A  judge has upheld a fine against Wal-Mart Stores Inc issued by U.S. workplace safety regulators following a fatal stampede of frenzied holiday shoppers in 2008 at a Long Island store.

 

 

According to Reuters, the worlds largest retailer was fined when a 34-year-old security guard, Jdimytai Damour, was knocked to the ground and trampled to death in the early morning hours on the Friday after Thanksgiving as shoppers stormed the Wal-Mart store. (WCxKit)

 

 

The judge, presiding over an independent commission, upheld a May 2009 Occupational Safety and Health Administration citation of $7,000 against Wal-Mart, which the retailer fought in court in New York.

 

 

Wal-Mart's "precautions to protect its employees were minimal and ineffective," Judge Covette Rooney stated.  A Wal-Mart spokesman indicated the company would likely appeal.

 

 

"We appreciate Judge Rooneys endorsement of our comprehensive and national crowd control plans in 2009, but we disagree with her ruling that Wal-Mart and the entire retail industry should have known of, and implemented, those plans in 2008 and earlier," Wal-Mart spokesman Greg Rossiter remarked.

 

 

When the store opened its doors at 5 a.m. on the post-Thanksgiving Friday, known as the "Blitz Day" sale, "customers surged into the vestibule … knocking down two doors off their hinges," the decision said. (WCxKit)

 

 

Some customers had been waiting in line since 5:30 p.m. the day prior.

 

 

 

 

 

 

Posted in Legal Doctrines, Medical Issues, NY Workers Comp Issues, Safety and Loss Control, WC 101 |

The National Labor Relations Board said earlier this month that a non-profit in organization in Buffalo was wrong to fire five workers for Facebook postings that criticized working conditions, and disclosed that it has more than two dozen cases involving worker complaints aired on the social media site.

 

 

According to a report from The Wall Street Journal, the NLRB complaint against Hispanics United of Buffalo reaffirms the agency's position in a prior case that labor law permits employees to discuss the terms and conditions of their employment with co-workers and others—including postings on social-media sites. (WCxKit)

 

 

In the recent complaint, an employee of Hispanics United who was slated to meet with management regarding working conditions posted on Facebook a co-worker's allegation that employees didn't assist the nonprofit's clients enough, the NLRB said. That post attracted responses from other employees who defended their work and blamed conditions like work loads and staffing issues. When Hispanics United learned about the postings, it released the five employees who participated, stating their comments were harassment of the employee originally mentioned in the post, the NLRB remarked.

 

 

The NLRB claimed the Facebook discussion was "protected concerted activity" under the National Labor Relations Act. The earlier case was brought to the agency by a union representing an employee of ambulance company American Medical Response of Connecticut.

 

 

In that incident, the employee posted comments regarding her supervisor and responded to further comments from her co-workers. That case was settled in February when the company agreed to revamp its rules to ensure they don't restrict workers rights. A separate, private settlement was reached between the company and the employee, though terms weren't disclosed. (WCxKit)

 

 

According to NLRB spokeswoman, at least three other complaints have been issued from regional offices since the American Medical Response case. All of those appear to have been settled, she added.

 

 

Posted in Legal Doctrines, NY Workers Comp Issues, WC 101 |

The Supreme Court recently stated that a Freedom of Information Act request might not be used to trigger a False Claims Act lawsuit.

 

 

According to the Associated Press, the court recently agreed with arguments by Schindler Elevator Corp., which was seeking to get a lawsuit against it dismissed. (WCxKit)

 

 

Daniel Kirk, a former employee, sued on behalf of the government, arguing Schindler had not complied with the necessary reporting requirements involving the employment of Vietnam veterans.

 

 

A judge, however, recently out his lawsuit, claiming Kirk's information came from a FOIA request. The False Claims Act states that lawsuits may not be filed using publicly disclosed information. The judge stated FOIA reports were public information. (WCxKit)

 

 

The 2nd U.S. Circuit Court of Appeals overturned that decision; however, the high court argued it was correct.

 

 

The case is Schindler Elevator Corp. v United States, 10-188.

 

 

Posted in Legal Doctrines |

A Louisiana resident recently filed a slip and fall claim against Kmart Corporation after she allegedly fell in water while shopping, causing her to fall down.

 

 

According to The Louisiana Record,this premises liability suit, Celestine Burrell wants more than $900,000 in damages in the lawsuit, which was filed last month in federal court in New Orleans. (WCxKit)

 

 

The suit claims that Burrell was shopping at the Kmart store in Mandeville, Louisiana, in September 2010, when she slipped on water that was allegedly caused by a spill or leak between checkout cashiers. The plaintiff claims that the water leak could be seen by at least two cashiers at the store.

