Tag: Workers Comp

Lawmakers in Texas are considering a bill that would make infertility suffered by certain first responders a compensable condition under workers compensation.

S.B. 1878 would apply to firefighters and emergency medical technicians who regularly responded on the scene to calls involving fires or firefighting or to events involving the documented release of radiation or a known or suspected carcinogen. It states that infertility would be described as the inability to get pregnant within a year. 

Texas lawmakers on Wednesday also introduced H.B. 4147, which would clear red tape for first responders diagnosed with post-traumatic stress disorder. It is the second such bill this week.

Also introduced on Wednesday in Wisconsin was S.B. 113, which would amend state presumption law on post-traumatic stress disorder claims for police officers and firefighters to include emergency medical responders, emergency medical services practitioners, volunteer firefighters, correctional officers, emergency dispatchers, coroners and coroner staff members, and medical examiners and medical examiner staff members.

In Maine, lawmakers on Wednesday introduced S.B. 1123, which would create a rebuttable presumption that a cardiovascular injury or disease or pulmonary disease suffered by certain law enforcement officers is in the course of employment.

 

An administrative law judge has affirmed $1.3 million in penalties against an auto parts supplier stemming from the 2016 death of a worker crushed at a manufacturing facility in Cusseta, Alabama.

The U.S. Department of Labor announced Wednesday that the fine and citation against Joon LLC, operating as AJIN USA, was affirmed following a review by the Occupational Safety and Health Review Commission.

The company had contested the workplace citations, which were issued by the Occupational Safety and Health Administration after a 20-year-old machine operator suffered fatal crushing injuries in June 2016 while attempting to clear a sensor fault inside a robotic cell machine on an assembly line.

Following the workplace death, OSHA cited the company for 51 safety violations, including 48 willful violations.

It originally faced $2.5 million in total fines, which had since been reduced.  

In September 2020, a federal court in Alabama also ordered AJIN USA to pay a $500,000 fine and $1 million in restitution to the deceased worker’s estate after the company pleaded guilty to a charge of a willful violation of an OSHA standard, according to the DOL.

The company, based in Korea, is a global auto parts supplier that has manufacturing plants in the U.S., South Korea, China and Vietnam.

At the time of the 2016 death, the company employed about 700 workers at the Cusseta facility.

 

 

 

Two contractors have been cited by the Occupational Safety and Health Administration after a painter fell from an unsecured balcony at a residential apartment complex and died when the balcony fell 21 feet to the concrete below and crushed him.

OSHA on Tuesday announced citations against general contractor Geis Construction of Streetsboro, Ohio, and subcontractor J.C. Jones Corp. of Peninsula, Ohio, stemming from the accident at the Cleveland apartment complex.

The date of the fatal accident was not provided by OSHA, which found that the balcony platform was unfastened and floated on wall mounts freely.

The painter had stepped out onto the third-floor balcony when it suddenly tilted, causing him to fall to the cement ground below. As he lay injured, the balcony then slid off its wall mount and landed on him, crushing him to death, according to OSHA.

OSHA accused the two contractors of failing to properly secure the balcony and failing to place required warning signs alerting workers of the danger.

The contractors are also accused of not assessing the structural integrity of the balcony.

Geis Construction was cited for one willful violation and one serious violation and was issued proposed fines of $154,696. J.C. Jones was cited for one willful and one serious violation and given proposed penalties of $31,252.

Both companies have 15 days to contest the citations.

 

The West Virginia Supreme Court of Appeals overturned a lower court ruling that allowed a negligence lawsuit to proceed against a pipeline company, ruling the state’s workers compensation law bars such litigation.

In a Monday decision, the appeals court determined a trial judge was wrong to permit the continuation of a lawsuit against Precision Pipeline LLC stemming from an April 12, 2019, incident in which employee Mark Weese suffered severe leg injuries while dragging a fuel hose on a construction project in Marshall County, West Virginia.

Mr. Weese received comp benefits but he still filed suit against the company and two individuals alleging negligence and other claims.

The appeals court wrote that the “sweeping immunity” given to West Virginia employers means the suit should have been tossed. 

Mr. Weese argued that one of the defendants in his suit, Vanessa Stromberg, acted as a company EMT, although she was allegedly unqualified to hold that position.

