WCM has completed an analysis of 100 reported workers' compensation decisions. The results of the study are shocking. Over 70 percent of the cases have resulted in the claimant being denied benefits. Even more startling is the wide variety of denials for workers who were clearly injured on the job. These denials are based on workers' compensation "reform statutes", administrative regulations, tightened definitions of benefits, offsets, etc.

Here are just a few of the reasons given for the denials:

- Refusal to undergo back surgery, 711 A.2d 1096 (1998)

- Tier Down Reduction of Benefits, 969 S.W.2d 695 (1998)

- Garnishment of workers' compensation, 958 P.2d 78 (1998)

- Need to prove major depression, 712 So.2d 256 (1998)

- Bad faith claims prohibited, 956 P.2d 117 (1998)

- Workers' compensation not due to heirs on death of claimant, 955 P.2d 1093 (1998)

- Reduction in workers' compensation for rehabilitation failure, 710 So.2d 1106 (1998)

- Denial by phone permitted, 957 P.2d 847 (1998)

- Stress benefits denied as claimant not "incurably insane", 968 S.W.2d 950 (1998)

The list of cases in which workers were clearly injured on the job and are being denied benefits or having their benefits reduced or terminated goes on and on.

What about the original workers' compensation bargain made between employers and employees? How far will the courts and legislatures let the scales of justice tip before the balance in workers' compensation cases is corrected?

The Irving v. USA case in which OSHA was found liable for a negligent safety inspection has taken a new and bizarre twist. Lead counsel Paul R. Cox explains:

In view of your interest in the Irving case, I am taking a moment to alert you to the fact, in the event it had not come to your attention, that the 99 page, detailed opinion of the First Circuit Panel has been withdrawn. Though the Government never appealed nor requested review, 60 days after the opinion was issued upholding our Trial Verdict, we received Sua Sponte from the Court a cryptic notice stating simply that the opinion of the Panel was withdrawn and that the case would be re-decided En Banc by the five full time Judges of the Circuit. No reason was given for the action and little guidance was provided. Our further Motion specifically seeking same was ignored by the Court.

After her long, courageous battle with injury and the Judicial process, the receipt of this shocking Order almost nineteen years after her tragic accident was most distressing, to say the least, to Gail Irving as well as this office.

The matter has been re-briefed (on the very same issues) and the Court has scheduled oral argument En Banc for September 10, 1998, at the new Federal Court House, One Courthouse Way, Suite 2-500, Boston.

Your prior interest in the case and support is appreciated. Sincerely, Paul R. Cox, Esq.

For additional information call Paul R. Cox, Esq., at 603-742-2332.

Carve-Outs and Workers' Compensation

Little by little the state workers' compensation systems are being eroded by the ability of employers to negotiate alternative dispute resolution programs in place of the state workers' compensation systems.

In Kentucky, Carhartt, Inc., a clothing manufacturer with 2,800 employees, began a trial run in 1996 and has never looked back. Since the carve-out of 800 claims, 103 went through ADR and only three cases through arbitration. In short, workers' compensation claims as we know it were effectively done away with.

If you think this example in Kentucky is just an isolated incident, look what happened in California. The California Court of Appeals has recently upheld the constitutionality of private alternative dispute resolution procedures. The law in 1994 was amended to permit these carve-outs for unions in the construction industry. The law in question, Costa v. W.C. Appeals Board (7/30/98), involved Tony Costa, an electrician who was severely burned in an explosion at work. He sought to file a workers' compensation claim for medical treatment and home care. The court found that he could not proceed with his claim and had to utilize the ADR procedure specified in the collective bargaining agreement.

Conclusion: Watch out for carve-outs as they are eroding the state workers' compensation systems and the rights of injured workers.

Watch Out for Workers' Compensation Advisory Councils

Currently 34 states have workers' compensation advisory councils. The importance of these councils is that in many instances they monitor workers' compensation legislation, make recommendations for and against legislation, and in some instances propose workers' compensation legislation which is rubber stamped by their respective legislatures.

The Workers' Compensation Research Institute has published an analysis of the workers' compensation advisory councils. The publication is entitled "Workers' Compensation Advisory Councils - A National Inventory 1997-1998". For additional information call 617-494-1240.

Privacy Legislation and Workers' Compensation

The insurance industry is working furiously to modify "patient protection" legislation (H.R. 4250) to remove workers' compensation from its confidentiality requirements.

The American Insurance Association in its July 1998 workers' compensation bulletin states:

Title V does not include comprehensive authorization requirements but limits disclosures by any entity to "health care providers and health plans" to permit "the provider or plan to conduct health care operations". The limited bases for disclosure raises questions about the ability of non-covered parties, including workers' compensation insurers, to obtain information from parties that are covered. Moreover, there are questions whether workers' compensation and auto no-fault could be construed as "health plans" and medical treatment provided thereunder as "health care operations". Finally, the bill covers "employers" without express limitation on the type of payment system.

For all of these ambiguities, it is clear the legislation does not intend to implicate workers' compensation. Insurers have discussed these problems with key committee staff and are evaluating the need for clarifying language.

For additional up-to-the-minute information call 202-828-7100.

Misplaced Focus on Claimant Fraud

The New York Injured Workers' Bar Association recently issued a white paper which points out that legitimately injured workers' compensation claimants are afraid to file their claims. All the media hype surrounding workers' compensation fraud deals with claimants when in fact for every $1 lost in claimant fraud, $4-$10 are lost through premium fraud, i.e. underreporting payrolls, misclassification of workers as independent contractors, and misclassification of workers. Fraud in the medical community consists of upcoding, kickbacks, and underutilization.

The white paper concludes that claimant fraud is a convenient distraction from the true cost drivers in workers' compensation.

Women with Lawyers!

The Texas Research and Oversight Council on Workers' Compensa-tion recently conducted a study of 103,251 closed workers' compen-sation claims to determine what factors influence claims duration.

The results were that women with workers' compensation claims and workers who retain legal counsel have claims that are open longer than the average claims.

The average claim remained open 1.45 years. For women the claim length was 1.62 years and for injured workers with counsel the average was 1.7 years.

The council stated:

One possible use of this information is to focus claims management efforts on those characteristics that encourage shorter claims duration and ultimately hasten return to work."

For additional information call 512-469-7811.

Chronic Back Pain or Malingering?

