Christina Lumbreras

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

The State of the States

Regulatory Review

A round-up of nationwide regulatory changes affecting the workers’ compensation industry.
By: | August 28, 2015 • 4 min read
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Colorado

Workers’ compensation premium surcharges.

The Division of Workers’ Compensation amended a rule regarding the workers’ compensation premium surcharges. For the annual period beginning July 1, the workers’ compensation cash fund premium surcharge rate is 0.5 percent of the amount of all premiums written, including any policy expense constants, membership fees, finance and service, or other administrative fees charged to the policyholder in connection with the issuance or renewal of a policy, as reported to the Division of Insurance.

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For the purpose of funding the direct and indirect costs of the premium cost containment program of the division, there is an additional surcharge of 0.3 percent. This surcharge is not imposed on self-insured employers. For the purposes of funding the financial liabilities of the subsequent injury fund and the major medical fund, the tax is assessed at 0.1 percent of the amount of premiums written.

For more information, visit www.colorado.gov/pacific/sites/default/files/Rule_2-5.pdf

Florida

Workers’ compensation administration trust fund.

The Department of Financial Services set the assessment rate for the workers’ compensation administration trust fund for the 2016 calendar year. Beginning Jan. 1, 2016, the assessment rate will be reduced from 1.5 percent to 1.43 percent. Those with questions should contact the assessments coordinator for the Division of Workers’ Compensation at (850) 413-1644.

For more information, visit www.myfloridacfo.com/Division/WC/pdf/DFS-02-2015.pdf

 

Special disability trust fund.

The Department of Financial Services set the assessment rate for the special disability trust fund for the 2016 calendar year. Beginning Jan. 1, 2016, the assessment rate will be reduced from 1.17 percent to 1.16 percent. Those with questions should contact the assessments coordinator for the Division of Workers’ Compensation at (850) 413-1644.

For more information, visit www.myfloridacfo.com/Division/WC/pdf/DFS-01-2015.pdf

Idaho

Hospital outpatient payments.

The Industrial Commission adopted a temporary rule that delays the implementation of the 2015 Centers for Medicare and Medicaid Services outpatient prospective payment system ambulatory payment classification relative weights that became effective Jan. 1. The effective date of the temporary rule is July 1.

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The temporary rule will remain in effect through July 1, 2016, at which time the temporary rule will expire and be replaced by a final rule unless the temporary rule is otherwise affected by an operation of law. By extending the use of the 2014 outpatient prospective payment system ambulatory payment classification relative weights, payments will remain stable while the rule is revised to better align with CMS’ goal of packaging a broader range of hospital outpatient services into a single payment.

For more information, visit adminrules.idaho.gov/bulletin/2015/07.pdf#page=61

Kentucky

Adjustment of claims.

The Department of Workers’ Claims repealed rules regarding the procedure for adjustment of coal workers’ pneumoconiosis claims and the procedure for the adjustment of claims. The process for coal workers’ claims was ruled unconstitutional and the procedures for injury and all other claims will convert to an electronic litigation management system. A public hearing was scheduled on July 28 and written comments were accepted until July 31.

For more information, visit www.labor.ky.gov/workersclaims/Whats%20New%20Homepage/013reg.pdf

Massachusetts

Assessment rates.

The Workers’ Compensation Rating and Inspection Bureau issued a circular letter announcing that the Department of Industrial Accidents set the assessment rates to be applied to policies effective July 1.

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The assessment rate for private employers is 5.75 percent. The self-insured assessment rate is 5.31 percent. The assessment rate for self-insured private employers that opted out of trust fund assessments is 1.66 percent. Those with questions should contact [email protected]

For a copy of the circular letter, visit www.mass.gov/lwd/workers-compensation/wc-pubs/wc-announcements/wcribma-cl-2061.pdf

Missouri

Average weekly wage.

