| |
|
|
Employee’s disclaimer of third party tort action against employer’s customers upheld by D.C. Court
In Brown v. 1301 K Street Limited Partnership, No. 09-CV-695 (D.C. Nov. 23, 2011), the D.C. Court of Appeals upheld the validity of a disclaimer signed by a security guard, in which she agreed that her workers' compensation benefits from her employer would be her sole remedy and that she waived any rights she had to make a claim against her employer's customers arising from injuries covered under the Workers' Compensation statutes.
The wording of the disclaimer was as follows:
I understand that state Workers' Compensation statutes cover work-related injuries that may be sustained by me. . . . As a result, and in consideration of Allied Security offering me employment, I hereby waive and forever release any and all rights I may have to:
- make a claim, or
- commence a lawsuit, or
- recover damages or losses
from or against any customer (and the employees of any customer) of Allied Security to which I may be assigned, arising from or related to injuries which are covered under the Workers' Compensation statutes.
The plaintiff had slipped on a wet floor while working as a security guard for Allied Barton Security, which had a contract with the building owner and property manager to provide security services. Plaintiff received a lump sum workers' compensation settlement for her injuries, and then filed suit against the building owner and property manager. In her action, she alleged negligence, OSHA violations, and violation of the D.S. Industrial Safety Act.
The defendants were granted summary judgment on the basis of the above disclaimer, and the plaintiff appealed.
On appeal the plaintiff argued that the disclaimer was invalid because it is an agreement to forego her right to compensation under the D.C. Workers' Compensation Act. The Court rejected that argument, because the disclaimer did not purport to limit in any way the plaintiff's right to compensation under the Act.
The Court also rejected the plaintiff's argument that the disclaimer was too general, finding that the parties' intent is clear from the face of the disclaimer.
The Court rejected the argument that the disclaimer violated public policy. The Court has previously invalidated only a few exculpatory clauses on public policy grounds: an exculpatory clause in a will that excused self-dealing by the personal representative; and an exculpatory clause in a lease the excused the landlord's obligations under the implied warranty of habitability. However, the Court found "nothing violative of public policy in an employer's choice to protect its customers from liability for workplace injuries, choosing instead to compensate its employees itself exclusively through workers' compensation."
Finally, the Court rejected the plaintiff's argument that the disclaimer violated the public policy underlying the OSHA and ISA statutes. The Court noted that those statutes are not strict liability statutes, but are analogous to negligence in that they establish standards of care. "Although releases purporting to limit liability for gross negligence, willful acts, or fraud will not be enforced, releases are viable and enforceable when they limit liability for ordinary negligence."
This case illustrates that the Courts are willing to allow businesses to structure their relationships to apportion risk, at least where negligence claims are concerned. Here, the security company may end up paying higher workers' compensation insurance premiums than it would without the disclaimer. On the other hand, the security company can adjust its fee structure to account for its insurance costs.
Posted by David B. Stratton on 01/16/2012 at 11:19 PM
Defenses •
District of Columbia •
Workers Compensation •
Permalink
Tolling the statute of limitations for change-in-condition applications under Virginia Act
In Ford Motor Company v. Gordon, 281 Va. 543, 708 S.E. 2d 846 (2011), the Court considered the proper interpretation of Va. Code sec. 65.2-708(A) and 65.2-708(C), which govern the tolling of the statute of limitations for filing a change-in-condition application for workers' compensation benefits. The Court held that the Code sec. 65.2-708(A) statute of limitations runs anew under each successive award of compensation for a particular compensable injury and is triggered on the last day for which compensation was paid. The Court also held that Code sec. 65.2-708(C), by providing for wages meeting certain prescribed conditions to be treated as compensation under sec. 65.2-708(A), applies to each such award.
