Attorney Fees – Entitlement Board allows fees for defending a fee petition. Baker Botts not binding on fee shifting statutes. Clisso v. Elro Coal Company, 2016 WL 3575792 (BRB 15-0010 BLA, 2016). Employer objected to payment of $300 for one hour of attorney services for defense of the fee petition. The Board held the Supreme Court’s decision in Baker Botts LLP v. ASARCO LLC, 135 S.Ct. 2158 (2015) was not applicable because §28(a) is a fee shifting statute and therefore is an exception to the American Rule that litigants pay their own attorney’s fees. The Board cited United States District Court decisions refusing to apply Baker Botts in a Fair Debt Collection Practices Act, Equal Access… Continue reading
OSHA issued a final rule regarding electronic recordkeeping that also included new anti-retaliation records. Read a prior blog post regarding this rule here: https://sbhlegal.com/new-osha-rules-address-post-accident-drug-testing-retaliation-claims-and-electronic-injuryillness-reporting/ A group of insurer and industry groups in Texas filed suit challenging OSHA’s authority to enact the anti-retaliation provisions of the new rule. They asked the court to enjoin OSHA from implementing the new rule until it could consider the merits of the challenge. Today, that federal court denied the motion for that preliminary injunction. The court found the plaintiffs failed to show that irreparable harm would result if the court did not stop implementation of the rule pending a final decision. As a result, the anti-retaliation provisions will go into effect on Thursday, December 1,… Continue reading
Please join me at the DMEC Roundtable on December 14, 2016. Mike Moses from Kaiser Permanente and I will be speaking on ADAAA and Family Leave. Please register by December 9. More information and registration is available here.
On December 1st, the Department of Labor’s new rule regarding exemptions from overtime was set to go into effect. A ruling from a federal court yesterday suspends that rule. The DOL rule in question updated exemption rules that allow employees meeting both a salary test and duties test to be exempt from receiving overtime. The rule can be found at https://www.dol.gov/WHD/overtime/final2016/. It raises the salary test from $23,660 to $47,467 for most employees, and the salary test for “highly compensated employees” to $134,004. The rule ties the standard salary level to the 40th percentile of full time salaries of employees in the lowest census region, and ties the highly compensated employees salary level to the 90th percentile of full time… Continue reading
Claimant only required to show idiopathic factors were less likely to have caused unexplained injury
The Oregon Court of Appeals established new case-law on claimant’s burden of proof in “unexplained fall” claims. If an injury is unexplained, as a matter of law, it is presumed to arise out of employment. Whether an injury is unexplained, is a question of fact. An injury is only deemed truly unexplained if the claimant eliminates idiopathic factors as causative. In Sheldon v. U.S. Bank, claimant fell in the lobby of her employer’s building. U.S. Bank denied the claim and argued her fall was caused by her diabetes and obesity. The Workers’ Compensation Board agreed and determined because there was medical evidence demonstrating diabetes and obesity can contribute to balance problems her fall was not truly unexplained.… Continue reading
Join SBH at its 15th Annual Oregon Claims Examiner Workshop on November 11, 2016 at the Multnomah Athletic club. If you have not registered, there is still time! Click here to register. We look forward to seeing you there!
Under ORS 656.265, notice of an accident resulting in an injury must be given immediately by the worker, but not later than 90 days after the accident. Failure to give notice of a workplace incident bars an injury claim unless the employer already had knowledge of the injury or death; the worker died within 180 days of the date of injury; or the worker can establish “good cause” for failure to give notice within 90 days after the alleged incident. The Court of Appeals of Oregon recently ruled in Dalia R. Lopez v. SAIF, 505 Or. App. 679 (2016), that a “good cause” showing for untimely injury filing does not require medical evidence. In this case, claimant’s regular work activities… Continue reading
The Oregon Workers’ Compensation Board passed revised attorney fee rules on October 13, 2016. The most significant changes involve increased attorney fees for disputed claims settlements and claims disposition agreements. The Board increased attorney fees on Disputed Claim Settlements and Claims Disposition Agreements. Previously attorneys were awarded 25% of the first $17,500 of the settlement process plus 10% of any amount of proceeds in excess. The Board revised the rules to allow 25% of the first $50,000 of the settlement proceeds plus 10% of any amount of proceeds in excess of $50,000. The Board also increased the amount of attorney fees received in PPD and PTD cases. Previously awards were limited to 25% of increased compensation not to exceed… Continue reading
On October 26, 2006, SAIF issued a denial of claimant’s injury claim. The denial was mailed via certified mail and a person who identified himself as claimant signed for the denial. In June 2015, claimant requested hearing on the denial. Claimant testified that the address the denial was sent to was his address but denied signing for it. Claimant argued the statutory timeline for requesting the hearing did not start until he was made aware of the denial in June 2015. The Board first held the relevant time period for starting the statutory timeline is the date the denial is mailed, not the date claimant became aware of the denial. The Board next held, per ORS 656.319(1), there… Continue reading
Join me and an excellent group of presenters for a full day of cutting edge topics related to disability management. Topics include emergency preparedness, ADA/FMLA challenges, productivity management, and more. This seminar is hosted by the Oregon/Southwest Washington Disability Management Employer Coalition, which has been recognized nationally for excellence by the DMEC. The meeting has been approved for 6 CPDM and 6 CDMS credits. For more information and to register, go to http://dmec.org/2016/08/01/2016-oregonsouthwest-washington-chapter-meeting-oct-5/