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View From the Bench

Workers’ Comp Docket

Key workers' comp legal decisions from around the country.
By: | April 11, 2014 • 10 min read
Docket

Employer of Undocumented Workers Protected From Liability Suit

New York Hospital Medical Center of Queens v. Microtech Contracting Corp., No. 00897 (N.Y. 02/13/14)

Ruling: The New York Court of Appeals held that an employer was shielded from a third-party claim for contribution and indemnification.

What it means: In New York, the fact that an employer illegally hired undocumented workers will not annul the employer’s statutory rights of being shielded from a third-party claim for contribution and indemnification.

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Summary: New York Hospital Medical Center engaged Microtech Contracting to demolish a basement room housing an incinerator. Two workers, who were undocumented aliens, were hired to perform the work. The vibrations of the tools used by the workers dislodged a metal chimney attached to the wall. The chimney toppled, striking and injuring the workers. Microtech’s insurance carrier paid workers’ compensation benefits to the workers. The workers also sued the hospital. The hospital brought an action for contribution and indemnification against Microtech. Microtech asserted that the hospital’s action was barred. The New York Court of Appeals held that Microtech was shielded from the hospital’s action.

The workers’ compensation law bars third-party suits for contribution and indemnification against an injured worker’s employer unless the worker suffered a “grave injury,” limited to death and an exclusive list of disabilities, or the employer agreed to contribution and indemnification in a written contract entered into with the third party before the accident. The hospital argued that the employment contracts between Microtech and the workers were illegal and unenforceable. The hospital asserted that Microtech could not defend the action on the ground that the workers were its employees and the workers’ compensation law barred the action.

The court explained that the illegality of the employment contract did not annul Microtech’s statutory rights. Also, the workers did not suffer grave injuries, and there was no preexisting agreement for contractual contribution or indemnification. The hospital did not contend that the Immigration Reform and Control Act preempted the workers’ compensation law. Therefore, Microtech was entitled to the safe harbor.

What Happens When TTD Benefits and PPI Benefits Collide

Moore d/b/a Cat Dog Trucking v. Jerrell, No. 93A02-1308-EX-00693 (Ind. Ct. App. 02/07/14)

Ruling: The Indiana Court of Appeals held that a worker was entitled to permanent partial impairment benefits for 500 weeks.

What it means: In Indiana, an employer is not entitled to a credit for temporary total disability benefits it paid to a worker that overlap with permanent partial impairment payments.

Summary: A worker for Cat Dog, a trucking company, was at work when his clothes caught on fire, causing him to suffer burns to 51 percent of his body. One of his legs was amputated above the knee, and the other leg was amputated below the knee. His left hand and arm were seriously impaired. Cat Dog paid him temporary total disability benefits. Eventually, a dispute arose regarding the nature and scope of the relief to which the worker was entitled. Later, the worker moved into a home with his mother, and Cat Dog paid the worker compensation for his mother’s care of eight hours per week. The Indiana Court of Appeals held that the worker was entitled to permanent partial impairment benefits for 500 weeks.

Cat Dog argued that since the worker elected to receive PPI instead of permanent total disability benefits he could not receive his benefits over a period of 500 weeks. The Workers’ Compensation Board pointed out that if the worker received his benefits in the way Cat Dog proposed, payment of his impairment award would take 28 years. The court found nothing in the law prohibited the payment to be made over 500 weeks.

Cat Dog also asserted that it was entitled to a credit for TTD benefits it paid to the worker. The court found that the law did not require a credit to Cat Dog for TTD payments that overlapped with PPI payments. The court pointed out that Cat Dog was credited for TTD benefits it paid after the worker’s injury was “permanent and quiescent.”

The court also rejected Cat Dog’s argument that it should receive a credit for the home health care services it provided to the worker. The court declined to reweigh the evidence.

Icy Slip and Fall Linked to TMJ Syndrome

Vance v. DCCCA, Inc., No. 109,294 (Kan. Ct. App. 01/31/14)

Ruling: The Kansas Court of Appeals held that a worker was entitled to benefits for her temporomandibular joint syndrome caused by her work-related accident.

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What it means: In Kansas, a worker’s delay in seeking treatment will make it difficult for her to establish that her condition was caused by the accident.

Summary: A family support worker was leaving her employer’s office to take some children back to their foster homes when she slipped on ice. She claimed that she injured her teeth, jaw, hip, back, and ribs on the concrete. The worker sought workers’ compensation benefits. The employer agreed that she sustained a work-related injury as the result of an accident arising out of and in the course of her employment. The Kansas Court of Appeals held that she was entitled to benefits for her jaw injury.

