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

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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