Category Archives: Workers’ Compensation

Florida Employers May Lose Their Limited Liability/Exclusive Remedy Defense

“Decimated.” That is the word the Honorable Circuit Court Judge Jorge Cueto used to describe what’s left of Florida’s Workers’ Compensation Act after a series of reforms, notably in 2003, which attacked injured workers’ rights and benefits. After 2003 Florida became one of the most restrictive workers’ compensation jurisdictions in the nation. As it currently exists, Florida’s Workers’ Compensation Act does not provide any benefits for permanent partial disability and medical benefits are very limited.

There is a delicate compromise between employees and employers. Employees give up potential negligence claims against their employer (including damages for pain and suffering) in exchange for access to medical care and disability benefits. Employers thereby avoid lawsuits and are protected from claims by their employees under what’s called the “exclusive remedy” defense. This is the essential trade-off of any workers’ compensation act.

So what happens when you take away almost all of the employee’s rights through legislative reforms every year? Well, according to Judge Cueto, employers lose their immunity for civil lawsuits by employees. As a result, employers may now be vulnerable to lawsuits from their employees for work-related accidents where the employer was negligent, and seek damages, including pain and suffering, from their employer.

It will be interesting to watch developments in Florida as they unfold. However, it should also serve as a reminder about consequences of stripping away injured workers’ benefits under delicately balanced workers’ compensation acts in the future. 

Truckers Fired Over Workers’ Comp Claim: What to Do Next

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

Truck drivers have a remedy if fired for making a workers’ compensation claim.

A recent award of over $100,000 to a truck driver who was fired for making a workers’ compensation claim illustrated the protection drivers have under the Surface Transportation Assistance Act (STAA). New Prime of Springfield, Mo., had to pay the former employee lost wages, compensatory and punitive damages. “The company must also expunge the complainant’s employment and DAC Report records of any reference to his unlawful termination,” according to the article above. 

The Occupational Safety and Health Administration (OSHA), which is often criticized for a variety of reasons, enforced anti-retaliation laws that protect truck drivers who are unfairly punished for taking steps to protect their health and financial welfare. These laws can also be enforced through lawsuits as an alternative to the OSHA administrative process. 

Truck drivers need to be aware of this protection. Truck drivers also need to know that OSHA and the Federal Motor Carrier Safety Administration (FMCSA) have just announced an agreement to strengthen protections for transportation workers from coercion and retaliation.   

The industry publication FleetOwner gives more details about how OSHA and the FMCSA interact with the STAA in this article.   

Here is one helpful quote from the FleetOwner article:

“If OSHA finds that a complaint is valid, it can order the employer to reinstate the worker; pay back pay, interest and compensatory damages; pay punitive damages up to $250,000 where warranted; and/or take other remedial actions.”

In addition, “action by one agency didn’t preclude action by another in the same situation” when it comes to the STAA.

“OSHA’s mandate is protecting workers, while FMCSA’s mandate is safety, (an FMCSA document) said. And FMCSA can take action against a carrier or other entity but, unlike OSHA, it can’t compensate a driver. So a driver filing a complaint with FMCSA about coercion might be able to file a whistleblower protection complaint with OSHA and vice versa, FMCSA said.”

The recent award and very recent press release from OSHA are great news for truckers and their families. The laws that protect you work. There is an apparently serious effort to make them work better. It will now be easier to protect your health and welfare if you are injured on the job.

“Coming and Going” Rule Revisited

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

The Kansas Supreme Court has just reversed a State Appeals Court finding that an oil field worker was not entitled to worker’s compensation benefits after he was injured while riding home from his workplace.  The case is David C. Williams v. Petromark Drilling, LLC and Ace Fire Underwriters Ins. Co.  The Court reasoned that the nature of field work where an employee has no permanent place of employment but must travel from place to place to perform his duties was an exception to the “Coming and Going” rule.  That rule in most State Statutes indicates an employee is not entitled to worker’s compensation while coming to work or going home from work.

