State News : West Virginia

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


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West Virginia

SPILMAN THOMAS & BATTLE, PLLC

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In a move akin to the zombie apocalypse, a West Virginia legislator attempts to resurrect dead provisions in legislation filed on February 10, 2014.   State Senator Jack Yost, a Democrat from Brooke County, introduced eight bills that eviscerate the legislative progress made in West Virginia’s workers’ compensation system since 2003. 

 

Highlights of the legislation include:

·        Re-establishment of rule of liberality requiring all “reasonable inferences” be drawn to a claimant’s benefit due to the remedial nature of workers’ compensation legislation

·        Statutorily mandated deference to treating physician and elimination of the current preponderance of the evidence standard of review

·        Requiring approval of any diagnostic testing causally related to the injury and any new diagnosis revealed by the diagnostic testing is “automatically granted” if deemed by the treating physician to be related to the compensable injury

·        Eliminating the Rule 20 medical management rule where the guidelines differ from the opinion of the treating physician

·        Treble damages if treatment denial is reversed

·        Insurance Commissioner makes all initial compensability rulings but no corresponding change to allow for employer protests to the compensability rulings

·        Lowers PTD threshold to 40% from 50%

·        Vocational assessments consider 30 miles the maximum for viable employment from the current rule of 75 miles

·        CTS and other disease impairments based on symptoms rather than measureable impairment may be counted in the PTD threshold

·        No offsets on TTD payments for wage replacement plans

·        PTD benefits payable until death (currently age 70 cutoff)

·        No PTD re-assessments after age 60

·        Occupational pneumoconiosis coverage extended to out-of-state employment performed at the direction and under the care of the employer rather than current rule where only in-state exposures are considered in the compensability of such claims

·        Extension of the statutory presumption in favor of compensability of certain diseases suffered by professional firefighters to volunteer firefighters; also expanding the diseases presumed to be compensable

·        Reinstatement of the 5% PPD award for any claimant with a diagnosis of occupational pneumoconiosis without evidence of pulmonary impairment

 

We are investigating the impetus behind these bills and monitoring the committees in which they are assigned.  Senator Yost is the chair of the Labor Committee and vice chair of the Military Committee.  He also sits on the Energy, Industry and Mining Committee, the Finance Committee, and Health and Human Resources Committee, among others.   In our opinion, the proposed legislation is an attempt to undermine the workers’ compensation reforms that have been enacted since at least 2003 when we had our first significant bout of reforms.   For any questions, comments, or concerns, please feel free to contact us.

 

Karin Weingart and Dill Battle, February 12, 2014

Spilman Thomas & Battle, PLLC

kweingart@spilmanlaw.com

dbattle@spilmanlaw.com

 

The West Virginia Supreme Court of Appeals recently issued two rulings that have a significant impact on the way employers may defend cases brought under West Virginia's deliberate intent statute (W.Va. Code § 23-4-2). Concisely stated, inYoung v. Apogee Coal Co. and Master Mechanical Insulation v. Simmons, the Court's rulings may determine whether a case is heard in federal versus state court and what evidence an employer may present. While it may be premature to gauge the overall effect these rulings have on cases, they both have the potential to greatly assist the employer community.

Young v. Apogee Coal Co.

This case answered a certified question from federal court whether W.Va. Code § 23-4-2(d)(2)(ii) provides a cause of action against a non-employer person, such as a supervisor, in addition to the employer. Though one part of the statute explicitly provides a cause of action against a non-employer, judges in both districts of federal court in West Virginia had come to different conclusions. Now, the Supreme Court of Appeals conclusively settles the question: W.Va. Code § 23-4-2(d)(2)(ii) provides a cause of action solely against an employer.

The facts are briefly stated. Young was an employee for Apogee Coal when his supervisor instructed him to remove a counterweight from an end loader. While Young was removing the counterweight, it shifted and fell on him. Young's estate brought a deliberate intent case against Apogee and its maintenance supervisor. Apogee removed the case to federal court arguing that the supervisor, as a non-employer, should not have been sued, thus permitting federal jurisdiction. The certified question followed.

This decision held that managers and co-employees generally retain statutory immunity for workplace injuries under W.Va. Code § 23-4-2. Therefore, where the employer is an out-of-state business, plaintiffs now can no longer sue those managers and co-employees who happen to be West Virginia residents for the purpose of defeating the removal of the case to federal court. Accordingly, following Young, out-of-state employers should have more opportunities to remove deliberate intent cases to federal court.

