Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

You might have seen this recent report about the McDonald's employee in Arkansas who came to the rescue of a customer as she was being assaulted in the dining area of the restaurant.  The assailant shot this Good Samaritan for his efforts, resulting in medical treatment costing over $300,000.  Despite his injuries, he managed to thwart the attack, and the police later arrested the assailant.  He's been hailed as a hero by his employer and by local police.

 

But the workers' compensation insurance carrier - unnamed in the report - is refusing to accept the compensability of the accident under Arkansas law.  They say that because McDonald's did not require him to come to the aid of the customer, his accident was not one "arising out of" or occurring "in the course of" his employment.  If it hasn't already, this one is sure to end up in court.

 

Would this accident be compensable if it occurred in Florida?  Probably.  In D.L. Cullifer & Son, Inc. v. Martinez, 572 So.2d 1360 (Fla. 1990), the Florida Supreme Court held compensable the injuries to two fruit pickers who were injured while coming to the aid of a motorist whose vehicle had become disabled on a nearby highway.  And to underscore its intent, the 1990 Florida Legislature enacted §440.092(3), which says:

(3) DEVIATION FROM EMPLOYMENT.--An employee who is injured while deviating from the course of employment, including leaving the employer's premises, is not eligible for benefits unless such deviation is expressly approved by the employer, or unless such deviation or act is in response to an emergency and designed to save life or property (emphasis added).

 

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The 1/24/2009 edition of the New York Times carried this story about Ed Abney, a 53-year-old former tool and die worker who contracted Parkinson's disease after years of workplace exposure to trichlorethylene, a solvent formerly in widespread use in the United States.  The article highlights the difficulties workers face in proving that an "occupational disease" is really "occupational," that is, that it was caused by their exposure to some harmful substance at the workplace.

 

Though Mr. Abney's case is controlled by the Kentucky workers' compensation law, Florida employees face similar problems.  Florida's occupational disease statute says that it provides coverage only when there are "epidemiological studies showing that exposure to the specific substance involved, at the level to which the employee was exposed, may cause the precise disease sustained by the employee."  Even then, the employee must prove causation by a heightened evidentiary standard - clear and convincing evidence. 

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Section 440.105(4)(b), Fla. Stat., makes it unlawful for any person knowingly to make any false, incomplete, or misleading statement in support or denial of any benefit under the Florida Workers' Compensation Law.  And as a recent case from Montana illustrates, if the U.S. Mail or wire services are used to facilitate the making of those false statements, they may violate federal law as well.

 

Bonnie Schreiber, an employee of the U.S Postal Service, injured her back on the job and also developed carpal tunnel syndrome as a result of her employment. Since 1986 she had received disability benefits under the Federal Employees' Compensation Act because of those injuries, and since that time she had periodically submitted OWCP Form 1032, which  requires a recipient to report to the U.S. Department of Labor any work or earnings within the previous 15 months and to report any improvement in her condition.  She always reported that she had been unemployed and that she was incapable of employment.

 

Surveillance evidence, however, showed otherwise.  Schreiber was videotaped engaging in a variety of activities, including bending, twisting, loading and unloading firewood, moving logs and garbage cans, carrying 32-lb. cinder blocks, driving a tractor, and operating a chain saw.  Based on this evidence, she was charged with stealing money from the U.S. government.  In addition, however, because she had used the U.S. Mail to send in her Form 1032, she was indicted for mail fraud (18 U.S.C. §1341) and because her monthly disability benefits were deposited electronically into her bank account, she was indicted for wire fraud (18 U.S.C. §1343).  You can read the indictment here.  On October 1, she was convicted on all four counts of the indictment.  Sentencing is scheduled for January 8.  Press coverage is available here.

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I wrote here about Brown, et al. v. Cassens Transport, Inc., a decision from the Sixth Circuit Court of Appeals which was originally issued on 7/10/2007.  Brown and his co-plaintiffs had brought a claim against Cassens Transport, Inc. (the self-insured employer), Crawford & Co. (its workers' compensation servicing agent), and Dr. Saul Margules (the plaintiffs' authorized treating physician) in which they alleged that the defendants had engaged in a pattern of racketeering that denied their workers' compensation claims in violation of the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"). 

 

Specifically, the plaintiffs alleged that Cassens and Crawford deliberately selected and paid unqualified doctors, including Margules, to give fraudulent medical opinions that would support the denial of workers' compensation benefits and that defendants ignored other medical evidence in denying them benefits.  The plaintiffs also claimed that the defendants made fraudulent communications among themselves and to the plaintiffs via mail and wire in violation of the mail and wire fraud statutes, serving as the "predicate acts" for their RICO claims.  You can view the full complaint here.

 

The federal district court for the Eastern District of Michigan dismissed the complaint, however, concluding (1) that the plaintiffs failed to allege that they had relied to their detriment upon the defendants' allegedly fraudulent communications and (2) that the complaint was "reverse preempted" by the McCarran-Ferguson Act, 15 U.S.C. §1012.  (McCarran-Ferguson generally prohibits Congress from legislating in the area of insurance law).  You can view the district court's order dismissing the complaint here.  In its original opinion, the Sixth Circuit agreed with the district court on the detrimental reliance issue and therefore affirmed the dismissal.  Because it affirmed the district court on this ground, it did not address the McCarran-Ferguson reverse preemption issue.

