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


Commentary:

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.

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.

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.

OSHA Top 10 Safety Violation for Fiscal Year 2014

Source: U.S. AIR FORCE ACADEMY, Colorado
October 22, 2014

U.S. AIR FORCE ACADEMY, Colo. -- The Occupational Safety and Health Administration recently published a list of the top-10 safety violations for the last fiscal year.

From 1 to 10, those violations are: 

1. fall protection in construction
2. hazard communication
3. construction scaffolding
4. respiratory protection
5. lockout and tag-out
6. powered industrial trucks
7. electrical wiring methods
8. construction ladders
9. machine guarding
10. general electrical requirements.

'"General electrical requirements' is a broad category for miscellaneous electrical hazards, such as failing to safeguard an electrical circuit," said Cliff Tebbe, Academy Safety Office deputy director.

According to an OSHA news release, the list is preliminary and the administration will publish another list containing finalized information.



"These types of safety oversights are common in general industry, and the Academy has similar workplace environments," Tebbe said. "These are things to look for - the usual suspects when it comes to work center hazards."

The fundamental principal to maintaining a safe work environment here is "early detection and rapid correction," Tebbe said.

"Safety is everyone's business," he said. "Your safety program is only as strong as what people are willing to walk by. If you are willing to walk by a hazard, you are willing to weaken the program and expose another Airman to that hazard."

Visit https://cs3.eis.af.mil/sites/OO-SE-AF-18/default.aspx for more on-duty hazard information and to read about Quest for Zero, an Air Force occupational safety campaign.

My Commentary:

This past year there was a major update to the Fall Protection Standard, mainly reflecting a global perspective of safety by incorporating ANSI standards. Being that this is new, it will take time to get use to. Couple that with the construction industry's history of "subcontractors cutting corners," it is obvious why fall protection in construction is number 1, and construction ladders and construction scaffolding are in the top 10 also.

Thank you for reading.

California Bill Could End Use of Temp Workers

from: Insurance Thought Leadership

The California legislature is considering a bill that could rewrite the relationship between employers and temporary staffing agencies. Assembly Bill 1897 (Hernandez, D-48) would make employers that hire laborers from temporary agencies liable if those agencies fail to provide workers’ compensation insurance, violate wage and hour laws or fail to withhold proper taxes.

This legislation could, effectively, end the staffing agency model by making it difficult for most small businesses to use the services. (The text of the bill is here.)

Employers hiring temporary staffing agencies would be responsible for performing due diligence by checking into the internal practices of the staffing agencies to determine whether agencies are properly funded to comply with labor laws and regulations. The employer, as a client of the agency, would be held responsible if the staffing agency failed to meet these requirements. Under the current version of the bill, it would be impossible to “contract around” this requirement, as a waiver would be deemed to violate public policy.

Promoters of AB 1897, including the California Labor Federation, claim that the bill is designed to protect employees of staffing agencies from wage theft and lack of workers’ compensation coverage. But the goal seems to run deeper. Proponents also hope to address wage disparity between full-time and temporary workers, benefit differences and impediments to collective bargaining by temporary employees.

According to the California Chamber of Commerce, which opposes the bill, employers that do not have dedicated human resources or legal departments rely on temporary agencies to prescreen employees, to fill seasonal and short-term positions, to provide cover for employees who are absent and to protect the core group of employees from workforce reductions (the use of temporary workers would be reduced during slack times, instead.)

AB 1897 would make life harder for small businesses by holding them responsible for performing due diligence by seeking agency data outside of their purview and making them financially responsible for factors that are beyond their control, including businesses issues that could drive staffing agencies into bankruptcy. While most staffing agencies are properly insured and funded, this bill will cause small businesses anxiety over increased fines and litigation and create a chilling effect throughout the California labor market.

AB 1897 is currently before the Assembly Committee on Labor and Employment.

Isn't that what the stand fund is for?

Every insurance policy pays a surcharge to the state fund to cover employees in the event that an insurance company fails, a company bought bogus insurance, or a company is uninsured.

What do you expect from California?

I do  not know Hernandez (D-48), and if his leanings are socialist. This may just be an attempt of doing away with temp companies so that companies have to hire ALL employees and provide them with benefits.

I think that the real reason is because SCIF is in financial trouble. They are just trying to pass the cost along to deeper pockets. How do they define "verify the temp company has insurance?" Is asking for a certificate of insurance enough?

How far will the lawyers take this? If a store in a strip mall does not have work comp, is the real estate company then responsible for work comp? If you own your own business and have an office in your home, are you responsible for the plumber's work comp if he doesn't have it?

Problems with this bill:

“Client employer” means an individual or entity that receives obtains or is provided workers to perform labor or services within the usual course of business of the individual or entity from a labor contractor. See the plumber in your house scenario above.

“Labor contractor” means an individual or entity that contracts with a client employer to supply workers to perform labor or services within the usual course of business or otherwise provides workers to perform labor or services within the usual course of business for the client employer. Is maintenance (washing your storefront windows) within the usual course of business?

