiff recently appealed a finding by the North Carolina Industrial Commission indicating his injuries weren’t work-related and that he was no longer entitled to receive temporary total disability benefits. The appellate court reversed in part, vacated in part and remanded for further proceedings.
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One of the benefits of having an experienced legal team handle your North Carolina workers’ compensation claim is that any acts of retaliation taken in response to that claim will be well-documented. autopaint.jpg

There are many ways employers may try to take action against employees who file injury claims, and some are not always obvious.

This kind of retaliation can be grounds for a separate legal claim for damages. Our compassionate legal team assists clients in not only securing fair work injury benefits, but in properly documenting retaliatory actions in a way that will preserve the case for a future civil lawsuit, if that is deemed necessary.
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The North Carolina Industrial Commission follows a rating guide for evaluation of permanent disability and permanent physical impairment that is intended to assist physicians in evaluating workers’ compensation claims.
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For example, a moderate deformity of the hip is given a total permanent impairment rating of 30 percent. A limitation of knee motion from 0 to 90 degrees is given an impairment rating of 15 percent. Quadriplegia is given a 100 percent impairment rating. These guidelines follow the recommendations set forth by the American Medical Association (AMA).

A doctor or the industrial commission may choose to deviate from these guidelines, but there has to be evidence to support that deviation. Many other state workers’ compensation systems abide by the same kinds of guidelines.
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A part-time, teenage employee suffered injury to his knees while working as a cook at fast-food restaurant in Idaho. He filed for workers’ compensation coverage several months after the accident (a slip-and-fall), but his quest for permanent partial disability benefits would span the next 10 years.
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In the case of Fairchild v. Kentucky Fried Chicken, the state workers’ compensation commission ultimately granted him a permanent partial impairment rating of 3 percent, while finding plaintiff failed to prove a disability in excess of that impairment.

The Idaho Supreme Court recently affirmed that finding.
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There are a lot of ways one could get injured when working at a coffee shop. Burn injuries are an obvious type of injury that comes to mind. A worker could also get injured from having something fall on him or her in the supply room, or slipping and falling on a wet floor.

However, “Getting struck by a vehicle” is probably not on the list of likely scenarios.

1339587_catering_-_coffee.jpgHowever, according to a recent news article in the Winston-Salem Journal, one worker had come to the coffee shop early in the morning and began setting things up to serve customers their morning coffee. The store’s patio furniture stays out all night, but like many other businesses with out door furniture, employees run a cable lock through the chairs and tables to deter any theft.
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When people think of workers’ compensation, they are normally thinking of a single, catastrophic accident. This could involve anything from merchandise falling from a high shelf in a retail setting to a machine guarding injury at a large factory.

However, workers’ compensation benefits are also appropriate in cases of work-related illness or when an injury is caused by work that took a substantial amount of time to develop.

wristpain.jpgRepetitive stress injuries (RSI) are actually a major category of workplace injuries, though many victims may not realize they can apply for benefits. Carpal tunnel syndrome (CTS) is a good example that is one of the most common types of RSI seen on the job. If a worker is required to perform a repetitive task day in and day out, there is a decent chance this will eventually lead to an RSI. If that work involves the use of the hand or wrist, that RSI may manifest as carpal tunnel syndrome.

While many people associate carpal tunnel syndrome with working at a computer, that is actually only one cause. Many factory workers and food service and production employees are required to perform repetitive tasks that may cause CTS.
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According to a recent news article from Kentucky.com, two employees died as a result of the recent flooding in Eastover, South Carolina. Authorities say five workers were driving in a truck to various washout sites and repairing them along the railroad bed. After finishing repair on one washout, they got in the truck to drive to the next job site. After completing the last washout repair for the day, they started to make their way to a motel where they were staying.

flooded-access-road-1245711.jpgThey were driving on a paved asphalt road when they got to a spot where the road was submerged about 15 feet under water. The driver was unable to stop in time and drove into the deep water. At this point, three of the workers in the truck were able to escape from the submerged vehicle and ran for help for the two workers still trapped in the vehicle. However, it took almost 12 hours for recuse workers to locate the submerged truck. There was obviously nothing first responders could do for the two men, who were trapped in the underwater truck the entire night.

Authorities are claiming the driver of the truck had to crash through a barrier to get to the point where the vehicle sank because that section of road was temporarily closed due to the flooding. However, the railroad company disputes those claims and said there was no barrier, and, had there been, their workers would not have ignored the barrier and would have found a detour route. It should be noted that there has been no finding of negligence with respect to either party as of this time.
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