Job Applicant’s Knee Injury Was Compensable

Recently, Chhabra & Gibbs, P.A.  gained a major victory on behalf of our Workers Compensation client.  Sherri Okamoto, from the WorkCompCentral website made a recent news article explaining the outcome of the case:

Job applicants who are required to undergo pre-employment testing can get workers' compensation benefits if they get hurt during the process, according to the Mississippi Court of Appeals.

The court ruled in a decision handed down July 21 that Kevin Collins had an “implied contract of hire” with Averitt Express when he injured his knee during his "road test." Thus, the court said Collins was an Averitt "employee," even though he flunked the test and he didn't get the truck driver position he had sought.

The case was Averitt Express v. Collins, No. 2014-WC-00936-COA.

Averitt, an international transportation and freight logistics company, offered Collins a job three years ago, contingent on his successful completion of a physical, a drug screen and a road test.

Collins came to Averitt's facility in Cookeville, Tennessee, for his road test and his new-hire orientation. As part of the test, Collins had to physically enter and exit the rear of a trailer in a specific manner. He tore a meniscus while trying.

Averitt then rescinded the job offer, based on his failure to pass the requirements of the road test. It still paid him a per diem of $75 for coming to the orientation, and $238.68 for his mileage.

Although Averitt referred him to a doctor, Collins paid for his own treatment.

Collins later filed a workers' compensation petition, which Averitt contested on the basis that Collins never became its employee.

However, Administrative Judge Tammy Harthcock determined that Collins was an "employee" pursuant to Mississippi Code Annotated Section 71-3- 3(d), even though he never got the truck driver position with Averitt.

The Mississippi Workers’ Compensation Commission agreed, as did the Court of Appeals.

Last Tuesday, the court explained that Section 71-3- 3(d) defines an “employee” as “any person . . . in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied."

For a "contract of hire" to exist, the court said, there generally must be "mutual consent, consideration, and right of control." Although these elements are not rigidly applied in workers' compensation cases, the court found these elements were all present for Collins and Averitt.

Mutual consent is defined as a "meeting of the minds of both parties to a contract," the court said.

Since Collins applied for the job and came to the test and orientation, the court said he clearly intended to accept the offer of employment.

And since Averitt extended the offer and welcomed him to the company, the court said, it appeared "Averitt had every intention of hiring him" once he passed the road-test requirements.

The court further reasoned that Averitt had provided consideration to Collins, even though he was never on the company payroll, since he was compensated for attending the orientation and for his mileage.

Averitt also benefited from Collins' coming to participate in the road test, because it helped Averitt carry out its business of hiring truck drivers, the court said.

The court went on to note that Averitt "clearly controlled the road-test environment" – directing not only Collins' activities, but also dictating his grooming and manner of dress.

As such, the court said substantial evidence supported the Commission's decision to uphold the award of benefits to Collins.

Rogen K. Chhabra of Chhabra & Gibbs represented Collins, along with Darryl Gibbs, Candace Mayberry, Ashley Hendricks and Seth Thompson.

Chhabra said he thought last week's decision was simply a restatement of the existing law in Mississippi for determining when a worker qualifies as an "employee."

He said the important distinction to make was that Averitt never formally hired Collins as a truck driver, but it "hired him for the initial job of participating in the application process" to get that truck driver position.

As Averitt was having people come to try out for the truck driver job, directing them in what to do and compensating them for their time, Chhabra said Averitt was basically "employing them as (job) applicants." He acknowledged that most industries "don't have such an intense application process that they have to pay people to come participate in it," but "for those industries that need it, they need to know that they are going to have to consider these people employees."

The law in Mississippi is clear, Chhabra said, "if you are controlled and compensated by an employer, you are an employee, period."

He said he wouldn't be at all surprised if Averitt appealed Tuesday's decision, although he said the statistical odds of the Supreme Court granting review are slim. In any event, he said he believed "Averitt's argument that (Collins) wasn't an employee is just not tenable under Mississippi law," and he doubted it would fly in any other state either.

Thompson, who is now part of Maggio & Thompson, handled much of the case up until it reached the Court of Appeals.

Thompson said Monday he expected Averitt to seek review by the Supreme Court, and if it does, he predicted his colleagues from the Chhabra firm "will probably win there too."

While there is no "bright-line rule" for determining the compensability of injuries during the hiring process, and cases are "entirely fact-driven," the Collins case boils down to the fact that "in Mississippi there are three qualifications to be an employee, and he satisfied them," Thompson said.