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Howser v. ABB, Inc., a 3/27/2008 decision from the federal Eighth Circuit Court of Appeals involving the Fair Labor Standards Act ("FLSA"), illustrates again how workers' compensation issues sometimes become intertwined with other employment laws.  (The FLSA requires covered employers to pay a minimum hourly wage and overtime pay in certain circumstances to covered employees). 

 

Cynthia Howser was injured in an on-the-job accident while working for ABB, Inc., in Missouri.  ABB, through its workers' compensation claims administrator, Gallagher Bassett, accepted the compensability of the accident under Missouri law.  Howser required extensive medical care but was able to continue working following her accident.  Eventually, Gallagher Bassett  scheduled a medical appointment for Howser, but the appointment was scheduled to occur during her working hours, forcing her to miss time from work.  The purpose of the appointment, according to Gallagher Bassett, was to re-evaluate her work-related injuries. 

 

ABB offered to compensate Howser for the time she missed from work to attend the appointment but told her that it would deduct the hours missed from her accrued paid leave benefits.  Howser declined the offer and opted instead to take an unpaid excused absence so she would not lose any of her accrued leave benefits.  Because she did so, she was never compensated for the 3.8 hours of time she missed to attend the appointment. 

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After his workers' compensation carrier notified John Auster, a retired New Orleans police officer, that it intended to terminate a portion of his workers' compensation benefits, Auster told his psychotherapist that he intended to commit acts of violence against some of the carrier's employees if they did.  The psychotherapist, under Louisiana's "duty-to-warn" statute, conveyed the threats to the carrier's employees.  One of the employees called the police, who in turn contacted the FBI, following which Auster was indicted for violating the federal extortion statute [18 U.S.C. §1951].

 

Auster moved to suppress evidence of his statements to his psychotherapist, citing the psychotherapist-patient privilege, and the district court granted the motion.  But on appeal, the Fifth Circuit Court of Appeals reversed, concluding that the privilege did not apply because Auster knew that his psychotherapist would convey his threats to the carrier's employees.  U.S. v. Auster.

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In Wait v. Travelers Ind. Co. of Illinois, decided on 11/16/2007, the Tennessee Supreme Court held that a telecommuter who was assaulted in her home kitchen by her neighbor while preparing lunch for herself was "in the course of" her employment at the time.  The Court likened the claimant's accident to one occurring in a kitchen or break room on the employer's premises. 

 

Nevertheless, the Court held that this particular accident was not compensable under the Tennessee Workers' Compensation Act because it did not "arise out of" the claimant's employment.  "There is nothing to indicate [the claimant] was targeted [for the assault] because of her association with her employer or that she was charged with safeguarding her employer's property," said the Court.

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I wrote here about SB 1440 and HB 301, two bills which were introduced during the 2007 legislative session which would have brought cancer within those conditions which are presumptively caused by a firefighter's employment.  It seems that Florida isn't the only state considering such legislation.  In fact, Washington, Vermont, and Colorado have now actually enacted similar provisions into law in those states.

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This case caused quite a stir a while back.  The Ohio Supreme Court determined last December that a 16-year-old KFC worker should be denied workers' compensation disability benefits after he was badly burned while cleaning a cooker at work.  The teenager had ignored repeated warnings from his employer not to boil water in the cooker in order to clean it.  The majority held that by ignoring his employer's warnings he had "voluntarily abandoned his employment" and that he should be denied disability benefits as a result.  To critics and to the dissenting judges, however, the majority decision was inconsistent with a basic tenet of workers' compensation law, i.e., that it's supposed to be a "no-fault" system.

 

But now the Ohio court has reversed itself in this opinion issued on 9/27/2007, holding on motion for reconsideration that  Ohio's "voluntary abandonment of employment" doctrine should be applied only to post-accident, not to pre-accident conduct.  The concurring opinion by Judge Pfeifer is amusing.  He ridicules the remaining dissenting judges as "Chicken Littles" who "predict a workplace apocalypse, where employees bob for drumsticks in hot oil, ultimately resulting in an increase in the price of a bucket of 'extra crispy.'"

 

In Florida, I suspect that this issue would be governed by §440.09(5), Fla. Stat., which provides not for a complete denial of compensation, but for a 25% reduction in compensation benefits in cases where a worker is injured because of his "knowing refusal" to use a "safety appliance provided by the employer" or by his refusal to "observe a safety rule required by statute."

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Here's an interesting case from the Sixth Circuit U.S. Court of Appeals, decided on 7/10/2007.  The plaintiffs there were injured workers who alleged that, in order to deprive them of benefits under the Michigan Workers' Disability Compensation Act,  their self-insured employer, its workers' compensation servicing agent, and the authorized treating physician had sent fraudulent communications among themselves and to the plaintiffs by mail and by wire in violation of federal law, and that these violations constituted the  "predicate acts" necessary to state a civil cause of action against them for violation of the federal Racketeer Influenced and Corrupt Organizations Act ("RICO").

 

In a 2-1 decision, the Sixth Circuit affimed the federal district court's dismissal of the complaint for failure to state a cause of action - but not because the plaintiffs' allegations of mail and wire fraud were insufficient.  Under the law prevailing in the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee), a plaintiff alleging a RICO violation must allege and prove that he relied upon the defendants' alleged fraudulent acts.  [RICO provides a private right of action and treble damages for "any person injured in his business or property by reason of a violation" of the act].  Because allegations of detrimental reliance were absent from the plaintiffs' complaint, the appellate court agreed that the complaint failed to state a cause of action.  Nevertheless, two of the three judges argued that the issue should be considered by the entire Court sitting en banc. 

 

Thanks to How Appealing for the heads up on this case.

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