The News You Need for May 10
Severe weather and worker safety and a case involving PTSD, a "set up," and a sexual harassment charge are on tap.
Climate & Comp: Employees in Danger’s Path as Tornadoes Rip Across Country?
Portage, MI (WorkersCompensation.com) – As a round of severe storms crossed the country this week, employees scrambled for shelter.??
Employment attorneys say employers are caught in the cross-hairs when it comes to protecting employees during severe weather.??
In Portage, Mich., severe storms ripped off the roof and the front of a FedEx Ship Center, emergency management officials said. Kalamazoo Emergency Management told ABC News an estimated 50 employees were trapped inside the building due to downed power lines, but crews were able to clear the line and get everyone out safely. Two FedEx drivers were on their routes when the tornadoes tore through the area, officials said.??
"At that time I looked up and I was like, 'Things are not getting good, it's getting windy, the weather's getting really, really bad really, really quick,'" one driver told WZZM News. "So at that time it was more about seeking shelter for me and caring about myself."?
The other driver said he was able to get back to the facility about five minutes after the tornado passed.??
"I did come in through the storm, and the wind was howling, it was blowing against my truck. It was extremely loud," he said.?
FedEx corporate spokespeople said they were thankful there were no injuries.??
"Our thoughts are with those affected by the tornado in Portage, Michigan, and we are grateful there were no serious injuries resulting from the damage to our facility at 6701 Portage Road. We continue to assess the damage, and we are implementing contingency plans to lessen any potential impacts on service. Customers with questions about their shipments can check fedex.com for updates," Shannon Davis with FedEx Media Relations said in a statement.?
An employee at a barbershop in Portage said she was working when the tornado shattered the business’s front door.??
Amanda Miller, an employee at Jude’s Barbershop, said employees and customers ran for cover Tuesday evening as an estimated four tornadoes and four-inch hail hit the area.??
"We got a few, like, tornado warnings. But a client walked in about five minutes before the tornado hit, and so the other girl that I was working with was cutting his hair," Miller told news outlets. "And the door started to, like, slap in the wind a little bit. She went over to lock the door and then all of the front windows and front door kind of shattered. And like very quickly the roof was going missing, and walls are coming down."?
Kalamazoo County sheriff’s office officials said there were no serious injuries, but an estimated 16 to 20 people had been injured in the storm.??
In late April, some of the employees at a Lincoln, Neb., machine tool plant weren’t so lucky.??
On April 26, a confirmed EF3 tornado trapped some 70 employees inside the Garner Industries plant near Lincoln. Three people were injured when the building collapsed, Chief Lancaster County Deputy Ben Houchin said. The remaining employees were rescued unharmed.??
Houchin also confirmed that a semi-tractor trailer was overturned during the storm, and that the sheriff’s office also responded to a train derailment. Burlington Northern Santa Fe railroad said no one was injured in the derailment.??
Scott McLain, CEO and president of Garner Industries, announced Monday that it was forced to lay off more than 60 employees citing the damage to the building.??
“We’ve worked hard to find a path to move forward,” McLain said in a press release. “These layoffs are necessary for us to stay in business. This is an extremely difficult situation. These people are like family.”?
The employees will be given compensation and health benefits, McLain said. The company has also organized community support, medical and mental health assistance and new employment recruiting opportunities.??
Managing employees in the midst of a severe weather event can be tricky, experts say.??
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On average, according to the National Oceanic and Atmospheric Administration, 1,253 tornadoes occur every year in the U.S. The National Severe Storms Laboratory (NSSL) reports peak “tornado season” for the southern plains from May to early June, while hitting the northern Plains and upper Midwest in June or July.??
But tornadoes can happen anytime. In December of 2021, tornadoes struck the Mayfield Consumer Products, LLC candle factory in Graves County, Ky. Eight employees of the company died during the tornado outbreak that eventually crossed six states - tornado outbreak impacted six states — including Arkansas, Illinois, Missouri, Mississippi and Tennessee.??
Employees of the candle factory have sued Mayfield saying their supervisors put them in harm’s way. The suit, filed in Graves Circuit Court on behalf of more than 100 employees accuses the company of refusing to let them "leave work before the tornado actually hit its place of business even though the Defendant had at least 3 hours' notice of the danger this tornado posed."?
Sam Hinh, with Axcet HR Solutions , said employers need to have a plan in place for when severe weather strikes.??
“Legally, while you can insist on employees staying within the safety of the designated shelter areas, compelling them to stay against their will crosses ethical and potentially legal boundaries,” Hinh wrote in an April 29 blog post. “It's essential for employers to communicate the risks of exiting the premises during a tornado, directing employees to designated ‘shelter in place’ locations. Should an employee choose to disregard these directives, it may be treated as a disciplinary issue.”?
Sam Hihn said employers should have a well-documented emergency action plan, and ensure that it is thoroughly communicated to all employees beforehand. If an employee refuses to comply with the emergency plan, he said, that could be considered employee misconduct and would be a defense against any liability.??
Officer Establishes PTSD from Assault by Man ‘Smoking Crack,’ ‘Getting Drunk with Tupac’
Verona, MS (WorkersCompensation.com) -- Is it quantity or quality that makes something better?
According to the court in City of Verona v. Moffett, No. 2022-WC-0150-COA (Miss. Ct. App. 05/07/24), when it comes to medical evidence in a workers' compensation case, quality bests quantity, and a PTSD case shows why.
A police officer for a Mississippi city was involved in a near-death assault while on duty. The incident involved an individual who had previously assaulted the officer while she was on duty. On the day at issue in this case, the individual threw what appeared to be crack cocaine on the floor and announced that he had been "smoking crack and getting drunk with Tupac all day." He then jumped up and grabbed his girlfriend's oxygen tubing out of her nose, wrapped it around his arm, and told her, "Die, bitch."
As the officer attempted to get the oxygen tubing back, the individual grabbed her weapon and said he was going to kill everyone in the house. After a fight with the individual, the officer ended up on the floor in a fetal position, and the individual punched and kicked her in the head, neck, and shoulders for 11 minutes while the officer went in and out of consciousness.
The officer sought workers' compensation benefits after sustaining several physical injuries and developing PTSD as a result of the incident. At the time of the incident, the officer was involved in litigation related to claims of sexual harassment against her police chief. She believed that the assault occurred as the result of a "set up" by the chief and alleged that two people had previously approached her to tell that the chief was going to have her killed.
The city challenged her mental injuries and asserted that she had no loss of wage-earning capacity. An administrative judge ruled that the officer suffered a 50% loss of wage-earning capacity. On appeal, the Workers' Compensation Commission found that she actually suffered an 80% loss.
The city appealed to court, challenging the WCC's reliance on records and testimony provided by a doctor that supported the officer's case.
When it comes to medical evidence in a Mississippi workers' compensation case, when medical expert evidence conflicts, courts will affirm the commission. The test is the credibility of the experts, based on the weight of the objective proof, evidence, or results used in rendering a medical opinion.
In the officer's case, the WCC found that the supporting doctor's testimony, medical findings, and results used in rendering her opinion to be more credible, and the court found no reason to disturb this finding.
In particular, the court highlighted that:
+ The doctor was a board-certified psychiatrist who had been treating the officer for years. + The doctor met with the officer every few weeks and had seen her for more than 30 sessions. + The doctor worked alongside the officer's therapist to ensure that they were providing her with the most comprehensive treatment. + The doctor connected with the officer's general practitioner to get a "good understanding" of the officer's baseline level of behavior so that she could determine whether the officer was improving.
Thus, the court found that there was "substantial credible evidence" to support the WCC's decision, and it upheld the ruling in the officer's favor.