Master Mechanical Insulation v. Simmons

Here, the court considered certain certified questions from the Circuit Court of Cabell County, including whether, in an action for deliberate intent, an employer is prohibited from introducing evidence regarding an employee's conduct in the course of his job performance. This question primarily arose because of the Court's prior holding inRoberts v. Consolidation Coal Co. that an employer may not assert an employee's contributory negligence as a defense to such an action.

In this case, Simmons was injured when he fell off the second floor balcony of a building while pushing a piece of equipment off to the ground below. Master Mechanical tried to introduce evidence of Simmons' conduct on the job site. The Circuit Court, in seeking a response to the certified question, ruled that Master Mechanical could not.

Answering the Circuit Court's question in the negative, the Court distinguished between liability and causation and expressly held that employers may introduce evidence of an employee's conduct on following issues: (1) existence of a specific unsafe working condition; (2) the employer's actual knowledge of the specific unsafe working condition; and (3) proximate cause. In other words, the Court reaffirmed its prior decisions holding that an employee's own conduct is relevant to the creation of a specific unsafe working condition and the employer's knowledge thereof, both of which in turn impact any analysis of the proximate causation prong.

While this case does not change the holding in theRoberts case barring an employer from asserting an employee's contributory negligence to an action for deliberate intent, from a practical standpoint, it could have a significant impact on the presentation of an employer's defense. Specifically, employees can now no longer argue that any evidence of their conduct in relation to his injury must be barred. Indeed, this case permits the introduction of that evidence so long as it is specifically tailored to the circumstances illustrated above.
 

For more information, please contact:

 

Alexander Macia

 

304.340.3835

amacia@spilmanlaw.com 

 

The Supreme Court of Appeals' recent decision in McComas v. ACF Indus., Inc. could have significant implications for employer liability under West Virginia's deliberate intention statute. InMcComas, the plaintiff was a welder who was injured by an arc blast emanating from an electrical box. Apparently, the electrical box had not been inspected since its installation in the 1950s or 1960s and the electrical insulation had deteriorated over the years, which caused the arc blast when the plaintiff attempted to switch it to the "On" position. During discovery, the plaintiff developed evidence that American National Standards Institute / National Fire Protection Association ("ANSI/NFPA") standards provided for maintenance and periodic inspection of electrical equipment. The plaintiff further developed evidence that periodic inspection of electrical equipment, like the electrical box that caused his injury, likely would have revealed the faulty insulation. Nevertheless, the trial court dismissed the plaintiff's deliberate intention action on the basis that he had not identified a safety statute, regulation, rule, or standard that was specifically applicable to the work or working condition at issue and, further, that he had not proved that he was intentionally exposed to the specific unsafe working condition by his employer. The plaintiff appealed.

 

Readers might recall that one of the five elements of a deliberate intention action is evidence that the unsafe working condition violated a safety statute, regulation, rule, or standard that is specifically applicable to the work or working condition at issue. Although the statute's plain language suggests that the statute, regulation, rule, or standard must specifically apply to the work or working condition, the Supreme Court of Appeals held in 2006 that the statute, regulation, rule, or standard must only be capable of specific application. Ryan v. Clonch, 219 W.Va. 665, 639 S.E.2d 756 (2006). For instance, inClonch, the Supreme Court of Appeals held that an OSHA regulation requiring employers to assess the need in the workplace for personal protective equipment was capable of specific application to the lumbering business. Central to the Supreme Court of Appeals' reasoning in Clonch was the fact that the OSHA regulation imposed a mandatory duty on the employer.

 

Relying on Clonch, the Supreme Court of Appeals held in McComas that the trial court had erred in its finding regarding the ANSI/NFPA standard introduced by the plaintiff. Because the trial court had found that the ANSI/NFPA standard imposed a specific identifiable duty on the employer to inspect its electrical equipment, the Supreme Court of Appeals held that the standard met the "specifically-applicable" element of the deliberate intention statute.

 

After finding that the ANSI/NFPA standard imposed a specifically-applicable, mandatory duty on the employer, the Supreme Court of Appeals next turned to the deliberate intention statute's "actual knowledge" requirement. Under the deliberate intention statute, the employee must prove that the employer had actual knowledge of the specific unsafe working condition and the high degree of risk and strong probability of serious injury or death which it presented. InClonch, the Supreme Court of Appeals had held that an employer was precluded from denying awareness of the specific unsafe working condition where it had failed to comply with a mandatory duty to perform a hazard evaluation. Relying onClonch, the Supreme Court of Appeals accordingly held in McComas that an employer's failure to comply with a mandatory duty to inspect - where inspection would have revealed the specific unsafe working condition - will meet the "actual knowledge" requirement under the deliberate intention statute. This leads to a perverse holding where an employer is deemed to have actual knowledge of something which it is fully unaware.

