Tag: Workers Comp

The North Carolina Court of Appeals ruled Monday that a negligence lawsuit filed by the estate of a worker who was fatally crushed in April 2019 at a tire mold manufacturing plant can proceed.  

The appeals court, in upholding a trial court decision, ruled that the estate of Desmond Japrael Stephens successfully pleaded that its civil suit against Charlotte-based King Machine of North Carolina should not be barred by exclusive remedy provisions in the state’s workers compensation law.

Mr. Stephens was crushed to death by a 2,000-pound metal tire mold that was being lifted by a forklift that had been modified without the approval of its manufacturer. Workplace safety regulators concluded that King Machine violated the state’s Occupational Safety and Health Act and that it committed a willful serious violation when it modified the forklift.

In upholding the lower court’s decision rejecting King Machine’s motion for dismissal, the appeals court ruled that the plaintiff successfully proved an exclusive remedy exception by establishing the company intentionally engaged in misconduct by modifying the forklift.

A U.S. Department of Labor’s Office of Inspector General audit of its Office of Workers’ Compensation Programs found that the program failed to secure adequate pricing and oversight of prescriptions for the program, resulting in $321.3 million in excess spending.

In a report issued Tuesday, the audit found numerous problems with the Federal Employees’ Compensation Act program, which covers federal and postal workers, including that it “lacked a pharmacy benefit manager to help contain costs and had not determined if alternative prescription drug pricing methodologies would be more competitive.”

Outside auditors analyzed six years of pharmaceutical data and studied policies, procedures and other documentation. They also compared the FECA program to industry best practices and other workers compensation programs.

In addition to identifying excess spending during the audit period between 2015 and 2020, auditors found that OWCP did not effectively monitor pharmaceutical policy changes to ensure implementation, resulting in claimants receiving thousands of inappropriate prescriptions and potentially lethal drugs, including 1,330 prescriptions for fast-acting fentanyl, even after issuing a policy that restricted its use.

The audit also found OWCP failed to oversee prescription drugs that are highly scrutinized and rarely covered in workers compensation programs, and likely overspent on drugs “that may not have been necessary or appropriate.”

Auditors also found that OWCP lacked sufficient clinical expertise and guidelines to ensure appropriate pharmaceutical decisions, which could negatively impact claimants’ health, recovery and return to work.

The report included recommendations to strengthen management of pharmaceuticals in the FECA program, including that it ensures sufficient clinical expertise among staff, and that it uses evidence-based clinical guidelines to create prescription drug coverage policies. According to the report, the OWCP “generally agreed with the recommendations.”

 

 

 

Experience rating that scores companies based on accident history serves as an effective incentive for California employers to provide safe workplaces, according to a study by the Workers’ Compensation Insurance Rating Bureau.

“Newly rated employers tend to have a larger decline in claim frequency over three years after their first X-mods than employers of similar size in the same industry that do not become experience-rated,” the WCIRB said. “The results indicate an impact of the initial qualification for experience rating that is directionally consistent with the intended incentive of experience rating to improve workplace safety.”

The WCIRB also said it found a statistically significant decrease in future claim frequency when an employer’s experience modification, or X-mod, changes from a credit to a debit. 

Experience rating is a merit-based system that primarily aims to create a financial incentive for safe workplaces, the WCIRB said. Experience modifications compare the claims history of an employer to the average expected claims history of similarly sized businesses in the same industry. An X-mod lower than 100% — a credit — indicates better-than-average experience, while a mod greater than 100%, or debit, denotes worse-than-average experience. A credit mod typically reduces premiums an employer is charged while a debit tends to increase the cost of work comp coverage.

WorkCompCentral is a sister publication of Business Insurance. More stories here.

 

 

An Illinois appeals court has partially reversed a lower court ruling in a case involving an injured softball player, ruling the trial judge improperly dismissed a negligence claim over the employer’s alleged failure to maintain workers compensation insurance coverage.   