An interesting article entitled "Chronic Back Pain: Physiological or Psychological" appeared in the summer 1998 issue of the Journal of Workers' Compensation. The author, Albert M. Drukteinis, MD, JD, from the Dartmouth Medical School in Hanover, New Hampshire, discloses primary and secondary gain and concludes:

Back pain disability can have a number of psychological components, including a psychological conditioning process, numerous psychosocial variables, and compensation-drive factors. A thorough understanding of the patient and his or her history is necessary before determining how much these factors are contributing to the patient's complaints and impairment. Psychological evaluation and psychological testing by an experienced clinicians can make the difference in successful treatment or exposure of malingerers.

For additional information or a copy of the entire article call 617-457-0600.

Second Hand Smoke Award

New Jersey attorney Jon L. Gelman, writing in the August 10, 1998 issue of the New Jersey Law Journal, reports that a $45,000 award was made to a claimant for second-hand smoke exposure.

Judge James Boyle, in his decision, stated:

I am satisfied that the petitioner has proven even beyond the preponderance of credible evidence that his tonsillar cancer was caused by his exposure to second-hand smoke during the 20 years that he shared an office with a co-employee who was a chain smoker.

Structured Settlements

If you are settling workers' compensation cases and using the structured settlement vehicle, you should consider informing your client in writing about H.R. 4314. The "Structured Settlement Protection Act" sponsored by Rep. E. Clay Shaw, Jr. (FL) taxes the factoring companies 50 percent of the difference between the total payment of the structured settlement payments and the discounted lump sum paid to the injured worker. This will make it very difficult for claimants to get lump sum payments for their structured settlements. Despite the exceptions for hardship situations, cautious counsel will note the effect of the Act in settlement agreements.

Workers' Compensation Claimants Rely on Attorneys

How much do injured workers rely on attorneys to help get them their workers' compensation benefits? In the state of Florida a recent study found that in 93.4 percent of all requests for assistance the worker was represented by counsel. Despite the wide use of attorneys, attorney fees dropped in Florida from $200 million in 1995 to $168 million in 1997.

Hearing Loss

NIOSH has issued a 105-page report entitled "Occupational Noise Exposure Revised Criteria 1998". If you are handling hearing loss claims you should have this document.

This criteria document reevaluates and reaffirms the recommended exposure limit (REL) for occupational noise exposure established by the National Institute for Occupational Safety and Health (NIOSH) in 1972. The REL is 85 decibels, A-weighted, as an eight-hour time-weighted average (85 dBA as an eight-hour TWA). Exposures at or above this level are hazardous.

By incorporating the 4000-Hz audiometric frequency into the duration of hearing impairment in the risk assessment, NIOSH has found an 8 percent excess risk of developing occupational noise-induced hearing loss (NIHL) during a 40-year lifetime exposure at the 85-dBA REL. NIOSH has also found that scientific evidence supports the use of a 3-dB exchange rate for the calculation of TWA exposures to noise.

Copies of this NIOSH document are available from: Publications Dissemination, Education and Information Division, National Institute for Occupational Safety and Health, 4676 Columbia Parkway, Cincinnati, OH 45226-1998; fax number: 513-533-8573; telephone number: 1-800-35-NIOSH (1-800-356-4674); E-mail: pubstaft@cdc.gov.

Fatal Occupational Injuries

According to the Bureau of Labor Statistics, the number of fatal work injuries that occurred during 1997 was 6,218, about the same as the previous year's total. Decreases in deaths from job-related homicides and aircraft crashes in 1997 were offset by increases in work-related deaths from highway crashes, falls, and being caught in running equipment. The construction industry reported the largest number of fatal work injuries and accounted for half of worker fatalities from falls. Taxicab drivers and police and detectives were among the occupations with the largest increases in fatalities over the previous year. In 1997, job-related highway fatalities reached their highest level since the BLS fatality census began in 1992. Increases in the number of workers killed in crashes with objects on the side of the road, jack-knifing tractor-trailer rigs, and overturning vehicles were largely responsible for the rise in highway fatalities over the 1996 total.

Highway crashes were the leading causes of on-the-job fatalities and accounted for 22 percent of the 1997 fatal work injury total. Ninety percent of workers killed in highway crashes were driving the vehicle at the time of the incident. Almost half of the highway fatality victims were employed as truckdrivers or in other jobs operating motor vehicles as a profession.

Twenty percent of the worker fatalities resulted from other types of transportation-related incidents such as tractors and forklifts overturning in fields or in warehouses, workers being struck by vehicles, aircraft and railway crashes, and water vessels capsizing. Worker deaths from railway crashes, while relatively few in number, were at the highest level in the last six years. Most of these fatalities occurred when the vehicle the worker was driving or riding in was struck by a train at a railroad crossing. Because there were no major commercial airline crashes in 1997, worker deaths from aircraft crashes were at their lowest level in the last six years.

For additional information call 202-606-6175.

Getting Connected

NIOSH has developed a home page located on the World Wide Web (WWW). The Web network consists of files on computers all over the world. WWW documents contain topics that, when selected, connect (link) the user to other documents. It is a hypertext (http) system that allows users to choose words or phrases in a document that cause another document to be retrieved and displayed. You select a link by positioning the mouse cursor over the underlined, boldfaced text. A pointing finger will appear. Press the left mouse button to activate or go to the link.

The NIOSH home page has been established to provide information about NIOSH and related activities. With the click of the mouse, you will be able to browse by subject or category, and find the information and services we provide.

A. NIOSH Internet Address: http://www.cdc.gov/ niosh

B. NIOSH Home Page Contents: The NIOSH Home Page is continually being revised to meet the needs of customers. The outline below reflects the Home Page as of February 1998.

1. SERVICES

a. Health Hazard Evaluations

b. Technical Inquiries

c. Training

2. PUBLICATIONS (order directly on the home page: http://www.cdc.gov/niosh/pubs)

a. Databases

b. Documents (by category)

c. Patents

3. NEWS

a. What's New

b. Press Releases, Updates, Federal Register Notices

c. Meetings

4. RESEARCH

a. NORA

b. Selected Topics

c. Extramural Programs

5. GENERAL INFORMATION

a. About

b. Directory

c. Fellowships, Employment

Ergonomics Delay

The July issue of the ACOEM report gave the latest update on the long awaited ergonomic rule.