"This may not have been your typical employment situation," Thompson allowed, "for purposes of Mississippi workers' compensation, this was employment."

Martin W. Zummach and Gregory Morton of Sparkman-Zummach represented Averitt. They could not be reached Monday for comment.

Inventure Foods and Listeria

Inventure Foods is recalling dozens of frozen-vegetable products as well as Jamba brand smoothie kits from large supermarkets and retail centers in several states, including Mississippi according to a U.S. Food and Drug Administration email alert distributed this morning.

The voluntary recall by Inventure Foods, Inc. affects dozens of varieties of the company’s “Fresh Frozen” line of frozen vegetables as well as select varieties of its Jamba “At Home” line of smoothie kits because of the detection of Listeria monocytogenes bacteria during routine testing in the company’s production facility in Jefferson, Georgia.

To view a list of the specific products recalled, go to www.fda.gov/Safety/Recalls.

No known illnesses linked to consumption of Fresh Frozen frozen vegetables or Jamba “At Home” smoothies have been reported to date, and no listeria has been detected in the products themselves, but the company issued the recall notice because of the detected presence of the bacteria in the production facility.

Listeria can cause infections in young children, frail or elderly people, and others with weakened immune systems, the FDA said. Healthy people may suffer only short-term symptoms such as high fever, severe headache, stiffness, nausea, abdominal pain and diarrhea, but a listeria infection can cause miscarriages and stillbirths among pregnant women.

Inventure Foods urged those who purchased recalled product to destroy the contents and its package and notify the company to obtain a refund.

If you’ve been injured or hurt due to consuming “Fresh Frozen” line of vegetables or Jamba “At Home” smoothies that have been recalled, please contact the attorneys at Chhabra & Gibbs, P.A., at 601-948-8005 or by going to our website at http://www.cglawms.com . We might be able to help you receive compensation allowed by law for damages or injuries. It doesn’t cost you anything to call and talk to an attorney to see what options you have.

Blue Bell Ice Cream and Listeria

There have been three different recalls in the last month pertaining to Listeria contamination. Blue Bell has now begun to recall more ice cream due to pints of banana pudding ice cream testing positive for listeriosis. The contaminated ice cream came from the Broken Arrow, Oklahoma plant which serves a variety of supermarkets throughout several states, including Mississippi, according to Blue Bell.

More and more products are being recalled from Blue Bell Creameries, as 3 of the 8 people hospitalized for Listeria have already. For a complete list of the recalls, take a look here.

Blue Bell Creameries are not the only Listeria contamination recall this week; Sabra Hummus has also had some of their product test positive for the food-borne illness as well.

If you have consumed Blue Bell Ice Cream on the recall list and then become ill, contact your physician, and then contact Chhabra & Gibbs, P.A.  Also, keep the ice cream in your possession but store them in a location where they will not be consumed by anyone.

If you’ve been injured or hurt due to consuming Blue Bell Ice Cream that has been recalled, please contact the attorneys at Chhabra & Gibbs, P.A., at 601-948-8005 or by going to our website at http://www.cglawms.com . We might be able to help you receive compensation allowed by law for damages or injuries. It doesn’t cost you anything to call and talk to an attorney to see what options you have.

I Want to Speak to the Attorney

Every day, we get calls where a client insists on speaking to an attorney.  Sometimes they are new potential clients and sometimes, they have been a client for a long time.  We strive to return every call every day and make our attorneys as accessible as possible.  But where you find good lawyers, you find very busy lawyers.  And where lawyers are busy, efficiency matters.  So when is it ever appropriate to call and demand that an attorney get on the phone?

Perhaps an analogy is appropriate here.  Do you ever call up the doctor’s office and demand to speak to the doctor right now?  Do you ever walk in and demand to see him immediately?  Have you ever seen a doctor without some person that works for him take your vital signs and triage you?  Lawyers, the good ones that are busy, don’t work any different than doctors.  The job of the lawyer is to diagnose and treat the legal problem.  To diagnose each problem, he or she needs some basic information.  And every second spent getting basic information that the lawyer’s staff is paid to obtain, is a second less that the lawyer can concentrate on hearings, trials, depositions, and other important “treatment” for the solution.

So next time you call a lawyer’s office, instead of saying “I want to talk to a lawyer now,” perhaps you would actually get quicker diagnosis and treatment, if you would allow the lawyer’s office to work as efficiently as it is designed to do, and allow the assistant, receptionist, or paralegal to get the basic needed information so that an efficient solution can be provided.  