The effect of these statutes is best understood by their application to the facts of the Gordon case. The claimant sustained a compensable injury in Ford's plant in Norfolk, Virginia on January 9, 2000. Based on this injury, the Commission entered a series of awards of compensation to Gordon for various periods of TTD and PD. The last of these awards was entered on January 13, 2003, which was an open-ended award for TTD. Gordon received his last payment under this award on February 23, 2003. Thereafter, between periods of TTD, he worked in light duty positions for Ford. He worked light duty from October 23, 2000 to January 3, 2001; from April 1, 2002 through June 30, 2002, and from April 20, 2003 through September 11, 2006, earning wages equal to or higher than his pre-injury average weekly wage. On September 11, 2006, he was temporarily laid off from his position at Ford because the plant was shut down for production reasons, and he filed a change-in-condition application on September 25, 2006, seeking TTD benefits based on lost wages caused by this change in condition.
The Court's holding meant that because Gordon worked in a light-duty capacity for Ford from April 2003 through September 11, 2006, and was paid wages equal to or greater than his pre-injury wage, under Code sec. 65.2-708(C), the wages that Ford paid to Gordon during the first 24 months must be considered "compensation" for purposes of tolling the statute of limitations under Code sec. 65.2-708(A). Accordingly, since the application for benefits was made within 24 months after the last day for which compensation was paid, the application was timely.
Subsequent to the Gordon decision, the Virginia Court of Appeals has applied Gordon in Prince William County School Board and VML Insurance Programs v. Rahim, No. 1737-10-2 (Va. App. July 12, 2011). There, the Court held that in a case where the Commission had entered a "medical-only" award, under Code secs. 65.2-708(A) and 708(C), the claimant had 24 months from the last day compensation was paid either pursuant to an award or pursuant to the requirements of subsection C within which to file a change-in-condition application. In so ruling, the Court distinguished Mayberry v. Alcoa Bldg Prod., 18 Va. App. 18, 441 S.E.2d 349 (1994), and limited that decision to its facts, on the grounds that in Mayberry, there had been no formal award entered by the commission, and voluntary payment of medical expenses by the insurer is not the payment of compensation which tolls the running of the statute of limitations.
Posted by David B. Stratton on 01/16/2012 at 08:49 PM
Virginia •
Workers Compensation •
Permalink
Virginia Workers Compensation: Court affirms successful res judicata defense
In Brock v. Voith Siemen Hydro Power Generation et al., No. 0428-11-3 (Va. App. Nov. 1, 2011), the Court affirmed a decision by the Virginia Workers Compensation Commission that the claimant was barred by res judicata from litigating injuries he alleged in his initial claim but did not raise at his evidentiary hearing.
As a result of a work injury, Brock filed a workers' compensation claim seeking benefits for injuries to his shoulder, back, and hips. He later amended his claim to allege additional injuries to his head and leg. A deputy commissioner scheduled a hearing and advised Brock's counsel that all issues will be considered at the upcoming hearing. Brock's counsel requested a continuance, and the hearing was continued for more than three months.
At the hearing, Brock and the employer stipulated that he had injured his left shoulder. Brock, who was represented by counsel, produced no evidence of his other injuries. Significantly, Brock also did not request additional time to obtain evidence, did not ask the deputy commissioner to hold the record open to later consider the other injuries, did not seek to withdraw any part of his claim, and did not ask the deputy commissioner to defer for later determination issues which were unripe for adjudication.
The deputy commissioner entered an award for benefits for the stipulated injury to the left shoulder, and dismissed the claim. Neither party appealed the order to the full commission.
Months later, Brock, proceeding pro se, filed a claim seeking benefits for injuries to his back, head, shoulder, leg, and hip arising out of the same workplace accident. At a hearing for these claims, the employer argued that these claims had been abandoned and argued that they could not be properly considered. The deputy commissioner held that Brock had abandoned the claim for injuries beyond the stipulated left shoulder injury, but declined to apply res judicata, instead finding that the abandonment was in effect a non-suit.