McComas's holdings have significant implications for employers. Under the Supreme Court of Appeals' gloss, an employee can satisfy the "specifically applicable" element by introducing evidence of any mandatory inspection requirement, so long as it might have revealed the specific unsafe working condition. Following McComas, it is not even necessary that the requirement be legally binding upon the employer; a commonly accepted and well-known safety standard is acceptable. Moreover,McComas only requires that the employer have "some awareness" of those standards. And, if an employee can introduce a mandatory inspection requirement, then he almost certainly will be able to satisfy the statute's "actual knowledge" requirement, as well.

Following McComas, then, an employer will need to be aware of any safety statute, regulation, rule, or standard that could impose a mandatory inspection requirement capable of application to its business. Moreover, an employer should conscientiously perform any required inspections or else risk a court imputing actual knowledge of a hazard which an inspection might have disclosed. Future deliberate intention actions undoubtedly will attempt to stretch the holding inMcComas to apply any mandatory inspection requirement and require perfect compliance. Accordingly, employers are cautioned to review their hazard inspection programs followingMcComas to forestall future deliberate intention actions.

 

For more information, please contact:

 

Alexander Macia

Spilman Thomas & Battle, PLLC  

304.340.3835

amacia@spilmanlaw.com

New West Virginia Case Finds an Injury at Work Not a Result of Employment

 

Morton v. West Virginia Office of Ins. Com’r, 2013 WL 5508553, -- S.E.2d ---- (Oct. 4, 2013) (per curiam). Affirming Workers’ Compensation Board of Review’s denial of compensability.

 

In Morton, the claimant injured her wrist and shoulder while helping a co-worker lift a box of maternity clothes that the co-worker had left in her office. She sought workers’ compensation benefits, which was denied by the claims administrator on the grounds that the employer had received no “special benefit” from “a voluntary act on the part of the claimant to assist a coworker in a personal errand.”  The administrative law judge affirmed the denial decision, which was also affirmed on appeal by the Board of Review. 

The West Virginia Supreme Court affirmed the Board of Review’s denial of compensability, in what was essentially a three-part holding: (1) helping a co-worker lift a box that does not contain work-related material does not provide a benefit to the employer; (2) helping the co-worker under this fact pattern does not promote generalized teamwork and camaraderie sufficient to rise to the level of “benefitting the employer”; and (3) “an injury which occurs while gratuitously assisting a co-employee with a task of a purely personal nature, involving no instrumentalities of employment and without any alleged involved of or benefit to the employer, not does not ‘result from’ employment.”

In dicta, the Court declined to apply arguably similar case law (WillibyandEmmel) to the issue in Morton. The Court disregarded Williby on the premise thatWilliby is a “coming and going” case, and therefore only relevant where theplace of the injury is particularly important in determining compensability (such as the “special errand” exception to the general compensability rule). Here, because the claimant was at work during her workday,Williby was inapplicable. 

The Court further declined to apply Emmel, on the grounds that, while factually analogous, it did not contain the same issue of law. That is, inEmmel, the claimant’s injury occurred at the workplace, butnot during the workday. Thus, the Court found that there was no causation between the claimant’s injury and his employment; he was not acting “in furtherance of the employer’s business” and that such injury was a “vague incident of employment.” According to the Court, the legal issue inMorton was quite distinguishable, as there, the injury occurred at the claimant’s workplaceandduring regular working hours.  

The Court found this case a close call and reiterated that whether a workplace injury is compensable under the workers’ compensation act is a factually intensive issue and will vary case by case. 

Justice Davis wrote a spirited dissenting opinion that focused on the fact that the box directly impacted the claimant’s workspace, and removal of the box benefitted the employer by allowing the claimant space to efficiently perform her assigned tasks.  Justice Davis wrote that the claimant did not deviate too far from her job duties by helping the co-worker remove the large box from her workspace.  According to Justice Davis, W. Va. Code 23-4-1g(a) required that this “close call” case be resolved in favor of the claimant.  Finally, Justice Davis believes the majority opinion will have a chilling effect on employee relationships and morale if an employee is discouraged from assisting a fellow employee with anything that the employer has not specifically authorized.

The Morton decision was a fact-specific ruling.  Claims administration decisions in “close call” cases can still be made if supported by the facts and are not equal to an application of the former “Rule of Liberality” that was statutorily abrogated by W. Va. Code 23-4-1g.  The majority of the Court refused to reweigh the evidence and decision of the Board.

 

Dill Battle and Gordon Mowen, October 9, 2013

Spilman Thomas & Battle, PLLC

dbattle@spilmanlaw.com

gmowen@spilmanlaw.com

New WV Law Regarding Payment of Attorney’s Fees in Workers’ Comp Litigation

West Virginia Update – May 30, 2013

By: Dill Battle and Karin Weingart

 
This past legislative session, the West Virginia Legislature passed H.B. No. 3069, which will be effective as of July 12, 2013.