According to the Administrator for the Occupational Safety and Health Administration (OSHA), the earliest a proposal for an ergonomic rule could be published is summer 1999. As part of the Agency's information gathering process, OSHA conducted stakeholder meetings on the ergonomics program standard in Kansas City on July 21 and Atlanta on July 23. Dr. J. Steven Moore, Chair of the American College of Occupational and Environmental Medicine's Ergonomics Committee, represented the College at the Kansas City meeting. Stakeholders were asked to address four key issues: 1) what should all employers covered by the scope of the standard do to protect their employees from MSDs; 2) what action levels should be used to trigger further employer action; 3) how does an employer with an effective program determine when controls are adequate for a problem job; and 4) should OSHA limit the scope of the proposed program standard.

For additional information call 847-228-6850.

Top

Workers' Compensation Injuries and Conditions

at a Glance

ANKLE

Brobst v. Brighton Place North, 955 P.2d 1315 (Kan.App. 1997)

ANKLE: NON-DISPLACED FRACTURE

State Ex Rel. Tapp v. Parsec, Inc., 696 N.E.2d 591 (Ohio 1998)

ARM

Danker v. Wilimek, 577 N.W.2d 634 (Iowa 1998)

ARTHRITIS

Lammert v. Vess Beverages, Inc., 968 S.W.2d 720 (Mo.App. E.D. 1998)

BACK

Bailey v. Reynolds Metals, 959 P.2d 84 (Or.App. 1998)

Ballard v. Book Heating & Cooling, Inc., 696 N.E.2d 55 (Ind.App. 1998)

Burton v. W.C.A.B. (Hershey Automatic), 711 A.2d 596 (Pa.Cmwlth. 1998)

Cole v. Complete Auto Transit, Inc., 696 N.E.2d 289 (Ohio App. 1 Dist. 1997)

Cozart v. Special Indem. Fund, 958 P.2d 176 (Okla.Civ.App. Div. 3 1998)

Dabney v. Boh Bros. Const. Co., 710 So.2d 1106 (La.App. 4 Cir. 1998)

D'Andrea v. Wal-Mart Stores, Inc., 711 So.2d 1373 (Fla.App. 1 Dist. 1998)

Fimini v. Star Gallo Distributors, Inc., 710 A.2d 1374 (Conn.App. 1998)

Hagerman v. Gencorp Automotive, 579 N.W.2d 347 (Mich. 1998)

Herman v. Sherwood Industries, Inc., 710 A.2d 1338 (Conn. 1998)

IHS/Heritage Manor of Kaplan v. Smith, 710 So.2d 1204 (La.App. 3 Cir. 1998)

Malbrough v. Halliburton Logging Serv., 710 So.2d 1149 (La.App. 1 Cir. 1998)

Pollard v. Three M Co., 710 So.2d 922 (Ala.Civ.App. 1998)

Robertshaw Controls v. W.C.A.B., 710 A.2d 1232 (Pa.Cmwlth. 1998)

Sibley Memorial Hosp. v. DC Does, 711 A.2d 105 (D.C. 1998)

Smith v. City of Sauk Centre, 578 N.W.2d 755 (Minn. 1998)

BACK: DISC

Davis v. W.C.A.B. (Acme Markets, Inc.), 711 A.2d 1096 (Pa.Cmwlth. 1998)

Orange County Mis Dept. v. Hak, 710 So.2d 998 (Fla.App. 4 Dist. 1998)

Rideaux v. St. Landry Parish School Bd., 711 So.2d 819 (La.App. 3 Cir. 1998)

BACK: FRACTURED VERTEBRAE

Gilmore v. SGB Const. Services, Inc., 712 So.2d 663 (La.App. 1 Cir. 1998)

BURNS

Cardinale v. Central Portable Heating, 711 A.2d 1128 (R.I. 1998)

CARPAL TUNNEL SYNDROME

Bond v. W.C.A.B. (Belmont Center), 711 A.2d 554 (Pa.Cmwlth. 1998)

Kildow v. Baldwin Piano & Organ, 969 S.W.2d 190 (Ark. 1998)

Malone v. Texarkana Public Schools, 969 S.W.2d 644 (Ark. 1998)

Mosley v. Ford Motor Co., Ky.App., 968 S.W.2d 675Prejean v. Euclid Bd. of Edn., 696 N.E.2d 606 (Ohio App. 8 Dist. 1997)

DEPRESSION

Parkhurst v. D.C. Dept. of Emp. Services, 710 A.2d 854 (D.C. 1998)

DERMATITIS

Schrader Bellows v. W.C.A.B. (Earle), 711 A.2d 578 (Pa.Cmwlth. 1998)

DIABETES

Palomo v. J.R. Simplot Co., 955 P.2d 1093 (Idaho 1998)

FEET

Osman Home Imp. v. Industrial Com'n, 958 P.2d 240 (Utah App. 1998)

FOOT: FRACTURE

Oak Grove Lumber Co. v. Highfill, 968 S.W.2d 637 (Ark.App. 1998)

HAND

Brantner v. ABC Mfg. Co., 579 N.W.2d 742 (Wis.App. 1998)

PFL Life Ins. Co. v. Franklin, 958 P.2d 156 (Okla. 1998)

Whittaker v. Wright, Ky., 969 S.W.2d 209

HEAD

Summers v. Blanton, 712 So.2d 411 (Fla.App. 1 Dist. 1998)

HEART ATTACK

Jeter v. B.R. McGinty Mechanical, 968 S.W.2d 645 (Ark.App. 1998)

HIP

Buckley v. Del. Valley Rehab. Services, Del.Supr., 711 A.2d 789 (1998)

KNEE

CBS, Inc. v. LIRC, 579 N.W.2d 668 (Wis. 1998)

Circo v. A-Cord Elec., 696 S.W.2d 228 (Mo.App. W.D. 1998)

Ex Parte Hood, 712 So.2d 341 (Ala. 1998)

Flowers v. Arkansas Highway & Transp., 968 S.W.2d 660 (Ark.App. 1998)

Georgia-Pacific Corp. v. Carter, 969 S.W.2d 677 (Ark.App. 1998)

Hoffmann v. W.C.A.B. (Westmoreland Hosp.), 711 A.2d 567 (Pa.Cmwlth. 1998)

Johnson v. Basic Industries, Inc., 711 So.2d 843 (La.App. 3 Cir. 1998)

Maggard v. Boh Bros. Const. Co., 712 So.2d 247 (La.App. 5 Cir. 1998)

West Palm Beach Fire Dept. v. Norman, 711 So.2d 628 (Fla.App. 1 Dist. 1998)

