7-12-2011; The “Perfect Storm” in Illinois Workers’ Compensation—normal work can’t be an “accident,” folks

The Belleville News-Democrat may force IL workers’ comp “causation reform” all by itself. The amazing work of reporters Beth Hundsdorfer and George Pawlaczyk keep finding more kookie claims from southern Illinois and lighting up the national press with how silly things are in that part of our state. Yesterday, they reported Illinois taxpayers may have to pay medical bills of more than $128,000 because a state employee didn't get the telephone headset she asked for, according to a published report Sunday. The Associated Press picked the story up and folks across the globe are again shaking their heads about what we are doing in Illinois. Please assume lawmakers in Springfield are among those grimacing.

The News-Democrat, citing state workers' compensation records, reported a prison finance clerk complained not having what she felt was an ergonomically sound work station or a telephone headset made her strain her neck, causing pain and worsening her pre-existing spine problems.

The newspaper reported Angela Grott, a clerk at the Menard Correctional Center, testified in a hearing in December 2010 not having a headset was the primary reason for her cervical pain. She said supervisors repeatedly denied her requests for a headset or altered work station.

The surgeon who operated on Grott said she had "a pre-existing disc degeneration that was aggravated" by holding the phone in an awkward manner, according to a summary of the claim provided by the Illinois Attorney General's Office. We are not aware of any state requirement on how to hold a phone while working. Now, the clerk's worker's compensation claim in medical bills is already $128,424. Veteran workers’ comp observers are certain she may also cost the State of Illinois hundreds of thousands in lost time and permanency, when the claim finally resolves.

Illinois Department of Corrections officials said they are waiting for telephone headsets to arrive, which will then be given to any employee who wants them. We are waiting for the first claim from a prison clerk who says he or she injured her neck due to the added weight of the headset causing strain on the cervical spine and similarly “aggravating” the problem. Please don’t be naïve--anyone with a state job and a medical problem can somehow relate it to their work—if you don’t change the job, the failure to change is the reason. If you change the job, the changes can also be the “accident” or the reason for the aggravation.

The problem our entire state is struggling with is the lasting trend in the workers’ compensation system in this state of work being an “accident” without need for the slightest trauma or unforeseen event. The concept of “repetitive trauma” has been expanded to just about any problem which requires any medical care.

We have heard from numerous claimant attorneys who all plead the age-old legal concept of the “eggshell plaintiff” makes such claims compensable—we point out the concept of an “eggshell plaintiff” means someone made a mistake causing an accident—once you set an accident in motion, you can’t claim the person injured should have been healthier or stronger.

The problem with using this “scrambled eggshell” concept for prison clerks asking for headphones is the “accident” is the claimant. We can’t imagine this clerk reported anything the slightest bit like what our fathers and mothers thought might be an accident occurred at her work.

We had a claim settle this week for an electrician who worked for our client for ninety days without any incident. Six weeks after leaving, he reported “pain” while working without describing it. About a year later, he had shoulder surgery and “related” it to his normal and ordinary work for our client. His doctor says some of his work put some strain on some parts of his body. All of it led to very unhappy settlement due solely to exposure. Please assume lots of construction workers are now reporting “pain” while working to satisfy the requirement of statutory notice of an “injury.”

As we have advised our readers and hearing officers and state-wide officials, these articles and complaints aren’t going to end unless and until someone makes sense of it. We don’t feel work can be an “accident” and have a sustainable system. We urge the entire industry to try to find a standard that makes sense because we are concerned massive changes may come someday if we don’t take simpler action ourselves.

Read more: http://www.bnd.com/2011/07/10/1781544/report-no-headset-for-prison-clerk.html#ixzz1Rr0hFLD3

7-7-2011; U.S. Court of Appeals, Seventh Circuit, grants Defendant Employer’s Motion for Summary Judgment in action alleging Defendant terminated Plaintiff from his job in retaliation for filing...

In Smeigh v. Johns Manville, Inc., No. 10-3388 (June 29, 2011) S.D. Ind., Defendant was sued for retaliatory discharge and civil conversion. Plaintiff alleged Defendant terminated his employment for filing a workers' compensation claim and unlawfully retained his personal property after his termination.

On September 20, 2008, Plaintiff was injured at work when he severed the tip of his finger. White waiting for an ambulance, Plaintiff’s s supervisor advised him he would have to submit to a drug test due to Defendant’s policy mandating drug testing in the event of workplace accidents.

Both parties stipulated Plaintiff advised his supervisor he did not use drugs and had no objection to taking the test. Plaintiff admitted he might test positive for marijuana because he was at a recent party with friends who were using the drug.