California woman wins $28 million against Kaiser Permanente

A young California woman who lost her leg and won a $28.2 million lawsuit against Kaiser Permanente said Thursday she hopes the verdict will bring reform against the managed care giant and empower patients to question their treatment.

“I truly hope that this is going to make a change in health care reform,” said Anna Rahm, a 23-year-old Cal State Northridge student.

“However, I know that it takes so much advocacy and so much passion,” she said. “We went into this with an initiative hoping that no matter the outcome, we wanted to get our story out there for everyone to be able to relate to and to learn from.”

A jury on Wednesday found that Kaiser Permanente was liable for mishandling Rahm’s medical treatment, resulting in the loss of her right leg, half of her pelvis and parts of her spine. The jury awarded Rahm the $28.2 million for future medical expenses, future loss of earnings, and pain and suffering after a four-week trial in Los Angeles Superior Court, according to her attorneys.

In response to the verdict, Kaiser issued a statement Thursday saying it was evaluating the outcome of the case.

“Although we understand the jury’s findings and wish only the best for Ms. Rahm, highly respected medical experts testified that the medical care provided was appropriate,” according to the statement. “We will be evaluating in the days ahead how best to respond to this verdict.”

Rahm was 16 years old when she began experiencing lower back pain. A chiropractor urged her to see her physician for an MRI. But according to court documents, her physician, Dr. Charlene Huang, who specializes in adolescent health at Kaiser Permanente Woodland Hills, told Rahm and her mother, Lynnette, she could not authorize the test. Rahm was referred to another physician, Dr. Ngan Vuong, who according to court documents noted that the young woman was experiencing pain down her leg and was unable to sleep. Instead of a diagnostic test, Vuong prescribed an epidermal injection and antidepressant, according to court documents.

Between March and June of 2009, Rahm’s family repeatedly requested an MRI from their treating physicians but both doctors refused to order any diagnostic exams. The complaint also said physicians failed to document the MRI request in the medical records.

Neither physician has had administrative penalties issued against them, according to licensing information by the California Medical Board.

When Kaiser Permanente agreed and the MRI was done on July 2, 2009, it revealed that Rahm had an aggressive tumor mass in her pelvis known as osteosarcoma. Rahm underwent chemotherapy, then surgeries lasting a total of 22 hours which resulted in the loss of her right leg.

Rahm’s attorneys said Kaiser Permanente’s refusal to give her an MRI not only resulted in the loss of her leg, but also was an example of medical negligence. Her attorneys said the physicians’ refusal to authorize the MRI was an example of Kaiser trying to keep costs low.

One of Rahm’s attorneys, Michael Bidart, said he hopes the verdict will change the way Kaiser provides health care to its members.

“The hope is that they will allow their doctors to do prompt imaging and diagnosis without having an institutional bias against getting MRI,” Bidart said. “There are a lot of good doctors at Kaiser, including the surgeon who did a magnificent job on her.”

But the same surgeon could have done more to help her, had the MRI been done earlier, Bidart said.

Bidart also noted this is one of the few cases of its kind involving Kaiser to be presented in front of a jury.

“We were able to avoid arbitration,” Bidart said. “When juries are able to see this, they are offended.”

For Rahm and her family, the verdict helped to cast light on an injustice.

“In our minds and in our hearts, it was important for justice to be done.” Lynnette Rahm said. “We felt she had been wronged. Monetarily, it could never be corrected. For years and years, Kaiser had been telling us, ‘We’ve done everything right.’ This was the greatest verdict of all.”

She agreed that after the MRI detected cancer, her daughter received great care at Kaiser.

“The doctors who came afterward were wonderful,” Lynnette Rahm said. “They saved her life. We love them. It goes to show we’re not against Kaiser or against all doctors. We’re against doctors who don’t do their jobs.”

Now that the trial is behind her, Anna Rahm said she plans to continue pursuing her degree at CSUN in child and adolescent development. She said she already visits children and teens who are hospitalized and frightened.

“When I ended up surviving cancer, I felt I needed to help children in the hospital, because I was helped after my diagnosis,” said Rahm, who has been cancer-free since 2010. “I felt as though it was important for me to give back. I just feel I know they benefit from what I’m giving to them and I can benefit from what they are giving me.”

If you or a loved one have become victim to medical negligence, contact Chhabra & Gibbs, P.A. today by going to http://www.cglawms.com or by calling 601-948-8005 for a free consultation.