Prior to the enactment of H.B. 3069, there were only two means by which a claimant’s lawyer could recover a fee.  The first is under West Virginia Code §23-5-16 which essentially permits 20% of any indemnity benefits awarded or 20% of the total value of a final settlement – each with certain limitations.  The second was under West Virginia Code §23-2C-21(c) which provides for an award of attorney fees for an unreasonable denial of compensability, TTD, or authorization for medical benefits.  The determination is made by the Office of Judges if the responsible party cannot demonstrate that there was reasonable evidence or legal basis to support the denial at the time the decision was made.

  
With the enactment of H.B. No. 3069, West Virginia Code §23-5-16 has a new subsection (c) which provides for an award of attorney’s feesand costs to be paid by the private carrier or self-insured employer where a claimant successfully litigates a denial of medical benefits before an arbitrator, mediator, the Office of Judges, Board of Review or court.  Within 30 days of the final decision granting the benefits, the claimant’s lawyer must file a petition for fees before the body which made the decision.

  
The fees must be reasonable, and there are limits to the fees that can be awarded: $125/hour, not to exceed $500 per litigated issue or $2500 per claim.

 

This new Code provision will not require any immediate action or change in practices by any responsible party.  The potential for an award of attorney’sfees and costs may suggest that each request for medical services be reviewed more closely in order to prevent the denial of a requested service that is likely to be reversed on protest or appeal. In cases where you have a difficult time obtaining the medical records needed to evaluate any request, best practices might dictate that you consider issuing an “under investigation” letter before outright denying the request. When a provider is not cooperative in disclosing necessary information to assist an adjuster in making a decision, the regulations allow issuance of a letter advising the claimant that you have received the request from the treating physician for certain treatment, but despite numerous requests for treatment records and treatment plan, no response has been received.  Ultimately any final decision denying treatment must be protestable and in compliance with the statute and regulations.

 

Case Report – By Karin L. Weingart, March 29, 2013

 

Gore v. WVOIC and Boone County Parks & Recreation Comm’n, (W.Va. 3/28/2013)

 

On March 28, 2013, the West Virginia Supreme Court of Appeals issued a decision supporting the ranges of permanent impairment in spinal injuries which limit excessive permanent partial disability awards.  In a Memorandum Decision inGore v. WVOIC and Boone County Parks & Recreation Comm’n, No. 11-0612 (W.Va. 3/28/2013), the Court addressed the petitioner’s challenge to the Rule 20 tables for ranges of permanent impairment for spinal injuries.  In West Virginia, the basic operation for permanent impairment ratings for lumbar, thoracic, and cervical injuries requires the IME physician to assess impairment pursuant to the range of motion model for impairment found in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition.  The resulting impairment rating is then applied to the appropriate category in the corresponding table in W. Va. C.S.R. § 85-20 (“Rule 20”) and adjusted accordingly, if needed, to fall within the appropriate range. 

 

The claimant challenged the rule and procedure, arguing that although the workers’ compensation statute gives the Commission authority to “adopt standards for the evaluation of claimants and the determination of a claimant’s degree of whole body medical impairment” the Legislature clearly intended that a claimant be compensated based upon medical impairment personal to him.  The claimant argued that W. Va. C.S.R. §§ 85-20-64.1 and 64.2 are in direct conflict with W. Va. Code § 23-4-6(i). The claimant asserted that each claimant is to be compensated commensurate with the degree of his or her medical impairment, not a preconceived estimate of impairment based upon diagnostic codes. The claimant argued that the Rule 20 tables for ranges of impairment base permanent partial disability awards on diagnosis rather than actual whole person medical impairment specific to the claimant.  He also noted that the Court had previously determined in Repass v. Workers’ Compensation Division, 212 W.Va. 86, 569 S.E.2d 162 (2002) that diagnosis based disability ratings were invalid and unreliable because they conflict with the proper time for such ratings, the proper treatment of progressive injuries, the procedure for reopening, and consideration of second injuries.

 

In theGore opinion, an unanimous Court recognized that the Legislature charged the Board of Managers in W. Va. Code § 23-4-3b with the task of adopting ranges of permanent partial disability for common injuries.  The Court further found that the Board’s decision to determine impairment by using the AMA Guides Range of Motion model and applying that to the appropriate table is consistent with the intention of the Legislature as expressed in W. Va. Code § 23-4-6(i).  The Court also cited to their prior decision in Simpson v. West Virginia Office of Insurance Commissioner, 223 W. Va. 495, 678 S.E.2d 1 (2009), where the Court stated that W. Va. C.S.R. Table § 85-20-C (2004) is valid and is a proper exercise of the rule-making authority delegated to the Workers’ Compensation Board of Managers by the Legislature in W. Va. Code § 234-3b(b) (2005). 

