A federal judge has upheld a 2012 ruling that stated any Kansas City Chiefs football player that wanted to file for workers’ compensation benefits needed to file in the state of Missouri.

Workers’ compensation claims from former NFL players has been a hot button topic of late, and the majority of the talks have centered on California, where a person can file for benefits if they only worked part time in the state. Since California is home to three professional football franchises (San Diego, Oakland, San Francisco), it had been previously ruled that a player only needed to provide evidence that he suffered the injury while playing in California.  This month’s ruling places stricter regulations on where a player can file.

In their argument, the Chiefs and the National Football League Management Council argued that the ability to file in another state violates the contracts the players have with the organization. Despite arguments from the NFL Players’ Association, the lower court and now a federal judge has sided with the team.

Recently, many athletes from all over the United States have been seeking claims in California because of the state’s lose restrictions. Workers’ compensation attorney Ben Heimerl said the claims process in the NFL is complicated, but he’d like to see the league come to a unified agreement.

“Because NFL players work in many states, the choice of which state to file a claim in will often be an issue,” said Heimerl. “I think consistency is important, and forcing a player to file for benefits in the state they are primarily employed in might not be a bad idea.”

Heimerl said it will be interesting to see how the legal decision is interpreted. The NFL Players Association noted in its arguments that the choice of forum clauses are unenforceable under California law, federal labor law, and the U.S. Constitution.

It appears that the league is slowly moving towards a unified disability agreement, but the heart of the issue is what is enforceable under state and federal laws.  It appears likely that California will re-examine its workers’ compensation policy in the near future, but nothing is imminent.

Related source:  WCI 360

A new study published in the American Journal of Public Health found that employees who have the ability to take paid sick leave were 28 percent less likely to be injured on the job than people who can’t take paid sick leave.

The study, conducted by researchers at the Centers for Disease Control and Prevention, found that the results were similar across a variety of job industries.  In their research, they concluded that construction workers were 21 percent more likely to suffer a work injury if they weren’t allowed to take paid sick leave, while health care workers saw an 18 percent increase.

Despite issuing some interesting findings, the study stopped short of examining why workers were more likely to be injured if they couldn’t take paid leave.  Although the study did not examine a correlation, it seems likely that some people find it harder to concentrate if they are working while battling an illness, which not only jeopardizes their safety, but the safety of their co-workers.  Dr. Abay Asfaw, who helped conduct the study, echoed those sentiments.

“If fewer people work while they are sick, this could lead to safer operations and fewer injuries in the workplace,” said Asfaw.

The study involved 38,000 people who took part in the National Health Interview Survey between 2005 and 2008 while working in the private sector.  The study only focused on employees in the private sector because many public sector employees do not get paid sick leave.

Workers’ Compensation Attorney Ben Heimerl comments

Studies like this are often skewed depending on who is interpreting them, but the results aren’t that surprising.  It makes logical sense that healthy employees will have fewer accidents than sick employees.  It probably holds true in almost any aspect in life. Healthy people should be able to function at higher mental and physical levels than their sick counterparts.

On a related note, this study brings up a good point in regards to taking time off after a work injury.  Oftentimes I hear of workers who use sick leave in the immediate days after an injury in hopes that they get better with a few days rest, and so as not to ‘ruffle any feathers’ within the company.

Unfortunately, this good deed does not go unpunished.  If the injury does not get better, the employee will be raked over the coals for not reporting it right away, and if they wait too long they could lose certain workers’ compensation benefits.

Related source:  Huffington Post

A Tennessee Workers’ Compensation Appeals Panel recently ruled that an on-call employee was an exception to the “coming and going rule”, meaning that the employee was eligible to receive workers’ compensation benefits.

The case began when Tina Shannon was injured in a motor vehicle accident on her way home from work.  Shannon served as a surgical technician at Roane Medical Center, and on the day of the accident she was driving home from work after being called in to assist in an emergency medical situation.  She was still considered “on-call” when she was involved in the accident.

Tina filed for workers’ compensation benefits after the accident, but the court that heard her case denied her claim.  As a general rule, an employee is not considered to be acting within the scope of their employment when they are commuting to or from work, but the Appeals Panel took a closer look at the conditions of Tina’s employment when deciding the matter.

In their discussion, the Appeals Panel cited four factors that influenced their decision:

• Whether the employee is paid for time spent on call, either in hourly wage or increased salary.
• The extent of the restrictions imposed by the employer during on-call hours.
• The benefits the employer receives from the on-call system.
• The extent to which the on-call system requires additional travel, which in turn places the employee at greater risk than an ordinary commuter.