The employer appealed to the full Commission, arguing in part that the doctrine of res judicata barred the claims for the other alleged injuries. The Commission agreed that res judicata barred Brock's allegedly new claim for injuries. Brock then appealed the Commission's decision.
The Court of Appeals affirmed the Commission, noting in pertinent part that claims precluded by res judicata include those "made or tendered by the pleadings" as well as those "incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered." The Court noted that these res judicata principles apply to workers' compensation cases.
The Court observed that on appeal, Brock "simply asserts the right to litigate the case on an injury-by-injury basis at separate hearings with each resulting in separate award orders." The Court rejected that argument, stating, "Like the commission, we are unaware of any 'conceivable public policy which would be furthered by such piecemeal adjudication of claims.'"
This case illustrates the importance of claimant's counsel taking formal steps at a workers' compensation hearing to preserve claims which may not be ready for adjudication.
For employers, insurers, and their defense counsel, this case underscores that in any file where the employee is alleging additional injuries arising out of an accident which has already resulted in an award, it is important to fully understand what issues were raised in the prior proceeding, what issues were decided, and what issues were preserved for later adjudication.
Posted by David B. Stratton on 01/16/2012 at 03:41 PM
Virginia •
Workers Compensation •
Permalink
Presumption that death on the job was work-related held not to apply in Virginia comp appeal
In Puller v. Fairfax County School Board, No. 0886-11-4 (Va. App. 2011), the Court affirmed the Commission's denial of workers' compensation benefits to a widow whose husband died of a heart attack while performing his job as a mail delivery truck driver.
The decedent, who worked for the School Board, was found dead in the cargo area of his mail truck, with numerous burns on his body from the metal floor of the truck. Following an autopsy, the state medical examiner reported that the cause of death was hypertensive and aatheroscleratic cardiovascular disease, and that the skin changes were postmortem, due to contact with a hot surface.
The police investigation found that the floor of the mail truck's cargo area could reach the temperature of 120 degrees. The police concluded that the decedent died of a heart attack while backing his van, then fell to the floor of the van where he sustained the burns.
The widow filed a claim for workers' compensation benefits, on the theory that working in the July heat caused the heart attack which killed the decedent. She supported her claim with opinions from a cardiologist and an internist that the cardiac arrest was caused by the extraordinary heat in the vehicle.
The employer offered the opinion of a cardiologist that the ambient temperatures on that day were fairly average, and that the cardiac arrest was the product of risk factors including hypertension, diabetes, hypercholesterolemia, and cigarette smoking. The cardiologist concluded that the decedent's death was not work related, and resulted from natural causes and that the burns were as a result of post-mortem heat exposure. The employer also offered the decedent's medical records, which indicated that he had been transported to a hospital for chest pains, one month before his death.
The deputy commissioner denied the claim for benefits, and that ruling was affirmed by the Commission.
On appeal, the Court considered whether the claimant, under these circumstances, was entitled to a presumption that the decedent's death was work related. There is a presumption that a death at the workplace is work related, but it applies only to cases where the employee is found dead at his place of work or nearby, and even then, only when no plausible inference suggests that the accident might be noncompensable. That is, the only rational inference to be drawn must be that death arose out of an in the course of employment. No presumption can be said to arise where an employee suffers from pre-existing heart disease and subsequently dies of cardiac arrest while at work.
Here, since it was undisputed that the decedent had a pre-existing heart condition and that he died of cardiac arrest while at work, the Commission correctly ruled that no presumption applied. The Court also concluded that there was sufficient evidence supporting the Commission's decision as to the cause of death.
This case illustrates the importance of careful review of the decedent's medical records in any workers' compensation claim arising from a death on the job.