The court concluded that the worker established that her temporomandibular joint syndrome was caused by the accident. Multiple doctors diagnosed her with TMJ. A doctor’s opinion established a causal connection between the worker’s TMJ and the accident. The worker’s incident report with the employer stated that she bruised her jaw and chin. She consistently complained of jaw pain.

The court found that the worker failed to prove that her loss of dentition was caused by the accident. A dentist’s testimony did not establish trauma as the cause of her dental problems as opposed to decay. The court also pointed out that the worker did not visit the dentist until two years after her accident. The dentist opined that he was not in a position to state whether her condition was work-related. A doctor’s opinion was not reliable because he saw the worker after an intervening assault and more than one year after the dentist repaired her dental problems.

The worker failed to prove that she sustained permanent injuries to her low back and hip as a result of the accident. Substantial evidence showed that the worker’s hip and low back injuries were temporary. Although she initially complaint of back pain, she did not mention it in a later appointment with her doctor.

Employee Who Blew Off Safety Rules Awarded Benefits

Renfro Electric v. Sexton, No. 111711 (Okla. Civ. App. 01/10/14)

Ruling: The Oklahoma Court of Civil Appeals held that a journeyman was entitled to temporary total disability benefits.

What it means: In Oklahoma, a worker’s injury resulting from his negligent or dangerous failure to follow specific safety rules, regulations, or procedures is compensable when evidence shows that the worker had no intention of injuring himself.

Summary: A lead journeyman for Renfro Electric worked on the roof of a two-story structure. Instead of using a ladder to reach the second story roof, he directed that he be lifted to the roof by a materials lift. As the journeyman stepped from the lift to the roof, he fell and sustained significant injury. He admitted that the lift was not intended to lift workers and knew that such use was dangerous and contrary to Renfro Electric’s instructions. He asserted that because the ladders were not rated to bear his 350-pound weight, the lift was more appropriate. The journeyman sought workers’ compensation. Renfro Electric denied liability for the claim. The Oklahoma Court of Civil Appeals held that he was entitled to temporary total disability benefits.

Renfro Electric argued that the journeyman’s injury constituted “an injury occasioned by the willful intention … to bring about injury to himself,” and as such, the claim was barred. The court explained that even if an injury results from a worker’s negligent or dangerous failure to follow specific safety rules, regulations, or procedures, where the testimony shows that he had no intention of injuring himself, the claim is properly allowed.

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In this case, the journeyman admitted that the lift was not intended to lift workers and he knew that such a use was dangerous and contrary to safety rules and Renfro Electric’s instructions. However, while his disregard for his own safety may have been negligent and dangerous, there was no evidence that he “willfully” intended to injure himself.

Delayed Treatment Claim Subject to Exclusive Remedy Doctrine

Holt v. Dana Light Axle Manufacturing, LLC, No. 2013-CA-000287-MR (Ky. Ct. App. 02/14/14, unpublished)

Ruling: In an unpublished decision, the Kentucky Court of Appeals dismissed a worker’s suit against his employer, finding that workers’ compensation provided his exclusive remedy.

What it means: In Kentucky, a worker’s claim alleging that his employer negligently delayed his medical treatment falls under workers’ compensation.

Summary: A worker for Dana Light Axle Manufacturing experienced chest pain while on the job. He notified his supervisor, who did not send him to the on-site medical facility or any other emergency medical personnel. He was persuaded to go back to work. Three hours after he first reported having chest pain, the worker left work and drove himself to the emergency room. The following day, a stent was placed in his artery to improve blood flow and relieve his chest pain. The worker sued Dana Manufacturing, alleging that it negligently failed to allow to him seek medical care, resulting in increased damage to his heart and psychological trauma. The Kentucky Court of Appeals dismissed the suit, finding that workers’ compensation held his exclusive remedy.

The court explained that the injury was not the worker’s heart attack itself but the potential increase in damage to his heart resulting from the delay in treatment as well as the alleged psychological trauma that accompanied his decision to leave work. The court found that the worker’s injuries arose out of and in the course of employment. The delay in receiving medical care and the psychological injury were the result of activity related to his employment.

The court said that if the worker had not been at work and subject to Dana Manufacturing’s on-site medical services facility he might have received more expeditious medical care. The worker’s injuries may not have occurred had he not been at work.

Company Veep Denied Comp for Lobby Wipeout

Grace v. Himes Consulting Group, 21 ILWCLB 212 (Ill. W.C. Comm. 2013)

Ruling: The Illinois Workers’ Compensation Commission denied benefits to a vice president for an injury sustained when she fell in the lobby of the building where her employer’s office was located.