In Wisconsin case law and statutory provisions have extended coverage to the employer’s designated parking lot, travel between the parking lot and employer’s premises, injury off premises from a “spilled over danger” and commuting to work in an employer-provided vehicle used from time to time for job duties.  Wisconsin courts have etched away at the “Coming and Going” exclusion.  While a typical commute is not covered until the worker reaches the company parking lot, if the employer pays wages for the travel time or commute (“on the clock”), an injury during the trip is compensable.  The worker is also covered during the entirety of a special errand or overtime trip required by or for the benefit of the employer.  Also, where the use of a company truck was a “substantial part of the employment contract” a worker killed while commuting to work was found to be in the course of employment. An argument can be made that an employee commuting to work should be covered if required by job duties to have access to the car while at work, even if not compensated for the expense of commuting.

Wisconsin’s Commission and Courts have also wrestled with the distinction between a “traveling employee” who receives statutorily broad coverage, and a regular commuter whose trip to work is barred by the “Coming and Going” rule.

Workers’ Comp Covers Work-Related Motor Vehicle Accidents

Today’s post comes from guest author Todd Bennett, from Rehm, Bennett & Moore.

Do you drive a company vehicle as part of your job?

Many find themselves in the situation where they travel regularly, or on a special errand from time to time, as part of their job. 

In the unfortunate scheme of things, if you are involved in an accident while driving, whether it is your fault or not, you are covered by and entitled to workers’ compensation benefits just as any other employee who suffers an accident on the premise of an employer.

More importantly, if the cause of the accident was not due to negligence of your own, but that of a third party, you have a right to bring a third-party negligence action against the party responsible for causing the vehicle accident. This right is separate and distinct from the workers’ compensation benefits that you are entitled to. Further, you also potentially have the right to bring an underinsured motorist coverage claim under your employer’s motor vehicle coverage as well as your own underinsured motorist vehicle coverage. These, too, are separate and distinct from the workers’ compensation benefits you are entitled to. 

It is important to note that the employer would have a subrogation right to be reimbursed for workers’ compensation benefits paid on your behalf against that of any third-party negligence claim where you obtained a recovery. However, as underinsured motorist coverage is typically viewed as contractual benefits in nature, there is no subrogation right from your employer if underinsured benefits are obtained in Nebraska.

If you or someone you know was injured in a motor vehicle accident that arose out of and in the course of one’s employment, there are significant issues to be aware of in order to obtain a recovery that meets your needs. If you have any questions or uncertainty when dealing with this point of law, please seek the advice of an experienced attorney who can help steer you in the best course of action.

What’s Happening to North Carolina’s Workers’ Compensation Act? (Part III)

In Part I and II of this series we discussed the legislative power shift in 2010 and identified four significant changes.  Here are some more legislative changes, all imposed after 2010:

5.   Even If The Claim is Denied the Employer Can Still Get An IME.

Before 2010, although an employer might be able to get the employee’s medical records once the claim was filed, if the claim was denied the employee took the position that the employer had no right to force the employee to go to an insurance-selected physician for an IME.  That has now changed.

6.   In Second Opinion Rating Evaluations Certain Medical Evidence Can Be Ignored.

An employee has an absolute right to get a second opinion about the extent of a permanent injury, if dissatisfied with the impairment rating given by the insurance-selected treating physician.  Occasionally, this new physician, who was selected by the employee, would make a medical finding that the employee needed further medical treatment or would diagnose another medical condition that had not been evaluated by the treating physician.  This new information would be the basis of a motion to the Industrial Commission for additional medical care.  New legislation states that as to any opinions unrelated to the rating the Commission “must either disregard or give less weight” to these medical opinions.

7.   Restrictions on the Ability to Change Physicians.

Before 2010, the employee had the right to petition the N.C. Industrial Commission to change physicians.  Occasionally there were personality conflicts between the employee and the insurance-selected physician, or the physician would be ignoring certain complaints, or not reporting the complaints in the medical records.  When these matters were brought to the attention of the Executive Secretary’s Office, the Commission had the discretion to authorize a change of physician.  New legislation now requires that the Plaintiff prove by a “preponderous of the evidence” that a change is necessary.

