Tag Archives: Workers’ Compensation Claims

by | December 25, 2012 · 8:25 am

Hospitality Industry Legal Risks: Oregon Restaurant Employee Awarded $70,000 In "Unlawful Employment Practices" Lawsuit; Woman Claimed Discrimination After Filing For Workers' Compensation

“…the (plaintiff) was placed in a position to work near heat, which caused a re-blistering of the wound, according to the lawsuit…(her) physician contacted the worker’s compensation carrier again to say she was to Hospitality Industry Lawsuitwork on modified duties without exposure to heat, the lawsuit states KFC continued to expose Vargas to heat in the workplace…”

“…her physician instructed her not to return to work because KFC was not able to follow the modified duty requirement. Vargas then told her employer she could not return to work until her burn healed…two days later, KFC terminated her employment, stating that Vargas had resigned…”

A Salem woman was awarded more than $70,000 after a lawsuit she filed against Chick Inc., the Salem company that owns three KFC franchises, for unlawful employment practices. Jurors unanimously found in favor of plaintiff Sarai Vargas, who claimed she was wrongfully discharged and that she experienced discrimination after filing for workers compensation because of a workplace burn. A four-day trial ended Dec. 14.

While wearing protective gloves, Vargas suffered second-degree burns after grease splattered on her right arm as she pulled chicken from the grill oven May 9, 2010, Vargas’ lawyer Larry Linder said.

Vargas was treated by a doctor for the burn and was cleared to return to work on a modified duty, which included light activity with no exposure to heat, Linder said.

For more:  http://www.statesmanjournal.com/article/20121225/NEWS/312250021/Woman-who-took-KFC-court-wins-70-000

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by | December 18, 2012 · 7:40 am

Hospitality Industry Insurance Risks: Workers' Comp Insurance Fraud Costs Businesses $7.2 Billion Annually

In 2007 State Fund discovered Safehome Inc. was under reporting their employee payroll to avoid paying the proper premium. An audit was completed and indicated that Safehome Inc. had failed to pay the proper workers compensation insurancepremiums for their workers’ compensation policy in the amount of $477,285. Additionally, State Fund determined the business was operating out of its classification, and related payroll was never reported to either State Fund or EDD, according to investigators.

“…the three types of most common workers’ comp fraud – injured worker fraud, provider fraud and premium fraud – haven’t changed much…”

Workers’ compensation fraud costs businesses $7.2 billion annually, roughly a fifth of all workers’ compensation payments, according to the National Insurance Crime Bureau.

In the past, it’s been challenging to prosecute workers’ compensation fraud, but recently passed legislation is making it easier for agencies like State Fund to work together to fight fraud. In June, as a result of a joint task force that included State Fund, more than 100 enforcement actions were taken against companies for failure to comply with state contracting, insurance and payroll requirements.

And earlier this year, State Fund partnered with other agencies on a fraud case that resulted in a conviction with restitution orders to both State Fund and the Employment Development Department.

For more:  http://www.insurancejournal.com/news/west/2012/12/12/273777.htm

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by | December 16, 2012 · 9:14 am

Hospitality Industry Insurance Risks: Pending Legislation Before Congress Deals With Medicare Payments, Workers' Compensation And Liability Insurance Claims

“…the Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2012…deals only with workers’ compensation claims, and seeks to establish clear and consistent rules for workers’ workers comp medicalcompensation set-asides for claimants covered by Medicare…”

“…The Strengthening Medicare and Repaying Taxpayers Act…deals with issues related to the Medicare Secondary Payment Act. Specifically, it deals with mandates for providing timely information on conditional payments, penalties and statutes of limitations when claims are reported to the Centers for Medicare and Medicaid Services by insurers and self-insured and third-party payers on no-fault auto-insurance claims, workers’ compensation claims, and claims under liability insurance…”

Insurance and related industries are seeking to win support in the waning days of the current Congress for two pieces of legislation dealing with payment of injured worker claims to people whose primary insurance is Medicare. Officials of both the American Insurance Association and the Property Casualty Insurers Association of America are urging action on the bills this year.

Nathaniel Wienecke, PCI senior vice president, Wednesday asked officials of the Senate Finance Committee and the House Ways and Means Committee if it could act on the bill this year.

Currently, workers’ compensation claims that overlap with Medicare coverage are subject to lengthy, cumbersome review by the Centers for Medicare and Medicaid Services to establish the proper “set-side” coverage amounts for future medical expenses, according to PCI officials.