LEG

Department of Human Services v. Rogers, 958 P.2d 806 (Okla.Civ.App. Div. 4 1998)

Matter of Lyles, 957 P.2d 843 (Wyo. 1998)

Shivers v. Navy Exchange, 144 F.3d 322 (4th Cir. 1998)

LEGIONNAIRE'S DISEASE

Joyce v. W.C.A.B. (Stylette Plastics), 709 A.2d 1011 (Pa.Cmwlth. 1998)

MURDER

Folsom v. Burger King, 958 P.2d 301 (Wash. 1998)

NECK

Bare v. Liberty Mut. Fire Ins. Co., 958 P.2d 71 (Mont. 1998)

General Elec. Railcar Repair v. Hardin, 969 S.W.2d 667 (Ark.App. 1998)

Golden v. Westark Community College, 969 S.W.2d 154 (Ark. 1998)

Green v. Vermilion Corp., 144 F.3d 332 (5th Cir. 1998)

Palmer v. W.C.A.B. (Helen Min. Co.), 710 A.2d 1245 (Pa.Cmwlth. 1998)

NECK: DISC

Process Instrument. v. W.C.A.B. (Draina), 711 A.2d 572 (Pa.Cmwlth. 1998)

NECK: STRAIN

Green v. W.C.A.B., 711 A.2d 575 (Pa.Cmwlth. 1998)

PARALYSIS

Harpole v. State, 958 P.2d 594 (Idaho 1998)

PSYCHOLOGICAL

Chateau v. City of Kenner, 712 So.2d 256 (La.App. 5 Cir. 1998)

PSYCHOLOGICAL: DEPRESSION

National Union Fire Ins. Co. v. Burnett, 968 S.W.2d 950 (Tex.App.-Texarkana 1998)

PSYCHOLOGICAL: SCHIZOPHRENIA

Gulick v. W.C.A.B., 711 A.2d 585 (Pa.Cmwlth. 1998)

REPETITIVE STRESS INJURIES

Pallen v. United Parcel Service General Services, 997 F.Supp. 1367 (D.Or. 1998)

SHOULDER

Foulk v. Donjon Marine Co., Inc., 144 F.3d 252 (3rd Cir. 1998)

Matter of Everheart, 957 P.2d 847 (Wyo. 1998)

Settle v. S.W. Rodgers, Co., Inc., 998 F.Supp. 657 (E.D.Va. 1998)

SHOULDER: ROTATOR CUFF

Interstate Container v. W.C.A.B. (Keim), 710 A.2d 1249 (Pa.Cmwlth. 1998)

TIBIAL FRACTURE

Cooper v. Dayton, 696 N.E.2d 640 (Ohio App. 2 Dist. 1997)

TRACHEOBRONCHITIS

Castillo v. American Garment Finishers, 965 S.W.2d 646 (Tex.App.-El Paso 1998)

Top

Selected Workers' Compensation Cases of Interest

Arbitration: Waiver by Employer

EX PARTE HOOD

712 So.2d 341 (Ala. 1998)

The Alabama Supreme Court dealt with the claimant, Hood, who on August 23, 1994, injured his knee at work. Hood, when he was hired, signed an agreement to arbitrate any claim arising out of his employment or separation from employment. On November 20, 1996, Hood filed a retaliatory discharge claim and the employer removed the case to the federal court. The employer then attempted to interpose an arbitration defense.

The court rejected the arbitration defense finding that by removing the case to federal court and waiting four and one-half months to assert the defense the employer had waived arbitration.

The court stated:

We might assume that if Golden had immediately followed it its removal with service of its answer pleading an arbitration defense, such action would have been sufficient to put Hood on notice that Golden still intended in the federal court to reserve its right to seek arbitration. Filing an answer at such a time might have indicated that Golden intended to pursue arbitration instead of a federal judicial remedy, and it would have given Hood the opportunity to avoid spending the resources necessary to have the case remanded to the state court for a trail. As it was, Golden removed the case to the federal court and proceeded as if it was preparing for a judicial resolution of Hood's claim. Golden's answer pleading the arbitration agreement simply came too late, after Golden had substantially invoked the judicial process, to the substantial prejudice of Hood.

Assault: Active Participant

FLOWERS V. ARKANSAS HIGHWAY & TRANSP.

968 S.W.2d 660 (Ark.App. 1998)

The Arkansas Court dealt with the claimant, Flowers, who was approached in a locker room by a co-employee. A co-worker approached her and demanded, "What are you doing in my damn chair?" Claimant's testimony continued:

And, she put her hand on the back of the chair. And, I never thought anything of it. And, the next thing I knew, the chair was pulled out from underneath me, and I went to the floor. And, my right knee got bent from, I guess, trying to brace myself. And, when I landed, my right knee was turned - my - the bottom part of my leg was turned towards the back, and I had heard it pop.

The court reversed the denial of benefits finding that this was not horseplay and as the claimant was not an "active participant" in the assault she was entitled to workers' compensation benefits.

The court stated:

It is clear to us that the injury suffered by the claimant does not fall under the exclusion of Arkansas Code Annotated section 11-9-102(5)(B)(i). The first words of the subsection plainly state that coverage is barred for injury "to any active participant in assaults or combats". Evidence before the Commission shows that claimant had not clocked out and was sitting in a chair changing clothes. She was doing exactly what her employer required her to do and thus was performing services for the employer. There was no evidence before the Commission from which reasonable minds could have concluded that the claimant was an active participant in the assault upon her. Therefore, there is no evidence to uphold the Commission's decision that appellant's claim was barred by Arkansas Code Annotated section 11-9-102(5)(B)(i).

Attorney Fees: Representation

PARKER V. WALTER F. NEWELL CONSTR.

711 A.2d 151 (Me. 1998)

The Maine Supreme Court dealt with the claimant, Parker, who was injured while employed by Newall. Newall retained counsel, who filed an answer but did not attend the mediation. Parker was awarded counsel fees of $1,100. The statute in question provides:

The employer may not be assessed costs of an attorney's fee attributable to services rendered prior to one week after the informal conference under section 94-B or, if the informal conference is waived, services rendered prior to the date of that waiver, unless a party adverse to the employee was so represented at that stage.

The court affirmed the award finding that "retaining counsel" prior to the mediation was sufficient to trigger the attorney fee assessment.

