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commission’s decision based on the “plain indifference” path to willful, not- ing that past commission findings of plain indifference have only been upheld where an employer has made no effort to address repeated warnings from employees, or OSHA stating that they were in violation of safety stan- dards. In the Appeals Court’s view, the incidents presented by OSHA at trial and referenced by the Review Com- mission failed to reach that level. According to the D.C. Circuit, the orig- inal safety manager’s actions showed that she at least attempted to respond to concerns that were raised—“while [she] could have done more, she did not do nothing.” The manager’s “respons- es evince negligence at most,” which is insufficient for a filing of willful.
For a more objective fact of employ- er good faith (helping but not sufficient by itself ), strive in your safety program to maintain your company workplace- injury (workers’-compensation) expe- rience modification factor under 0.80. At least one state-OSHA decision views this as part of a good-faith employer- safety effort and a defense factor against willful citations.
Discriminatory Termination or Hostile Worker Environment Claims
When workers file or present work- ers’ compensation claims related to an injury at work, even if filed late the claim should be processed promptly and without a supervisor belittling or criticizing the claimant upon his return to work. Work closely with the carrier or workers’ compensation agency in the claim-processing stages, and know the documented medical restrictions of the worker and the availability of light-duty jobs or activities. If the department or crew enters a period of layoff or slowed production and other workers are recalled when business picks up, avoid excluding those on pending or complicated workers’ comp claims who possess similar job-descrip- tion abilities and medical capacity to perform the work. Managers and supervisors engaged in personnel
selection or discipline should be trained on anti-discrimination, work- ers’ compensation statutory discrimi- nation and termination prohibitions, and on recall procedures or policies.
To defend against mega-damage claims, check into post-injury periods where there might be a refusal to return to gainful work or even an application to work for other employers. Subpoe- naing applications or personnel files
from subsequent employers can pro- vide significant information, as can a good private detective when suspicions of fact claims arise. Arbitration clauses may have to be enforced or utilized.
And, remember that in these types of disability-discrimination statutory claims, plaintiffs can request and often obtain attorneys’ fees, in rare cases with a multiplier, following even a low- damages award. MF
You and The Law
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