8.   Greater Difficulty Getting Second Opinion for Employee.

Before 2010, the employee could select a physician for a second opinion examination and request the Industrial Commission to approve this physician.  Now the employee must first request approval “in writing” from the employer and attempt to jointly agree on a new physician.  If this effort fails, then the employee can seek approval from the Industrial Commission.  This new procedure is a roadblock to allowing the employee quicker access to a different medical provider.

 

Part IV of the series will discuss other changes, including administrative changes, to the Act.  Stay tuned.

 

 

 

What’s Happening to North Carolina’s Workers’ Compensation Act? (Part II)

 

In 2010 after the Republican Party took complete control of the legislature for the first time since 1898, changes to the system began. As death benefits and funeral expenses were being increased, along with an increase in wage loss benefits, current injured workers were told that new proposals would not affect their claims. True enough, but anyone who was injured after June 24, 2011 would see some fairly drastic changes in benefits:

 

  1. 500 Week Cap On Total Disability Benefits.
    Absent extroardianry circumstances (such as a brain injury) disability benefits would stop after 500 weeks (9.6 years). Thus, for a 25-year-old severely injured person who did not meet one of the exceptions, total disability benefits would stop at age 34 or 35, even though this person could no longer obtain employment in the competitive market place and had been out of the workforce for nearly a decade. For these disabled and unemployable people, the future cost of the injury will be shifted away from the workers’ compensation insurance company to the U.S. taxpayer, through Social Security and Medicare. Before this change, as long as the employee was disabled and unemployed because of his injury, he would be entitled to lifetime disability and medical benefits related to the injury.
  2. Employer Gets Credit For Social Security Retirement BenefitsIf benefits are extended beyond 500 weeks, the employer can reduce workers’ compensation  by 100% of Social Security retirement benefits. This change gives the  insurance carrier a huge financial break at the expense of the elderly and disabled who have earned retirement income.
  3. Even Catastrophic Injury Benefits Can Be Terminated If a person is disabled from a workplace injury because of a spinal injury, brain injury, or serious burns to 33% of the body, then they can get lifetime disability benefits. However, if the employer can show that this individual can return to “suitable employment” then those benefits can be terminated or suspended.
  4. New Definition of Suitable Employment After Maximum Medical ImprovementIn the above context, suitable employment means employment that the employee is capable of performing, considering his pre-existing and injury-related physical and mental limitations, vocational skills, education and experience, and is located within a 50 mile radius of the employee’s residence at the time of injury or elsewhere if there was a legitimate reason for leaving. [Before leaving the Tarheel state, be sure to get approval that the move is legitimate. Otherwise, you may get a job offer that is within the 50 mile job radius.]

Part III will discuss further changes to the workers’ compensation system. Stay tuned.

What’s Happening to North Carolina’s Workers’ Compensation Act? (Part I)

In this four-part series we will take note of specific changes to the Workers’ Compensation  Act in North Carolina since 2010, when the Democrats lost control of the Legislature. The Act was created in 1929. Its purpose was to take care of the human wreckage caused by workplace injuries and to make the employer pay for these injuries as a cost of doing business. In exchange for this new no-fault system, the employee gave up the right to sue the employer in civil court and the right to a jury trial; damages for pain and suffering were not allowed; and the employee got limited but supposedly quick payment of disability benefits. The employer paid for 100 percent of medical care, but was given the right to select the medical providers.

 

In 2012 Republican Pat McCrory, the former mayor of Charlotte and a Duke Power employee for many years, was elected governor.  The Democrats had been in control of the state for decades and prior to 2010 Democratic governors had appointed all the  current Commissioners (7) to the Industrial Commission, and  most Deputy Commissioners (20)  were hired by the Democratically appointed Chair of the Commission.  North Carolina has always been a business-friendly state, and before 2010 it was consistently ranked in the top five as one of the best places to do business. It’s a “right to work” state and although some unions are present, the state has always been considered anti-union.

