January 2006 - Board Practice

The Board has accepted Shaver v. Poland Springs Bottling for review and declined to review Johnson v. S.D. Warren.

Shaver v. Poland Springs Bottling
WCB 04-001827, 10/01/2005
GOODNOUGH

Termination of employee held not discriminatory where employer had policy that employees report work incidents immediately and employee failed to report it until the next day. Policy found to be facially neutral.

After a fall at work, the employee failed to report it to his supervisor until the next day, when he felt pain in his knee. The employer immediately terminated him for violating written company policy, which stated, "All accidents must be reported immediately to a Department Resource." The employee petitioned for and received closed-end benefits and returned to work with another employer.

The employee then petitioned to remedy discrimination under §353, arguing that the employer had improperly terminated him for exercising his rights under the Act. In particular, he asserted that the termination violated his right under §301 of the Act to have 90 days from the date of injury in which to report the incident.

Hearing Officer Goodnough denied the petition, finding that the employer's action was "not substantially rooted" in the employee's exercise of his rights, but instead was "ultimately rooted" in the employer's desire for a safe workplace through early notice of safety hazards.
Officer Goodnough ruled that though the employer's policy was "unusual," it was facially neutral. He noted that it had also led to a dramatic drop in workplace accidents and injuries since its institution in 2002.

The hearing officer did acknowledge that the policy might discourage employees from later filing compensation claims that they failed to report immediately for fear of disciplinary action. In this case, however, the employee had attended a safety meeting the day before his work incident, at which the reporting policy was discussed. The employer had also terminated other employees who had failed to report incidents immediately. On the whole then, Goodnough found the policy to be facially neutral and nondiscriminatory.

The Board accepted for review as an issue of significance whether a facially neutral policy requiring termination of an employee for failing to "immediately" report a work accident or injury is discriminatory and in violation of §353 of the Act.

Johnson v. S.D. Warren/
Liberty Mutual Ins.
WCB 08/24/2005, 12/15/2005-FOF
SPRAGUE

Only mental health specialists can assess permanent impairment for psychological dysfunction.

The Board declined to review the issue of whether only a specialist in the mental health field can assess permanent impairment for a mental or emotional impairment. Dr. Pavlak, a physiatrist, had given the employee a 5% whole person PI rating based upon her physical problems but had raised it to 15% by adding in a psychological dysfunction found by another doctor.

Hearing Officer Sprague accepted Dr. Pavlak's physical impairment rating of 5% but not his evaluation regarding mental impairment, as Board rules require that PI assessments be evaluated by a specialist in the field, Ch. 2, §3(4), and Dr. Pavlak is not a mental health specialist.