How To Prep For Workers Compensation

The reality tv show “Doomsday Preppers” is about families who are preparing for the end of the world.  Everyday ordinary people who believe that life as we know it will end due to earthquakes, nuclear war or cyber-warfare, or some other disaster.  What’s remarkable is that the preppers are prepared for catastrophes that may or may not ever happen. 

We can learn from the preppers.  Maybe we don’t need to prepare for global earthquakes, but the way preppers know exactly what to do in moments of crisis is something positive we can all apply in our own lives.

At Chhabra and Gibbs, we regularly meet people during their times of crisis and it is our privilege to represent them.  But, like the preppers, it is important to know what to do before a crisis ever occurs.

If you are involved in an accident at your workplace or feel any pain while you are working, the first thing you should do is report it to your boss.  Tell your supervisor or your boss that you’ve been hurt—even if it was your own fault, even if it seems minor.

Accident = Tell your boss.  Even if you don’t think you’ve been injured in the accident = Tell your boss.

Sometimes a worker will be performing everyday ordinary tasks at their job and they will feel pain somewhere in their body. 

Pain = Tell your boss.

After you’ve reported your injury, seek medical treatment.  You have a legal right to medical treatment. We will work with you throughout your treatment process to get you the care and compensation that you deserve.

Do not quit or resign from your job.  If your doctor has taken you off work or given you light or medium duty, abide by your doctor’s instructions.  If your employer refuses to accommodate your restrictions, you should still continue to abide by the restrictions your doctor has given you.

If your doctor has cleared you to work and you do not have a job, search for a job.  This is good for your life and good for your claim.

If you feel that you have a workers' compensation claim, contact Chhabra and Gibbs, P.A. today for a free consultation by going to our website at http://www.cglawms.com or by calling 601.948.8005.

The Workers’ Compensation System Is Broken And It’s Driving People Into Poverty

There’s a good news & bad news situation for occupational injuries in the United States: Fewer people are getting hurt on the job. But those who do are getting less help.

That’s according to a couple of important new reports on how the system for cleaning up workplace accidents is broken -- both because of the changing circumstances of the people who are getting injured, and the disintegration of programs that are supposed to pay for them.

The first comes from the Department of Labor, which aims to tie the 3 million workplace injuries reported per year -- the number is actually much higher, because many workers fear raising the issue with their employers -- into the ongoing national conversation about inequality. In an overview of research on the topic, the agency finds that low-wage workers have disproportionately high injury rates, and that injuries can slice 15 percent off a person’s earnings over 10 years after the accident.

There are two main components to the financial implications of a workplace injury. The first is the legal status of the people getting injured. A staggering number of workers in the construction industry are misclassified as independent contractors, which means they’re not entitled to workers' compensation payments. Also, more of them are employees of temporary staffing agencies, who tend to be less well-trained and less likely to report their injuries. Businesses will often contract out their most dangerous work, which allows them to keep their own workers' compensation premiums to a minimum.

The second component is the degradation of workers' compensation programs themselves. That issue is addressed by the second report out Wednesday, from ProPublica and NPR, which looks at how employers have lobbied states to get out of paying as much as they used to in workers' compensation, leaving injured workers with inadequate treatment.

Since 2003, the investigation found, 33 states have weakened their workers' compensation regulations, scaling back the procedures that will be covered and the duration for which benefits are offered. In addition, while businesses often push for reforms on the grounds that workers' compensation costs are out of control, data shows that premiums are lower than they’ve been at any point since the early 1990s.

Somebody ends up paying for those injuries, though: taxpayers. When a worker ends up unable to work because of an injury, he or she can be covered by Social Security Disability Insurance, a program that has steadily increased in cost over the past two decades. The rise has many demographic factors behind it, but it looks like the abdication of responsibility by employers may have played a role as well.

The Department of Labor has tried to tackle the misclassification problem -- which contributes to unsafe workplaces, and prevents those who are injured from getting help -- by aggressively pursuing employers abusing the system. But there’s not much they can do about the decline in workers' compensation coverage. That’s something states are going to address themselves -- over employers’ strong objections.

Has your employer been ignoring your workers’ compensation case? Are you having problems getting your paychecks or receiving medical treatment after you’ve been injured in a work-related accident? It might be time to hire a good Mississippi workers’ compensation lawyer to fight for you. If you feel that you have a workers’ compensation claim, contact Chhabra & Gibbs, P.A. today by going to our website at http://www.cglawms.com or calling 601-948-8005.