The Division of Workers’ Compensation issued a memorandum regarding the state average weekly wage and maximums. The state average weekly wage for the fiscal year beginning July 1 is $844.69. The maximum weekly benefit rate for injury and illness occurring on or after July 1 is $886.92 for temporary total disability, $886.92 for permanent total disability, $464.58 for permanent partial disability, and $886.92 for death. The actual weekly wage rate necessary to attain the maximum benefit rate is $1,330 for death, TTD, and PTD and $696.87 for PPD. The division also said that as of July 1 the mileage allowance for travel expenses is 54.5 cents per mile.

For a copy of the memorandum, visit www.labor.mo.gov/sites/default/files/2015SAWWM.pdf

New Hampshire

Attorney’s fees.

The Department of Labor proposed amendments to a rule regarding attorney’s fees. The rule explains the details of an award of attorney’s fees to prevailing claimants at both the hearing level and the appeal level.

It allows the worker to receive reasonable attorney’s fees if the employer appeals the hearing officer decision and withdraws before the appeal hearing. The current rule was set to expire on July 1 but was subject to an extension. A public hearing was scheduled on July 24, and comments were accepted until July 31.

For more information, visit www.gencourt.state.nh.us/rules/register/2015/July-2-15.pdf

Rhode Island

Assessment rate.

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The Department of Labor and Training, Division of Workers’ Compensation proposed to reduce the workers’ compensation assessment rate to 6.5 percent. The division accepted comments until July 14.

For more information, visit www.dlt.ri.gov/wc/InfoLetters/2015-06.pdf

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]
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View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | August 21, 2015 • 12 min read
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Worker Not Entitled to Benefits for Trip Over Untied Shoelaces

Lafon v. Iron Tiger Logistics, No. 2015-CA-11 (Ohio Ct. App. 06/19/15)

Ruling: The Ohio Court of Appeals held that a worker was not entitled to benefits for the injury he sustained when he tripped over his shoelaces while boarding the employer’s shuttle bus.

What it means: In Ohio, an injury arises out of a worker’s employment when there is a causal connection between the injury and the employment.

Summary: A “yard man” for Iron Tiger Logistics was climbing into a company shuttle bus when he tripped on his untied shoelaces and fell forward. His right shoulder was injured. The yard man sought workers’ compensation benefits. The Ohio Court of Appeals held that he was not entitled to benefits.

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Iron Tiger conceded that the yard man showed that his injury occurred in the course of his employment because he was boarding the company’s shuttle bus at the time he fell.

The court found that the yard man did not establish that his injury arose out of his employment. He admitted that he fell when he tripped on his untied shoelaces. He also admitted that his fall was not due to any defect in the steps of the shuttle bus. The court explained that while the yard man’s movement of climbing into the shuttle bus was beneficial to Iron Tiger in that he was attempting to put himself in a position to conduct work, Iron Tiger did not have any control over the yard man’s shoelaces being untied and it was the untied shoelaces that caused the fall, not a condition of his employment or work environment. Therefore, the court found an insufficient causal connection between the yard man’s injury and his employment.

Comp Awarded for Death While Traveling in Company Vehicle

Seabright Insurance Co. v. Lopez, No. 14-0272 (Tex. 06/12/15)

Ruling: The Texas Supreme Court held that a foreman’s death occurred in the course and scope of his employment, so his widow was entitled to benefits.

What it means: In Texas, a worker’s injury while traveling to work is compensable if the travel originated in and occurred in furtherance of the employer’s business.

Summary: A civil foreman for Interstate Treating was assigned to work at a site 450 miles from his home. When Interstate assigned the foreman to work at remote job sites, the foreman made his own arrangements to stay in a hotel, and Interstate paid him per diem for his lodging and food expenses. Interstate also provided him with a company vehicle but did not pay the foreman for his travel time. The foreman chose to stay in a motel 40 miles from the job site. While he was driving two other Interstate employees to the job site, he was involved in an automobile accident and was killed. The foreman’s widow sought workers’ compensation death benefits. The Texas Supreme Court awarded death benefits to the widow.

The court concluded that the foreman was acting within the course and scope of his employment when he was injured. Interstate’s business called for employing specialized, nonlocal work crews in constantly changing, remote locations for temporary assignments. The court found the foreman’s travel furthered and originated in Interstate’s business.

