Wednesday, April 15, 2015

Forced Subrogation by the Insurer/Underwriter?

Insurance underwriter sues driver for workers’ compensation payments

Source: Madison-St. Clair Record
April 13, 2015

A Madison County insurance company filed suit on behalf of its client for a workers’ compensation claim it had to pay when its employee was injured in a traffic collision.

Twin City Fire Insurance Co., on behalf of Juneau Associates Inc. PC, filed the lawsuit against Scott Heatherly of Granite City on March 27 in Madison County Circuit Court, alleging vehicular negligence in a 2013 accident.

The plaintiff underwrites workers’ compensation insurance policies for Illinois companies. Its client, Juneau Associates, is an engineering firm headquartered in Granite City, and Scott Ryan was an employee of Juneau, operating a motor vehicle in his capacity as an employee.

According to the complaint, the defendant sped past a vehicle operated by Ryan while driving south on Madison Avenue in Granite City on April 2, 2013. The lawsuit states that Heatherly swerved his car into the path of Ryan’s vehicle, striking the front driver’s side of the car.

In response to the collision, Ryan steered his car onto the curb and sidewalk, according to the lawsuit. The suit alleges Ryan sustained back injuries requiring treatment and surgery. He subsequently filed a worker’s compensation claim for which the plaintiff has paid $165,000 to date.

The complaint alleges that Heatherly was negligent by driving excessively fast, maneuvering his vehicle directly into the path of Ryan’s car, colliding with the car and failing to decrease his speed and operate his vehicle safely.

Twin Cities, as subrogee of Juneau, seeks damages in excess of $50,000, plus attorneys’ fees and costs. The firm is represented in the case by Jeffrey Arnold of Whelan Arnold in Downers Grove.

Madison County Circuit Court case number 15-L-400


I think that this is a good thing because there is nothing an employer can do to prevent an accident that is someone else's fault.

In accidents that are the fault of another party, I ALWAYS have the insurance carrier file a notice of subrogation (in case the employee sues). Some employees will wait until they exhaust work comp benefits to sue. This is so that they can "double-dip."

Thank you for reading.

Wednesday, February 4, 2015

Tri-State Trouble?

Febuary 14, 2015
New York City:

I heard that today Tri-State PEO and Tri-State Staffing might be in trouble, filing Chapter 11 bankruptcy. They are a publicly traded company. 

This has NOT been confirmed!

I am the first to report this.
I will report as I learn more.

no compensation for worker whose breasts were secretly photographed

I realize that this is Australasia, but this brings up a good point about workplace violence and sexual harassment.

A Queensland State Library employee has been denied compensation for a mental injury caused by her supervisor taking secret photos of her at work.

In the somewhat surprising ruling of Waugh v Simon Blackwood (2014), the Queensland Industrial Relations Commission upheld the decision of the state's Workers' Compensation Regulator to reject the employee's application. Astrid Waugh had suffered a psychological injury (an adjustment disorder) when her employer told her about photos of her that were covertly taken by her superior, Bruce McGregor. Six of the photos focused on her breasts. They were taken while Waugh was at work. Their existence was revealed to Waugh during meetings with the library's human resources and managerial staff.

Waugh developed her injury from both the primary stressor, McGregor's sexual harassment in taking the photographs, and a secondary stressor, the manner in which managers informed her of and dealt with the incident.

Deputy President Les Kaufmann found that: "Even if it could be said that the injury arose out of, or in the course of, her employment, the employment was not a significant contributing factor. The significant contributing factor was the taking of the photographs by Mr McGregor. This had nothing to do with the employment."
At first glance, Kaufmann's distinction creates an odd result: a worker who suffers a psychological injury in the workplace due to a colleague's behaviour is not entitled to workers' compensation.

However, under Queensland law, the circumstances where compensation will be paid for psychological injury are more limited than for other injuries. Section 32(1)(b) of the state's Workers' Compensation and Rehabilitation Act 2003 requires the employment to be the "major significant contributing factor to the injury". Kaufmann used the reasoning of the then Industrial Court of Queensland judge Paul de Jersey in Croning v Workers' Compensation Board of Queensland (1997) to apply a factual approach to determining the cause of injury.
In practice, this approach (as applied by Kaufmann and others) has resulted in a very narrow reading of the causation provisions of the Queensland legislation. This allowed Kaufmann to divorce McGregor's offending conduct from Waugh's employment.

Under the workers' compensation legislation that applies to ACT and federal government staff – the Safety, Rehabilitation and Compensation Act 1988 (C'th) – Waugh's injury would have most likely been compensable. Section 5A of this act does not require the employment to be the "major" significant contributing factor to the injury.