Posted by David B. Stratton on 01/13/2012 at 11:29 PM
Virginia •
Workers Compensation •
Permalink
Virginia Workers Compensation award reversed because employer had insufficient number of employees
In Ragland v. Muguruza, No. 0524-11-4 (Va. App. 2011), the Court reversed the Virginia Workers Compensation Commission's award of benefits, on the grounds that there was insufficient evidence that Ragland, the employer, had three or more employees "regularly in service" at the time of the accident, and thus, the claimant was not entitled to benefits under Code sec. 65.2-101.
If an employer has fewer than three employees "regularly in service", it is not subject to the Act and has no obligation to provide its employees with workers' compensation benefits.
Ragland was the superintendent at an apartment building in Alexandria, Virginia. The owner paid him to clean and manage the property. On behalf of the owner, Ragland got bids from contractors to replace the building's windows, but then replaced about half the windows himself, with unpaid help from the owner and his sons. At that point, Ragland brought in a contractor to work on the window replacement project. The contractor brought two of his brothers, one of which was the claimant. On their second day of work, the claimant was injured while operating a table saw, and never returned. A few days later, the contractor stopped working for Ragland. Ragland did not replace the three brothers, however, the third brother later returned to help complete the window project.
The deputy commissioner awarded benefits to the claimant for his injury, finding that Ragland had three or more regular employees. The full commission affirmed, finding that Ragland was an employer who had three employees, as well as himself, performing work at the time of claimant's accident.
The Court of Appeals stated that the test is not whether Ragland was an employer who had three employees performing work "at the time of the accident", rather, the proper test was whether Ragland had three employees "regularly in service."
To determine whether an employee is "regularly in service", the Court examines the employer's "established mode of performing the work." The term "regularly" implies a practice, or a constant or periodic custom. Therefore, the Court looks for regularly recurring periods of employting the requisite number of persons over some reasonable period of time. In order for the employer to be subject to the Act, the recurring periods of employing the requisite number of employees should be the rule and not the exception.
In this case, for a window replacement project that took months to complete, Ragland had three workers for, at most, one and a half days. That did not constitute regularly-recurring periods. Ragland had never had three employees before the brothers worked for him for a day and a half, and did nto have three employees afterwards.
Thus, the Court held that Ragland did not have "three or more employees regularly in service" at the time the claimant was injured, and Ragland was not subject to the Virginia Act. The Court therefore reversed the Commission.
[Ed. Note: Inquiries about Virginia workers compensation defense issues or claims may be directed to John H. Carstens, Esq., in our Fairfax, Virginia office.]
Posted by David B. Stratton on 01/09/2012 at 06:26 PM
Virginia •
Workers Compensation •
Permalink
D.C. Workers Compensation: Court of Appeals rejects objective standard for mental disability claims
In Muhammad v. District of Columbia Depart. Of Emp. Serv., No. 10-AA-1049 (D.C. Jan. 5, 2012), the claimant had suffered a back injury on the job and was on temporary total disability. After three years, the employer enrolled the claimant in vocational rehabilitation, in an effort to find him sedentary work. After a year of unsuccessful vocational counseling, rehabilitation efforts were terminated. Subsequently, the claimant's treating physician recommended that the claimant begin seeing a psychiatrist, and the psychiatrist diagnosed the claimant with severe depression. The employer then arranged for a psychiatric IME, which diagnosed the claimant with a depressive disorder caused by the claimant's limited coping response to the challenges imposed by vocational rehabilitation.
The claimant then petitioned for permanent total disability benefits. The ALJ denied the claim, concluding that claimant's psychiatric injury was not medically causally related to the workplace injury to the claimant's back. The Compensation Review Board ultimately affirmed.
On appeal, the Court reversed and remanded the Compensation Review Board's denial of benefits on the grounds that the claimant's psychological injury did not arise out of and in the course of employment. The Court directed that on remand, the Board must resolve the question whether a claim flowing from vocational rehabilitation might be covered as involving what Professor Larson refers to as a 'quasi-course of employment' injury. Quasi-course of employment activities are activities undertaken by the employee following upon his or her injury which, although they take place outside the time and space limits of employment, and would not be considered employment activities for usual purposes, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury. This was recognized as an issue of first impression in the District in the case of Nixon v. District of Columbia Dept. of Emp. Serv., 954 A.2d 1016 (D.C. 2008), but the issue has never been reached by the Compensation Review Board.