The court stated:

The Board could rationally have concluded in this case that an employer who obtains the advice of counsel prior to mediation has an unfair advantage over an employee who is unrepresented at the mediation, regardless of whether the employer's counsel actually attends the mediation. The Board's interpretation could therefore be viewed as servicing the purpose of encouraging discussion of issues without the assistance of counsel and of encouraging a more even playing field between employer and employee.

Available Work: Non-Union Position

INTERSTATE CONTAINER V. W.C.A.B. (KEIM)

710 A.2d 1249 (Pa.Cmwlth. 1998)

The Pennsylvania Court dealt with the claimant, Keim, a union employee, who tore his rotator cuff on July 25, 1992, at work. He was placed on workers' compensation benefits.

On December 1, 1994, Kenneth Mason, Employer's Manager of Human Resources, offered the claimant a non-union janitorial position at employer's box plant and requested that he respond to the offer by December 8, 1994. In his response, by letter dated December 22, 1994, the claimant indicated that he would be unable to accept the position because it would require him to lose his union benefits and seniority. In addition, the claimant implied that the position was not within the limitations of his medical restrictions, and therefore, he was not capable of performing the job.

The court affirmed the finding that as taking the non-union job would force the claimant to give up valuable union benefits the job was not "available" to him.

The court stated:

In determining whether certain alternative employment is actually available to the claimant, the extent of a claimant's injury is a primary consideration. The extent of the injury caused in the workplace may reasonably include the benefits associated with the former position. As a result, a union employee need not accept a non-union position that would require forfeiture of union benefits.

Average Weekly Wage: Salary Versus Earnings

DEPARTMENT OF HUMAN SERVICES V. ROGERS

958 P.2d 806 (Okla.Civ.App. Div. 4 1998)

The Oklahoma Court dealt with the claimant, Rogers, who injured his leg on the job in August 1996. The workers' compensation issue was average weekly wage. The claimant was a salaried employee with a gross monthly salary of $1,384.10. His temporary total disability compensation rate was calculated to be $223.58 per week ($1,384.00 per month X 12 months = $16,609.02 per year / 52 weeks = $319.40 per week 2a 70%). The employer takes issue with the use of this formula because the claimant did not earn his full salary in any of the twelve months preceding his injury. Most of the time missed from work was related to three surgeries unrelated to his employment. He earned as little as $58.77 (in January, 1996) and as much as $1,174.00 (in November, 1995). The claimant's total gross salary paid for those twelve months was $6,975.70. Employer contends that to determine claimant's "average weekly wages" for purposes of TTD compensation, the salary actually earned and paid for the previous twelve months ($6,975.70) should be divided by 52 yielding an average weekly wage of $134.15, 70% of which is $93.90.

The court affirmed the finding that the average weekly wage and workers' compensation rate should be based on the salary and not the actual earnings. The court stated:

Despite the somewhat confusing statutory language, Wal-Mart v. Switch leaves little question as to how this matter should be resolved. Rather than using claimant's actual past earnings as the basis from which to determine his "average weekly wages" the trial court must use his actual wage or salary. "In calculating an injured workers' compensation rate under 85 O.S.1991 Sec. 21, the `average weekly wage' of the worker must be based upon the usual and ordinary hourly wage that the worker was earning at the time of her injury." Wal-Mart v. Switch reminds its readers that the purpose of the Workers' Compensation Act is to compensate injured workers for their loss of earning power. Likewise, it instructs that the purpose of Sec. 21 is to provide a formula for determining that loss of earning power or earning capacity.

Causation: Complications from Myelogram

HAGERMAN V. GENCORP AUTOMOTIVE

579 N.W.2d 347 (Mich. 1998)

The Michigan Supreme Court dealt with the decedent, Hagerman, who injured his back at work. As part of the medical treatment of the injury, decedent's doctor ordered a myelogram to diagnose the extent of the injury and indicate the desirability of surgery. When decedent underwent this diagnostic medical procedure on March 7, 1990, a nurse advised him that successful recovery from the myelogram required that he consume large quantities of water before and after the procedure.

As a result of this medical advice, after leaving the hospital, decedent consumed a sixteen ounce glass of water every ninety minutes.

Decedent suffered from high blood pressure for which he was taking the diuretic drug Aldoril. On the nights of March 8 and 9, decedent was hospitalized. It is undisputed that the high water intake, combined with the diuretic action of the Aldoril, depleted the sodium levels in his body, causing convulsions or seizures, leading directly to his death.

The court reversed the case law on proximate cause and found causation due to the unbroken chain of causation.

The court stated:

Section 141 excludes the decedent's contributory negligence as an intervening cause under Sec. 375. The phrase "proximate cause" in subsection 375(2) does not exclude death benefits where the events leading to the death flow in a clear and unbroken chain of causation; thus, decedent's death falls within the range of compensable consequences. We reject the decision of the WCAC because it fails to comply with the legal requirement that the employer take the employee as he finds him, with all preexisting conditions and frailties, for the purpose of determining compensation. The evidentiary issue is one of remoteness, that is, whether there is sufficient evidence to show a clear and unbroken chain of causation so that the injury was a directly and substantially related cause of the death.

Casual Employment: Earnings

SUMMERS V. BLANTON

712 So.2d 411 (Fla.App. 1 Dist. 1998)

The Florida Court dealt with the claimant, Blanton, who was hired by Summers to clean up some unimproved property that was for sale. During the course of the cleanup, the claimant was hit in the head by a branch and was injured. He filed a workers' compensation claim and the defense interposed was that he was not covered by the Workers' Compensation Act as he was a "casual employee".

The court rejected the defense despite the fact that the landowner was not in the trade or business of clearing land.

The court called for legislative action and stated:

The dispositive limitation on the amount of wages or "labor cost" occurs along with a temporal limitation in the statutory definition of "causal", which section 440.02(4), Florida Statutes (1997), defines, as follows:

"Casual" as used in this section shall be taken to refer only to employments when the work contemplated is to be completed in not exceeding ten working days, without regard to the number of persons employed, and when the total labor cost of such work is less than $100.

This provision was originally enacted more than sixty years ago, chapter 17481, section 2, Laws of Florida (1935), when one hundred dollars no doubt greatly exceeded the wages many could expect for two weeks' casual employment.

