Rare is the employee who wants to get injured on the job, or the employer who wants to deal with the fallout of such injuries–especially workers’ compensation coverage and claims. Of course employers have to provide workers’ compensation coverage. As part of the The Emplawyerologist’s mini-series on Wal-Mart’s employment law capers, this week we are exploring Wal-Mart’s missteps in this area. Now, to be fair, Wal-Mart does provide workers’ compensation coverage. There are no known allegations that Wal-Mart is not a safe place to work. Based on litigation and government agency investigations, the issue is with how Wal-Mart responds to and treats its injured employees who attempt to obtain workers’ compensation benefits. This week we will learn from Wal-Mart what not to do when your employees file workers’ compensation claims. Let’s get started after the jump!
We have talked about what happens when employers retaliate against employees who either file, testify or cooperate in investigations of claims alleging violations of different employment laws. (Click here, here, here and here for review.) What I said there goes for workers’ compensation claims too. Anyone who disagrees can let Wal-Mart serve as an example. Specifically, on July 6, 2011, the 9th Circuit Court of Appeals in Cox v. Wal-Mart Stores Inc Case No. 10-35729 reversed a District Court ruling granting summary judgment to Wal-Mart in a case brought by an employee injured in a fall. Although Ms. Cox upon her return to work in 2007 received several accommodations, Wal-Mart allegedly disciplined and fired her after she invoked her rights under Oregon’s workers’ compensation law. (Ms. Cox also alleged ADA violations, so we can also add this case to the list in last week’s post.) Regarding the worker’s compensation retaliation claim, the appellate panel found that prior to asserting her workers’ compensation rights, Ms. Cox had received acceptable performance evaluations. After she invoked her workers’ compensation rights however, Wal-Mart disciplined her three times. The appellate panel therefore found that a reasonable jury could infer a causal connection between her termination and her assertion of her workers’ compensation rights . More recently, on March 17 of this year, former Wal-Mart employee Stephen Lovejoy sued Wal-Mart in Kanawha Circuit Court (West Virginia) claiming it fired him in retaliation for attempting to file a workers’ compensation claim and after he told his manager he would need time off for surgery related to the injury. Mr. Lovejoy is seeking an unspecified amount of damages.
In February 2010 in Wal-Mart Stores Inc v. Donald Greg Wells the Kentucky Court of Appeals foiled Wal-Mart’s attempt to deny workers’ compensation benefits to an employee who also received a $900,000 civil award from two third parties in connection with injuries from exposure to carbon monoxide while working in a freezer for a Wal-Mart distribution center. An Administrative Law Judge and the Workers’ Compensation Board awarded Wells benefits, and also awarded Wal-Mart a subrogation credit. Wal-Mart argued that Wells should only have been allowed either the civil judgment or the workers’ compensation benefits, but not both. According to Wal-Mart, since Wells already won a $900,000 judgment (against the contractors who renovated that freezer, not Wal-Mart) he was precluded from receiving workers’ compensation benefits from Wal-Mart. The court disagreed. Applying Kentucky law, the court held that subrogation allowed Wal-Mart to get that portion of the $900,000 judgment that duplicated Well’s workers’ compensation benefits, minus the amount of his legal expenses. Subrogation is supposed to prevent an employee from effectively receiving a double recovery of worker’s compensation benefits. In this case, the workers’ compensation award was $444,080.36. Well’s attorney fees and expenses totaled $312,268.76, reducing Wal-Mart’s subrogation credit to $126,811.60.
On November 13, 2012 U.S. District Court Judge Robert N. Blackburn gave final approval of an $8 million settlement of Gianzero et al v. Wal-Mart Stores, Inc. Civil Action No. 1:09 -cv -00656-REB-BNB (U.S Dist. Court Colorado) a class action lawsuit alleging that Wal-Mart conspired with its claims adjuster, Claims Management, Inc and the insurer of Concentra Health Services to make it difficult for medical providers from making independent assessments on the best care for injured workers. Colorado law prohibits outside interference in determining care. Workers alleged that they did not feel they were receiving unbiased treatment. Wal-Mart fought this case for three years prior to settling. Wal-Mart and its adjuster paid $4 million, and Concentra Health Services paid the remaining $4 million.
This is just a sampling of workers compensation cases involving Wal-Mart in the last four years. Here are some very important lessons that employers can learn from them:
- Never ever ever retaliate against an injured employee who invokes his or her workers’ compensation rights! This includes those who have filed claims, those who have requested forms for filing claims or those who make requests they are entitled to make under the workers’ compensation laws.
- When disciplining or terminating employees, check if s/he has recently filed a workers’ compensation claim or otherwise invoked his/her rights under your state’s worker’s compensation law.If you have an employee who is causing trouble or is underperforming, in addition to checking if s/he is in a protected class under federal and state anti-discrimination laws, check to see if s/he has invoked his/her workers’ compensation rights. Even if your reasons are unrelated to workers’ compensation, the timing alone can be enough to support a workers’ compensation retaliation claim.
- Don’t interfere with an injured employee filing a claim or receiving treatment–ever! If your employee asks about forms or asks for information in filing a claim or is seeking medical treatment, do not interfere!!
- Train your managers: Managers who are ignorant of the law and try to discourage an injured employee from getting the workers’ compensation benefits to which they are entitled are a liability!
- Always seek counsel and assistance from your in-house or competent employment counsel. This cannot be stressed enough!
Stay tuned next week when we look at Wal-Mart’s encounters with wage and hour laws. Happy Trails to you until we meet again!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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