Chicago Plumbing Inspector’s Trip & Fall on Street Curb is Compensable

A City of Chicago plumbing inspector, whose duties required him to travel throughout the city by car to inspect the plumbing in both residential and commercial buildings, sustained an injury arising out of and in the course of his employment when he “tripped on a curb,” held an Illinois appellate court [Nee v. Illinois Workers’ Comp. Comm’n, 2015 IL App (1st) 132609WC; 2015 Ill. App. LEXIS 131 (Feb. 27, 2015)].   Continue reading

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Injured Workers Challenge Constitutionality of Oklahoma Opt Out Law

Two Injured Workers File Petition With Oklahoma Supreme Court

Two Oklahoma workers who were denied benefits under Injury Benefit Plans set up by their respective employers after the effective date of the Oklahoma Employee Benefit Act, Okla. Stat. tit. 85A §§ 200–213 (the “OK Opt Out Law”), have filed a petition with the Supreme Court of Oklahoma to have the entire law declared unconstitutional [see Pilkington v. State of Oklahoma, ex rel. Doak, File No. PR–113662, filed Feb. 13, 2015)]. The workers contend in relevant part that the OK Opt Out Law fails to afford them due process and that the law improperly provides differential treatment for various claimants without providing a reasonable or rational relationship to a permissible public policy or goal.  Continue reading

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Workers’ Comp “Opt-Out” Bill Introduced in Tennessee Legislature

Senate Bill 721

On Wednesday, state senator Mark Green (Republican from Clarksville), introduced Senate Bill 721 to the Tennessee legislature. If enacted, many Tennessee employers would be allowed to opt-out of the state’s traditional workers’ compensation system, providing coverage with private benefit plans somewhat like those chosen by some Texas employers for their employees. Green is a physician, with specialized training in emergency medicine. The bill would enact a new chapter 50 to the state code to be known and cited as the “Tennessee Employee Injury Benefit Alternative.”

Basic Provisions of the Opt-Out Bill

In relevant part, the Injury Benefit Alternative would:

  • Apply only to employers with five (5) or more employees;
  • Exclude construction services providers as well as those sorts of employment—e.g., casual labor, domestic servants, farm or agricultural laborers and employers, or other employment arrangements set out in Tenn. Code Ann. § 50–6–106(1)-(7);
  • Require the employer to adopt a written benefit plan providing at least the following:
    • Medical expense coverage for at least 156 weeks and $300,000 per employee;
    • Temporary Total Disability benefits of at least 70% of AWW up to 110% of the state AWW for at least 156 weeks;
    • Death and scheduled dismemberment benefits of up to $300,000 per employee:
    • A combined single limit for all benefits payable due to an occupational injury; provided, that the combined limit is at least $750,000 per employee and $2,000,000 per occurrence.
  • Not generally limit the right of the employee or the employee’s personal representative, dependents, or next of kin to recover under a cause of action for employer negligence.

Plans Would Be Subject to ERISA

Under proposed Tenn. Code Ann. § 50–10–106, a qualified employer’s injury benefit plan established in compliance with proposed Chapter 50 is not maintained solely to comply with the state’s workers’ compensation law and is the sort of welfare benefit plan that is subject to the Employee Retirement Income Security Act of 1974, as amended (ERISA) (29 U.S.C. § 1021–1191c). This provision is hugely important as it effectively pushes all qualifying plans outside the oversight and supervision of Tennessee courts and administrative agencies.

No Exclusive Remedy Defense for Opt-Out Employers

As mentioned above, under proposed Tenn. Code Ann. § 50–10–108, an employer who utilizes proposed Chapter 50 to opt out of the traditional workers’ compensation system will generally forfeit the exclusive remedy defense in any civil action filed against the employer by the employee (or the employee’s personal representative, dependents, or next of kin). The plaintiff in such a civil action must, however, prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent or servant’s employment.