What it means: In Illinois, a worker’s injury in the lobby of a multi-tenant building in which her employer leases office space does not arise out of her employment when the employer does not have exclusive use of the common areas and is not responsible for maintaining such areas, the employer exercises no control over where the worker enters the building, and the lobby is open to the public.

Summary: On her first day of work, a vice present of sales entered a multi-tenant office building where her employer leased space. She walked to the elevator and fell, injuring her right knee and ankle. The vice president testified that the lobby floor was marble and slippery, and she noticed it had some fine, chalky dust on it. The commission affirmed and adopted the decision of the arbitrator denying benefits.

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The lobby was a common area of the building. The employer’s lease provided that it did not have the exclusive use of and was not responsible for maintaining the entrances, lobby, elevators, and hallways of the building. These areas were open to all tenants, visitors, and the general public. The employer exercised no control over where the vice president entered the building, the area where she fell, or the route she took from the street to the employer’s suite.

The arbitrator explained that the vice president’s accident involved a neutral risk and concluded that the vice president was not exposed to a greater risk by walking through the building’s lobby because the lobby was used by the general public. Therefore, the vice president failed to prove her injuries arose out of any risk connected or incidental to her employment.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com
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Employee Misclassification

Premium Fraud in the Spotlight

A Grand Jury report suggest that workers' comp premium fraud in New York is rampant.
By: | April 11, 2014 • 2 min read
construction

Unpaid workers’ comp premiums are costing New York hundreds of millions of dollars, according to an official. In the wake of a grand jury’s report, New York County Prosecutor Cyrus Vance is calling for major changes to the system.

The release of the report by the New York State Supreme Court Grand Jury coincided with the 103rd anniversary of the Triangle Shirtwaist Factory Fire in Greenwich Village that killed 146 people. The state’s workers’ comp law was closely associated with the tragedy.

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“The widespread premium fraud detailed by this Grand Jury Report is deeply troubling and underscores the critical need to reform the workers’ compensation system,” Vance said in a statement. “My office’s Tax Fraud and Money Laundering Unit will continue to pursue those who cheat the system, but the best protection for New York’s workers is a system that is itself protected from fraud and abuse.”

The report followed investigations by the unit into false information provided to the New York State Insurance Fund in connection with applications for, and audits of, workers’ comp policies, the statement said. Vance said investigations by his office looked at incidents of insurance premium fraud that, among other things, cost New York City and state “substantial revenue.”

As Vance explained, an employer’s premium is based on each covered employee’s job classification. Rates for a relatively safe job can be much lower than that for a dangerous job.

“This system, which requires employer self-reporting, is easily abused by unscrupulous employers who misclassify employees,” Vance said. “Employers can easily lie about what work a particular employee performs, for example, reporting a roofer as a clerical worker, and thus paying a significantly lower premium. More egregious is fraud where an employer misclassifies a worker who is required to be insured under the system as an independent contractor, but is an employee.

Estimates indicate New York City’s construction industry in 2011 cost the city and state about $500 million due to worker misclassifications. This lost money is typically made up by cost shifting from somewhere else.

The grand jury’s report included a variety of recommendations from the following categories:

  • Increased penalties to ensure that sentences are proportionate to the magnitude of the fraud.
  • Increased transparency by reforming the application and audit process, thereby making it more effective and less susceptible to fraud.
  • Increased dissemination of information into the hands of those charged with investigating and prosecuting fraud.
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  • Increased education for employees and the community at large about the workers’ comp system and its value to the public, so that everyone is better able to protect the system from fraud.

“A well-functioning workers’ compensation system not only generates significant revenues for the City and the state, but also fosters equality in the marketplace and allows small businesses to flourish, creating the sorely-needed jobs. It benefits every employer, every employee, every consumer, and every taxpayer,” the report said.

Nancy Grover is co-Chair of the National Workers’ Compensation and Disability Conference and Editor of Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com.
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Sponsored Content by Riskonnect

Passionate About Technology

Brit Waters and his team revolutionized Avery Dennison's risk management process. Now other departments are looking to follow suit.
By: | April 7, 2014 • 5 min read
SponsoredContent_Riskonnect

If you overheard the passion and enthusiasm that Brit Waters uses to describe his most important business technology, you would immediately assume it was the latest smartphone or tablet. But it’s not Apple or Google that generates so much enthusiasm, it’s the Riskonnect risk management platform.

“Riskonnect revolutionized how our department does business. This system changed the way we gather, analyze and communicate information. It’s made us more efficient, effective and reliable,” said Waters, Manager, Risk Management at Avery Dennison Corporation. “These are not bandages, but complete solutions.”

Avery Dennison is a multinational company offering labeling and packaging materials and solutions whose applications and technologies are an integral part of products used in every major market and industry. The company operates in more than 50 countries with over 26,000 employees and $6 billion in revenues in 2013.

