TOV Injury and Safety Blog

Railroad worker's shoulder injury claim is reinstated

Dwight Vickers sued the Grand Trunk Western Railroad, his employer for 30 years, under the Federal Employer's LIability Act (FELA), to recover for bilateral shoulder problems.  The  FELA is railroad workers' federally-established form of workers compensation.  The Railroad persuaded a Genessee County Circuit Court judge to dismiss Vickers' claim, arguing that he was too late in filing suit and had not proved that his work caused his shoulder trouble.  Vickers appealed, arguing that he had presented a genuine question of fact with regard to whether his manual labor work for the railroad damaged his shoulders over time. 

Federal Court allows injured workers to sue employer, insurer and "independent" [IME] doctors for fraud

A group of Cassens Transport Company employees who had been injured on the job sued Dr. Saul Margules, Cassens, and Cassens' self-insured claims manager, Crawford & Company, alleging that the three conspired to deny benefits to injured workers.  The suit alleged that Crawford consistently retained unqualified and biased physicians to render fraudulent reports disputing the workers' injuries or medical condition.

Republicans pass workers comp bill that will deny benefits to many injured workers.

Today the Michigan Legislature sent to the Governor a "wish list" bill sought by Michigan insurance companies.  The bill reduces workers compensation paid to injured workers. Among other provisions, the bill proposed making injured employees pay for a second opinion if they don't completely trust the employer's comp doctor.  Republicans have parrotted the insurers' claim that workers comp benefits  (80% of net pay at the highest) are "too generous" and discourage workers from seeking potential alternative employment.  In response the legislation deducts what the employee theoretically could earn despite his or her injury.  Democrats claim that these phantom, theoretical earnings are not actually available to the injured employees, particularly in the current economy.  In the case of some low-paid workers, this theoretical "credit" will extinguish their entitlement to any wage loss--even though they cannot sue their employer or co-workers for negligence under comp laws.

Underage press operator cannot sue owner of unguarded press

Joshua Sparks sued Century Tool & Die and several other defendants after severely injuring both hands operating an unguarded press.  The Court of Appeals ruled that the lower court erred in deciding the factual issue of who owned the press, but still upheld the dismissal of the claim against Century.  It ruled that the owner of a press owes no duty to assure that it is properly guarded once it is provided to other parties to operate.  Of course, the underaged employee cannot recover damages from his employer, either, because he is limited to workers' compensation benefits.  And, most likely, since he retains some residual earning capacity and worked for a low wage, he will get nothing in the way of wage loss if the Republicans are successful with "worker's compensation reform."

House Republicans vote to reduce workers compensation in Michigan

This week the Republicans in the State House passed a new law that would reduce the benefits paid to injured employees.  Among the changes:  a requirement that the employee pay out of pocket to seek a second opinion or to see his own doctor; and a rule that all injured employees whose disability is not total must be assumed to have residual earning capacity for which the employer's insurer is given credit. 

As a result, a minimum wage worker who lost an arm or a leg, for example, would not receive normal comp (maxed out at 2/3 of net pay):  he or she would be assumed capable of working another minimum wage job (convenience store clerk) and denied any wage loss--whether he can find such a job or not. 

Republicans are dismantling the safety net entirely for low wage workers; the Chamber of Commerce, who pushed this bill, should be ashamed.  Some Republicans think the bill goes too far and could alienate voters; they have called into question whether it should be confirmed by the State Senate and the Governor.  The Democrats, in the minority, have no effective say in the issue.

Court upholds jurisdiction to determine "employee" status in PIP action

The Court of Appeals ruled this week that it shares the jurisdictional right to decide whether an injured driver is an "employee" for purposes of receiving no fault PIP benefits.  The case is Aboona v. Great West Casualty Company, and the Plaintiff was an "independent driver" operating a tractor-trailer.  While the Court's decision that it shares the power to apply or not apply the Workers Disability Compensation Act sounds logical, it opens the door to outcomes that defeat the purpose of the Act. 

Workers Comp. was originally intended to provide minimum "certain"  benefits to injured employees, without allowing legal maneuvers (e.g., "assumption of the risk," "comparative fault," the "fellow servant doctrine") to defeat the worker safety net.  By allowing a no fault claim to be defeated in Circuit Court by reference to an "independent contractor" status and the employee's tax records showing little profit, the minimal income established in the workers compensation act can be defeated.  Along with the "safety net."