 

The Goredecision upholds a standard developed by the Board of Managers and which has been a key factor in containing what had previously been rather excessive PPD awards for common spinal injuries.

 

Karin L. Weingart, Esq.

Spilman Thomas & Battle, PLLC

kweingart@spilmanlaw.com

Taking a Look at the Latest on Affordable Care Act

 

Eric E. Kinder

Erin Jones Adams

Spilman Thomas & Battle, PLLC

 

           Employers nationally continue to struggle with how to respond and adapt to the ever- changing landscape that is the Patient Protection and Affordable Care Act (often known as ObamaCare or the ACA). We at Spilman Thomas & Battle will continue to work with you through 2013 and beyond as the implementing regulations for the ACA continue to be issued. We are working to identify strategies to help employers navigate the process in the manner that best serves their respective industries.

           Before discussing guidance issued recently regarding wellness programs that are part of a health care plan, there is news of a bit of a reprieve. Originally all employers were to provide notice to their employees regarding their state health insurance exchange no later than March 1 of this year. The written notice would inform employees of the existence of the health exchanges in their state, the manner in which an employee may contact the exchanges and information on how an employee may be eligible for a premium tax credit if the employee purchases a health plan through an exchange and other related tax issues. States, however, have been slow to decide if they were going to establish an exchange, and if so, what the rules for that exchange would be. Accordingly, the Department of Labor has stated that employers are not required to comply until it issues regulations regarding employer compliance with these notice requirements. Currently, the Department of Labor expects the timing for distribution of notices to be late summer or fall of this year, and it is considering providing model generic language that employers can use. We will send out information to employers when these regulations are issued.

           A question many employers have asked relates to the establishment or continuation of their wellness programs. The federal government recently issued draft regulations on how employers can ensure their wellness programs are nondiscriminatory under the law. These rules would apply to all wellness programs that are part of a health plan, including those already in existence.

           An initial matter, the regulations do not apply to wellness programs not connected to a health plan; employers who have wellness programs separate and apart from their plans need not worry. Employers with programs offering health insurance premium reductions need to read on.

The regulations established two categories of wellness programs. The first is participatory wellness programs available to all employees (or all similarly-situated employees) that either do not provide a reward or do not condition the reward based on the individual meeting certain health criteria. Examples of participatory wellness programs include programs that reimburse all or part of the costs of membership in a fitness center or that provide a reward to employees who attend a monthly, no-cost health education seminar. In general, participatory wellness programs are legal without further review.

On the other hand, health-contingent wellness programs are only permitted where they meet five specific standards. A health-contingent wellness program requires an individual to satisfy a standard related to health to obtain a reward. To survive legal scrutiny, a health-contingent wellness program must meet the following five conditions.

(1)      Frequency of opportunity to qualify – The program must provide the employees the opportunity to qualify for the reward at least once per year.

(2)      Size of reward – In general, a health-contingent wellness program reward may not exceed more than 30% of the cost of employee-only health care coverage. Programs designed to prevent or reduce tobacco use, however, may offer rewards up to 50% of the cost of employee-only health care coverage.

(3)      Uniform availability and reasonable alternative standards - A reward under a health-contingent wellness program must be available to all similarly-situated individuals, which means a “reasonable alternative standard” (including a waiver of an otherwise applicable standard) must be provided for meeting the goal if it is either unreasonably difficult due to a medical condition or where it is medically inadvisable for the employee to attempt to satisfy the standard. In defining what a reasonable alternative standard is, the regulations provide a few rules. First, if the reasonable alternative standard is an educational program, the plan insurer must make the program available (as opposed to telling the employee to find the program) and must pay for it. Where the reasonable alternative standard is a diet program, the employer does not need to pay for the costs of the dietary food, but must pay for any membership or participation fee. And where the reasonable alternative standard is compliance with the recommendations of a medical professional, the plan must provide reasonable alternative standards that can be met within recommendations provided by the individual’s physician.

(4)      Reasonable design – Health-contingent wellness programs must be reasonably designed to promote health or prevent disease, may not be overly burdensome, cannot be a subterfuge for discrimination based on a health factor or disability and may not be highly suspect in the method chosen to promote health or prevent disease. That said, plans and insurers may conduct screenings and measurements in order to target wellness programs effectively, but the program must still be made available to all individuals who do not meet this standard. Again, the program must also provide different, reasonable means for qualifying for the same reward.