For more:  http://www.propertycasualty360.com/2012/12/14/insurance-reps-push-for-action-on-medicare-seconda?t=commercial

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by | November 22, 2012 · 7:19 am

Hospitality Industry Workers' Compensation Insurance Risks: Tennessee Supreme Court Awards Restaurant Manager Benefits At "Six Times His Medical Impairment" From Electrocution Injuries

“…The Tennessee Supreme Court held that a manager was entitled to benefits at the statutory maximum of six times his medical impairment…the manager was denied a meaningful return to work when he was terminated in retaliation for filing his claim. The manager’s age, education, training, work experience, and limitations warranted the six-times multiplier…”

A co-manager for a fast food restaurant was repairing a heating element used to keep food warm. Someone plugged the heating element into an electrical outlet. An electrical shock caused the manager to lose consciousness. He suffered from burns on his hands, chest pains, headaches, and memory loss. He repeatedly asked his supervisor to pay his medical expenses and authorize medical care for his symptoms. The district manager said he would “take care of it,” but the bills remained unpaid. The manager filed a workers’ compensation claim, and the restaurant was fined for failing to timely report the incident. Days after the claim was filed, his supervisor “vulgarly expressed his anger” about the claim. Within weeks, the manager, who had never received a reprimand, received two reprimands and was later terminated.

A neurologist diagnosed the manager with a migraine condition and epilepsy and opined that the conditions were caused by the electrical shock. The neurologist found that he reached maximum medical improvement with a 10 percent impairment to the body as a whole. A vocational expert opined that the manager suffered a 65 percent vocational disability based on his age, limitations, work history, and the local labor market. The manager was unable to find gainful employment other than occasional “odd jobs.” The Tennessee Supreme Court held that he was entitled to benefits at the statutory maximum of six times his medical impairment.

The court rejected the restaurant’s argument that the maximum multiplier possible was meant to punish it for mishandling the claim rather than an assessment of disability.

For more:  http://www.riskandinsurance.com/story.jsp?storyId=533352818

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by | December 26, 2011 · 8:33 am

Hospitality Industry Employee Risks: "Introduction To California's Workers' Compensation System" (Video)

[youtube=http://www.youtube.com/watch?v=2udxkhH24Cc]

Learning the rights of an injured worker under California’s workers’ compensation system. This video follows several workers’ compensation case scenarios and provides basic information and resources for obtaining further assistance and/or information.

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by | May 2, 2011 · 4:05 pm

Hospitality Industry Workers' Comp Issues: State Of Illinois Seriously Reviews Employee Awards, Employer Liability And Injury Review Standards

“…In just one example of how Illinois’ system is abused, a hotel maid recently was awarded a $42,500 claim for carpal tunnel after working less than 30 days and 180 hours at a Springfield hotel…”

  • The workplace should be the primary cause of the injury or aggravation of the previously existing condition
  • Employers should not be on the hook financially for injuries that occurred outside of the workplace or in the course of previous employment
  • Health care providers should use nationally recognized American Medical Association and utilization review standards when determining a person’s impairment and treatment following an injury
  • These AMA standards are used in more than three dozen states across the United States and provide a measure of objectivity
  • Workers who are injured while under the influence of illegal drugs or alcohol should not be entitled to workers’ compensation benefits
  • The only exception would be if they can provide that the workplace caused the injury
  • Illinois should limit “wage differential” awards that are currently paid for life
  • These monetary awards are designed to make up the difference between an employee’s pay before and after an injury and were never intended to be paid past retirement age

Read more: http://www.bnd.com/2011/05/01/1690712/guest-view-its-time-to-get-workers.html#ixzz1LJ1LGtpZ

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by | March 21, 2011 · 3:54 pm

Hospitality Industry Workers Comp Risks: Virginia Hotel Employee Awarded Workers Comp Benefits After Fall In Restroom Injures Shoulder Already Receiving Medical Treatment

The Virginia Court of Appeals found that a cook’s right shoulder injury was not related to a preexisting condition so it awarded him benefits.

  • A cook for a hotel slipped on a wet floor in the restroom at his workplace and fell, hitting his right shoulder against a sink.
  • Before the fall, he sought medical treatment for right shoulder pain.
  • He required further treatment after the fall and sought benefits.
  • The hotel argued that there was no causal connection between the cook’s fall at work and his shoulder injury and that his injury was a preexisting condition.
  • The Virginia Court of Appeals disagreed and awarded benefits to the cook.

The court said the cook had different diagnoses and treatments before and after the fall. The court noted that the cook was undergoing treatment for tendonitis before the fall and was diagnosed with a right shoulder strain, contusion, and sprain after the fall. The cook received injections both before and after the fall, but they consisted of different drugs. Additionally, the surgical recommendations before and after the fall differed.

The hotel also argued that the cook failed to disclose his prior shoulder injury to two doctors, so their opinions should not have been relied on. The court disagreed. One doctor noted that the cook’s past medical history was “noncontributory,” and the second noted that it was “negative.” The court said these terms did not necessarily establish that the cook did not inform the doctors of his previous shoulder problems. Rather, the terms could have been interpreted to indicate a lack of foundation for alternative causation.