 

 

The lawsuit reportedly seeks damages for open-ended medical expenses incurred, a loss of wages and earning capacity, and physical and mental pain and court costs. The plaintiff is said to be seeking a jury trial.

 

 

 

Posted in Legal Doctrines, Safety and Loss Control |

Any illness or medical condition that occurs in a group of workers at a higher rate than it does in the general population is considered an occupational disease. Some occupational diseases, for example byssinosis, also called brown lung disease, only occur in people who have worked in the cotton, flax, hemp or jute production. Byssinosis is definitely an occupational disease. Other medical conditions, for example hearing loss, may or may not be occupational related. The challenge for worker compensation is to determine what medical conditions are occupational diseases and what are not occupationally related.

 

 

The first issue the work comp adjuster must address is the age of the occupational disease. The adjuster normally deals with injuries that occurred a day ago, a week ago or even a month earlier. However, the occupational disease claim is quite different. The occupational disease may have started ten years, twenty years or even thirty years prior. Most occupational diseases are latent, meaning the employee does not know precisely when they began to suffer the affects of the disease and the disease has been progressively getting worse over a period of time. (WCxKit)

 

 

Latent injury claims often involve asbestos, silica, benzene, mold, carbon monoxide, lead paint, many chemicals, any carcinogen, and the many substances regulated by the Environmental Protection Agency. Occupational diseases cover a wide area of medical conditions but most relate to lung diseases, various types of occupational induced cancers, and hearing loss.

 

 

The age of the occupational disease is important from the standpoint of compensability. The states vary greatly on whom (which employer) is liable for the occupational disease. There are three primary approaches that are used in different states in delegating who is responsible. Responsibility for the cost of the occupational disease may be assigned to:

 

1.      The employer at the time the disease becomes known to the employee

 

2.      The employer at the time the disease started to develop

 

3.      All the employers from the time the disease started through the last employer.

 

 

Several states have migrated from the second or third approach to the first approach to diminish the amount of litigation over responsibility for an occupational disease. Establishing the moment in time an occupational disease started twenty or thirty years ago is fraught with speculation. Also, including all previous employers is often not fair. For example, if the employee with brown lung disease changed occupations and worked as a commercial fisherman for several years, they fishing company would have a valid argument that the brown lung disease is not their problem.

 

 

In the states where the original employer or all the prior employers can be held responsible for the occupational disease, the work comp adjuster must do a thorough time-line investigation. The work comp adjuster should start with questioning the employee in detail as to the names of every employer in their adult life and the dates they worked for each employer.

The adjuster loves to hear “I started at XYZ Company when I was 18, and have worked there all my life”, as it eliminates hours of work locating and contacting former employers to advise them of the occupational disease claim. Of course, that also makes the one and only employer fully responsible for all the cost of the occupational disease. On the other hand the adjuster cringes when she hears “well, I have worked for 12 different coal mining companies in the last 40 years and I don't know when my black lung disease [pneumoconiosis] started”, for many days of research lie ahead for the adjuster.

 

 

In addition to determining the dates and names for each former employer, the adjuster will need to obtain the employees job duties with each former employer, the name of each former supervisor, the substances, materials, chemicals, etc., that were used in their work, and any health issues they had while working with that employer. The adjuster also must delve into the personal habits of the employee, for instance, smoking is known to exacerbate the occupational diseases involving the lungs.

 

 

To circumvent HIPAA laws, the adjuster should obtain a medical authorization from the employee that is very broad and allows the adjuster to contact all prior medical providers. The adjuster will obtain a complete medical history of the employee. In some situations, the adjuster may review the medical history of the employee, but if the occupational disease is a complex medical condition, it is often better for the adjuster to hire a doctor, a specialist in the medical field of the occupational disease, to review the prior medical history, to see if their were previous signs or symptoms of the occupational disease known prior to date it was first diagnosed. This can often assist in the allocation of responsibility for the occupational disease.

 

 

Also, in the states where all prior employers can be held responsible or where the employee worked when the disease started, there is another obstacle for the work comp adjuster.   After locating and contacting the prior employers, the adjuster needs to know who the work comp insurers were during the time period the employee worked at the other companies.  In the industries where occupational diseases are well known, such as asbestosis, the former employers will know exactly when each work comp insurers policy started and stopped. However, in industries where occupational diseases are less common, the employer (who has a totally different staff and record keeping system than they did 3 decades ago) may have a difficult time identifying who their work comp insurer was 30 years ago. Knowing who insured who, and when, is very important for the allocation of damages in the states where damages are allocated among the various previous insurers. 