(5)      Notice of other means of qualifying for the rewards – Plans and insurers must disclose the availability of other means for qualifying for the reward for the possibility of waiver of the otherwise applicable standard and all plan materials describing the terms of the health-contingent wellness program. If, however, plan materials merely mention that a program is available without describing its terms, this disclosure is not necessary. To be safe, plans should include language such as the following in the description of all health-contingent wellness programs: “Your health plan is committed to helping you achieve your best health status. Rewards for participating in a wellness program are available to all employees. If you think you might be unable to meet a standard or a reward under this wellness program, you might qualify for an opportunity to earn the same reward by a different means. Contact us at [insert contact information] and we will work with you to find a wellness program with the same reward that is right for you in light of your health status.”

The draft regulations make clear the federal government is increasingly supportive of the use of workplace wellness programs as a means to promote health and prevent disease. While the proposed regulations offer employers certain flexibility in developing and maintaining wellness programs, employers must not forget to vet their wellness programs against other laws that impact the provision of wellness programs, such as the ADA or GINA. The draft regulations are intended to apply to plan or policy years beginning on or after January 1, 2014. Employers who currently sponsor wellness programs should review and consider revising those programs pursuant to the proposed requirements. Employers who aim to develop wellness programs should consider the conditions discussed above, keeping in mind that the final regulations have not yet been issued. If you have questions about the ways in which the ACA impacts your existing or planned wellness program, please contact Eric Kinder at 304.340.3893 orekinder@spilmanlaw.com.

 

How to Survive the Department of Labor’s Wage and Hour Enforcement

By Carl H. Hellerstedt, Jr.

 

           As most employers know, the federal wage/hour law under the Fair Labor Standards Act (“FLSA”) includes the requirement to pay “non-exempt” employees time and one half of their “regular rate” for work in excess of 40 hours in a work week. The U.S. Department of Labor (“DOL”) is charged with enforcing the FLSA through its Wage and Hour Division. (It is currently engaged in a multi-year ongoing enforcement initiative focused on vendors performing services for the fracking and pipeline industry that has recovered nearly $200,000 in wages in that industry alone.) Prudent employers will want to be diligent to ensure compliance with wage and hour matters in light of the DOL’s willingness to audit employers.

 

How Can You Protect Yourself from a DOL Audit?

Employers should perform an internal audit at least once a year, addressing the following topics:

·       Record-keeping: Computer-based payroll systems will contain the information necessary to meet most DOL requirements. Time worked and bonus calculation records should be kept as part of the pay records, which should be kept for a minimum of three years.

·       Employee vs. Independent Contractor: The distinction between an employee and an independent contractor is not governed solely by how the parties title themselves; the DOL has specific tests to determine who is an employee and who is an independent contractor and often focus on who controls the manner of work. Employers using independent contractors should be careful to ensure that they are not directing, or only minimally directing, how and when independent contractors are performing their duties.

·       Exempt vs. Non-Exempt: The exemptions from the overtime requirements which are often at issue in the shale industry include whether the employee meets the criteria to be exempt under the “salaried basis,” “professional,” “executive” or “administrative” categories. Determining if the employee meets the exemption criteria can be extremely fact-intensive.

·       Compensable Time: A major area of litigation in recent years has centered on what should be considered to be time worked and therefore compensable and count toward overtime hours. This includes the use of cell phones and computers outside of normal working hours. Travel time can also be an issue in circumstances where the employer provides a take-home vehicle. The employer should have a written policy on the use of take-home vehicles to insure that the commute from home to work is not compensable.

 

Be Aware That Noncompliance with the FLSA Can Result In Considerable Costs!

           The FLSA has provisions for doubling the amount of unpaid wages and overtime, attorney fees and for a special form of class action. When current or former employees hire private counsel to prosecute FLSA claims, the employer can expect a class action suit for double damages going back three years under the FLSA, as well as a companion claim of violations of the applicable state wage payment law and state overtime law. State laws are often used because some state law provisions are actually more favorable to the employee than the FLSA. Such is the case in matters including the use of class actions, the scope of exemptions and the calculation of overtime.

 

 

For more information, please contact:

Carl H. Hellerstedt, Jr.

412.325.3308

chellerstedt@spilmanlaw.com

Immigration Reform May Affect All Employers

 

On January 29, 2013, President Obama announced his plan for comprehensive immigration reform. While the proposal to require mandatory, phased-in electronic employment verification has obvious implications for employers, the proposal to provide a pathway to earned citizenship may have an unforeseen effect on employers, as well. While surprising to some, many individuals in all walks of life do not have work authorization but are still members of the workforce.