In their decision, the Appeals court ruled in favor of the employee in all four factors.  They said Tina received compensation for time on-call, had significant restrictions while on-call, the on-call system provided significant benefits for the employer, and the system required an increased amount of travel which exposed Tina to more risk. After weighing those factors, the Appeals Panel overturned the initial denial.

The case could have a significant impact on other employees who suffer an injury while on-call.  It will certainly affect future cases in Tennessee, and it may also have a national impact.

Attorney Ben Heimerl comments

Ordinarily, workers compensation does not cover your drive to and from work, but I believe the courts got it right in this case.

Employees who are on-call are technically still on the clock. When they are called in, they are often driving to work in a hurry, sometimes in the middle of the night, and oftentimes fatigued.
I believe being on-call puts the employee at an increased risk that the general population does not experience. That increased risk can lead to injuries and should be compensable.

Related source:  WCI 360

A Canadian man who fought in mixed martial arts matches while collecting workers’ compensation payments will be forced to pay back the money he received over the next five years.

Shaun Pauliuk, 35, pled guilty last week to defrauding the Workers’ Compensation Board of over $20,000.

Pauliuk initially filed the workers’ compensation claim in October 2008, citing an on-the-job back injury.  He said he hurt his back while lifting a heavy object out of a truck, and he collected lost wage benefits from November 2008 until June 2009.

The Saskatchewan Workers’ Compensation Board decided to look deeper into Pauliuk’s claim after they received information that he was participating in MMA fights.  Frank Impey, who prosecuted the case, said Pauliuk was very active while collecting his lost wage benefits.

“He was actually participating in rather physically strenuous events,” said Impey.

Officials tracked Pauliuk’s online presence and noticed that his MMA profile listed three fights that occurred during the time that he was collecting workers’ compensation benefits.  When asked about the fights, Pauliuk initially told officials that the board had already terminated his lost wage benefits, but the Workers’ Compensation Board records indicated that he was still receiving benefits at the time of the inquiry.

“(The WCB) clearly indicates it didn’t cut him off until it subsequently came to light he wasn’t as injured as he said he was,” Impey said.

Pauliuk received a two-year conditional sentence, three years of probation, a mandatory curfew from 10 pm to 6 am, and he must abstain from drugs and alcohol.  It was also stipulated that he must pay $250 a month towards the $20,000 he must pay back.  In addition to the defrauding charge, Pauliuk also pled guilty to check fraud, theft, and possession of a controlled substance in other unrelated incidents.

All things considered, Pauliuk may have been safer at work.  According to his MMA profile, he is 0-5 in his career.  His last match lasted 21 seconds before he was knocked out.

Attorney Ben Heimerl comments

I don’t believe the prevalence of fraud is as rampant as the insurance companies believe, but nonetheless, it certainly does exist.

People like this have created a world where insurance companies deny the claims until the insured can prove that they are entitled to the benefits, when they should be paying the benefits which they received premiums to provide, and denying only if they have proof of fraud.

It appears that the “innocent until proven guilty” method is just bad for business.

Related source:  Leader Post

Guest Blog by Andrew Hunstad of Thompson Hall Santi Cerny & Dooley.

Prior to its 1983 amendment, the Workers Compensation Act generally favored the injured employee.  An injured party’s common-law rights were retained unless the Act clearly modified those rights.  In 1983, the Act was amended to be applied on an “even-handed basis”, which ensured neither party received preferential treatment. This standard remains in effect today.  Employers should not mistake the more employer-friendly standard as an opportunity to skirt or circumvent the law.

The Workers Compensation Act in Minnesota

In Minnesota, the act requires all employers, except the state and municipalities, to carry workers’ compensation insurance, unless the employer qualifies for self-insurance (this is often referred to as mandatory coverage).

• Employees are generally defined as persons performing services for another for hire, including minors and noncitizens.
• An employer is generally defined as an individual or business that hires an individual to perform services.

The Act provides multiple exceptions to the mandatory coverage rule. However, these exceptions are only applicable in certain circumstances.

Exception for Businesses Without Employees

Some business entities have no employees and are not employers. Thus, these entities have no one to insure. Partners in a business or farm operation may be exempt if every employee is a partner or qualified relative.

Sole proprietorships are non-incorporated businesses owned by one person. If the sole proprietorship has no employees, the business does not need to comply with the act. That said, entrepreneurs are warned not to view sole proprietorships as a “free pass” from regulations.