Just since 1959, the average weekly wage in Florida has increased more than tenfold from $42 to $479. At the current rate, the "total labor cost" for ten working days is more than nine times the one-hundred-dollar statutory limit. Looked at another way, work done by a single worker paid at today's average weekly wage rate cannot qualify as casual employment under the Workers' Compensation Law if the job lasts as long as nine hours. The Legislature may wish to address this anachronism.

Constitutionality: Tier Down Reduction of Benefits

WYNN V. IBOLD, INC.

Ky., 969 S.W.2d 695 (1998)

The Kentucky Supreme Court dealt with the claimant, Wynn, who was injured on the job and put on weekly workers' compensation benefits. He then challenged the "tier down provision" arguing that it was unconstitutional. The statute provides for annual reductions of the award between the ages of 65 and 70, that each annual reduction equals 10 percent of the original award, and that annual reductions are cumulative, with the result that individual payments made after age 70 equal 40 percent of those made under the initial award.

The court affirmed the constitutionality of the statute finding there was a legitimate state action and no due process or age discrimination violation.

The court stated:

Keeping in mind that the purpose of workers' compensation legislation is to maintain a stream of income to disabled workers and their dependents, we are persuaded that avoiding a duplication of income benefits is a legitimate state objective and sound public policy. At a time when workers become eligible for other forms of income replacement, not only does KRS 342.730(4) help avoid making it more profitable to be disabled than not, it also serves to reduce the overall cost of maintaining the workers' compensation system, thereby improving the economic climate for all the citizens of the state. We, therefore, conclude that KRS 342.730(4) complies with the requirements of due process and equal protection and is constitutional.

Note: The above case is yet another method to deny workers' compensation benefits to injured workers. This type of legislation could be followed in other jurisdictions.

Evidence: Return to Work

AMBURGEY V. PALM BEACH COUNTY SCHOOL BOARD

712 So.2d 426 (Fla.App. 2 Dist. 1998)

The Florida Court dealt with the claimant, Amburgey, who was injured on the job. At the workers' compensation hearing several doctors testified that the claimant was able to return to work during the period in which temporary benefits were claimed, but there is no evidence they advised the claimant of that fact. In a letter dated August 31, 1994, the employer advised the claimant that she should return to work. The claimant testified that the doctors did not give her clearance to return to work before September 18, 1995.

The court reversed the denial of benefits and remanded the case due to a lack of evidence that the claimant was in fact informed that she was released to return to work.

The court stated:

This court has held consistently that, evidence the claimant is able to return to work is not sufficient to deny temporary total disability benefits in the absence of evidence the claimant was informed or should have known that he or she was released to work.

Because the order in the present case does not address the claimant's knowledge or imputed knowledge of her ability to return to work, we are constrained to reverse, based strictly on Cocho. On remand, the judge of compensation claims shall determine whether the claimant knew that she was released to work and, if so, shall specifically state in the order whether he finds that benefits should be denied on this basis.

Garnishment: Savings Account

HARDY & HARDY V. WILLS

958 P.2d 78 (Neb. 1998)

The Nevada Supreme Court dealt with the claimant, Wills, who retained the law firm of Hardy & Hardy on a 25 percent contingency basis to represent him in his workers' compensation case.

In September 1991, Wills was offered $40,.664.68 to settle his claim. Wills rejected the offer, and fired Hardy & Hardy. The firm subsequently billed Wills $10,253.37: $10,161.17 as its fee (25 percent of the settlement offer), plus out-of-pocket costs of $92.20. Wills refused to pay the bill, so the firm filed an action against Wills in October 1992. Wills's failure to answer resulted in the entry of a default judgment against him in February 1993 for the principle amount of $10,253.37, plus pre-judgment interest of $1,743.07, costs of $255.00, and attorney's fees of $2,560.00.

On June 7, 1993, the district court clerk issued writs of execution and garnishment. The claimant attempted to argue that his savings account was exempt from execution under the workers' compensation statute. The court held that once workers' compensation was paid and put into an account it was no longer "exempt" under the workers' compensation statute.

The court stated:

Given the language and history of the exemption statute, we are unable to construe it to exempt compensation once it has been paid to a worker. It is well settled that words in a statute will be given their plain meaning unless doing so violates the spirit of the act. Compensation that is "payable" is money that is due or is to be paid; it is not money that has been paid. It is ordinarily presumed that the legislature, by deleting an express portion of a law, intended a substantial change in the law. The legislature removed an exemption for money paid, and we may not recreate that exemption.

In Course of Employment: Attending Seminar

BROBST V. BRIGHTON PLACE NORTH

955 P.2d 1315 (Kan.App. 1997)

The Kansas Court dealt with the claimant, Brobst, who was employed as an LPN at a nursing home. To keep her LPN position at Brighton Place, Brobst had to maintain her nurse's license. On October 12, 1990, Brobst attended an all-day continuing education seminar at Washburn University. Brobst had learned about the seminar from a notice posted on a bulletin board at Brighton Place. After seeing the posting regarding the Washburn seminar, Brobst told her employer she wanted to attend, and, although Brighton Place did not pay Brobst any wages to attend, it gave her a check to cover the tuition for the seminar.

As Brobst was leaving the seminar to go home, she stepped off a curb to cross the street to the parking lot where her car was located, twisted her ankle, and fell to the ground.

The court affirmed the finding that as the claimant was required to obtain the training the accident fell within the incident of employment and an exception to the going and coming rule.

The court stated:

In Brobst's case, attendance at continuing education seminars like the one at Washburn was clearly contemplated by her employment with Brighton Place. Brobst's position with Brighton Place depended upon Brobst maintaining her status as an LPN. In order to maintain that status, Brobst had to acquire 30 hours of continuing education credits. Although Brighton Place did not tell Brobst that she had to specifically attend the Washburn seminar, it posted the information regarding the seminar, knew that Brobst had chosen to attend that particular seminar to obtain some of her needed credits, and paid her tuition. Under these circumstances, and in light of the Blair holding, there was substantial competent evidence to support the Board's finding that Brobst's attendance at the Washburn seminar was an incident of her employment for workers' compensation purposes.

In Course of Employment: Downhill Skiing

CBS, INC. V. LIRC

579 N.W.2d 668 (Wis. 1998)

The Wisconsin Supreme Court dealt with the claimant, Kamps, who was hired by CBS to work as a runner at the 1994 Olympics in Lillehammer. He traveled to the site and was paid a daily wage, meals, and lodging. On February 21, CBS gave Kamps and his crew the day off from work. There were no Olympic competitions scheduled that day for Kamps and his crew to cover. During this free time, the crew members were free to do as they wished. Kamps's immediate supervisor suggested that the crew go skiing as a group, which they ultimately did. CBS provided the crew with transportation and free ski lift passes. Kamps did not need the lift passes to perform any part of his job. While skiing, Kamps fell and injured his knee.