Mr. Weese argued that the company negligently hired Ms. Stromberg, which led to him receiving improper and untimely medical care.

Mr. Weese alleged the defendants failed to take him to a hospital for proper medical care so they could earn “monetary safety bonuses.”

The defendants argued that claims in the suit were an unsupported attempt to circumvent statutory immunity from litigation, since exclusive remedy in workers comp prevents injured workers from suing employers.  

The trial judge allowed the suit to proceed, but the appeals court ruled the defendants are entitled to civil immunity regardless of Mr. Weese’s argument that the company’s alleged negligent hiring and negligent supervision of Ms. Stromberg was not the type of employer negligence covered by the state’s workers comp law.

The appeals court remanded the case to the trial judge for further proceedings.

The issue of workers comp exclusive remedy has been winding its way through the courts recently. 

 

Texas lawmakers on Tuesday introduced a bill that would address an employer’s civil liability under the Texas Workers’ Compensation Act for injuries suffered by a victim of sexual assault.

H.B. 3977 states that an employee who is a victim of a sexual assault may sue their employer if the injuries “arose from the employer’s negligence.”

Lawmakers also introduced H.B. 1776, which would make post-traumatic stress disorder compensable for certain first responders if it is proven by “preponderance of evidence” that an event or events caused the mental injury.

The provisions would apply to police officers, firefighters and emergency medical technicians.

Pegged by the National Council on Compensation Insurance as a top legal issue to watch, disputes over exclusive remedy in workers compensation will continue as more injured workers and surviving families sue employers, experts say.

In nearly every state workers compensation is considered the exclusive remedy for workplace injuries. The so-called grand bargain ensures workers’ injuries are managed and that they receive income benefits or families receive death benefits in the event of a workplace fatality. In return, workers largely give up their right to sue for damages.

However, many states also include a loophole: If an employer is found by the courts to have been grossly negligent, it may be subject to tort litigation. At least one state — Mississippi —introduced legislation this year clearing the red tape for such lawsuits.

“Court challenges to the constitutionality and scope of exclusive remedy — providing employer immunity from injured employee tort suits — continues to be a closely watched topic among WC stakeholders,” said Adam Levell, NCCI’s senior counsel in Boca Raton, Florida.

NCCI tracked several cases throughout 2022, naming exclusive remedy among the top five legal challenges in comp. The cases it highlighted in its February report showed mixed results.

Many of the arguments came down to interpretation of language in the statutes.

For example, the Supreme Court of Idaho, in Fulfer v. Sorrento Lactalis Inc., reversed an earlier summary judgment on the basis that exclusive remedy “does not apply when the employee’s injury is caused by the willful or unprovoked physical aggression of the employer,” according to NCCI’s analysis.

As example that upheld exclusive remedy, the Supreme Court of South Dakota, in Althoff v. Pro-Tec Roofing Inc., ruled a family could not sue an employer, clarifying “the intentional tort exception to workers compensation exclusive remedy, finding that employees who sue their employers for work-related injuries under the intentional tort exception must prove that it was substantially certain — and not virtually certain — that their injuries would occur as a result of the employer’s conduct,” NCCI reported.

“It’s a very, very active plaintiffs bar,” said Nathan Levy, Atlanta-based partner with Levy, Sibley, Foreman & Speir LLC, who added that in Georgia exclusive remedy has been upheld in most cases at the appellate and state Supreme Court levels. “Exclusive remedy really has remained intact; it has not been chipped away, and that is largely a good thing.” 

Yet, such proceedings will likely continue, he added.

Bert Randall, principal at Franklin & Prokopik P.C. in Baltimore, said several issues are spurring the lawsuits.

“What I think we’re seeing in certain instances around the country are opportunities for plaintiffs counsels in the right cases to try to chip away at exclusive remedy and pursue a tort suit,” he said.

“One of the causes is the nuclear verdicts that we’re seeing nearly daily in various parts of the country. And I think that plaintiffs’ counsels are looking at certain cases where it might be worth the fight and take the chance to bypass exclusive remedy.”

At active Occupational Safety and Health Administration could also be a contributing factor, he said.