A sole proprietorship is a business entity that fails to provide the owner with any liability protection. Entrepreneurs should avoid sole proprietorships at all costs. In addition, managers or members of limited liability companies and executive officers of closely held corporations may be excluded from the workers’ compensation requirement if certain requirements are met.

Workers’ Compensation Insurance

Workers’ compensation insurance may be purchased through an insurance agent or directly from an insurance company.  Minnesota has several thousand licensed insurance agents who sell workers’ compensation insurance, so you have plenty of options to choose from.  In Minnesota, work comp insurance is sold through open competition, which means insurance companies establish their rates and compete for business.  The workers’ compensation polices provide coverage mandated by state law. Thus, only price, quality of service, and customer service varies and employers could have significant savings by receiving multiple price quotes for the insurance.

Workers’ Compensation insurance provides compensation to employees who suffer a work-related injury or disease.  Compensation includes partial wage replacement and full payment of medical and vocational rehabilitation costs. In case of death, workers’ compensation benefits are paid to the employee’s dependents. Workers’ compensation insurance companies and self-insured employers pay these benefits and collect the premiums. The Minnesota workers’ compensation law was designed to standardize benefits, reduce litigation, and encourage early rehabilitation intervention, healthy employee and employer relationships, and return-to-work programs.

Workers Compensation Act Violations

If an employer fails to comply with the act the failure may result in any of the following:

• Litigation
• Civil fines and penalties
• Criminal charges

An employer suspected of violating the statute will be investigated by the Special Compensation Fund unit.  Even if an employee was not injured, an employer found in violation of the act may be fined by the Minnesota Department of Labor & Industry. An employer in violation of the act will be ordered to provide the necessary insurance coverage and refrain from employing any person, at any time, without issuing the proper insurance.  In addition, the employer may be penalized up to $1,000 per employee for each week the employee was not insured.

In addition, if an employer receives a commissioner’s order, the employer has ten days to comply or contest the order.  If an objection is not received by the commissioner by the deadline, the order will be considered final and the employer cannot appeal.  If, however, the employer contests the order, the dispute will be resolved by a workers’ compensation judge. The judge shall determine whether the fine and order is justified.  If the employer is found in breach of the act, the employer will be required to pay the order’s fines and may be penalized by additional fines if the uninsured people were employed while the case was in dispute.

In addition to costly fees and penalties, an employer found to have willfully and intentionally failed to comply with the act is guilty of a gross misdemeanor. In Minnesota, a gross misdemeanor is punishable with a fine up to $3,000.

Violation Remedies for Employees

If an employer has not purchased insurance coverage or failed to comply with self-insurance requirements and an employee suffers a compensable injury, the employee has multiple remedies. The injured employee may either pursue the employer in tort or request the Minnesota Special Compensation Fund pay the appropriate benefits.  After a request has been made, a judge will determine the employer’s liability and if the compensation fund is appropriate.  If the compensation benefit is awarded, the judge will order the employer to reimburse the Special Compensation Fund and will be penalized in the amount of 65 percent of the total cost of the benefits.

In Minnesota, a workers’ compensation claim is valid even if the employer goes out of business. Courts have routinely held that if an employer ceases to exist, the fault does not lie with the employee and it should not affect the employee or their dependents.

Andrew Hunstad is a law clerk at Thompson Hall Santi Cerny & Dooley and is graduating with honors from Thomas M. Cooley Law School in May 2013. 

A New Jersey woman who volunteered at a local thrift store recently had her workers’ compensation claim denied because a judge ruled that she was not considered an employee under the scope of the law.

Vasiliki Rallatos, who routinely shopped at the local thrift store, said she decided to submit a volunteer application after she learned that volunteers were subject to a 50 percent discount on all store items.  Rallatos, who was unemployed at the time, frequently shopped at the store and thought that the discount provided “a great incentive” to volunteer.

One day, while working at the store, Rallatos suffered an undisclosed injury.  The non-profit charity group initially provided authorized medical care.

Rallatos filed a workers’ compensation claim in hopes of recuperating medical expenses associated with her injury.  The workers’ compensation judge who heard her case did not agree with Rallatos’ contention that she should be considered for compensation.  The court’s decision can be seen below.

“Here we go back to the basic legal definition of consideration. Consideration is a benefit conferred as an inducement to a commitment. It can be commonly seen in the standard employment agreement whereby a worker works the job for which he is paid a wage by the employer.  There are many other forms of consideration; far too numerous to list here. The question for this court is: Was the 50 percent discount afforded to Petitioner an inducement to get her to commit her time and services to Respondent? The answer: No.”