 

Consider the following scenario: a long-term employee approaches you or a supervisor in your company and advises you that she provided you with a false social security card at the time she was hired, but that she now has a valid social security card and that she would like to update her records. How should an employer handle such a situation?

 

Several different issues are implicated in this and similar situations. At the outset, the employer will need to determine whether the employee was authorized to work in the past and whether the employee has current (and future) work authorization. Section 274A of the Immigration and Nationality Act provides that it is unlawful for an entity to hire an individual knowing the individual is unauthorized to work. The statute also provides that it is unlawful for an entity tocontinue to employ an individual knowing she is or has become unauthorized for employment.

 

In the scenario we presented, the employer may have a defense to any charges that it knowingly employed an alien unauthorized to work in the United States in the past because the employer completed the I-9 process and determined that the employee’s offered documents were valid at the time. If the employee does not have current work authorization at the present time and going forward, however, the employer will be liable for violating the Immigration and Nationality Act if it continues the employee’s employment.

 

If the employee is currently authorized to work, the employer must consider the separate issue of the employee’s misrepresentation during the hiring process. The employer must review the particular facts of the situation, including whether the employee provided false information on the employment application, the I-9 form, or other company documents. The employer will need to review its policies and procedures, as well as its past practice in similar situations. Is there a written policy that provides for disciplinary action for falsification of employer documents? Does the employment application state that the individual represents that all of the information provided is accurate? Has the employer previously allowed an employee to continue their employment after discovering a misrepresentation in similar circumstances (for example, on a resume)? The employer should focus on its specific policies, whether the employee had notice of its policies, and treating employees with consistency for similar misconduct.

 

The most difficult issue for employers to face is when a long-term, well-loved, star employee advises her employer that she is or was undocumented. Even if it is possible to continue this employee’s employment in the future without violating the Immigration and Nationality Act, the employer must carefully consider whether maintaining the employment relationship will establish a precedent for other similar situations.

 

When confronted with this or a similar situation, the employer should gather all the facts and then contact legal counsel for assistance in navigating all the issues that may arise.

 

For more information, please contact:

 

Larissa C. Dean

304.291.7924

ldean@spilmanlaw.com

 

Pay me once, pay me twice, pay me thrice? Recent ruling from the Supreme Court of Appeals of West Virginia may open the door for an injured employee to recover medical bills three times over.


By:     Glen A. Murphy, Esquire

           Spilman Thomas & Battle, PLLC

           gmurphy@spilmanlaw.com

 

           On November 15th the Supreme Court of Appeals of West Virginia issued the opinion ofJeffery Jenkins, et ux. v. City of Elkins, et al. (No. 11-1059). Factually, Mr. Jenkins was an employee of Bombardier Aerospace driving a company vehicle, within the course and scope of his employment, when he was struck by another vehicle owned by the City of Elkins and driven by its employee Stephen Stanton, likewise in the course and scope of his employment. Because Mr. Jenkins was on the job at the time, he received workers compensation benefits for his injuries. Mr. Jenkins sought to pursue a claim against the City of Elkins and Mr. Stanton. However, the City informed Mr. Jenkins that because he was covered by workers’ compensation, the City had statutory immunity under W. Va. Code § 29-12A-1et seq. (aka the “Tort Reform Act”).  The City’s insurer, National Union, likewise asserted its immunity as the City’s immunity was preserved in a provision of National Union’s policy.  This immunity has been previously recognized in the longstanding holding ofO’Dell v. Town of Gauley Bridge, 188 W. Va. 596, 425 S.E.2d 551 (1992). Suit was filed against the City and Mr. Stanton. Mr. Jenkins also filed suit against his employer’s insurer (Greenwich), as well as his personal insurer (Westfield), seeking either Under or Uninsured (UM/UIM) coverage. Greenwich and Westfield asserted exclusions of coverage under their policies because of a “governmental vehicle” exclusion.  Greenwich also asserted that Jenkins was not entitled to the Medical Payments coverage under his policy based upon an exclusion for injuries arising out of and in the course of employment.

 

           As there were no facts in dispute, the case was briefed for summary judgment before the Circuit Court of Harrison County.  Judge Bedell found in favor of the City and National Union’s assertion of immunity. He found that the “governmental vehicle exclusion” as asserted by Greenwich and Westfield, were valid exclusions, but only for amounts over and above the State’s mandatory minimum coverage ($20K/$40K/$10K).  Finally, he found that Greenwich’s “workers compensation” exclusion in its medical payments coverage section was valid. Mr. Jenkins appealed from this ruling.

