Friday, May 13, 2016

Risk managers: time to add that no butt slapping rule

What happens when an employee does something wrong, gets fired for misconduct, and then turns around and tries to collect unemployment benefits?

This is a common thorn in the side of many employers why misconduct might be good enough to fire someone but not misconduct-y enough to keep them from getting unemployment.

Take for example, the recent story of  Stahl, a woman who worked at Hank's Cheesecake.  A co-worker comes along, makes a vulgar comment to another employee involving sand and vaginas.  Stahl, not finding any of it funny, turns around and backhands the co-worker in the buttocks.  There is some evidentiary dispute whether this was done with the back of a pan or the back of a hand.  It is uncontroverted that it was not a love tap.

Stahl is then fired the next day.

Stahl files for unemployment benefits.

Unemployment benefits are granted. Hank's appeals to the Labor commission.  Hank's loses the appeal.  Hank's tries again this time with the court of appeals, and loses again.

Hank's states there was sufficient evidence to show that Stahl engaged in misconduct in a fit of anger when she hit another employee on the employer's property.  It is the burden of the employer to show misconduct to disqualify an applicant from benefits. 

In its examination of the totality of the circumstances, the court noted that Hank's did not have rule against physical conduct so Hank's could not point to a "rule" that the employee broke.  Hank's argued that the action clearly violated the company standards which reflected a zero tolerance for unwanted contact between co-employees  The court deferred to the finding of the labor commission that the employer failed to show intentional violation of the rule because claimant's action  occurred without intent in the heat of the moment.   In short, what the court is saying is that an employer cannot expect its employees not to hit each other as long as their rage is 'blind.'   There is no clear intent to violate a policy of work place violence unless it rises to the level of intensity or roughness to reasonable expect that it would violate the employer's policy.  After all, the applicant didn't even use a fist. 

The case is very similar to the rationale by the commission to allow comp benefits from a first offender without a "intent" to cause serious harm.   Reis v Shade Tree Service, 2013 MO WCLR Lexis 187.

The dissent asserts there is conduct that is universally expected even if they are not written down, and intentionally slapping a co-worker on the buttocks crosses the line.  The employer does not have to prove wanton and willful acts to establish disqualification of benefits.  Judge Page suggested a double standard was applied.

Stahl v Hank's Cheesecake, ED 103466 (May 10, 2016). 

Practice pointer:  Employers should clearly delineate when butt slapping is inappropriate. Green Eggs and Ham is a good template:  'Job applicant agrees butt slapping violates company policy and core values and  heretofore there shall be no butt slapping: not in a train, not in a tree, not in box, not with a fox, not in a house and a mouse, nor here, or there or anywhere.' 

Tuesday, May 10, 2016

PTD award for injury to dominant arm

One-arm injury supports PTD claim

"Claimant suffers an injury only to one arm. She does not have to lie down during the day. She takes no prescription pain medication and there is no testimony that Claimant suffers from a lack of concentration as a result of her injury. On such facts, one might presume that Claimant would be capable of some other work."

ALJ Mahon awarded PTD benefits for open medical.  Claimant's expert contends that claimant's dominant arm as a result of the injury was relegated to being a "helper" arm.  Claimant fell backwards while pulling a fifth wheel pin, she was put in a cast for a distal radius fracture, and then treated for carpal tunnel syndrome and underwent a tenolysis procedure.   She ultimately developed a frozen shoulder.   She claims she cannot tolerate prescription medicine. 

Vocational experts disputed whether she was capable of work. 

The commission found that Premium was functioning as an employer and not as an employment agency and had liability for the total.  Claimant was assigned to work in Stafford, MO. 

The ALJ found no statutory basis to award disfigurement in a PTD case or to order reimburse claimant for a car rental so she could drive back home to Alabama. 

Smith v Premium Transportation Staffing etal
2016 MO WCLR Lexis --- (April 1, 2016)

ALJ  Mahon
Experts:  Parmet, Eldred, Howell

Commission caps attorney's fee on death case.

Claimant sustained a severe head injury when he fell from a ladder and died about two years later in a long-term care facility.  The medical experts disputed whether the cause of death was related to the accident.