The Court noted that the Board incorrectly directed the ALJ to determine if the psychological injury resulted from a strictly personal reaction by the claimant. The Court stated that contrary to the Board's assertion, employers must accept employees as they find them. The controlling standard is that the Workers' Compensation Act neither requires, nor permits, use of an objective test under which an employee seeking compensation for psychological injuries must show that an average person not predisposed to such injury would have suffered a similar injury.
Although the Court has rejected the use of an objective standard for evaluating an individual's reaction to workplace conditions, it did not eliminate the requirement that the workplace conditions that a petitioner asserts caused the injury must exist in reality. In mental-mental cases a test for the existence of actual workplace stressors must be one verifying the factual reality of the stressors in the workplace environment, rather than one requiring the claimant to prove that a hypothetical average or healthy person would have suffered a similar psychological injury.
Posted by David B. Stratton on 01/09/2012 at 02:43 PM
District of Columbia •
Workers Compensation •
Permalink
Maryland Act construed to include loss of overtime pay in loss of “wage earning capacity”
In Montgomery County v. Deibler, ___ A.2d. ___ (Md. Oct. 27, 2011), the Maryland Court of Appeals considered the issue whether the term "wage earning capacity" in L.E. sec. 9-615(a)(1) includes the capacity to earn overtime compensation so that the Commission may include such compensation in the determination of whether an employee's wage earning capacity is "less" while temporarily, partially disabled. After a thorough exercise of legislative interpretation, the Court held that overtime pay is included in "wage earning capacity."
Captain Deibler was a firefighter employed by Montgomery County. Due to work-related knee injuries, he was placed on light duty with some reduction of regular hours. However, the County increased his hourly wage and maintained all of his cost of living adjustments and benefits, so that he earned the same amount of base pay as before his injuries. However, Captain Deibler lost the ability to work 11-15 hours per week of overtime. The inability to work overtime cost him over $700 per week.
After a hearing, the Commission ordered that Captain Deibler receive temporary partial disability for the periods when he worked light duty after his injuries. The County petitioned for review by the Circuit Court for Montgomery County, which affirmed. The County then appealed to the Court of Special Appeals, however, the Court of Appeals issued a writ of certiorari before argument.
On appeal, the County argued that the ability to earn overtime is separate from the ability to work. The County argued that overtime is the product of the employer's need, not a reflection of the employee's ability to perform the tasks of a job. The County concluded that Captain Deibler's ability to work did not decrease when his overtime compensation decreased; instead, his ability to perform work to earn his pre-disability base pay remained constant.
The Court disagreed, reasoning that the statutory phrase "wage earning capacity" is concerned with whether a disabled employee has lost any part of the employee's pre-disability to earn a wage. The Court concluded that overtime pay is included in the definition of "wage."
The Court pointed out that this should not result in a windfall for the employee, since the statutory calculation of average weekly wage takes into account the time worked over the 14 weeks prior to injury.
Accordingly, the Court held that "wage", as that term is used in the phrase "wage earning capacity in L.E. sec. 9-615(a), includes compensation paid for overtime hours worked prior to temporary partial disability.
This decision is significant since police and professional firefighters in Montgomery County, and probably throughout Maryland, typically earn substantial amounts of overtime pay, as has been discussed in the local papers. However, this decision will be very significant for any other category of workers whose earnings include substantial overtime pay, such as for example nurses.
Posted by David B. Stratton on 10/31/2011 at 03:54 PM
Maryland •
Workers Compensation •
Permalink
Suicide of another held not to support negligence action in District of Columbia
In Rollins v. Wackenhut Services, No. 10-00047 (D.D.C. Aug. 10, 2011), the court dismissed wrongful death and survival actions brought against an employer and a pharmaceutical company by the mother of a twenty-three year old man who was working as an armed security guard when he committed suicide with his work-issued pistol.
