Montana Supreme Court Upholds Decision Granting Workers’ Compensation to Marijuana-Smoking Park Employee Mauled While Feeding Bears

In the world of workers’ compensation cases, sometimes reality is stranger than fiction. The latest evidence of this comes from Montana and a recent decision by the Montana Supreme Court.

In its decision, released on March 22, 2011, the Montana Supreme Court upheld a ruling by the Workers’ Compensation Court (WCC) which found that a man who was mauled while feeding the bears for his employer may collect workers’ compensation even though he smoked pot beforehand.
The case, Hopkins v. Uninsured Employers’ Fund, 359 Mont. 381, -- P.3d --, 2011 MT 49, arose out of an injury sustained by Brock Hopkins, found by the court to be an employee of Great Bear Adventures at the time of his injury. The court also determined that his pot use was not a major contributing cause of his injuries since no evidence of the level of impairment was introduced. The decision affirmed the ruling by the WCC (which is a must read for the humor alone), which approved the claim even though Brock’s “use of marijuana to kick off a day of working around grizzly bears was ill-advised to say the least and mind-bogglingly stupid to say the most", stating that grizzlies are “equal opportunity maulers” without regard to marijuana consumption.
While all states provide for some type of relief for employers by denying or restricting workers’ compensation benefits to employees whose injuries arise from the use or influence of controlled or intoxicating substances (in Ohio, see O.R.C. 4123.54), this is a cautionary tale to employers that even in the face of known hazards (such as grizzly bears), some employees will disregard common sense and work under the influence. Be sure to protect your company by clearly explaining to your employees exactly what the law in your jurisdiction entails, and have a clearly stated drug-free workplace policy in your company handbook. While such guidance wouldn’t have served Great Bear Adventures well (testimony was presented in Hopkins that the employer actually smoked marijuana with the claimant from time to time - never, ever a smart move), hopefully the intelligent readers of this blog will heed the advice.
Should you have any questions regarding this or any other workers’ compensation issue, please feel free to contact any of our offices to speak with one of our workers’ compensation attorneys.


Florida Minimum Wage to Increase as of June 1, 2011

A recent Circuit Court decision in Tallahassee has resulted in a minimum wage hike effective June 1, 2011. More specifically, in Cadet v. Agency for Workforce Innovation (Fla. Cir. Ct. No. 2011-CA-0072, 5/3/11), the court addressed whether the Agency for Workforce Innovation (AWI) erroneously decreased the state minimum wage rate in 2010 and then used this deflated rate as a basis to calculate the 2011 rate. The court ultimately determined that the method the AWI used to calculate the state minimum wage violated state law. As such, the AWI was required to issue a notice stating that the state minimum wage will increase to $7.31 per hour effective June 1, 2011. Notably, this increase results in Florida exceeding the federal minimum wage standard.

Also, effective June 1, 2011, "tipped employees" in Florida who are otherwise eligible for the tip credit under the Fair Labor Standards Act (FLSA) must be paid a direct cash wage of at least $4.29 per hour, which is the equivalent of the new Florida hourly minimum wage ($7.31) minus the tip credit ($3.02), if applicable.

Employers who pay their employees the Florida minimum wage are required to post a notice of the state minimum wage requirement (in addition to posting a notice as required by the FLSA). A Florida law poster can be obtained from the AWI website at: http://www.floridajobs.org/workforce/posters.html.



Are Employees Keeping Better Time Records Than Employers? There’s an App for That!