 

 

In the occupational diseases that can occur in the general population as well as the employee population, the adjuster has to have medical verification the disease is related to the occupation.   For example, occupational asthma can result from over 300 known causes including chemicals, enzymes, metals, plant substances, animal substances, smoke and gases. Distinguishing occupational asthma from asthma that develops without an occupational connection entails hiring specialist in the respiratory field to examine and diagnose the cause. (WCxKit)

 

 

To properly allocate responsibility and cost of occupational diseases, the work comp adjuster has to do a complete employment background investigation of the employee. The employer can assist the work comp adjuster with the occupational disease investigation by providing the medical history they have on the employee including the health insurance file on the employee (be sure to have the adjuster provide the medical authorization to you).  

 

 

  

 

 

Posted in Assessment & Diagnostics, Legal Doctrines, Medical Issues, Safety and Loss Control, Settling WC Claims |

 

 

 

 

 

 

 

 

 

 

Posted in Legal Doctrines, NY Workers Comp Issues |

A Great Britain fairground operator has been sentenced after an 11-year-old girl suffered a serious head wound when she was thrown from a ride at a Birmingham park.

 

 

Birmingham Magistrates Court heard the girl was in a car on a ride, called DJ Jump, at the fair at Pype Hayes Park when the lap bar failed. She was also unable to put on the secondary safety measure, a lap belt that may have prevented her being thrown from the ride. (WCxKit)

 

 

During the Health and Safety Executive (HSE) prosecution of fairground operator and owner of the DJ Jump ride, Robert Wilkinson, the court heard the girl was thrown from the moving car and suffered a five centimeter head wound that required 10 stitches. She also sustained numerous cuts and bruises.

 

 

The HSE investigation into the incident on April 19, 2009 found the lap belts in the ride cars were poorly maintained and most had been so badly damaged they were unusable. (WCxKit)

 

 

Wilkinson, of Lime Lane, Pelsall, Walsall, pleaded guilty to breaching Section 3(1) of the Health and Safety at Work etc Act 1974 and was fined $16,166 and ordered to pay $ 4,377.48 in costs.

 

 

Posted in Legal Doctrines, Product Liability, Safety and Loss Control, WC in Other Countries (International) |

A more than 200-page bill that completely remakes Oklahoma's workers compensation laws came to light May 17 in the Oklahoma House, just three days before lawmakers were expected to adjourn the legislative session.

 

 

According to theAssociated Press, the proposal cleared a House committee, despite concern from some members that lawmakers will have little time to comprehend the massive bill. It was scheduled for a hearing in the Senate on May 18. (WCxKit)

 

 

The issue revolving around workers comp always has proven to be a difficult due to the fact it involves some of the most powerful lobbying influences at the state Capitol — business and industry, trial attorneys and the medical community.

 

 

This year's massive bill was a complete rewrite of the state's Workers Compensation Act and includes more than 80 sections of new law. The House author of the bill, Rep. Dan Sullivan, claims the primary focus of the bill has been to establish medical guidelines for treating injured workers designed to speed up the process by which employees get back on the job. (WCxKit)

 

 

The bill directs the administrator of the Workers Compensation Court to decrease the fee schedule for medical reimbursement rates by 5 percent. It also requires physicians and the court to adhere to a nationally recognized set of treatment guidelines, called the Official Disability Guidelines (ODG), which is projected to dramatically decrease medical expenses.

 

 

Posted in Legal Doctrines, WC 101 |

The recent Alabama Supreme Court case that held an idiopathic injury occurring in the workplace is not a compensable injury is another example of how the various states differ in what is and what is not workers compensation. A few states cover most idiopathic injuries in workers compensation, most states cover idiopathic injuries that meet narrow restrictions and some states deny workers compensation benefits for any idiopathic injury.

