WorkComp Advisory
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Things you should know

Congress extends E-Verify until March 2009

Congress voted on Oct. 1, 2008 to extend the U.S. Department of Homeland’s Security employment verification program, E-Verify, but only for four months. Without the extension the program would have expired Nov. 30, 2008. It is anticipated that Congress will use the time to consider alternatives to the much-criticized program.

Hourly wage suit for “donning” safety clothing denied (from HR That Works!)

Union employees of a poultry processing company are not entitled to compensation under federal law for time spent putting on and taking off protective clothing, according to a recent federal appeals court ruling.This topic continues to develop in court rulings around the country. For example, a contrary ruling on this issue came out earlier from another federal appeals court.

In the most recent case, the employer compensated workers starting from the time the chickens to be processed reached the production line. Employees were paid based on when the first and last chickens reached the line.

The workers were required to wear various articles of protective clothing, which they had to put on before working on the production line. They had to remain after the production line time ended to take off the protective gear.

The court said the federal Fair Labor Standards Act did not include "hours worked" for time spent changing clothing at the beginning and end of each workday, when this time was excluded from measured working time under the collective bargaining agreement. (The CBA was the main factor in the analysis).
Read the DOL advisory on "hours worked."

Note that state wage and hour laws might also affect this issue. For example, California employers should look at sections 46 and 47 of the Wage and Hour manual.

NY Supreme Court rules illegal immigrant can receive Workers’ Comp despite ID fraud

An illegal immigrant injured on a job obtained using a false identity will continue to receive Workers' Compensation, the Appellate Division of the New York Supreme Court ruled Oct. 30, 2008.

Ghana native Benjamin Amoah came to the United States in March 2003 on a visa that expired seven months later and did not permit him to work. Another man, Frank Boahen-Appiah, provided Amoah with a driver's license and other documentation in Boahen-Appiah's name. Using this document, Amoah found employment.

After Amoah was injured on the job in April 2005, he received compensation payments in Boahen-Appiah's name. Boahen-Appiah demanded two-thirds of the payments and, when Amoah refused, took back his documentation. In September 2005, Amoah revealed his real identity to his employer's compensation carrier, which in November 2005 stated it would contest the payments.

Ultimately, a state Workers' Compensation law judge decided that Amoah's use of fraudulent documents did not preclude him from receiving compensation. Amoah's employer sought a review of the judge's decision by the New York State Workers' Compensation Board, but the board affirmed the decision, followed by a similar affirmation by the Supreme Court.

AR court: Comp claims can be filed in separate states

The Supreme Court of Arkansas recently ruled that an injured employee can file Workers' Compensation claims in two different states for injuries incurred in the same incident, the Supreme Court of Arkansas ruled last week.

Edward Williams was injured in 2004 when he fell from scaffolding while working for Mountain Home, AR-based Johnson Custom Homes. Although the injury occurred in Arkansas, Williams filed a Workers' Comp claim in Ohio where Paysource, the human resources management company that issued Williams' paycheck, was located. He received temporary total disability for wrist and ankle injuries from the Ohio Bureau of Workers' Compensation, but later was told by his doctor to amend his claim to include injuries to his back and knee. OBWC denied the latter claim.

Afterward, Williams filed a claim in Arkansas, but was denied benefits on the basis that he had already sought compensation in Ohio. The Arkansas Supreme Court reversed the decision, stating that Williams could file benefits in both states as long as he was not seeking double benefits for the same injury.

MA study finds “defensive medicine” drives up health care costs $1.4B a year

According to a report from the Massachusetts Medical Society, doctors in the state order at least $1.4B worth of diagnostic tests and hospital stays each year out of fear of litigation, instead of the patient’s actual needs.

The Investigation of Defensive Medicine in Massachusetts is the first study of its kind to specifically quantify defensive practices across a wide spectrum and among a number of specialties. Defensive medicine may come in various forms, including the ordering of medically unnecessary laboratory or radiological tests, prescriptions, specialist referrals, invasive procedures, and hospital admissions. Also included would be the avoidance of high-risk procedures or even the avoidance of high-risk patients.

The report on the Investigation of Defensive Medicine in Massachusetts may be found online at