The court affirmed the award of benefits finding that his downhill skiing was incidental to his employment as a traveling employee and thus covered by workers' compensation.

The court stated:

In this case, Kamps's employment with CBS took him to Lillehammer, Norway. His assignment was to help cover winter sporting events, and his employer provided him with lodging on a ski hill. In addition, at somewhat short notice Kamps was advised that he and his crew did not have to cover an event that day, but could spend the day as they pleased. Kamps went skiing, at the suggestion of his supervisor, in the company of his coworkers, transported to the ski site by vehicles provided by the employer. These facts constitute credible and substantial evidence on which LIRC based its interpretation that skiing was a usual, legitimate act incidental to Kamps's daily existence while a traveling employee for CBS under Wis. Stats. Sec. 102.03(1)(f).

In Course of Employment: Off Duty Police Officer

COOPER V. DAYTON

696 N.E.2d 640 (Ohio App. 2 Dist. 1997)

The Ohio Court dealt with the claimant, Cooper, who on December 2, 1994, was injured while attempting to stop a shoplifter outside a Groceryland store. Cooper, a Dayton police officer, was out of uniform and off-duty, working as a loss-prevention specialist at the grocery store. He had obtained the part-time security work from a fellow police officer, John D. Pawelski, who acted as an independent contractor supplying the grocery store with off-duty officers to prevent shoplifting. Pawelski's work for Groceryland was conducted on his own time and was unrelated to his work as a city police officer.

The court found that as the city and Pawelski both benefited from the claimant's attempt to stop the shoplifter he was in fact in the course of his employment when injured.

The final factor considers the benefit the employer derived from the employee's activity. Here, too, Groceryland, Pawelski (in his private capacity), and the city each benefited from Cooper's conduct. The benefit to Groceryland is obvious - the apprehension of a shoplifter. The benefit to Pawelski is also clear - commendable performance by a worker he recruited and payment from Groceryland. Finally, as the trial court recognized, the city benefited from the apprehension of a criminal and the prevention of harm to citizens or property.

In short, when considering the unusual facts and circumstances of this case, we cannot deny the existence of a causal connection between Cooper's city employment and his injury outside Groceryland. Consequently, we hold that Cooper's injury arose out of his employment with the city of Dayton.

Note: The court was at least partially influenced by the fact that the confrontation and injury took place on a public street and not in the store.

In Course of Employment: Parking Lot

SHIVERS V. NAVY EXCHANGE

144 F.3d 322 (4th Cir. 1998)

The U.S. Court of Appeals (4th Cir.) dealt with the claimant, Shivers, who worked at Navy Exchange, a nonappropriated fund instrumentality. The Exchange is a retail store located in a mall on the Norfolk Naval Base. Shivers worked as a sales clerk in the men's department of the store. On March 5, 1993, she drove to work and parked, as she normally did, in the employee parking lot opposite the store's employee entrance. When Shivers went to step onto a median strip of grass in the parking lot, she slipped and fell. As a result of her injuries, Shivers underwent surgery on her leg and was still under the care of an orthopedic surgeon over one year later. The parties stipulated that Shivers suffers a temporary total disability as a result of her 1993 injury.

The court in this longshore case reversed the denial and found that the parking lot was part of the store's premises.

The court stated:

The Exchange affirmatively designated an employee parking lot, prohibited employees from parking elsewhere unless that lot was full, and actively enforced parking restrictions through a system of signs, decals, and towing. This designation, operation, and control of the employee lot provides the key distinction between Shivers's case and the Board decisions cited by both the ALJ and Navy Exchange. Our holding is not sweeping. We do not suggest that LHWCA provides workers' compensation for all injuries suffered in parking lots used by employees. Navy Exchange's direction and control of its employee-designated parking lot, however, persuade us that the lot should be considered part of the employer's premises. Shivers's injury, therefore, did occur in the course of her employment and she is thus entitled to benefits under the Act.

In Course of Employment: Retrieving Tools After Discharge

HERMAN V. SHERWOOD INDUSTRIES, INC.

710 A.2d 1338 (Conn. 1998)

The Connecticut Supreme Court dealt with the claimant, Herman, who on July 8, 1994, was terminated by his employer, Sherwood. On the afternoon of the same day, the claimant attended a termination meeting at Sherwood's personnel office. At that meeting, Sherwood's personnel officer conducted an exit interview and gave the claimant a layoff slip and a copy of an exit interview check list. Also at the termination meeting, the personnel officer informed the claimant that he could retrieve his personal tool box from the Sherwood loading dock, where it had been placed by Sherwood's foreman. Thereafter, in order to retrieve his tool box, the claimant was escorted from the personnel office to the loading dock, which stands about four to five feet high. The claimant alleges that he suffered a lumbar spine injury while he was lifting his tool box off the loading dock. The claimant then filed for workers' compensation benefits.

The court reversed the denial of benefits finding that as picking up his tools was incidental to his employment he was in the course of his employment when injured.

The court stated:

In summation, we conclude that the claimant in this case sustained his alleged injury in the course of his employment within the meaning of Sec. 31-275(1). Despite Sherwood's formal termination of his employment, at the time of his accident, he was still within the period of his employment and his conduct in retrieving his tools from Sherwood's loading dock was incidental to his employment.

In Course of Employment: Stress Test

GEORGIA-PACIFIC CORP. V. CARTER

969 S.W.2d 677 (Ark.App. 1998)

The Arkansas Court dealt with the claimant, Carter, who injured his knee at work on September 24, 1994. On April 27, 1995, appellee sought treatment from Dr. Toon again for an unrelated heart problem and underwent a treadmill stress test. As the speed of the treadmill increased, the condition of appellee's left knee worsened. As a result of appellee's problems with his knee, Dr. Toon determined that he was temporarily and totally disabled from April 27, 1995, through May 27, 1995.

The court affirmed the finding that the increase in knee pain was a recurrence of the workers' compensation injury and compensable.