The First District, Fifth Division Appellate Court of Illinois Friday partially affirmed, and partially reversed, a Cook County circuit court judge’s decision in a case brought by Emily Allard, who played for the Chicago Bandits professional women’s softball team from 2014 to 2016.

Ms. Allard suffered a head injury in June 2016 while playing against the Akron Racers at Firestone Stadium in Ohio.

She attempted to return to the field the following summer, but her concussion symptoms returned.

When the Bandits filed a comp claim with its insurer in June 2017, the adjuster told the team its policy lapsed from Sept. 12, 2015, through July 12, 2016, and that Ms. Allard’s injury would not be covered because the team had failed to pay insurance premiums during that time.  

Ms. Allard’s contract with the team terminated shortly thereafter.

Ms. Allard sued in June 2019, alleging, among other things, that she was not properly compensated for a “career-ending concussion injury” because the Bandits failed to maintain comp insurance.

The trial judge dismissed the complaint, and while the appeals court upheld most of the trial judge’s ruling, it reversed the part of the decision involving negligence over the failure to maintain comp insurance, determining that claim was not barred by the exclusive remedy provision of the comp law.

The appeals court remanded the case for further proceedings.   

 

 

An Illinois appeals court has partially reversed a lower court ruling in a case involving an injured professional softball player, ruling the trial judge improperly dismissed a negligence claim over the employer’s alleged failure to maintain workers compensation insurance coverage.   

The First District, Fifth Division Appellate Court of Illinois Friday partially affirmed, and partially reversed, a Cook County circuit court judge’s decision in a case brought by Emily Allard, who played for the Chicago Bandits professional women’s softball team from 2014 to 2016.

Ms. Allard suffered a head injury in June 2016 while playing against the Akron Racers at Firestone Stadium in Ohio.

She attempted to return to the field the following summer, but her concussion symptoms returned.

When the Bandits filed a comp claim with its insurer in June 2017, the adjuster told the team its policy lapsed from Sept. 12, 2015, through July 12, 2016, and that Ms. Allard’s injury would not be covered because the team had failed to pay insurance premiums during that time.  

Ms. Allard’s contract with the team terminated shortly thereafter.

Ms. Allard sued in June 2019, alleging, among other things, that she was not properly compensated for a “career-ending concussion injury” because the Bandits failed to maintain comp insurance.

The trial judge dismissed the complaint, and while the appeals court upheld most of the trial judge’s ruling, it reversed the part of the decision involving negligence over the failure to maintain comp insurance, determining that claim was not barred by the exclusive remedy provision of the comp law.

The appeals court remanded the case for further proceedings.   

 

 

 

 

 

The U.S. Occupational Safety and Health Administration has cited a Portsmouth, Ohio-based hardwood flooring manufacturer for multiple safety violations after a worker’s finger was partially amputated in October.

OSHA said Monday that it issued citations for six repeat and 12 serious safety violations to Appalachian Wood Floors Inc., which does business as Graf Custom Hardwood, following the Oct. 5, 2022, incident in which the worker’s fingertip was caught in an unguarded belt and pulley.

The agency proposed fines totaling $333,693 and has placed the company in its Severe Violator Enforcement Program.

The citations came after inspectors visited the mill three times in five months. Two of the visits followed worker injuries.

OSHA said that during the October visit, inspectors found employees were required to clean, unjam and maintain equipment without proper tools and without training on lockout/tagout procedures.

The company has 15 days to contest the citations and proposed fines.  

 

The Texas Supreme Court on Friday ruled that an appellate court erred in not finding that Dallas was the appropriate venue for a football player’s workers compensation claim based on an out-of-state injury.

Alcus Reshod Fortenberry’s player contract with the Dallas Cowboys began on May 14, 2015, the day it was executed. The parties agreed that the term would span the three following football seasons and terminate at the end of February 2018. 

Mr. Fortenberry began practicing with the Cowboys in Dallas County, where he sprained his knee in June 2015. Later in July 2015, he traveled with the Cowboys to California for a training camp, where he injured his knee again.

