Court Rules Claimants’ Attorneys Need More Money

lance johnsonIn SAIF v. Crystal L. DeLeon (06/28/2012), the Supreme Court held a claimant’s attorney is entitled to an attorney fee whenever the insurer initiates any level of review and the claimant ultimately prevails at any subsequent level. The party initiating the final level of review is no longer of consequence. The Court concluded “the legislature intended that, when a claimant obtains an award of compensation and an insurer initiates one of the listed forms of request for review of that award before one of the listed tribunals, and the final tribunal to consider the issue determines that the award should not be disallowed or reduced, the claimant is entitled to attorney fees….”  

No Annual Increase in Maximum Attorney Fees for July 1, 2012 through June 30, 2013

lee ann loweEvery July 1 the attorney fees awarded under ORS 656.262(11)(a) and ORS 656.308(2)(d) are adjusted by the same percentage increase as the average weekly wage. However, effective July 1, 2012, the average weekly wage will decrease 0.15% from last year, making the average weekly wage $841.26 for July 1, 2012 through June 30, 2013. The Workers’ Compensation Board determined, since there was no increase in the average weekly wage for the coming year, there will be no adjustment of the maximum attorney fees awarded under ORS 656.262(11)(a) and ORS 656.308(2)(d) for the coming year. The fees amounts will remain the same. Therefore, for July 1, 2012 through June 30, 2013 attorney fees awarded under ORS 656.262(11)(a)… Continue reading

Court of Appeals Upholds Right to Apportion Permanent Disability Awards at Closure

Jamie CarltonIn a new PPD case, Schleiss v. SAIF Corp., the Oregon Court of Appeals upheld an insurer’s right to apportion permanent disability awards. Claimant was injured in April 2008. In 2009, the claim was closed with no impairment. Claimant appealed and requested a medical arbiter evaluation. The arbiter found range of motion limitations, 33% of which were attributable to the compensable condition. The arbiter attributed the remainder to preexisting conditions and a long history of smoking. Relying on the arbiter, the OOR apportioned 33% of the range of motion limitations to the accepted injury. On appeal, the ALJ and Board affirmed the OOR. Claimant appealed to the Oregon Court of Appeals arguing… Continue reading

Are actors and acting instructors employees or independent contractors for purposes of workers’ compensation?

rebecca watkinsMaybe. In a recent case, SAIF Corp v. DCBS and Northwest Children’s Theater and School, the Oregon Court of Appeals discussed the legal framework a theater company must evaluate to determine if its actors and instructors are workers for whom it must obtain workers’ compensation coverage. Northwest Children’s Theater (NWCT) operates an acting school. It obtained workers’ compensation coverage through SAIF Corporation for its employees but not for actors, instructors, and production designers, which NWCT considered independent contractors. SAIF indicated workers’ compensation coverage needed to be obtained for all of these workers. The dispute came before the Department of Consumer and Business Services (DCBS), which found that NWCT instructors, actors, and production designers were not… Continue reading

Join me at the DMEC Employer Work Group on May 30th

Jamie CarltonOn May 30th I will be a facilitator at the ADA/FMLA Employer Work Group lunch session. This is sponsored by Kaiser Permanente & DMEC Oregon/SW Washington. This is an opportunity for you, as the employer, to bring questions about any aspect of the ADA/FMLA process, challenging case studies, or examples of best practices. It will be an open forum with a focus on problem solving and employers talking about real issues that can have real consequences. Program details and registration information can be found in the Upcoming Events section of our website. You can also e-mail me: jcarlton@sbhlegal.com with any questions.

Wal-Mart Pays the Cost of Misclassifying Employees

rebecca watkinsThe Department of Labor announced today that it has settled a nationwide overtime claim with Wal-Mart. Prior to 2007, the large retail chain misclassified certain vision center managers and security personnel as exempt, which meant these individuals were not paid overtime. After years of negotiation, Wal-Mart has agreed to pay $4,828,442 to approximately 4,500 employees and pay a civil penalty of $463,815. Although most companies are not as large as Wal-Mart, two important lessons can be learned from this settlement. First, an employer must look beyond job titles. Calling an employee a “manager” does not make an employee exempt if job duties do not meet FLSA standards. Second, misclassifications usually impact a group of employees, exponentially increasing the cost of… Continue reading

New Washington Department of Labor & Industries Pension Review Process

To make more efficient use of pension adjudicators’ time, the Department has developed new procedures that went into effect 4-23-12. There is a new Pension Review Coversheet that must be submitted with all requests. See attached Review Coversheet and Department Guidelines. New Process for Self-Insured Pension Reviews Pension Review Coversheet

In Washington – New DLI Requirement

The department, workers, and providers often receive correspondence from self-insured employers or their third party administrators that doesn’t include the department’s (L&I) claim number. Many self-insured employers assign their own claim number and don’t include the L&I claim number on correspondence about the claim. Failure to include the L&I claim number has resulted in delays, confusion and additional administrative expenses for the department, injured workers, and medical providers. The department let the self-insured community know on 1/15/12 about the department’s plans to begin issuing penalties for claim related communication that both: Originates from the self-insured employer or their third party administrator Does not include the L&I claim number. In addition to the L&I claim number,… Continue reading

Unemployment Discrimination

rebecca watkinsThis week, the Oregon legislature passed SB 1548 preventing discrimination against the unemployed. This new law, effective March 27, 2012, prohibits ads or job postings that require applicants to be currently employed. Employers may still post jobs that state only current employees of the company will be considered for the position. Violations of this law will expose employers to civil penalties by the Bureau of Labor & Industries (BOLI).

Employer may have violated ADA and state law by using post-offer medical information in discipline and WC

Krishna BalasubramaniEmployee sued employer alleging workers’ compensation retaliation. Employee alleged the employer misused her post-offer medical questionnaire to terminate her employment and reduce workers’ compensation benefits. The claim was brought under ORS 659A.133. However, the court relied on provisions of the ADA, including 42 USC Sec 12112(d)(3). The court cited precedent from other states. As such this case presents concerns for all employers. Claimant completed a post-offer medical questionnaire and did not reveal a childhood history of scoliosis or early signs of carpal tunnel syndrome. She filed a workers’ compensation claim for carpal tunnel and this was accepted. However, her employer terminated her for falsifying her post-offer medical questionnaire. Her workers’ compensation benefits… Continue reading