Damages in such civil actions would be limited, however, as follows:

  • Economic damages in an amount not to exceed $1,000,000 per employee and $5,000,000 per occurrence;
  • Noneconomic damages as determined under Tenn. Code Ann. § 29–39–102; and
  • Punitive damages as determined under Tenn. Code Ann. § 29–39–104.

Allowed Employer Defenses in Negligence Civil Action

In any such civil action, the employer would not be able to defend on the ground that the injury was caused by a co-employee’s negligence. The employer would be able to defend on grounds that the employee’s injury was caused by the employee’s sole negligence, by the failure of the employee to follow known safety rules, or that the injury was occasioned by the employee’s willful act or due to the employee’s intoxication.

Tennessee System Would Resemble Texas—Not Oklahoma

Senate Bill 721, if enacted as introduced, would produce a system that somewhat resembles Texas, and not Oklahoma. I say “somewhat resembles” because, as I have publicly argued at several workers’ compensation conferences in the last several years, Texas is not an opt-out state. Texas is rather an opt-in state, since employers there need not provide any coverage or protection for work-related injuries at all. In Texas, an employer has three options—to do nothing at all, to procure workers’ compensation insurance (or self-insurance) under the state comp act, or to provide some measure of benefits under an employee benefit plan. Texas employers enjoy the exclusive remedy defense only if they choose to come in under the “traditional” workers’ compensation law.

In Oklahoma, employers who opt out of the traditional system and who establish written plans nevertheless enjoy the exclusive remedy defense.

Disparate Treatment?

Many of us will be poring over Tennessee S.B. 721 in greater depth over the next few days, but at this early stage of examination, I’d point out one problem that I see with the bill. It provides for limited medical benefits in a fashion that appears to be different than that required for employers who provide traditional, standard workers’ compensation coverage in the state. Under my reading of the existing Tennessee Comp Act, which was amended heavily effective July 1, 2014, employees who have suffered a compensable workplace injury are entitled to receive continuing medical benefits for as long as the authorized treating physician relates it to the work-related injury, including future medical benefits after a claim is resolved. There is no 156 week/$300,000 limitation.

Does S.B. 721 set up two groups of employees who will be treated differently without sufficient justification? Consider group A, employees under the traditional system who are catastrophically injured solely through their own negligence and who require long-term medical treatment and group B, employees under the opt-out system who are similarly injured. Group A would appear to enjoy unlimited medical coverage; Group B not so.

I’m going to reach out to some of my Tennessee colleagues to determine if my reading of the existing Act that provides unlimited medical coverage is correct. I’ll let you know what I determine.

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Could Employee Classification Issues Uberwhelm the Uber Business Model?

Arguments were held last week in connection with motions pending in a federal lawsuit [O’Connor v. Uber, 13–3826, U.S. District Court, N.D. Cal.- San Francisco] that could put an ugly dent into the virtual fender of Uber, the app-based transportation network and quasi-taxi service operating in virtually every American metropolitan area and in 54 foreign countries. While Uber has maneuvered around many of the claims spelled out in the original complaint filed on behalf of a purported class of Uber’s drivers, two important issues remain. Both relate to whether the drivers should be dealt with as employees, rather than as independent contractors. If the plaintiffs prevail with the remaining issues, Uber will, among other things, have to provide workers’ compensation coverage for its drivers and reimburse them for a good portion of their expenses.

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Maine Home Treadmill Fatality Found Compensable

Illustrating the point that for telecommuting employees, who are often tethered to their employers by ubiquitous cell phones and tablets, the line between the employment world and private life is blurred—if it exists at all—Maine’s Supreme Judicial Court affirmed an award of death benefits to the widow of a financial advisor who died of a heart attack while exercising on a treadmill at his home [Estate of Sullwold v. The Salvation Army, 2015 ME 4 (Jan. 22, 2015)]. Finding the hearing officer and the Workers’ Compensation Appellate Division correctly found that the evidence triggered the presumption in 39-A M.R.S. § 327 correctly, the Court held that there was sufficient evidence for the hearing officer to find the employment contributed to the heart attack “in a significant manner.” § 327 generally provides that when an employee has been killed or is otherwise physically or mentally unable to testify, there is a rebuttable presumption that the employee received a personal injury arising out of and in the course of the employment. Continue reading