“Many of these groups rely on donations and volunteers in order to make ends meet and survive. Given the importance of their work to society, the court is careful to consider imposing any further burdens on such entities. While the instant matter was decided solely on the facts presented in light of the cases and the Act, the issues noted are not peripheral to those organizations that are trying to do good works for the poor and disabled.”

“Therefore, in light of the analysis and review of the statute as set forth above, the court finds that Petitioner was not an employee of Respondent.”

Citing New Jersey S.A. 34:15-36, the judge ruled that volunteers cannot be considered an employee for the purpose of determining workers’ compensation claims.  The judge also stated that he was aware of the potential implications for state agencies if he had granted the claim.

“The court is also mindful of the broader implications for charitable organizations as a result of this decision,” the judge said.

Key testimony in the claim was supplied by the charity group’s human resources director, who said that volunteers are viewed separately from paid employees.  Volunteers are not eligible for monetary employee benefits, and the corporate office does not keep records of the volunteers at each individual store.

Related source:  Workers’ Compensation Institute

A workers’ compensation claim by a Canadian teacher who was injured while playing baseball with students during a lunch break was denied by the court.

The Worker’s Compensation Appeal Tribunal rejected the claim of a teacher who injured his wrist while playing baseball with high school students, saying the game did not arise out of his employment duties.

The teacher, who was not named in the ruling, decided to participate in a “staff versus students” game during a lunch break.  Because he teaches social studies, not physical education, the appeals council said he was acting out of the scope of his employment.  Below if a portion of the tribunal’s ruling.

“The organization of, or participation in, recreational, exercise or sports activities or physical exercises is not normally considered to be part of a worker’s employment under the Act. There are, however, exceptional cases when such activities may be considered to have an employment connection. The obvious one is where the main job for which a worker is hired is to organize and participate in recreational activities. There may also be cases where, although the organization or participation in such activities is not the main function of the job, the circumstances are such that a particular activity can be said to be part of a worker’s employment.”

Despite mentioning that there are cases where participation in sports can lead to an acceptable workers’ compensation claim, the tribunal did not believe this situation was one of those circumstances.  According to the ruling, the tribunal listed four findings that led to the dismissal of the claim.  They found:

• The softball game was not part of the teacher’s scope of activities or duties.
• The softball game was not supervised by the employer
• The teacher was not under any direction or instruction to take part in the game by his employer
• His participation was strictly voluntary

Susan Lambert, president of the British Columbia Teachers’ Federation said the ruling was disappointing.  She said the teacher’s union stressed the importance of “teaching and work-life balance”, and in the ruling the teacher stated the game took place “just more or less for fun and to create harmonious school staff/student interaction.”

“[My attendance was] all part of a ‘good will’ thing between teachers and students,” the teacher said.

The BCTF plans to evaluate participation in similar recreational events during the next round of collective bargaining agreements.

Related source:  The Vancouver Sun

A police sergeant in Appleton, Wisconsin won a four-year legal battle that began in 2008 when he tore his rotator cuff while doing pushups in his basement.

Mike Nofzinger’s legal battle began shortly after he attempted his 12^th pushup on his carpeted basement floor.  Nofzinger was preparing for a police fitness test that rewards officers who can complete the test with a lump-sum cash premium and retirement bonus.  One of the tests in the fitness challenge required officers to complete a certain number of pushups.

Nofzinger filed for workers’ compensation after suffering the shoulder injury.  The court initially ruled in Nofzinger’s favor, as they said the pushups where directly related to his employment, which made his participation “involuntary”.  He was awarded $12,500 in workers’ compensation, but the city of Appleton appealed the ruling.  Not only were they concerned about the large payout, but they feared the implications the ruling could have around the state.

“We think it’s a bad decision and it sets a precedent that is very far-reaching,” said Sandy Behnke, who works as Appleton’s human resources director. “If an employee runs to stay in shape and blows out a knee, it’s an open question whether they could file for worker’s comp.

The city of Appleton decided to hire outside legal counsel to fight the original ruling, which cost the taxpayers an additional $17,477, but the Supreme Court decided not to hear the case.

Appleton Mayor Tim Hanna said the ruling would have state-wide ramifications, and it might lead to the elimination of similar fitness tests because companies don’t want to be exposed to lawsuits.