The ALJ denied a request for cost for unreasonable termination of benefits and a request for a 25% attorney's fee based on contract.  The termination of benefits was not unreasonable because of the conflicting medical opinion about the  cause of death and the initial determination that the cause of death was due to end stage leukemia.  There was no statutory basis under .203  to contest termination of  TTD benefits after claimant  died because the only entitlement would have been death benefits.  The request for attorney's fees, representing nearly $146,000, was neither fair nor reasonable.  The Commission affirmed an award that capped fees as $10,000.  The ALJ considered the weekly benefit amount as "pre-ordained" and found the employer paid benefits up until claimant's death.

The parties struck a deal that the wife and two children outside the marriage would divide the death benefit proceeds 70%, 15% and 15%.  The ALJ found the agreement was not in the best interest of the children and awarded benefits evenly by one third based on the statutory language of 287.240 that benefits should be divided evenly.    The Commission affirmed.  Claimant had 4 children, including two children born outside of marriage.  The ALJ reports he was in a religion that believed in plural marriage. 

The Commission affirmed the award but also awarded burial expenses. The employer on appeal did not dispute liability for burial expenses. Bynun v SF Shannon Real Estate, etal, 2016 MO WCLR Lexis 29 (May 3 2016)

ALJ  Hart
Atty:  Moten
Experts:  Payne, Hogan



Thursday, March 31, 2016

Commission finds "new" disablity for worker told before accident she was unable to work

The Commission reverses a denial of Fund benefits to a worker who asserted she had new injuries to  her back and had 6 previous spinal surgeries in a recent period.  Robertson v Southwestern Bell Telephone Co., 2016 MO WCLR Lexis 19 (March 15, 2016).

The SIF asserted a defense that the accident was not a prevailing factor in claimant's condition when she slipped in a puddle and fell in  September 2009. She had multiple previous back surgeries and had been advised earlier in 2009 when she was  placed on restrictions and told she could no longer work.  Claimant continued to work for about another 3 years and then pursued another back surgery and then, at age 44, dropped out of the open labor market. 

The ALJ found   "The only expert to provide a rating is Dr. Margolis, whose opinion is flawed because he considers Claimant's disability as of 2013, which is four years after she reached MMI for the compensable injury and includes factors unrelated to the compensable injury. "

The Commission reversed and found  that claimant had sustained new disability from a lumbar strain.  The Commission found claimant's expert unrebutted that claimant  sustained a new medical "condition" even if her "overall" condition flowed from prior conditions.  "We do not find Dr. DeGrange's credible analysis dispositive of the critical issue: Is this accident the prevailing factor in causing an identifiable medical condition and disability..... But the relevant question for our purposes is whether--despite the preexisting low back condition--the accident of September 17, 2009, was the prevailing factor in causing any resulting medical condition and disability."

The Commission regarded vocational opinion premised on the notion that claimant needed to lie down unpersuasive and inconsistent with the treating records and lacking proper foundation.  The Commission disregarded allegations against the second injury fund based on hearing loss or ADHD due to lack of persuasive evidence on the issue of synergy. 

ALJ:  Boresi
Atty:  Griffiths

Claimant fails to prove PTSD case from shooting

The Commission affirmed a denial of PTSD from a shooting incident a police officer.  Bell v St. Charles County, 2016 MO WCLR Lexis 20 (March 17, 2016).

In March 2010 the claimant worked as a deputy sheriff and hurt his back when he fell to the ground during a gun battle.  He ultimately underwent surgical treatment for a herniated disc and was awarded partial disability or that injury.  He did not sustain any direct injury from the gun but fell on his canister of mace in his belt. 

The commission affirmed a denial of PTSD based on competing expert testimony whether on not claimant  sustained PPD as a result of developing symptoms of nightmares, sleep disturbance and some avoidance.  The ALJ found a psychiatrist opinion more reliable based on her credentials.  The expert  concluded that claimant's symptoms did not meet the full diagnostic criteria for PTSD, although they supported an adjustment disorder.  Claimant's expert, a neurologist, had assigned an additional 30% disability as a result of the PTSD and stated he had frequent experience working with veterans who claimed they had PTSD. 

Claimant asserts that shootings with his employer in St. Charles were "rare."  Claimant had been involved in several other shooting incidents with his former employer, the City of  Jennings "but that was different because it was expected and he was prepared for it."

