LHWCA Quarterly Update

norman coleSchwirse v. Director, OWCP, __ F.3d ___, 2013 WL 3840332 (9th Cir 2013). Longshoreman drank alcohol when at work and fell on concrete and a metal slab. Claimant argued the injury was not solely due to intoxication because the result of the fall was worse because of the hard surface on which he fell. The Court disagreed. By using the term “injury” Congress intended to incorporate the harmful physical consequences of the event. Absence evidence the surface material was unforeseeably defective, the legal cause was limited to the reason for the fall and the foreseeable consequences of that fall. McGarey v. Electric Boat Corporation, 2013 WL 476117 (BRB 12-0672, 13-0020, 2013). Claimant had an… Continue reading

Proposed BOLI Rules

rebecca watkinsBOLI is currently proposing and taking input regarding several changes to Oregon employment regulations. Among the many newly proposed rules are the following: *Clarifications to disability regulations *Clarifications of “health care provider” and “victim” under the Oregon Family Leave Act laws *Extension of OFLA leave for death of family member *New OFLA posting requirements *Extension of employee protections to interns *Discrimination protections applicable to career schools *Extension of whistleblower protection to reports of election law violations *Clarification of meal period requirements for nonexempt workers *Allowing final paycheck to be paid by direct deposit *Limits to employer access to social media Employers interested in learning more should visit http://www.oregon.gov/BOLI/Pages/legal/H_Notices.aspx. Public comments are… Continue reading

Join me for a ADA FMLA Employer Work Group hosted by Kaiser

Jamie CarltonMike Moses of Kaiser and I will be moderating an ADA/FMLA roundtable event to answer some of your questions. This is a roundtable forum, which allows employers to pose questions and get feedback in an informal environment. We will tackle real world situations presented by local employers. If you have a situation you would like to see on the agenda, please e-mail me at jcarlton@sbhlegal.com. I hope to see you there. Details for the event are: Thursday, November 7th from 11:30 – 1 pm. Kaiser Town Hall, 3704 N. Interstate Avenue, Portland, Oregon. Lunch will be provided. Please e-mail Dianne Gibson at dianne.d.gibson@kp.org if you would like to register.

The Latest on Independent Contractors

Wines-Gina_webI had a recent victory from the Office of Administrative Hearings setting aside an Employment Department tax assessment based on the purported employee’s status as an independent contractor. The ALJ relied on a line of recent Court of Appeals cases that have trended toward applying a much broader interpretation of the IC test than the Employment Department previously sought to apply. I anticipate additional decisions on the topic from the Court of Appeals in the coming year as they continue to provide guidance on this very fact-intensive inquiry. In most instances there are two prongs to the independent contractor inquiry. The individual must be 1) free from direction and control over the means and manner… 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

Oregon OSHA Backtracks on Confined Space Rule

Stephen VerotskyIn September 2012 the Oregon Occupational Safety and Health Division (Oregon OSHA) adopted a new confined space rule. Confined spaces, such as tanks, wells, or tunnels, have limited ability to exit, may contain potentially harmful material, and are not intended for human habitation. Workplace safety rules require employers take proper precautions when their employees must work in such spaces. The rules adopted by Oregon OSHA in 2012 made changes to the permitting process and added more restrictions concerning rescue, decontamination, alternate entry and evacuation. On September 4, 2013 Oregon OSHA issued a statement indicating it was withdrawing the rule. Oregon OSHA Administrator Michael Wood explained: “We received questions about certain provisions of the rule and their impacts… Continue reading

Loophole in Exclusive Remedy Protections Fixed

rebecca watkinsThe Oregon legislature passed SB 678, amending ORS 656.018 to include limited liability partners, partners, general partners, limited partners, and limited liaibility company members to the list of persons entitled to immunity for providing workers’ compensation coverage to employees. This legislation arose in response to a decision by the Oregon Court of Appeals last year that a member of a LLC did not have statutory immunity because the statute did not expressly include them in the list of persons entitled to immunity. The decision in Cortez v Nacco Materials Handling Group, Inc. highlighted several categories of persons with exposure to civil suit for work-related injuries. In response, the legislature moved quickly to amend the statute to include… 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

ARU threatens to overturn Oregon closures where job analysis not sent to claimant

Jamie CarltonTo determine the extent of disability for the purposes of claim closure, OAR 436-030-0020 requires insurers mail of an accurate job description to claimants prior to closure. The provision applies if the worker has not been released to regular work or has not returned to the job at injury. Job descriptions must contain a description of the physical requirements of the job. They must also be sent by certified mail to claimant and his/her counsel. If the insurer does not establish compliance with this rule at the time of reconsideration, ARU will likely overturn the Notice of Closure. In one recent claim, a job description, which did not specifically identify the physical requirements of the… Continue reading

Longshore Recent Caselaw Update

norman coleHere are a few interesting, if not noteworthy Longshore decisions for employers to be aware of. When a worker sustains an injury and produces evidence the injury could have been caused by work, the injury is presumed compensable, per §20(a), until the employer produces affirmative evidence the injury is not work related. In Insurance Company of State of Pennsylvania v. Director, OWCP, the 5th Circuit held the §20(a) presumption does not apply to secondary injuries, such as an infection that develops as a consequence of a work related surgery but was not directly caused by the on the job injury. Instead, the claimant must prove the secondary injury is the natural and unavoidable consequence of the initial injury.… Continue reading