In Queensland, there has been a discrete policy decision to limit the circumstances in which psychological injuries are covered by workers' compensation. This is the case historically, as section 32 of the state legislation is largely a restatement of its predecessor.

The federal act has been amended to move closer to the Queensland legislation following two cases in the Federal Court: Wiegand v Comcare (2002) and Secretary, Department of Employment and Workplace Relations v Comcare (2008). In the latter case, the department challenged the Administrative Appeals Tribunal's decision to uphold Comcare's acceptance of liability for the aggravation of multiple injuries, including a psychological injury. The employee, Wendy Caire, said in her Comcare application her injury was a "disease" within the meaning of the then section 4 of the Safety, Rehabilitation and Compensation Act. That section required that the ailment or aggravation of the ailment "was contributed to in a material degree by the employee's employment".
Caire's psychological injury was caused largely by her perception of work pressure and deadlines that, in reality, were not established by the evidence. She had a history of mental illness before sustaining the injury. Accordingly, the department argued that her "employment was nothing more than the scene in which the development of her depression took place".

Justice Rodney Madgwick adapted the reasoning in Wiegand and found Caire's employment could be seen to have contributed materially to her injury despite the fact that her assessment of her workload was not established by the evidence. After these two decisions, the definition of "disease" was amended in the federal act to requiring a "significant degree" of contribution by the employment instead of merely a "material degree".
The compensability for psychological injuries is further limited under the federal act through the exclusion of injuries that are "suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment". A similar limit also exists in section 32(5) of the Queensland legislation.

Despite legislative changes that have brought the constraints on compensation for psychological injuries in the federal act closer to the Queensland legislation, it remains unlikely (at this stage) that the limits will be extended to the degree present in Queensland law. So employees in the Commonwealth and ACT can rest assured that, if they are unfortunate enough to suffer a similar fate to Waugh, they would not be so readily denied compensation for their workplace injury.

Friday, January 16, 2015

We are Charlie

Generally I stay on topic of occupational heath and safety, technology, workers compensation, and the staffing industry. I do inject my humor because that is who I am and I found over my many years of doing this, it is an effective way to convey my message. I try to be as politically correct as possible, but I will NOT let me be swayed from defending  human rights (occupational heath and safety falling under that) OR speaking what is TRUTH.

As a blogger, I bring you this copy of the cover of Charlie Hebdo, the French satirical magazine whose headquarters was attacked for exercising freedom of expression. This magazine in many ways is far from my personal beliefs.  Today I stand – and I ask you to stand - with my brothers and sisters who have been brutally murdered for artistically expressing themselves.

There are two reasons that I provide the information that I do: that is freedom of the press and freedom of speech.  That concept was so important to America’s founders that it is embodied in the 1st Amendment to our foundational documents:
“Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
It is a guarantee that you can express your thoughts in any form including speech.

That free speech not only applies to the press, which is supposed to keep our politicians and system honest, but to speech which includes artistic expression. It applies to books, drama, art, painting TV, movies, and to satire such as William Shattner’s satirical TV lawyer Denny Crane. That extends not only to Internet news sources, but to bloggers and those who post comments to those blogs.

Today elements in the world are trying to control what you can think through threats, fear and murder. If you express something they don’t like in any way they want you to believe they will kill you.  They act in order to scare us. The president of France called the murderous attack on Charlie Hebdo “an act of war.”

The president of the United States, through his spokesperson Josh Earnest, rightly said on the 12th  “that the publication of any kind of material in no way justifies any act of violence.” That’s good. But then Earnest went on to encourage the media to use “responsibility” and to discourage media outlets from publishing the Charlie Hebdo cover or other materials that could create a dangerous reaction.

 But the president stopping the free expression of ideas – in the art of satire or in any other fashion - is not in any way the same thing.

If you run from a bully the bully will pick on you more. This is a lesson many of us learned in elementary school before political correctness subsumed reality. Standing down in the face of a threat from the Middle East is interpreted by its mindset as weakness.

There are those of you who may question this conflicting with my commitment to safety by potentially inviting the threat of violence. As I mentioned here and in other posts, my commitment to safety is guided by higher principals, namely the US Constitution and human rights.

While we have the duty to provide a safe and healthful work environment, we are limited by the US Constitution. Examples include disabled employees, polygraphs, and physical exams post offer. Employees and employers have our rights protected by the Constitution as well: fraud and whistleblower protections.

In the spirit of protecting our rights, I write this post. I do not expect that all my readers agree with this, as is your right. You are free to express your point of view as well.

Finally Let me credit and thank J Dale Debber, publisher of Cal-OSHA reporter for the inspiration behind this post. His post today titled: "We are America We are Charlie" inspired me to stand with him and others who enjoy our rights to safety and freedom of speech.

Thank you for reading.