For more:  http://www.riskandinsurance.com/story.jsp?storyId=533334406

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by | January 31, 2011 · 8:05 am

Food Industry Risks: New York Tortilla Factory Ordered To Shut Down After Employees' Death And Discovery That Owners Did Not Carry Workers' Compensation Insurance

The state Workers Compensation Board issued a stop-work order at the Williamsburg facility after learning the factory’s owner, Erasmo Ponce, was not offering workers’ compensation insurance to his employees.

A Brooklyn tortilla factory where a man was crushed when he fell into a dough mixer has been temporarily shuttered, state officials said Friday. Tortilleria Chinantla was not closed because of Juan Baten’s gruesome death, but his loss of life did lead investigators to the facility, officials said.

“The owner would need to get the insurance and pay fines before he is permitted to reopen,” said agency spokesman Brian Keegan.

The Occupational Safety and Health Administration and the state Department of Labor are investigating the deadly accident. Baten, 22, reached into the mixer early Monday and was sucked inside after his hand was snagged by one of its blades. The young father was killed instantly when a turbine broke his neck.

For more:  http://www.nydailynews.com/ny_local/brooklyn/2011/01/29/2011-01-29_feds_shutter_deadly_bklyn_tortilla_factory.html

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by | December 14, 2010 · 6:36 am

Hotel Industry Employee Risks: Texas Hotel Owners “Failed To Carry Workers’ Comp Insurance And Enforce Safety Procedures” Says Suit Brought By Banquet Service Employee Who Was Injured On Job

On or about August 13, 2009, Plaintiff suffered an injury to her right shoulder area when a co-worker, Banquet Manager, Gus Garza, suddenly and without warning struck her while opening a door which was intended to be an exit door instead of an entrance door as he was using it,” the suit filed Dec. 7 in Jefferson County District Court states.

She claims the defendant companies — HTL Operating doing business as Elegante Hotel and Investment Corporation of America — did not carry workers’ compensation insurance at the time of the incident. As a result, Howard claims she should be entitled to all common-law damages.

A Beaumont woman has filed suit against the owners of a hotel where she claims she was injured while working as a banquet server. Sharon Howard alleges she was performing her duties as a banquet server at MCM Elegante Hotel in Beaumont on Aug. 13, 2009, when she sustained injuries to her shoulder.

Because of the incident, Howard suffered a severe and permanently disabling injury to her right shoulder and has not been able to work, according to the complaint.

She blames the hotel for causing her injury and for the pain and suffering she endured, as well as the medical costs she incurred.

The hotel’s owners negligently failed to enforce proper safety procedure and failed to properly equip doors, according to the complaint.

In her suit, Howard is seeking a judgment in excess of the minimum jurisdictional limits of Jefferson County District Court, plus pre- and post-judgment interest, costs, attorney’s fees and other relief the court deems just.

John Werner of Reaud, Morgan and Quinn in Beaumont will be representing her.

For more:  http://www.setexasrecord.com/news/231951-hotel-server-sues-over-shoulder-injuries

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by | October 31, 2010 · 12:44 pm

Hotel Industry Employee Risk Management: Employee’s Use Of Stairs In Multi-Story Hotels Subject Them To “Significantly Greater Risk Of Injury” And Result In Higher Workers’ Compensation Benefits

“Because the employees’ periodic breaks were mandatory, Phillips was required to use the staircase six times during each shift. In fact, in its opening brief, Rio calculated that during the course of Phillips’ 17-year employment, she traversed the stairs approximately 25,000 times,’
 
“…the court concluded that the frequency with which Phillips was required to use the stairs subjected her to a significantly greater risk of injury than the risk faced by the general public. Consequently, Phillips should be awarded benefits, the high court wrote…”
 

The Nevada Supreme Court has ruled that although employers are not “absolutely liable” when employees are injured “on the job,” companies should apply the “increased risk test” to determine whether they are entitled to workers’ compensation benefits.

The justices explained the increased risk test in Rio All Suite Hotel & Casino v. Phillips. According to court documents, Kathryn Phillips was a poker and blackjack dealer at the Rio All Suite Hotel & Casino in Las Vegas. While taking her mandatory 20-minute break during her usual eight-hour shift, she walked down the stairs to the employee break room, slipped, and fractured her ankle.

Her treating physician determined her injury was work related, and Phillips had surgery to repair her ankle. But Rio’s third-party administrator, Sedgwick CMS, denied her claim saying Phillips did not prove the injury arose out of her employment.

“The types of risks that an employee may encounter during employment are categorized as “those that are solely employment related, those that are purely personal, and those that are neutral,” the high court said.

 

 

 

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