ALJ:  Kohner
Atty: Wuebbeling
Experts:  Cohen, Pribor

Staffing agency tagged for parking lot fall as joint employer

An onion ring inspector hurt her arm when she fell in parking lot in Springfield, MO  in 2009.  The Commission reversed a denial of benefits on the defense that claimant failed to prove accident on property owned or controlled by the employer. Anhalt v Penmac Personnel, 2016 Mo WCLR Lexis 23 (March 18, 2016).

Clamant worked for Penmark.  Penmark sent her to work at a food plant at Reckitt-Benekiser.  Reckitt controlled her activities on the job.  Benekiser paid Penmark  and Penmark paid her salary.  She was hurt on the Reckitt lot while leaving work. The parties stipulated that the property where she fell was owned and controlled by Reckitt, not Penmark.

The ALJ found that while Reckitt may arguably be an statutory employer but  Penmark was the only liable employer under the subrogation statute as it was an insured entity.  The ALJ found that case controlled by Hager v Syberg's Westport, 304 S.W.3d 771 (Mo. App. 2010) and denied benefits as claimant did not fall on property owned or controlled by Penmark.  Her remedy was to seek benefits against Reckitt, who for unknown reasons, was dismissed as a party in the case. 

The Commission reversed and found claimant provided joint services for both Penmark and Reckitt and as joint employers Penmark was jointly and severally liable under 287.130 for any liability of Reckitt as both companies controlled and benefited from the services provided.  As claimant established one employer (Reckitt) owned and controlled the lot, then Penmark became liable too because claimant only had to show liability of one employer to attach liability to joint employers. 

The Commission noted that before reform the statute required injuries on premises, which created a body of law creating exceptions under the extended premises doctrine.   The commission notes that the 'on premises' statutory requirement  was removed after reform and that post-reform cases have awarded compensation for  parking lot injuries  when the employer owns or controls the property.

The Commission awarded about $40,000 in benefits.

The employer offered no medical expert as a defense.  Claimant relied upon opinions of Dr. Paul to establish disability.  The Commission concluded the ratings were "somewhat" excessive when claimant denied she had problems working with her wrist and stated that her shoulder condition had resolved.  The Commission limited its award of disability to the wrist based on its finding that clamant "downplayed' her  condition and that she "might " have difficulties in other work environments. The expert rated PPD to both the shoulder and the wrist. 

The commission awarded 15% for the wrist as a result of a radius and styloid fracture and 4 weeks disfigurement for 4 surgical dots. 

A dissent found it unnecessary to even reach the issue of extended premises and found claimant had made a submissible case under 287.020.3.

ALJ Mahon

Monday, February 29, 2016

Commission denies benefits when claimant does not show up for trial.

There is the old Woody Allen line about 90% of life is just showing up.  After numerous opportunities, the claimant failed to show up for a hearing and the Division denied her case for failure to prove "injury." Stovall v Convergys,  2016 Mo WCLR Lexis 18  (Feb. 24, 2016).

The case involves a 2011 accident.  The parties stipulated that claimant had injury by accident and that the employer had provided medical benefits for an injury to the right leg.  The case was set on 4 separate occasions for a trial and the Division granted continuances on 3 previous occasions to allow claimant to pursue further discovery.  On the last trial date, the judge delayed trial by nearly 2 hours because claimant asserted she had problems getting to court by a bus and then proceeded when claimant still did not show up by the end of the hearing. 

Claimant's counsel had not obtained a medical report and claimant declined previous settlement offers in the case.  It is unclear if the trial settings were by mutual consent or not.

The Commission affirmed the award without a separate opinion.  There is a distinction between the separate issues of accident and injury.  The ALJ made the finding that claimant "failed to establish a compensable injury."  The parties, however, had stipulated that claimant had an "injury by accident" but did not stipulate to disability or accident.  It was claimant's burden of proof to show she sustained an accident because it was never a stipulated issue.  Claimant asserted she had injured her back in the accident when in  the award the employer stipulated claimant had a leg injury.

The case demonstrates the vexing problem of clients with unreliable transportation and the extraordinary efforts the DWC will exhaust before defaulting a claimant.

ALJ Hart
Atty:  Bohlje, Simon
Experts:  none identified