 

           After review by the Supreme Court of West Virginia, the Court significantly upheld the immunity of the City (and thus its insurer) and reaffirmed its longstanding holding inO’Dell (Syl pt. 1); that if an individual is injured by a tortfeasor who is immune from liability, underinsured motorist coverage is triggered for the limits in place (Syl pt. 2); that the “government owned vehicle” exclusion is against the public policy of this State and is unenforceable; and, of most significance to those involved with workers compensation, held in Syllabus point 5:

 

5. An employer’s insurance policy that excludes coverage for auto medical payment benefits to an employee who sustained an injury arising out of and in the course of employment is only enforceable to exclude medical payment coverage for that part of a claimthat exceeds the amount subrogated by the employer’s workers’ compensation carrier.(Emphasis added.)

 

The Court, in reaching this holding, noted that it has previously held that:

 

 “an employee who receives workers’ compensation benefits for injuries that result from a motor vehicle collision with a third-party which occurs in the course and scope of the employee’s employment is entitled to assert, against his/her employer’s motor vehicle insurance carrier, a claim for underinsured motorist benefits, where the employee’s employer has in effect motor vehicle insurance providing underinsured motorist coverage and where the employee’s recovery against the third-party activates such underinsurance coverage.” Syl. pt. 4, Henry v. Benyo, 203 W. Va. 172, 506 S.E.2d 615 (1998). 

 

           This Court looked at Greenwich’s medical payment exclusion as essentially being a workers’ compensation exclusion. The Court noted that a majority of courts have upheld similar exclusions, but that “some courts have invalidated this exclusion when a workers compensation insurer successfully asserts its subrogation on third-party proceeds.”  [Citation omitted]. Therefore, our Court determined, both in reliance on its prior holding inBenyoand for public policy considerations, an employee should have equal application to the recovery of medical payment benefits under the employer’s policy.  Statutory subrogation rights for workers’ compensation payments are still in place for employers’ workers’ compensation insurers as provided under W. Va. Code § 23-2A-1(b)(1), but as for the employers’ auto insurers, they can now only exclude medical payments coverage under their policies for the amount that exceeds the amount subrogated by the employers’ workers’ compensation carrier.   Additionally, it must be remembered that W. Va. Code § 23-2A-1(e), in pertinent part, advises that the statutory subrogation described in this preceding section, “does not apply to uninsured and underinsured motorist coverage or any other insurance coverage purchased by the injured worker or on behalf of the injured worker.”(Emphasis added) Medical payments insurance is just such a coverage. This creates what appears to be an inconsistency which was noted by Justice Benjamin, of the Supreme Court of Appeals of West Virginia, in his dissent.  He noted his displeasure with majority’s ruling and suggested that the majority misunderstood and misquotedBenyo by stating:

 

“[t]he actual effect of the law created in the majority opinion is that the plaintiff will receive a windfall by virtue of having his or her medical bills paid more than once. For example, in the instant case, Mr. Jenkins has had his medical bills paid by the workers' compensation provider. Also, he will be able to collect uninsured benefits from his employer's auto policy which sum will include medical costs. Pursuant to W. Va. Code § 23–2A–1(e) (2009), the workers' compensation provider's statutory subrogation right does not apply to the uninsured coverage so that Mr. Jenkins will receive his uninsured benefits free and clear. Finally, as a result of the majority opinion, Mr. Jenkins will receive auto medical payment benefits from his employer's policy despite the fact that his medical bills have already been paid by the workers' compensation provider.It is unclear under W. Va.Code § 23–2A–1(e), whether the workers' compensation provider will have subrogation rights against these auto medical payment benefits.” (Emphasis added)


           Finally, Justice Benjamin stated that this ruling “potentially will have [Mr. Jenkin’s] medical bills paid three times over.  Such a result is inexplicable to me and has no basis in law.”  

 

           The ramifications of any court’s ruling that eliminates an insurers exclusions and/or expands coverages, typically results in an insurers reevaluating the premium received for the risks that are written. Medical payments coverage is usually a rather inexpensive addition to coverage under personal and commercial policies. It is a no-fault insurance that covers medical bills related to an occurrence (usually for a fixed period of time). Employers who maintain medical payments coverage on their commercial insurance policies may want to talk to their commercial agents about their limits of coverage. Worker’s compensation insurers will need to give additional scrutiny to subrogation claims involving employees who are involved in motor vehicle accidents, especially so when the employers Under, Uninsured (UM/UIM) or Medical Payments coverage comes into play as, at least according to Justice Benjamin’s dissent, there may no longer be a right of subrogation by the workers’ compensation carrier.

 

For further inquiries regarding this article contact Mr. Murphy at (304) 340-3840 or at gmurphy@spilmanlaw.com.

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