March 2012 Archives

Montana Supreme Court Finds Plan II Employers Are Not Within the Insurer's Attorney-Client Privilege

A Montana employer that elects to place its workers' compensation coverage under statutory Plan II turns all of the responsibility for adjusting and settling work comp claims over to the insurance company. The Montana Supreme Court relied on that principle when it held today that an insurer waived its attorney-client privilege by disclosing a confidential settlement strategy memorandum to representatives of the employer.

Retaliation Need Only Be a "Contributing Factor," Not the Only Reason

On February 12, 2012, the U.S. Department of Labor's Administrative Review Board held in favor of the railroad employee in DeFrancesco v. Union Railroad Co. Mr. DeFrancesco alleged that his employer, Union Railroad Co., illegally retaliated against him for reporting an on-duty injury. Following the injury report, DeFrancesco's supervisors reviewed his entire "discipline and injury history to determine whether he exhibited a pattern of unsafe behavior that required corrective action." The railroad concluded DeFrancesco had failed to work safely at the time of his injury, and also that he had shown a general pattern of carelessness at work. The railroad noticed up an investigation on these charges but offered alternative handling in the form of a 15-day suspension. The employee, fearing he would be discharged if he proceeded to investigation, accepted the suspension and then filed an OSHA complaint for retaliation.

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