Under the Biden Administration, OSHA, which investigates serious and deadly workplace incidents, has been increasingly aggressive, legal experts say. If the agency fines an employer following an incident — regardless of whether a citation is contested — it could be the impetus for a lawsuit claiming negligence on behalf of the employer, Mr. Randall said.

“If there’s evidence of an OSHA violation, it would mean that their chances of recovery on a negligence theory likely go up; perhaps significantly up,” he said. “If they feel that they’ve got a fairly strong case on the negligence side, then the next question is, ‘okay, can we pierce the exclusivity provisions in this state statute to be able to get to that negligence needed in a case where damages are sufficient to make it worthwhile?’”

New York lawmakers have filed a trio of bills relating to presumptive occupational injuries for various state employees including some first responders.

Two of the three measures that were filed on Monday would provide heart and lung disease presumptions for corrections officers and sheriff’s deputies respectively and the third proposal relates to heart disease presumptions for state and local police and firefighters and other state workers.

Assembly Bill 5208 states that any health condition caused by diseases of the heart that is contracted by a correction officer, correction supervisor, deputy sheriff patrol member or deputy sheriff patrol supervisor who is part of the state and local employees’ retirement system shall be considered presumptive evidence that the condition is job-related unless proven otherwise.

Nearly identical information to the heart disease bill is contained within Assembly Bill 5205, which covers lung diseases as a presumptive occupational injury for correction officers, correction supervisors, deputy sheriff patrol officers and deputy sheriff supervisors.

Both measures state that the presumptions are provided as long as the covered employees successfully passed physical examinations prior to hiring that would have disclosed any evidence of disease or other impairments of the heart or lungs.

The third measure, Assembly Bill 5201, says that any state or local police officer or firefighter or any other member of the state and local employees’ retirement system who contracts any illness related to heart disease is presumed to have gotten the disease in the course of their employment duties.    

The presumptions under the measure could only be rebutted by “competent evidence” that the disability was not the result of any job-related duties.

All three bills would amend New York’s retirement and social security law. They were referred to the Assembly Governmental Employees Committee. 

 

A national food producer is facing $222,779 in proposed fines after the Occupational Safety and Health Administration said a failure in workplace safety procedures led to a seasonal worker’s partial finger amputation at a Wisconsin cannery.

OSHA on Tuesday announced citations against Walnut Creek, California-based Del Monte Foods Inc. for two repeated and six serious safety violations of machine safety and fall protection standards.

The citations stem from an incident at the company’s Plover, Wisconsin, cannery in which a 20-year-old worker suffered a partial finger amputation after attempting to unjam an unguarded palletizer machine.

An exact date of the injury was not provided by OSHA.

OSHA said the company’s lack of machine guarding and safety procedures exposed employees to machine hazards.

Inspectors said workers were not properly trained to recognize or safely control hazardous energy sources during the unjamming process.

OSHA also accused the company of failing to install handrails and anti-slip coatings that help to prevent workers from falling on ladderways and stairs.

Del Monte Foods, one of the country’s largest food retailers, has 15 days to contest the citations.

 

Lockton Cos. LLC has announced the launch of a workers compensation consulting framework that the Kansas City, Missouri-based broker says will aid employers in addressing comp risks.

Lockton 360 combines a suite of analytics with risk control consulting services that can help companies identify, diagnose and formulate plans for cost reduction, the brokerage said Monday.

The analytics suite, according to the broker, includes both program-level models and more granular claim models.

The primary claims analysis, called Lockton INSIGHT, highlights specific drivers of historical frequency and severity in comp and compares a company’s outcomes to a customized industry peer group.

Metrics assessed include geography, loss cause, litigation rates and closure rates.

Predictive modeling is also targeted at the micro level, Lockton said, while actuarial loss projections, stratification and collateral assessment can help offer a macro-level of understanding of a client’s comp insurance program and where comp fits within their total risk cost. 

 

 

A bill that would permit a licensed physical therapist to act as a “treating doctor” in the workers compensation system was introduced to the Texas legislature on Friday.

H.B. 3370 states that a physical therapist would not be required to obtain a referral from a treating doctor to provide care.

Also filed Friday, H.B. 3416 would open eligibility for post-traumatic stress disorder claims for first responders to those employed by institutes of higher education. If passed, both changes would go into effect Sept. 1.