 

 

An idiopathic injury is an injury arising from an unexplained origin or cause. For the purposes of workers compensation, some states have broadened the definition of idiopathic injury to include an injury brought on by a purely personal condition. If you ask why all the fuss over the origin or cause of the injury, the answer is because of the wording of most workers compensation statutes. Most states have wording in the work comp laws qualifying when an injury is to be covered by work comp. The laws will read the injury must “arise out of and in the course of employment” Idiopathic injuries do not meet this definition as they do not “arise out of” the employment. (WCxKit)

 

 

Workers compensation statutes borrow from tort law the concept that you take an employee as you find him/her with all their bodily flaws. Simply put, if your employee already has a weak back and hurts his back while working, you are stuck with the work comp claim. With the employee who is prone to get hurt because of a bodily flaw like the weak back, the injury arises out of and in the course of the employment. This differs from the employee who has an idiopathic episode where the weak back starts hurting while at work, but the back pain has no relationship to the work.

 

 

Another example, if the employee has a heart attack (a purely personal condition) while setting at his desk working (in a non-stressful environment), it is not a work comp injury. If the heart attack employee falls out of his desk chair and hits his head on the floor, the injury to the head is still not a work comp claim in most states. However, if the employment premises increases the risk of injury or aggravates the injury, the injury will become compensable. For example, the employee has a heart attack while climbing a ladder to the top of a tower, and falls injuring other body parts. The other body parts injured in the fall will be covered in most states as the employment premises increased the risk of injury.

 

 

The first idiopathic injury case in Georgia is often used as an example of the narrow interpretation of idiopathic injuries in most states. In 1947, a Mr. Richardson worked in a department store selling men's apparel. The alteration and tailoring department of the store was on a different floor of the store, resulting in Mr. Richardson making numerous trips up and down the stairs each day. Mr. Richardson was an epileptic and had suffered epileptic attacks while working on previous occasions. There was no evidence that the epileptic condition was in anyway related to Mr. Richardson's employment. However, it was known that exertion brought on the epileptic attacks, but their was no evidence of exertion prior to the epileptic attack from the incident from which his work comp injury arose. In prior epileptic episodes, Mr. Richardson had fallen on the floor sometimes with minor injuries, sometimes with no injury. When Mr. Richardson fell during the epileptic attack in question, he struck the side of his head on the sharp corner of a table resulting in a skull fracture and a brain injury The Court ruled that the sharp corner of the table was a hazard of his workplace environment and the resulting head injuries were compensable. 

 

 

Most states that allow idiopathic injuries have follow Georgia in this regards by allowing injuries that result from idiopathic conditions (but not the idiopathic condition) to be considered workers compensation when there is a hazard connected to the employment. When employees faint, have a heart attack or stroke, or fall for no apparent reason and land on the floor without striking any object, the resulting injury from landing on the floor is not a work comp injury (in most states). However, if the employee strikes an object while falling, the injury will be covered as a work comp claim. In addition, if the employee is at an increase risk of injury when they fall, for instance from an unprotected height, or off a ladder, or down a flight of stairs, the resulting injuries are normally covered by work comp.

 

 

Another example of where an idiopathic injury can be covered is the long distance truck driver. In a Florida case, the employee was part of a truck driving team where each driver would drive the maximum of eleven hours with minimum breaks before the other truck driver took over. open-ended. The 60-year-old truck driver had a pulmonary embolism after he had been driving for about ten hours. (A pulmonary embolism is a blockage of the main artery of the lung or one branches of the artery by a blood clot that traveled through the bloodstream from the deep veins in the legs). The initial response from the work comp adjuster that this was not work related but resulting from the employee's personal medical condition. However, the treating medical provider stated the pulmonary embolism was a direct result of the extended time the employee was remained seated while driving the truck. This was a purely personal condition that was aggravated by the requirements of the job, and hence a compensable work comp claim. (WCxKit)

 

 

Idiopathic injuries and idiopathic conditions will continue to be an area of work comp law that will often be litigated, as they do not fall clearly within the definition of workers compensation. If you have an occurrence of where a person has a medical condition that results in an injury (as opposed to the activities of work resulting in an injury), your best course of action is to immediately discuss the matter with your workers compensation claims manager and/or your work comp defense attorney. The claims manager or defense attorney can provide you direction on how to proceed. The primary advice will be to clarify all the events surrounding the idiopathic injury so a correct determination of compensability can be made.

 

 

 

Posted in Legal Doctrines, Medical Issues, WC 101 |

 

 

 

Workplace Safety Minister Don Morgan says the amendment to the Workers Compensation Act signals the government's intent to cover risks posed by toxins, carcinogens and cancer-causing agents in the daily work of firefighters. (WCxKit)

 

 

 

 

 

Posted in Canada Workers Comp, Legal Doctrines, Medical Issues, Settling WC Claims, WC in Other Countries (International) |