The court explained that the foreman’s travel from his temporary housing to the job site and the risk associated with the travel were “dictated” by Interstate’s business model and “enabled” by its provision of the vehicle. The provision of transportation to the work location was an essential part of the foreman’s employment. Also, the foreman’s travel made employment possible and furthered Interstate’s business.

The court explained that course and scope of employment does not include transportation to and from the place of employment unless the transportation is paid for by the employer. Here, the widow established that Interstate paid for the foreman’s travel by providing a vehicle and paying for fuel and insurance.

A dissenting judge opined that the foreman’s death was not compensable because the risk of injury to which he was exposed was the same as any other person traveling on public roads to reach a job site.

Exclusion for Farm, Ranch Laborers Declared Unconstitutional

Rodriguez v. Brand West Dairy, et al., No. 33,104 and 33,675 (N.M. Ct. App. 06/22/15)

Ruling: The New Mexico Court of Appeals held that the worker’ compensation law’s exclusion of farm and ranch laborers from coverage is unconstitutional.

What it means: In New Mexico, farm and ranch laborers should be covered under the workers’ compensation law.

Summary: Two workers suffered work-related injuries while working as farm and ranch laborers. The workers sought workers’ compensation benefits. Their claims were denied under the workers’ compensation law’s exclusion for farm and ranch laborers. The workers asserted that the exclusion was unconstitutional. The New Mexico Court of Appeals held that the exclusion violated the workers’ rights to equal protection.

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The workers asserted that they were treated differently than similarly situated individuals. The court agreed, concluding that farm and ranch laborers seeking compensation were similarly situated to other workers who were also seeking compensation. Both groups consisted of workers suffering work-related injuries or disabilities who were in need of indemnity and medical benefits. The court explained that excluding farm and ranch laborers from workers’ compensation coverage denied them benefits that the law was intended to provide. The exclusion also circumvented the policy and philosophy of the law. The court said that “the exclusion tips the scale in favor of employers.”

The court found that the exclusion was not rationally related to a legitimate state interest. Under the exclusion, workers whose primary duties are essential to the cultivation of crops are considered farm laborers while workers involved primarily in the processing of the same crops are not. The court said this distinction “leads to absurd results.” In some instances, employees working for the same agricultural employers may not all be covered. The court said it failed to see any real differences between farm and ranch laborers and others workers that would justify the exclusion.

The court was not persuaded by one employer’s argument that simplifying the administration of the workers’ compensation system and protecting the state’s agricultural industry from additional overhead costs justified the arbitrary classification created by the exclusion.

Exclusive Remedy Provision Blocks Suit Alleging Broken Door Latch on Truck

Keller v. Township of Berkeley, et al., No. A-5767-12T3 (N.J. Super. Ct. App. Div. 06/22/15, unpublished)

Ruling: In an unpublished decision, the New Jersey Superior Court, Appellate Division held that the exclusive remedy provision barred a laborer’s suit against a township.

What it means: In New Jersey, the exclusive remedy provision will not block a suit when the employer engaged in an intentional wrongdoing.

Summary: A laborer for the Township of Berkeley’s sanitation department suffered serious injuries when he fell from a moving garbage truck after the passenger side door sprang open. The laborer claimed that there were many complaints about the truck and that the township had known that the passenger door would open unexpectedly. The township denied that it was aware of any problem with the truck and that an inspection after the accident failed to note any problem with the locking mechanism. The laborer sued. The New Jersey Superior Court, Appellate Division held that the exclusive remedy provision barred the suit.

The court explained that the workers’ compensation law ordinarily provides the exclusive remedy for injuries sustained by workers in the course of employment but a worker can sue in the case of an intentional wrong. An intentional wrong occurs when an employer possesses a “substantial certainty” that harm will result from an action. The court found that the laborer’s accident did not meet the substantial certainty standard.

The court pointed out that no Occupational Safety and Health Administration violations were issued before or after the accident involving the latch on the passenger door of the truck. The township did not do anything to the door mechanism to make it less safe in an effort to speed up garbage collection. Also, the door was functional to some extent. No evidence showed that there was a prior incident where a worker was injured.

