Sarah Ewing

Applicant Injured on way to Orientation is not a Subject Worker

Ewing, Sarah_160x222In a recent Oregon Workers’ Compensation Board case, the Board found an applicant who was injured on her way to orientation on the employer’s premises was not a covered worker. In Mary K. Meyers, 67 Van Natta 1725 (2015), claimant applied for a telemarketing position, completed a written application and an interview. The employer asked her to come in for an orientation and paid training. When she was entering the employer’s offices, a worker exiting the office hit claimant with the door, causing her to fall and fracture her hip. SAIF denied the claim and claimant appealed. The ALJ agreed with SAIF, determining claimant was not a subject worker because, at the time of her injury,… Continue reading

Washington Housekeeping Matters – COLA and Vocational Mileage Reimbursement

Ewing, Sarah_160x222COLA Effective July 1, 2015, cost of living adjustments (COLA) will take effect for the benefit period of July 1, 2015 through June 30, 2016. Washington’s statewide average wage increased from $52,635 in 2013 to $54,829 in 2014. The maximum monthly time-loss rate for dates of injury on or after July 1, 2015 is $5,482.90. Another adjustment on July 1, 2015 is minimum time-loss rates. 15% of the states average monthly wage is $685.37. For those eligible for that minimum time-loss rate, remember to add $10.00 for a spouse or registered domestic partner and $10.00 for each dependent child up to five dependents. Make sure to adjust your time-loss payment accordingly. You can access the Time-Loss Rates… Continue reading

Neutral Policy Can Violate Title VII Based On New United States Supreme Court Case.

Ewing, Sarah_160x222If you have ever been in an Abercrombie & Fitch store, you probably noticed all its employees are dressed in its clothes and look a certain way. A “look policy” governs their attire and bans “caps” as too informal. In E.E.O.C. v. Abercrombie & Fitch Stores, Inc., the United States Supreme Court decided Abercrombie’s application of its neutral “look policy” in its refusal to hire Samantha Elauf, a practicing Muslim, was religious discrimination under Title VII. Elauf applied for a sales associate position wearing a headscarf. The manager gave Elauf marks qualifying her for hiring, but the manager, who never asked why Elauf wore the head scarf, was concerned about the headscarf violating the “look policy.” … Continue reading

Pregnancy and Work: Young v. UPS

Ewing, Sarah_160x222By: Sarah Ewing Pregnancy discrimination is protected under the Pregnancy Discrimination Act (PDA). Courts often struggle with how to handle pregnancy issues because it is separate from the American with Disabilities Act (ADA) and an on-the-job injury. Under the ADA, a person qualifies for protected leave when they have a serious health condition and if you are injured on the job, you have protection under the state’s workers’ compensation system. Typically, being pregnant is not a serious health condition, and light duty is often reserved only for those injured on the job. So what happens when a pregnant worker’s doctor restricts her work (e.g. no heavy lifting)? Though the United States Supreme Court did not… Continue reading

Two favorable decisions from the Washington Court of Appeals.

sarah ewingBy: Sarah Ewing Two recent published cases from the Court of Appeals both are favorable to employers. Mario Arriaga v. Department of Labor and Industries – (Division III) – At issue in this case is whether the attending physician’s protest of a segregation Order was timely. In December 2005, Arriaga injured his right upper arm, face, and scalp at work. The Department issued and mailed an Order segregating cervical disc degenerative condition on October 29, 2008 to claimant and claimant’s attending physician, Dr. Sherfey. Dr. Sherfey’s office received a copy of the Order on October 31, 2008, but was not aware of the Order until 2010. A closing Order issued in November 2010. … Continue reading

Can you be terminated for being a jerk at work?

sarah ewingSince the 2008 ADA amendments, the ADA seems to get bigger and bigger as more impairments are given protection. The Ninth Circuit recently overturned a District Court jury verdict. This is a big deal in the legal world. Overturning a jury verdict is very unusual, especially one finding an employer liable for an ADA violation. So, what happened? First, the facts. Weaving was a police officer for the City of Hillsboro with over ten years experience. Though Weaving was a skilled officer, his co-workers and subordinates often referred to him as abrasive, disgruntled, belittling, intimidating and arrogant. His… Continue reading

FMLA vs. Paid Vacation Days: New Case from the Ninth Circuit

sarah ewingDo you have a FMLA policy that requires an employee to first exhaust paid vacation time that runs concurrently with the FMLA leave? What would you do if the employee elected to use paid vacation but not FMLA leave for qualified FMLA leave? The Ninth Circuit provided the answers in Escriba v. Foster Poultry Farms. The Employee requested two weeks paid vacation to care for her ailing father. Caring for a sick parent is covered under the FMLA. The Employee did not return to work after the two weeks, continued to care for her father, and failed to contact Human Resources to request additional time off. She was terminated under the Employer’s “three day… Continue reading

Court of Appeals Expands Smothers: Dan Alcutt v. Adams Family Food Services, Inc. (A147515) decided October 9, 2013.

sarah ewingThe denial of this injury claim was approved as the insurer proved preexisting DDD, rather than a workplace injury, was the major contributing cause of disability/treatment for the combined condition. After an ALJ upheld the denial, the worker filed a negligence civil action against his employer. The trial court granted the employer’s motion to dismiss, concluding ORS 656.018 (the exclusive remedy provision) barred the worker from suing his employer for negligence. The worker appealed. The Court of Appeals reversed, explaining ORS 656.019 did not apply to an injury claim, but the right to bring a negligence claim was constitutionally protected under the Smother’s rationale when an injury claim is denied under the major cause standard. The Court… Continue reading

Combined Conditions = OCI +PEC

sarah ewing Court of Appeals boils combined conditions down to a mathematical equation. In Vigor Industrial , LLC v. Randi Ayres, the Court of Appeals held that ORS 656.005(7)(a)(B), permits consideration of only qualifying preexisting conditions when determining the major contributing cause of a “combined condition.” Ayres had an accepted non-disabling foot strain. He filed an expansion request for two conditions predating his injury: navicular fracture and avascular necrosis (AVN); neither condition had been diagnosed or treated prior to the work injury. The employer issued a Combined Condition Denial. Claimant requested hearing. … Continue reading

Case Alert: Penalties at Claim Closure

sarah ewing In the most recent workers’ compensation case from the Court of Appeals, Walker v. Providence Health System, the court addressed penalties assessed relating to claim closure. The facts and procedural status of this claim have been over-simplified for this summary. The employer noticed an IME to determine if claimant had any permanent impairment due to her accepted mental health conditions; she did not attend. At the employer’s request WCD issued a suspension order effective until such time as she submits to the designated exam. At the request of claimant’s attorney, she submitted to closing exam by her treating psychiatrist; the report was issued September 29, 2009. The next day, claimant requested claim closure based on the report. The… Continue reading