Any employer who has defended a wage and hour claim knows that in the absence of verifiable time records, such as time clocks, it is difficult to rebut the hours an employee claims they worked. Exorbitant legal fees are incurred attempting to recreate workdays, and cases are lost because employers failed to keep accurate time records. In order to establish a claim for unpaid overtime, an employee need only show that it is more likely than not that he or she actually worked overtime hours for which compensation was not paid. Some federal courts require employers to prove an employee did not work overtime in the absence of accurate time records.
The ability of employees to keep track of the hours they work just became easier. On May 10, 2011, the Department of Labor (DOL) announced the launch of its first application for smartphones. The application is a timesheet to assist employees to independently track the hours they work and determine the wages they are owed. The application is available in both English and Spanish, and allows employees to track regular hours worked, break time and any overtime hours. The admissibility of such records in litigation is an issue to be determined by courts, but, according to the DOL, “This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” Obviously, the DOL plans on giving credence to the records an employee keeps. In the absence of accurate time records, courts generally permit an employee to testify regarding the employee’s recollection of hours worked, which means records kept in accordance with the DOL application will likely be admissible in a court of law.
The DOL application is free and currently compatible with the iPhone and iPod Touch. The DOL plans to update the application and make it compatible with other smartphones, such as the Android and Blackberry. Additionally, the DOL plans to expand the features of the application to keep track of tips, commissions, bonuses, deductions, holiday pay, pay for weekends and shift differentials. Even for workers without smartphones, the DOL provides a printable work hours calendar in English and Spanish to track rate of pay, work start and stop times and arrival and departure times. Conveniently, the calendar includes information on how to file a wage violation complaint.
Private wage and hour lawsuits and DOL enforcement actions are increasing. It is imperative that employers keep accurate time records, especially now that employees have the tools to keep records for themselves.

Contact: Jon Secrest


2011 BWC Budget Bill (H.B. 123) Contains a Few Gems for Self-Insured Employers

Contained within the recently enacted BWC budget bill are several provisions that impact the obligations of self-insured employers and the payments they must make to health care providers. Under the budget bill, Ohio Revised Code (RC) §4123.52(B) has been amended to include language that requires that all medical bills and bills for vocational rehabilitation be submitted for payment no more than one year after the date the services were rendered. The prior law had allowed the bills to be submitted up to two years after the date of service. This represents a significant change in the law and should be helpful to self-insured employers as they manage the medical costs and expenses associated with active workers’ compensation claims.
RC §4123.512 was also amended to help clarify when a self-insured employer is still obligated to pay medical bills on a claim initially allowed by the Industrial Commission but later denied or overturned on appeal. According to the amendment, a self-insured employer will now be obligated to pay any medical bills submitted for services rendered prior to the final determination that denied the claim. This is true even when the bills are submitted after the order denying the claim is released. The key is when the services were provided. In other words, did the medical provider provide the medical services under a good faith belief that the claim was allowed and would be covered?
Therefore, a self-insured employer can no longer avoid or deny payment of a medical bill submitted after an order is issued that denies a workers’ compensation claim so long as the services were provided when there was still a pending order that had allowed the claim. The self-insured employer can then deduct the amount of the medical bills from the paid compensation it reports to the Administrator annually under its self-insured assessment.

Contact: Charles D. Smith


Workers’ Compensation and Wage Loss Compensation: Good Faith Job Search Required at All Times

While engaging in a good faith job search while claiming workers’ compensation and wage loss compensation may appear to be obvious, there can be a tendency to be lax when a claimant is still employed with the employer of record in a claim and the employer is not able to provide the same number of hours working under light duty as the hours worked at the time of the industrial injury. The Ohio Supreme Court in State, ex rel. Marrero v. Indus. Comm., 126 Ohio St. 3d 439, makes a good faith job search an absolute pre-requisite to the payment of wage loss compensation in this scenario.
In this case, the claimant was a 40-hour per week employee at the time of her injury. After her injury, she started working a 40-hour week under a light duty assignment. Eventually, the employer was not able to provide a 40-hour shift under the light duty restrictions. After working these reduced hours for several months, the claimant applied for wage loss compensation. The Ohio BWC awarded wage loss compensation without any proof from the claimant that she engaged in a good faith job search in an effort to increase her income. The employer appealed this decision, and it was ultimately decided by the Industrial Commission that the claimant was not entitled to this requested wage loss compensation due to the complete absence of the required job search.
In affirming this denial of wage loss compensation by the Industrial Commission, the Supreme Court cites both ORC 4123.56(B)(1) and the associated Administrative Code Section 4125-1-01(D)(1)(c). Wage loss compensation is intended for claimants who are medically unable to return to their former position of employment but who can do other work. Secondly, claimants who are seeking working wage loss compensation must show proof of a good faith job search within his or her medical and vocational capabilities that pays wages comparable to that of the claimant’s job at the time of injury. As the claimant made no effort at any time to engage in a good faith job search, the Supreme Court felt that the claimant was not entitled to this requested wage loss compensation.

Contact: Brian Tarian