Where this bill really FAILS:

(b) A client employer shall share with a labor contractor all civil legal responsibility and civil liability for the following:

1. The payment of wages to workers provided by a labor contractor.
2. The failure to report and pay all required employer contributions, worker contributions, and personal income tax withholdings as required by the Unemployment Insurance Code.
3. Failure to obtain secure valid workers’ compensation coverage as required by law Section 3700.

(c) A client employer shall not shift to the labor contractor any legal duties or liabilities under the provisions of Division 5 (commencing with Section 6300) with respect to workers supplied by the labor contractor.
 
(d) The provisions of subdivisions (b) and (c) are in addition to, and shall be supplemental of, any other liability or requirement established by statute or common law. Does that also include FEDERAL IMIGRATION LAW?

Remember Arizona's SB 1070? Does that mean that the Client Employer must check immigration status? Can California enforce Federal Immigration Law?

Thank you for reading

Bluehour bartender burned badly when Everclear from vase ignites, seeks $688,000

Source: Aimee Green, Oregon Live
October 15, 2014


A former bartender at Bluehour in Northwest Portland's Pearl District filed a $688,000 lawsuit this week -- claiming he was burned over much of his body when a large vase containing Everclear broke next to a candle, igniting a countertop next to him.

The restaurant decided to "enhance the bar's atmosphere by placing colored Everclear, a highly flammable alcoholic liquid, in large vases at the base of the bar" and put open-flame candles next to the vases, according to the suit filed Monday in Multnomah County Circuit Court by bartender Steven Grimm.

The suit lists restaurateurs Bruce Carey and Ken Giambalvo as defendants. Carey is well known in the restaurant world. He started Bluehour, Zefiro, Saucebox and 23Hoyt with colleagues. In 2007, he acquired Clarklewis.

Giambalvo worked as chef at Bluehour for more than a decade, and left his position in 2011. But he is still a member of the limited liability company that owns Bluehour, according to the suit. Carey also is a member, the suit states.

A message seeking comment for this story -- left Tuesday with management at Bluehour -- was not returned.

On April 4, 2013, Grimm was working when he accidentally nicked one of the vases and it cracked, pouring the purple-tinted Everclear onto the counter top, the suit states.

"The spilled Everclear came in contact with the open flame candles and immediately combusted," the suit states. "Steven Grimm was immediately covered by the flaming liquid."

Grimm suffered burns to his arms, hands, torso and legs -- and his medical bills have reached $42,000 so far, according to the suit. He also was out of work for one year -- and suffered $46,000 in lost wages, the suit states.

Grimm, who is in his early 30s, returned to tending bar in April 2014 at a different restaurant.

He's seeking $600,000 for pain, permanent disfigurement despite skin-graft surgeries and physical limitations, including not being able to run as exercise because his scarred skin is too tight.

The suit faults the restaurateurs for allegedly placing the Everclear in vases that could easily be broken, placing the vases close to candles and ignoring the flammability warnings on the Everclear label.

Everclear is 95 percent alcohol by volume, and the label on the front of the bottle states: "CAUTION!! EXTREMELY FLAMMABLE" and "KEEP AWAY FROM FIRE, HEAT AND OPEN FLAME."

The Oregon Occupational Safety and Health Administration investigated the incident and fined the restaurant $300 in July 2013, finding that it had improperly stored a flammable liquid.

Grimm is represented by Portland attorney Philip Lebenbaum.

This photo shows two large decorative vases full of Everclear that had been tinted purple at Bluehour in 2013. An open flame candle can be seen at the base of the vases.

In the interest of science and the furthering of safety, as Monty Python says, "And now for something completely different......"

5 of the Strongest Liquors in the World

Source: Partyprobs

One of the toughest tequilas around, and packs a mean punch when drinking it. At 150 proof, this liquor will have you begging for mercy in the morning. Not to mention one of the coolest corks, which is a sombrero.

Like is says on the bottle, it is 151 proof rum (75.5% alcohol). Bacardi is very good when mixed with rum-based cocktails, and more famously for lighting shots on fire before taking them. It is the only rum sold with a stainless steel flame arrester attached on the bottle.

If you are a heavy drinker and feeling bold and want to try something new, than this is right down your alley. Banned in 1915 saying it was an addictive psychoactive drug, but by the 21st century it was legalized in many countries including the United States. It ranges from 90-148 proof (45–74% alcohol), but between that and the hallucinations, this had to make the list.

Vodka can make for either a great evening or a horrible night. At an intense 160 proof (38-50% alcohol), this is nothing to mess around with. Usually vodkas are somewhere between 76-100 proof, but the makers in New Jersey took it to another level.

Anyone who's ever been around or consumed Everclear will tell you this is the Strongest liquor. At a staggering 190 proof (95% alcohol), this can be very dangerous if not consumed and handled properly. You should never drink it straight, only to mix with drinks. It is banned in many states, and for good reasons.

Thank you for reading.