SponsoredContent_Riskonnect“Riskonnect revolutionized how our department does business. This system changed the way we gather, analyze and communicate information. It’s made us more efficient, effective and reliable. These are not bandages, but complete solutions.”
– Brit Waters, Manager, Risk Management, Avery Dennison Corporation

The company partnered with Riskonnect, the provider of premier, enterprise-class technology platforms. In just 18 months, the system not only revolutionized the department but also delivered wide-ranging value for plenty of other parts of the organization. Those departments utilize the system to manage financial assets, keep track of vehicles and will soon oversee facilities requests.

‘The Simplicity is Unreal’

For global property insurance renewals, Riskonnect changed the way Avery Dennison collects data on its 300 manufacturing facilities, warehouses and other properties around the world. Gone are the days of sorting through hundreds of separate emails with information about the properties and merging hundreds of separate spreadsheets into one.

Not only was the old process cumbersome, it left lots of room for error.

With Riskonnect, the process is automated. It sends emails to the more than 100 individual contacts and the users insert the information into the Riskonnect portal themselves — something that makes Waters’ life a whole lot easier.

“I hit a button once and it runs the report for me. The simplicity is unreal,” he said. “Plus, it gives us better information that we can communicate to our insurance carriers, and gives them increased confidence about the risks they’re insuring.”

Waters said it’s a big time-saver. “Before, the process could take up to three months, and now we get it done in less than a month.”

One thing he’s particularly excited about is the configurability of the portal. If he wants to customize it, he can easily do so without going through a computer programmer or contacting an account executive.

“It gives you the power to set up the system as you need it, not as someone else envisions you need it,” said Waters.

Expediting Claims

The Riskonnect portal is also the primary source for reporting workers’ compensation claims. Again, the Riskonnect system simplified the process. Before, employees had to call a 1-800 number or fill out a long form and fax it to the Third Party Claims Administrator (TPA). Now they just log on and use the claims reporting portal, which is equipped with drop-down menus and other efficiencies that help expedite the process.

“We take the guessing game out of their hands,” said Waters. “In a matter of minutes, they get a confirmation email that the claim has been submitted to the TPA.”

Through the Riskonnect dashboard tools, Waters and his department can learn a lot about trends in workers’ comp claims. The system tracks claims year-to-date, costs, causes of injury and even the top body parts that are hurt. Then risk management communicates that information to local managers to make sure that safety-and-prevention programs are appropriate and will help reduce the amount of claims and their costs.

“The Riskonnect dashboards layout all this valuable information in easy-to-use tables and charts, making it simple for us to study the data and implement necessary safety changes,” said Waters.

ROI on a Values Collection Module

SponsoredContent_Riskonnect

Enterprise Integration

At the start of the process, Waters never imagined just how many other departments would use the tool. The finance department uses the system for asset management. The fleet administrator uses it to have drivers sign off on its manuals. Even the facilities department is jumping on board, using the Riskonnect system to identify when properties need repairs to big-ticket items like roofs or windows.

The company is also looking to report global property claims, transit claims and employers’ liability claims through the platform. It’s even evaluating if it can use it on the shop floor with health-and-safety team members having easy access to the system via iPads.

”The Riskonnect platform can help many different departments with a wide variety of tasks,” said Waters. “It’s really making risk management a much more strategic contributor to the company.”

“I hit a button once and it runs the report for me. The simplicity is unreal,” Waters said. “Plus, it gives us better information that we can communicate to our insurance carriers, and gives them increased confidence about the risks they’re insuring. Before, the process could take up to three months, and now we get it done in less than a month.”

Happy End-Users

Waters’ enthusiasm for the product is clear, but he’s not alone. End-users are raving about how easy, intuitive and customizable it is. For example, training end-users used to consist of holding approximately 15 different webinars to walk everyone through the process. Now, it’s accomplished in one easy-to-understand mass communication through the Riskonnect portal.

The end users even helped Waters and the Avery Dennison team add efficiencies that improve the entire process. On the property reporting side, they suggested adding an attachment tool for adding spreadsheets – so the information is easy to find the following year.

“It’s amazing when you give the end users a product and you see how they come back to you with advice that you never even thought of,” said Waters. “That speaks volumes for the system.”

In just 18 months, Riskonnect changed the way Avery Dennison does business — something Waters can’t hide his enthusiasm about.

“I don’t consider them just a vendor,” said Waters. “I consider them a long-term strategic partner.”

This article was produced by Riskonnect and not the Risk & Insurance® editorial team.

Riskonnect is the provider of a premier, enterprise-class technology platform for the risk management industry.
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