Woman's claim against cleaning service is reinstated for discovery

Patricia Billiau was badly hurt when she fell while fulfilling security measures during the opening of her employer bank's branch.  Billiau fell after stepping from a wet carpet to  a newly-waxed wood floor:   she claimed that the fall was caused by a combination of the new wax job and her wet shoes from the drying carpet.  She argued that if the overnight cleaning had been performed properly, the carpet would have been dry, and that she should have been provided with some form of warning of the conditions.

The trial judge dismissed Billiau's claim, holding that the cleaning services, Suburban Copntractor Cleaning, Inc., and Grand Rapids Building Services, Inc., owed Billiau and other employees no duty. After the decision in Loweke v. Ann Arbor, the Court of Appeals returned the case to the lower court to examine whether the cleaning service violated a common law duty to complete the cleaning tasks in a reasonable manner or to warn of the potentially dangerous condition existing prior to complete drying.

Court enforces "exclusive remedy" provision of worker's comp, despite statutory language

A panel of the Michigan Court of Appeals asked the Michigan Supreme Court to address the inconsistency between the Court's focus on precise statutory language and its prior holdings involving exclusive remedy.  A number of years ago, the Court held that an employer broker is protected by the exclusive remedy provision of the workers disability compensation act if the broker was involved with an insured employer.  It relied on the rationale that both should be protected because the purpose of the act had been fulfilled.  It came to this conclusion even though the statutory language is explicit that only "the" employer is protected.

The Court of Appeals noted that since these holdings, the Supreme Court has pronounced an emphasis on giving strict meaning to the actual words chosen by the Legislature and on that basis it has overturned several decisions that had softened or harmonized statutory language to achieve fair, consistent results. For example, the Supreme Court demanded that courts strictly enforce "notice of injury" limitations, where before the Court had examined whether a minor defect had resulted in prejudice.  In another (of many) example(s), the Court held that a governmental entity would be financially responsible for its errors only if it was "the" sole cause of harm--not "a" cause acting together with the negligence of others.

The Court of Appeals noted that together these claims create an inconsistency:  statutes are strictly construed when they limit an injury victim's rights, but broadly construed to meet public policy objectives, when they limit third-party responsibility for injuries.

Injured employee cannot sue general contractor who pays comp benefits for uninsured subcontractor-employer

 Manual  Martinez-Alvarado was injured while roofing a project run by J.D. Pollard, Inc., as the General Contractor.  Pollard had hired a series of sub-contractor roofers who did not carry workers compensation coverage;  as a result, as the "principal" of an uninsured injured worker, it was obligated to substitute in for the employer to pay Martinez-Alvarado's workers compensation benefits.  In the workers compensation claims process, the worker and Pollard stipulated that Pollard had become Martinez-Alvarado's statutory "employer."

Court applies "economic reality" test to identify injured driver's employer

Imad Beydoun was hurt in a car accident while operating a semi-tractor trailer unit owned by Eddie Trucking and leased to Reserve Transportation.  According to his logbook, Beydoun was driving for Roadlink National, Reserve's successor in interest at the time of the accident.   Under Michigan no fault law, an individual's personal no fault coverage is usually required to pay his PIP benefits (medical expenses and three years of wages or domestic services).  An exception exists, however, when the injury victim is operating a vehicle owned by his employer:  in that case the employer's insurer is first-in-line to pay PIP benefits. 

Court again evaluates survivability of employee's claim that injury was intentionally caused by employer

Normally, an employee cannot sue his employer for negligently-caused, on-the-job injuries.  At the turn of the century, most states created workers compensation schemes that provided injured workers with compromised benefits (usually medical and partial wages) in return for the elimination of employer liability.  In Michigan, the sole exception to the employer's immunity from negligent conduct arises out of a statutory exception holding employers liable for injuries that they cause intentionally.  In previous cases, the Michigan appellate courts have narrowly interpreted this exception to exclude even cases where, statistically evaluated, employee injury was almost certain to result.  One line of cases has emerged to define when an employee can sue for "intentional" injuries, and the Court of Appeals addressed the issue in the recent case of Sandra Johnson and Hiram Jones v. Detroit Edison Company.