The plaintiff alleged that the employer was negligent for failing to do an adequate background check of the decedent before hiring him to a security guard position in which he would be entrusted with a firearm. The plaintiff also brought a wrongful death claim against a pharmaceutical company for manufacturing and distributing a drug that the decedent was taking for his mental issues, despite the drug's known risks of increasing suicidality in certain patients.
The employer first argued that the district court was without jurisdiction because the D.C. Worker's Compensation Act provided the exclusive remedy for injuries that occur during the course of a worker's employment. However, the Act does not apply "where injury to the employee was occasioned solely by his intoxication or by his willful intention to injury or kill himself or another." D.C. Code sec. 32-1503(d). The Court found that the exception set forth in D.C. Code sec. 32-1503(d) applies and the decedent's suicide was not covered by the Act.
Next, the employer argued that the plaintiff failed to state a claim against it, on the grounds that the general rule in the District of Columbia is that a plaintiff may not recover damages in negligence from the suicide of another. This is because suicide generally is considered to be a deliberate, intentional, and intervening act which precludes a finding that a given defendant is, in fact, responsible for the decedent's death. Or in other words, suicide is an intervening and independent cause of death which breaks the chain of causation. There are two recognized exceptions to this rule: (1) Where the actor's negligent conduct so brings about the delirium or insanity of another as to make the actor liable for it; and (2) where the defendant has a special relationship involving the treatment or custodial control over the deceased that imposes a duty to take reasonable steps to prevent a reasonably foreseeable suicide. Neither exception applied in this case.
The Court also dismissed the product liability claims against the manufacturers of Abilify on the grounds that the complaint failed to state any factual basis for a strict liability claim based on a defective product. The plaintiff did not meet her burden to allege facts showing that Abilify is defective or is not a reasonably safe product.
Posted by David B. Stratton on 09/04/2011 at 08:40 PM
Defenses •
District of Columbia •
Workers Compensation •
Permalink
Virginia Court of Appeals nixes 6 person spa pool as treatment under workers compensation
In Portsmouth School Board v Harris, No. 0026-11-1 (Va. App. July 19, 2011), the Court reversed a decision by the Virginia Workers Compensation Commission, which held that the employer was responsible for paying for a six-person spa pool purchased by the claimant, as physician-ordered treatment which was reasonable, necessary, and related to his work-related injury.
Following a compensable injury to his shoulder, the claimant consulted with Dr. Felix Kirven, an orthopedic surgeon, about ongoing swelling, stiffness, and soreness in his back. Claimant saw a spa pool with massage jets, and mentioned it to Dr. Kirven. Dr. Kirven thereafter wrote a letter indicating that the claimant would benefit from a spa pool. The record did not indicate that the letter was sent to the employer, and there were neither medical reports or progress notes that mentioned the spa pool. However, Dr. Kirven did write the claimant a prescription for a spa pool. The claimant then asked the claims adjuster whether a spa pool would be reimbursed. The adjuster requested documentation from Dr. Kirven, and in response to a fax containing the prescription, inquired whether the claimant could attend therapy at a center that offered whirlpool or aquatic therapy. There was no response to that inquiry.
Five days later, the claimant purchased a six-person spa pool for $5,200. Dr. Kirven had not recommended this particular spa pool.
The Virginia Workers Compensation Commission held that the employer was responsible for payment for the spa pool, noting that Va. Code sec. 65.2-603(A)(1) requires an employer to provide necessary medical treatment for a compensable injury, including any appliances prescribed by the claimant's treating physician. Dr. Kirven had prescribed a spa pool, and there was no medical evidence to the contrary, and no medical evidence that other forms of water therapy would have been equally helpful or available to claimant. The employer then appealed.
