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Published:April 1st, 2009 09:52 EST
Hello? Is this the low-hanging fruit department?

Hello? Is this the low-hanging fruit department?

By S Renee Greene

DEL MONTE FRESH PRODUCE and

SIGNAL MUTUAL INDEMNITY ASSOCIATION, LTD.,

Petitioners,

versus

DIRECTOR, OWCP,

U.S. DEPARTMENT OF LABOR,

WILLIAM N. GATES,

Respondents.

No. 07-12818

 

William Gates was injured by forklifts twice while he was working at a Del Monte Fresh Produce plant. The first time, a forklift smashed into the back of the one he was driving, leaving him with injuries to his wrists and the palms of his hands. About eight months later, Gates was walking out of a cooler when a forklift carrying a load of fruit ran him down and knocked him ten to fifteen feet across the floor. While he was still lying face down with his foot in a slot, a pallet with forty-eight boxes of fruit on it was lowered onto Gates` heel. The accident left him with injuries to his neck, back, shoulder, and foot. After suffering those injuries, Gates was no longer able to perform the duties of the forklift operator/warehouseman job he had held at Del Monte. He was given a lighter duty job until the plant closed about a year later.

 

William Gates did find another job "with Sizemore Security, making a bit over eight dollars an hour, then was transferred to another job paying a bit over seven dollars an hour. During that second stint, his hours were dropped from 40 to half-time and he requested an increase in his disability wages based on the lower wage-earning capacity. It was granted and the Labor Board affirmed it.

 

Del Monte appealed, arguing that Gates was in effect demoted " due to on-the-job misconduct while working for Sizemore. The significance in that is that if it was true, then the worker`s comp benefits would not apply to loss of earning capacity due to misbehavior on the job.

 

Del Monte appeared with copies of Gates` personnel file showing that he had had some prior issues on his former job. Problem is "he wasn`t fired in either instance, nor was he immediately transferred. Del Monte also presented the testimony of a Sizemore employee in human resources who stated that Gates was transferred due to insubordination.

 

What`s the connection between Del Monte and Sizemore that gave them access to his personnel files from another company? Better yet, what`s the connection between Del Monte and Beth Swank, the Sizemore payroll officer who produced the records?

 

Moving on "

 

Complicating matters is the fact that Gates was promoted a week after being transferred. Where`s the link between his act of insubordination and his promotion a week after starting the new position?

Now to the more serious matter: Was Gates loss of earning capacity due to his disability? No. His loss of wages were because Sizemore transferred him to a lower-paying position and cut his hours, and when that happened Gates did not seek to find a better-paying position with more hours. We need government "the size of a pinhead` (according to the GOP) so that laborers like Gates who are injured on the job will have not have worker`s compensation laws to protect them from people who deal in fruit and squeezing juice.

 

Though the burden shifted to Del Monte to show that suitable alternative work was available for Gates, they weren`t hiring and neither was anyone else they could think of. But something is supposed to open up in the future "

 

Then, Del Monte stepped the argument up a notch. They decided that not only was Gates not entitled to the increase in disability benefits because the reduction in earnings had nothing to do with them, but that any determination that was made to his benefits should be lowered based on his current earning capacity (age, education, physical condition ") and not according to the earning capacity that he enjoyed before the 48 boxes of fruit fell on him.

 

Nuts. I mean, bananas.

 

Del Monte could have done their studies, sought to determine if there were viable employment alternatives, and most of all, they could have used the current economic downturn as an excuse for their behavior, but they did none of that until forced to appeal. They didn`t even notice that he (Gates) had gotten some overtime that may have lowered Signal`s liability, until forced to appeal. In the end, no one was required to investigate what Del Monte missed.

 

The 11th Circuit Court affirmed that the Labor Board was under no obligation to issue a credit " based on matters that should have been handled before the case got to the judge`s review panel.

What have we learned? That maybe Del Monte should have told the Circuit Court that the dog ate their homework?

 

And this is why we have Labor Boards; advocates for smaller government need not apply.