Mr. Fortenberry’s workers compensation claim was denied. He then requested a contested case hearing, which took place at the Dallas Field Office of the Texas Workers’ Compensation Division.

The parties stipulated that venue was proper in Dallas, and the administrative law judge made a finding of fact and a conclusion of law to that effect. After an administrative appeals panel affirmed, Mr. Fortenberry sought judicial review in Dallas County District Court.

Mr. Fortenberry alleged that venue was mandatory in Dallas County under state law because he “was a resident of Dallas County, Texas, at the time of his injury,” despite that he was living at a hotel. The insurer argued that Mr. Fortenberry was not a resident of Dallas County or any county in Texas at the time of his injury, so that law did not apply. 

The court denied the insurer’s motion to transfer venue. A state appeals court reversed, finding that Mr. Fortenberry failed to show venue was proper in Dallas County.

The Texas Supreme Court later explained that “(r)eside” is not defined in the Labor Code, that “short and intermittent stays in a county may suffice” and that Mr. Fortenberry’s testimony that he “lived” at a hotel at the time of his injury was sufficient.

WorkCompCentral is a sister publication of Business Insurance. More stories here.

 

 

Minnesota lawmakers have proposed legislation that would amend provisions in the existing workers compensation law concerning instances where private self-insured employers are determined to be insolvent.

Senate Bill 3193, filed Thursday, deals with self-insured employers who are issued certificates of default and whose security deposits are called by the state’s workers comp commissioner after a failure to pay comp benefits in cases where the self-insured company files for voluntary or involuntary bankruptcy.

The bill would require self-insureds to notify the comp commissioner prior to, or immediately after, the filing of a bankruptcy petition under the United States Bankruptcy Code and when a court declares the self-insured to be bankrupt.

The measure requires the commissioner to call the security deposit in cases where the self-insureds fail to pay workers comp benefits after insolvency.

In cases where a bankrupt self-insured employer continues to pay timely workers comp benefits, the commissioner would still be able to call the security deposit if it is determined that there might be expected delays in paying out benefits as a result of the bankruptcy petition or declaration.

Under the bill, the self-insured employer would have 30 days to meet with the comp commissioner after the filing of the bankruptcy petition to discuss the matter, and a failure to do so could result in a default judgment against the self-insurer.   

 

New Jersey lawmakers have introduced legislation that would increase attorneys fees in workers compensation cases.

Assembly Bill 5353, filed Thursday, would raise attorneys fees for prevailing parties to 25% from the previous 20% cap.

The bill would also amend existing law to state that the 25% would be paid in orders for payment of medical and temporary disability benefits and in cases involving orders approving any type of settlement.

Under the measure, judges would have discretion as to the allocation of payment of counsel fees between claimants and employers.

A sponsorship statement says the proposal comes in response to the unpublished ruling in Garzon v. Morris County Golf Club, which was reported on previously in Business Insurance.

In that case, a New Jersey appeals court reversed an attorneys fee award in a case involving an injured golf course worker. The court said a comp judge erred in approving a large fee award since “reasonableness,” and not the blanket 20% of the award, should have been the guiding factor in determining the amount.

The legislative statement says that the bill aims to “incentivize attorneys to zealously represent injured workers and their families in every case compensable under the workers compensation law, and to create a disincentive for employers to deny or delay medical, temporary, and permanency benefits without legal defense or cause.”

The bill says the nondiscretionary 25% attorneys fee amount takes into account the increased duties of claimants attorneys given recent changes in state and federal law. 

 

 

 

 

The Workers Compensation Research Institute on Monday announced that Executive Vice President Ramona Tanabe has been named to succeed John Ruser as CEO.

Mr. Ruser has served in the position since 2015 and will serve as temporary adviser to Ms. Tanabe, who will assume her new responsibilities on May 1.

Ms. Tanabe has held a number of key leadership positions at WCRI, among them leading WCRI’s flagship line of core benchmarking studies, designing and conducting studies on workplace health policy, and managing its data collection and technology investments. She has also provided legal counsel, testified at governmental hearings, and managed core operations on behalf of WCRI.