“It could make it tougher for the city to offer a fitness incentive in our health plan — we may need a stricter definition for outside injuries,” Hanna said. “I’m worried it could be extrapolated to almost any physical exercise injury. Could you file a claim if you were injured skiing? Where does it stop?”

Nofzinger said he was pleased that the case didn’t drag on any longer, and he reiterated that the fitness test not only ensures that officers are in top shape, but it also saves the department money in lowered insurance costs.

“Chief Dave Gorski negotiated this fitness plan in the 1980s,” Nofzinger said. “He recognized the long-term impact with less health insurance cost and greater ability to perform the physical requirements of the job.”

Despite Nofzinger’s feeling towards the fitness test, Behnke hopes to modify the program during the next round of contract talks to lessen the city’s accountability if an accident occurs.

“Appleton officers take fitness very seriously and take care of themselves, so we want to incentivize that,” Behnke said. “I’ve asked the chiefs to look at how we can change the contract to reduce the liability.”

Nofzinger retired in 2011 after serving 29 years on the force.  He said he doesn’t believe that the ruling will result in a spike in similar cases, and he said his case was a victory for organized labor and emergency officials.

Related source:  National Association of Injured and Disabled Workers

The Occupational Heath and Safety Administration has developed a smartphone app the provides free information and advice to employees who work outdoors.

The app is called “The Heat”, and it uses weather data from the National Oceanic and Atmospheric Administration and GPS technology to determine the risks factors associated with working outside on a given day.  The Heat is available in both English and Spanish on a wide variety of mobile platforms including iPhone, Blackberry and Android.

The Heat app provides the user with the current temperature and humidity, but it also acts as a reference tool if a person begins to show signs of a medical condition.

“The App allows workers and supervisors to calculate the heat index for their worksite, and, based on the heat index, displays a risk level to outdoor workers,” OHSA said in a statement. “Then, with a simple “click,” you can get reminders about the protective measures that should be taken at that risk level to protect workers from heat-related illness-reminders about drinking enough fluids, scheduling rest breaks, planning for and knowing what to do in an emergency, adjusting work operations, gradually building up the workload for new workers, training on heat illness signs and symptoms, and monitoring each other for signs and symptoms of heat-related illness.

The app allows the user to contact an OSHA representative if they have any questions or concerns, and it also lists first-aid steps in case a medical emergency occurs.

OSHA believes the free app will cut down on work-related injuries, which will in turn decrease the number of workers’ compensation claims.

There were over 100 heat-related deaths in the United States in 2012, and thousands more are hospitalized because of heat-related illnesses.  OHSA warns that workers in certain industries are at a higher risk for heat-related illness. Those workers include farmers, roofers, landscapers, construction workers, transportation workers, and painters.

Related source:  OSHA

A California man who was originally awarded workers’ compensation benefits for an injury he sustained during his drive to work has since had the ruling overturned by the Court of Appeals of California.

Background

Robert Decourcey Jr. worked as a corrections officer for the California Department of Corrections.  The inmates he oversaw could not be left alone, so at least one officer needed to be stationed at the facility 24 hours a day.  To compensate for possible conflicts or sick employees, the officers were allowed to freely switch shifts.  This process helped the California Department of Corrections save on overtime costs, and employees were happy because they could manage their schedules as needed.

The Case

Decourcey received a call from one of his co-workers asking if he could switch shifts.  The co-worker’s grandmother had fallen ill, and he needed to take her to the hospital.  Decourcey agreed to take the early shift, and his co-worker would take the afternoon shift once he had helped his grandmother.

Decourcey’s shift started at 6 a.m., so he left for work before the sun rose.  On his commute, his car hit a patch of black ice and he crashed over the side of a ravine.  He suffered numerous injuries and applied for workers’ compensation.

The Ruling

Under normal circumstances, commutes to and from work are not compensable under workers’ compensation law. Usually a person needs to be ‘on the clock’ or suffer the injury on company property to be awarded a claim, but there are other exceptions.

Decourcey’s lawyers argued that their client wasn’t just commuting to work, rather, he was engaged in a special order from his employer.  They argued that because Decourcey swapped shifts for a co-worker, he was aiding the state by saving overtime costs and therefore he deserved to receive different consideration.

The court agreed, and Decourcey was awarded compensation benefits.  However, the Appeals Court of California saw the case differently, and overturned the original court’s decision.  In their findings, the Court of Appeals said Decourcey was engaged in nothing more than an ordinary commuting accident.

Related source:  Business Management Daily