A second Defendant employee testified Petitioner admitted he personally used marijuana on the days prior to his accident. Plaintiff denied the conversation took place. Plaintiff later passed a drug test and a workers’ compensation claim was filed.

Despite the negative drug screening, Defendant investigated Plaintiff to determine whether he violated Defendant’s substance abuse policy. After a review of the event, Defendant’s human resources department determined Plaintiff did violate the company’s substance abuse policy, primarily because he admitted he might not pass a drug screening following the accident.

Rather than terminate Plaintiff, Defendant demanded he enroll in an employee assistance program (EAP). They also insisted he sign a stipulation, which required Plaintiff to consent to additional drug screenings and personally pay for treatment. Plaintiff refused to execute the stipulation, even though he was aware failing to do so would likely result in his termination. Plaintiff was subsequently fired and brought suit for retaliatory discharge (for being terminated after filing a workers’ compensation claim) and civil conversion (due to the fact Defendant allegedly retained some of Plaintiff’s possessions post termination)

Defendant moved for summary judgment on Plaintiff’s claims and the District Court granted the motion. The District Court’s ruling was affirmed on appeal.

The Seventh Circuit held Plaintiff did not present sufficient evidence upon which a reasonable jury could conclude he was fired in retaliation for filing a workers’ compensation claim. The Court reasoned although he was terminated shortly after his workplace injury, the evidence indicated he was terminated for his post-accident statement he might not pass a drug test and subsequent refusal to sign an agreement presented by Defendant requiring him to undergo counseling and random drug testing to retain his job. The Court found Plaintiff made no showing Defendant’s proffered reason for terminating him was a lie to cover up retaliation.

The District Court’s summary judgment ruling in Defendant’s favor on the conversion claim was also upheld.

7-7-2011; Vacationing in Cancun may not be the best idea if you are utilizing FMLA for the time off and company policy frowns on such siestas

In Pellegrino v. CWA (W.D. Pa. No. 10-0098, May 19, 2011), Plaintiff Pellegrino requested leave to undergo a medical procedure on Aug. 12, 2008. In response to the request, her employer, Communications Workers of America (CWA), sent her a letter informing her of her eligibility for Family and Medical Leave Act (FMLA) leave and that, under CWA’s sick leave policy, she would be required to substitute paid leave for the period of time she qualified for FMLA benefits. Important information she appears to have missed in the sick leave policy was a provision for filtering FMLA abuse, requiring any employee who was receiving wage replacement benefits (even while on FMLA leave) to remain in the immediate vicinity of his or her home during periods of the leave. Exceptions to this rule were only provided if the employee (1) needed medical treatment, (2) needed to attend to “ordinary and necessary activities directly related to personal or family needs,” or (3) received written permission from CWA.

Plaintiff Pellegrino underwent surgery on Oct. 2, 2008, and both her FMLA leave and sick leave time/pay commenced that same day. She then went to Cancun on October 16, 2008 without permission from her employer and was subsequently terminated for violating the paid sick leave provisions in CWA’s policy when the employer learned of the trip. Thereafter, plaintiff brought a civil action against CWA for interference with her FMLA rights, which required plaintiff to show that: (1) she was entitled to benefits under the FMLA, and (2) CWA illegitimately prevented her from obtaining those benefits.

The Court acknowledged she was entitled to FMLA benefits to undergo her medical procedure, the court addressed only whether CWA improperly prevented her from obtaining those benefits when it terminated her during the course of her leave. However the Court also noted CWA did not interfere with plaintiff’s FMLA leave since FMLA does not shield an employee from an employment action an employer would have taken irrespective of the employee’s status under the FMLA which included enforcing a restriction on unapproved travel that would have applied whether the employee had been out on FMLA leave or non-FMLA covered sick or disability leave. Because CWA’s decision to enforce its sick leave policy was a “legitimate exercise of its prerogative separate from plaintiff’s use of her FMLA leave,” the court in dismissed Pellegrino’s FMLA interference claim as a matter of law.

Pellegrino also made an argument that the employer’s sick leave policy didn’t apply to her because the Collective Bargaining Agreement governed, but that also failed since the CWA sick leave policy and the CBA terms did not conflict and the Court noted that because the CBA was silent on the issue of travel restrictions when employees took leave, this silence did not make the employer’s policy inapplicable to her.

Summer is here. It may be a good time to review your policies to ensure that your workforce is keeping the company productive or legitimately recuperating rather than simply recreating. This article was written by Shawn R. Biery, J. D. who can be reached at sbiery@keefe-law.com. Feel free to post comments on our blog at: http://keefe-law.com/kcablog.html