The employer appealed, raising the issue whether the commissioner erred in finding that claimant met his burden of proof to show that his purchase of a spa pool was reasonable and necessary, and related to his work injury. The appellate court identified a threshold issue, which was what limits, if any, apply to a non-specific, generalized and generic physician's prescription for treatment.
The Court reversed, finding that the claimant failed to demonstrate that the six-person home spa pool was medically necessary. Nothing in the record indicated that the claimant could not receive similar treatment (water/heat therapy) elsewhere. Dr. Kirven never indicated that claimant was unable to obtain the same treatment at a fitness/health center. Dr. Kirven's prescription did not call for a "home" spa pool, nor did it call for a spa pool capable of seating six. Dr. Kirven did not prescribe this specific appliance.
The appellate court concluded that:
[W]hen a treating physician prescribes an unspecific, generalized, and generic treatment, the claimant must present evidence that such treatment is medically necessary such as evidence that alternative treatment is not adequate, or available medical testimony elaborating on the non-specific prescription, or documentation of the need for the specific treatment obtained by claimant. This list is not exhaustive. Claimant cannot, with unbridled discretion, choose any treatment that falls within the non-specific prescription.
[Ed. Note: Inquiries about Virginia workers compensation issues or claims may be directed to John H. Carstens, Esq., in our Fairfax, Virginia office.]
Posted by David B. Stratton on 09/04/2011 at 01:37 PM
Virginia •
Workers Compensation •
Permalink
Virginia Court of Appeals denies workers compensation award during work furlough
In Utility Trailer Manufacturing Company and Liberty Insurance Corporation v. Testerman, No. 1484-10-3 (Va. App. July 12, 2011), the Court considered the issue whether a furlough from work of pre-defined and limited duration, applicable to all manufacturing employees, both those with and without restricted work capacity, justifies an award for lost wages to a worker with restricted capacity, in the absence of evidence demonstrating a causal relationship between that restriction and the wage loss. The Court concluded, with a dissent, that such an award under these circumstances is not authorized by the Act.
Due to a work related injury, the claimant was awarded benefits including permanent partial disability. Subsequently, the claimant resumed his work as an hourly employee on the manufacturing line with the same employer, commensurate with his restricted work capacity.
The employer shut down the manufacturing line for one week and furloughed all employees on that line, including the claimant, during an annual inventory count. The claimant then filed an application for workers compensation benefits for the furlough period. The claimant returned to work following the furlough at his same salary.
The Virginia Workers Compensation Commission awarded the claimant benefits during the furlough, awarding lost wage benefits because claimant's ability to compete economically with co-workers attempting to find work during a lay-off is permanently impaired.
In its analysis of the appeal, the Court of Appeals quoted with approval the statement of the rule by Larson, i.e., "Loss of employment should not be deemed due to disability if a worker without the disability would lose employment or suffer a reduction in earnings under the same economic conditions . . . ." The Court identified five factors to determine whether the same economic conditions applied to all workers:
We find they include: (1) the length of any furlough from work; (2) whether that furlough included all employees, restricted or not, of the same class; (3) the reason for the furlough; (4) whether the term of the furlough was pre-determined by the employer; and (5) whether employees were offered employment at the termination of the furlough. These factors address the fundamental issue in these cases: is any wage loss causally related to the injury?
The appellate court essentially agreed that a furlough of one week is simply of insufficient duration to reasonably conclude that the claimant's ability to obtain other light duty work was the result of his disability. The Court held only that during a furlough a condition precedent for an award to a partially incapacitated employee for lost wages (or diminution in earning power) is a causal relationship between that incapacity and that loss. Claimant did not demonstrate that his lost wages were causally related to his injury.
Posted by David B. Stratton on 07/15/2011 at 02:45 PM
Virginia •
Workers Compensation •
Permalink
Page 1 of 2 pages 1 2 >
|
|
About Us