Accident While Traveling to Storage Container Is Compensable

Hamilton v. Alpha Services, LLC, et al., 2015 Opinion No. 33 (Idaho 06/22/15)

Ruling: The Idaho Supreme Court held that a worker’s death in an automobile accident was compensable.

What it means: In Idaho, an accident can occur in the course of employment even when the worker is not on the clock.

Summary: A worker for Alpha Services, a logging operation, was driving a company truck to run a personal errand after his shift. He told his wife he was going to return to the job site. While attempting to turn onto a dirt road leading to Alpha’s storage container, the worker was broadsided by a semitrailer and was killed. The worker’s wife sought workers’ compensation benefits. The Idaho Supreme Court awarded benefits to the wife because the accident arose out of and in the course of the worker’s employment.

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Alpha argued that there was no evidence that the worker was turning onto the dirt road for a work-related purpose when the accident occurred. The court found that the worker was likely turning down the road in furtherance of his work. Although the exact reason was unknown, both a coworker and a supervisor speculated that the worker was turning down the road for a reason associated with work. The evidence established that Alpha employees regularly drove to the storage container for work. No evidence suggested any personal reason why the worker might have turned toward the storage container. The court also noted that an accident can occur in the course of employment even when the worker is not “on the clock.”

Alpha also argued that the coming and going rule barred the wife’s claim. The court found that the Industrial Commission did not err in determining that the worker was at Alpha’s place of business when the accident occurred so the coming and going rule did not apply. Because of the location of the storage container, the worker and other Alpha employees were required to regularly travel between the storage container and the active logging site, exposing themselves to the risk of harm associated with the highway. The court found a “clear connection between the conditions existing on the premises and the accident.”

Benefits Denied for Commuting Accident in Company Truck

Bowlin Group, LLC v. Padgett, et al., No. 2013-SC-000402-WC (Ky. 06/11/15, unpublished)

Ruling: In an unpublished opinion, the Kentucky Supreme Court held that a manager’s injury was not compensable.

What it means: In Kentucky, the rule excluding injuries that occur off the employer’s premises during travel between work and home does not apply if the journey was part of the service for which the worker is employed or otherwise benefits the employer.

Summary: An installation manager for Bowlin Group was given a company truck and a gas card to use because his job required traveling to multiple work sites away from his office. Later, Bowlin closed the manager’s office and gave him the option of transferring or being laid off. The manager chose to transfer to another office where he was given an administrative clerical position. Other similarly situated employees were not given company trucks, but the manager did not lose the use of the company truck. He used the truck to commute to and from his home to work and to deliver documents and payments to another office. While driving to work, the manager hydroplaned and wrecked the company truck. He sustained serious injuries in the accident and sought workers’ compensation benefits. The Kentucky Supreme Court held that the manager was not entitled to benefits.

The court explained that generally injuries sustained by workers when they are going to or returning from work are not deemed to arise out of and in the course of employment. An exception exists when the journey is part of the service for which the worker is employed or otherwise benefits the employer. In this case, the court found that the exception did not apply.

The court found no evidence that the company truck was an inducement for the manager to transfer. Before the transfer, he did not have suitable transportation to travel among the various work sites, and the company truck allowed him to serve his role as a supervisor. When he was transferred, the company truck became a perk. The use of the truck was not a condition the manager demanded before he accepted the transfer. Instead, he was told that if he did not transfer he would be laid off.

The court also noted that the manager’s new job did not require the use of a company truck. While he took short trips to another office each day, there were other vehicles he could have used to complete the trip without being given a full-time company truck.

Trip to Vending Machine Yields Comp

Centers for Youth and Families, et al. v. Wood, No. CV-15-36 (Ark. Ct. App. 06/17/15)

Ruling: The Arkansas Court of Appeals held that a receptionist was entitled to benefits for her fractured pelvis.

What it means: In Arkansas, a compensable injury does not include an injury that was inflicted upon the worker at the time when employment services were not being performed. A worker’s injury when she briefly left her workstation to get a snack may be compensable.