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New Mexico: Health Care Provider’s “Certification” of Medical Marijuana is Functional Equivalent of Prescription for Injured Worker

An authorized treating health care provider’s “certification” authorizing the use of medical marijuana under New Mexico’s Compassionate Use Act [N.M. Stat. Ann. § 26–2B–1 et seq.] is the functional equivalent of a prescription, held the Court of Appeals of New Mexico [see Maez v. Riley Industrial, 2015 N.M. App. LEXIS 7 (Jan. 13, 2015)]. Accordingly, medical marijuana, where so authorized, can be considered “reasonable and necessary medical care” under the state’s Workers’ Compensation Act. In so holding, the appellate court reversed a decision of a state workers’ compensation judge who found that since the marijuana was not actually prescribed by the injured worker’s health care provider (“HCP”), it could not be deemed reasonable and necessary medical care.

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South Carolina Supreme Court Adopts What Amounts to Positional Risk Standard in Slip and Fall Cases

The Supreme Court of South Carolina, reversing the state court of appeals, recently held that an office worker who sustained injuries when she fell as she walked down an unobstructed, carpeted hallway, can recover workers’ compensation benefits; her injuries arose out of and in the course of her employment [see Nicholson v. S.C. Dep’t of Social Servs., 2015 S.C. LEXIS 3 (Jan. 14, 2015)].  Continue reading

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Kentucky High Court Splits in Case Involving Personal Comfort Doctrine

In a split decision dealing with the application of the personal comfort doctrine described in Larson’s Workers’ Compensation Law, § 21.01, et seq., a majority of the Supreme Court of Kentucky reversed a decision of the state’s court of appeals which, in turn, had affirmed decisions of an administrative law judge and the state’s Workers’ Compensation Board [see US Bank Home Mortgage v. Schrecker, 2014 Ky. LEXIS 617 (Dec. 18, 2014)]. Quoting extensively from Larson, the majority held that a bank employee’s injuries sustained when, during a paid break, she was struck by a car as she crossed a busy street to get a quick bite of lunch did not arise out of and in the course of her employment. Giving lip service to the rule that the ALJ’s findings of fact should not be set aside “unless the evidence compels a contrary finding,” the high court found that in jay-walking (crossing the street between intersections) and failing to yield to an oncoming vehicle, the bank employee “voluntarily exposed herself to a hazard so completely outside those normally encountered” as to negate any authority the bank had over her.

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For Now, Exclusivity Does Not Bar Workers’ Tort Cases Against BP Products Following 2011 Chemical Release at Refinery

A Federal District Court in Texas has refused to grant a motion for summary judgment filed by Defendant BP Products North America, Inc. (“BP Products”) in a civil action arising out of an alleged chemical release at the BP refinery in Texas City in November 2011 [Boyd v. BP Prods N. Am. Inc., 2015 U.S. Dist. LEXIS 1017 (S.D. Tex. Jan. 6, 2015)]. More than 500 plaintiffs claim that they were injured by the release, and they brought a variety of tort claims against BP Products. Plaintiffs have been generally divided into two groups: “workers” at the refinery or at a Dow Chemical plant nearby and “community members” who lived near the plant.

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NY Employer’s Surveillance of Injured Worker Fails to Establish Fraud

A New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that an employer’s surveillance videos and testimony of its private investigator, which primarily showed a workers’ compensation claimant sitting or standing outside a café smoking, talking on a cell phone or drinking coffee did not establish that the claimant had violated N.Y. Work. Comp. Law § 114-a [see Lleshi v. Dag Hammarskjold Tower, 2014 N.Y. App. Div. LEXIS 8989 (Dec. 31, 2014)].

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