 

From time to time pro-business Democratic legislators would attempt to overhaul the Workers’ Compensation Act. Major legislative changes were made in 1994, for example, and various amendments have been made since then, nearly always initiated by the business community. In 2008 when the national economy crashed, North Carolina’s went with it and what was left of the old manufacturing base of tobacco, furniture and textiles took a nose dive. Unemployment soared to 11.4% by 2010. Fewer employed workers meant fewer claims, less losses and relatively low premiums for workers’ compensation insurance. Wages are relatively low in this state, and you only get two-thirds of your average weekly wage. Additionally, there is a cap on the amount of weekly  disability benefits that can be recovered. For instance, in 2010 the maximum benefit was $834 per week or $43,368 per year (if you had a job paying $86,000.00 per year, plus other benefits,  that’s nearly a 50% drop in income as a result of the workplace injury). If you had a low paying job ($7.20 an hour for 40 hours), your disability rate would be $193.34 per week.  Once the compensation rate is set it never goes up, no matter how many years you may be disabled.

 

With this background in place as the new legislature came in, it immediately began to make changes to the system. Two of the changes were good for injured employees : (1) death benefits went from 400 weeks to 500 weeks, along with an increase in allowed funeral expenses from $3,500 to $10,000.00, and (2) wage loss claims (where an employee goes back to work but at a reduced rate of pay) went from 300 weeks to 500 weeks.

 

The next blog (Part II) will show other significant changes to the system.  Stay tuned.

 

Transitional ‘Light’ Duty Jobs: What Are They and Do I Have to Take One?

Today’s post comes from guest author Brody Ockander, from Rehm, Bennett & Moore.

When injured at work, your doctor may give you work restrictions that prevent you from returning to your regular job. In these situations, there are three things your employer can do:

  1. Tell you that they have no jobs within your restrictions
  2. Give you a transitional duty (or “light duty”) job within your restrictions
  3. Force you to work your regular job in violation of your restrictions

If it’s #3, call a lawyer immediately and inform your doctor that your employer is not following the doctor’s orders.

If it’s #1, you would be taken off work and you would be entitled to workers’ compensation benefits for temporary disability until you are released back to work or until your employer accommodates your work restrictions.

If it’s #2, it not always clear what the result will be. This “transitional duty” option is when your employer returns you to work but not at your normal job. Instead you are given a different, temporary job while you are on restrictions.

Problems arise with these transitional jobs when your hours are cut, your pay is cut, or you are asked to do a job that is unreasonable. Often, if you refuse to work a transitional duty job that is in your restrictions, you could forfeit your right to obtain work comp payments for temporary disability while you are on those restrictions and off work.

If the transitional duty job that is offered to you cuts your hours, you will probably be entitled to temporary disability payments in an amount to make up (somewhat) for the difference in what you were making before the incident that caused the injury and what you are now making in your transitional job.

Similarly, if your hourly rate or your wages for your transitional job are less than what you would have been earning before you were injured, you would again be entitled to temporary disability payments in an attempt to make up for the shortfall.

Where transitional duty jobs have a gray area is whether they are truly reasonable jobs that are being offered. For example, there are horror stories of employees working in the near dark for 8 hours per day or working in appalling conditions sorting paperclips for transitional duty. Whether or not you have to take a job like these horror stories without forfeiting your right to temporary disability payments depends on the facts of each specific case.

Click the link – it’s about a Walmart guy who had to do “light duty” in the bathroom for 7 hours a day: http://www.aol.com/article/2014/05/27/wal-mart-employee-claims-he-was-forced-to-spend-7-hour-shift-in/20893585/?icid=maing-grid7%7Chtmlws-main-bb%7Cdl28%7Csec1_lnk3%26pLid%3D481058

Generally speaking, however, if you are offered a transitional job within your restrictions, you should probably take that job unless you have a very good reason that you cannot. For example, in at least one Nebraska case, the court held that even having an employee relocate 300 miles for a temporary transitional job was considered a reasonable job offer. Even transitional jobs that are during different shifts than your normal shift may be considered reasonable. If a job is reasonable and you do not have a good reason for not accepting such a transitional job, you could be denied temporary benefits and be left without any pay at all while attempting to recover from your work injury.

If you have a job that sounds unreasonable, and you are contemplating whether or not you are required to accept such a job, contact a lawyer. An experienced lawyer will be able to give you a good idea of whether turning down such a job would allow your employer to deny you temporary disability payments or not.