Summary: A part-time receptionist for the Centers for Youth and Families greeted members and answered the telephone, but she was not always at the front desk. Since she worked part time, she had no scheduled breaks. She took breaks as needed. When there was a lull in the activity around the front desk, the receptionist walked to the vending machine to get a snack. On her way to the vending machine, she slipped on water in the hallway and fell, fracturing her pelvis. Usually after going to the vending machine, she would immediately return to her desk where she could eat her snack and perform her job duties. The receptionist sought workers’ compensation benefits. The Arkansas Court of Appeals held that she was entitled to benefits.

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The center argued that the receptionist was not performing employment services because she had left her workstation at the time she was injured. The center asserted that her reason for walking to the vending machine was to get something to eat, which was entirely personal in nature and unrelated to her work. The court found that the receptionist was preforming employment services at the time she was injured.

The court explained that the receptionist was allowed to leave her workstation for various reasons, including getting a snack from the vending machine, as long as the telephone was not ringing and guests were not needing assistance. It was not uncommon for employees to get snacks from the vending machine supplied by the center. After getting a snack, the receptionist would immediately resume her job duties. The court said that her briefly leaving her workstation did not detract from her job duties, which benefitted her employer directly or indirectly.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]
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You Be the Judge

Is ‘Hypertensive Crisis’ Compensable?

When doctors' views are mixed on whether man's injury was work related, the ball is left in the judge's court.
By: | August 17, 2015 • 2 min read
Topics: Claims | Workers' Comp
You Be the Judge

A correctional officer for the Missouri Department of Corrections was involved in a “take down” of an uncooperative inmate. The officer felt nothing unusual at the time, other than “an adrenaline rush.” The officer and a coworker escorted the inmate to another location within the prison.

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While doing so, the officer began to experience shortness of breath. He went to get a drink of water, and he began to spit up blood. He was transported by ambulance to the hospital where he lost consciousness.

Chest X-rays revealed the presence of a pulmonary edema. The officer had preexisting hypertension and was taking medications. He was transported to another hospital where he remained unconscious for a week.

A pulmonary specialist said it did not appear that his “disease process” was related to trauma. Another doctor said it was unclear whether his condition was related to a cardiac contusion tipping him into congestive heart failure or whether he had a pulmonary contusion that worsened his respiratory and cardiac status or was secondary to the stress of the altercation. A cardiologist said the officer suffered from a “hypertensive crisis.” An independent medical examiner said that the work incident in which the officer experienced extreme exertion was the direct, proximate, and prevailing factor precipitating the hypertensive crisis.

The officer recovered with no permanent disability, and he returned to work. He sought workers’ compensation reimbursement for the medical expenses associated with his hospitalization. The administrative law judge denied the claim. The Labor and Industrial Relations Commission affirmed the denial of benefits, finding that although the officer suffered a work-related accident, he did not prove that the accident was the prevailing factor for causing his injuries.

Poll Question

Was the commission correct in denying benefits to the officer?

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The court explained that the officer was required to establish that his accident was the prevailing factor in causing his hypertensive crisis. Although the officer claimed that certain evidence was ignored, the court pointed out that hypertensive crisis is a “sophisticated injury that could be caused by various factors.”

A is incorrect. The court found that the officer did not establish that his accident was the prevailing factor in causing his hypertensive crisis.

C is incorrect. The court noted that the commission was unable to determine whether the independent medical examiner asserted that the work accident was a prevailing factor in causing the resulting treatment or that the work accident was merely the main precipitating factor of his injury.

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The court also pointed out that the examiner’s conclusions stemmed from an incorrect understanding of the facts. While the examiner’s report suggested that the officer experienced extreme exertion in taking down the inmate, the officer said that the event required only minimal exertion.

B is correct. In Malam v. State of Missouri Department of Corrections, No. SD33620 (Mo. Ct. App. 06/24/15), the Missouri Court of Appeals held that the officer’s medical treatment for his “hypertensive crisis” was not compensable.

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]
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