The court stated:

The test for determining whether a subsequent episode is a recurrence or an aggravation is whether the subsequent episode was a natural and probable result of the first injury or if it was precipitated by an independent intervening cause. If there is a causal connection between the primary and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances. The Commission found appellee's testimony that he did not reinjure his left knee during the treadmill stress test to be credible. His knee was already causing him pain, which intensified during the stress test. Taking the stress test was not an activity that was unreasonable under the circumstances.

In Course of Employment: Traveling to Worksite

STAFF ADM'RS V. INDUS. CLAIM APPEALS OFFICE

958 P.2d 509 (Colo.App. 1997)

The Colorado Court dealt with the claimant, Reynolds, who was injured while driving his own vehicle to a construction site 90 miles from his residence. The claimant testified that it was employer's practice to have its workers meet at a certain convenience store, where they would fuel one or more employee vehicles at employer's expense before traveling in the vehicles to an out-of-town job site. He was late on the date of his injury and did not reach the convenience store until after his employer and the other workers had left. Therefore, he drove his own vehicle from the convenience store to the job site, and was injured when another car lost control on an icy road and collided with his vehicle.

The court affirmed the award of benefits finding that the claimant came under the travel status exception to the going and coming rule. The court stated:

As the Panel noted, because neither claimant's residence nor his employer's office was located in Piceance Creek, the job assignment necessarily required claimant to travel. Hence, the employee's travel was at the express or implied request of the employer.

Further, employer's requirement that the workers meet at a particular store in order to ride together and obtain gasoline inherently benefited the employer and reduced claimant's discretion in choosing the travel route to the job site.

Injury: Compensable Consequences

OAK GROVE LUMBER CO. V. HIGHFILL

968 S.W.2d 637 (Ark.App. 1998)

The Arkansas Court dealt with the claimant, Highfill, who dropped a sledgehammer on his foot at work and sustained a nondisplaced fracture. He saw a nurse practitioner, who determined that he sustained a nondisplaced fracture. She treated him and instructed him to wear protective boots when he returned to work. He returned to work for a few days.

On June 22, 1995, he attended a church function in a city park. While walking through the park, he either stepped on or tripped over a tree root. In his words, "something happened" to his foot; the incident "bent my toes back and it just went ahead and broke".

He saw Dr. R. Cagle, who diagnosed an angular fracture of the second metatarsal with some dorsal displacement.

The court affirmed the award of benefits finding that the second foot injury was a compensable consequence of the initial workers' compensation injury despite a lack of direct testimony on this issue.

The court stated:

While Dr. Hazzard did confirm that he was not saying that appellee's displaced fracture was a "natural consequence" of his first fracture, other parts of his deposition testimony and his report of January 16, 1996, support the Commission's determination. The Commission was certainly empowered to draw inferences from Dr. Hazzard's testimony, and it did so. In this instance, the Commission's decision is supported by substantial evidence.

Medical Care: Refusal of Surgery Unreasonable

DAVIS V. W.C.A.B. (ACME MARKETS, INC.)

711 A.2d 1096 (Pa.Cmwlth. 1998)

The Pennsylvania Court dealt with the 29-year-old claimant, Davis, who injured his back at work on August 27, 1991. He then came under the care of Dr. Rogers who prescribed a conservative course of treatment, including medications, heat treatments, physical therapy, and time off work. Dr. Rogers also directed Davis to undergo an EMG and MRI on October 7, 1991, revealing a small to moderate disc herniation at L5-S1. after undertaking more conservative treatment, Dr. Rogers recommended surgery to Davis on November 19, 1991. He then asked Davis to think about surgery and to return in one month. Davis never underwent the recommended surgery. The insurer moved to suspend and terminate the workers' compensation benefits for refusing to undergo "reasonable medical treatment".

The court in a shocking decision affirmed the denial of benefits. The court stated:

Last, a suspension is not erroneous in this case simply because the WCJ found that Dr. Rogers first suggested Davis undergo surgery less than three months after his injury, and Dr. Richardson testified that if surgery takes place within the time period the chances of success are 90 percent, where Davis may not have had an opportunity for surgery until four months after the injury, but Dr. Rogers never testified that Davis's chances for recovery lessened after three months.

Because it is clear from the preferred medical evidence that, in refusing surgery, Davis refused treatment that would have returned him to work much more rapidly than the conservative treatment he was willing to undergo, refusal of that surgery requires a forfeiture of his benefits under the Act.

The Board's order is affirmed.

Note: Workers' compensation insurance companies should not be permitted to force claimants to have surgery. A Hobsons choice of this nature is really no choice at all.

Medical Costs: $750 Cap

GILMORE V. SGB CONST. SERVICES, INC.

712 So.2d 663 (La.App. 1 Cir. 1998)

The Louisiana Court dealt with the claimant, Gilmore, who fractured his L1 vertebra at work on September 22, 1988. Between September 22, 1995, and March 4, 1996, Gilmore obtained prescriptions for Vicodin ES, Flexeril, Feldane, including their generic equivalents, and Shape Fast from Dr. Nick Cefalu, his family physician. The amount of these prescriptions totaled $2,198.66. The bills from Thriftown Pharmacy indicate that the prescriptions were billed directly to McShan's law firm.

Gilmore filed a disputed claim for compensation alleging, among other things, Liberty Mutual's non-payment of these prescriptions.

The court found that the $750.00 cap on costs incurred without the mutual consent of the payor and the employee did not apply as Liberty Mutual did start to pay some of the prescription bills.

The court stated:

There is no evidence in the record that Gilmore ever contacted Liberty Mutual seeking authorization of his treatment with Dr. Cefalu. However, there is evidence in the record that Liberty Mutual did in fact pay for several of the prescriptions issued by Dr. Cefalu, without any objection that the prescriptions were issued by a doctor whose treatment was not authorized. Liberty Mutual did not contend there was any difference in the treatment rendered by Dr. Zeringue and Dr. Cefalu. From the documentary evidence in the record, it appears that Liberty Mutual's main obstacle in paying the prescription bills was not who the doctor was, but how the bill was submitted for payment. After our review of the record, we find that because Liberty Mutual did not object to the payment of the prescriptions issued by Dr. Cefalu, his treatment was not "unauthorized" according to LSA-R.S. 23:1142.

Offset: Social Security Retirement Benefits

GOLDEN V. WESTARK COMMUNITY COLLEGE

969 S.W.2d 154 (Ark. 1998)

The Arkansas Supreme Court dealt with the claimant, Golden, who on November 26, 1993, was employed as a security guard by appellee Westark Community College (Westark) when he slipped on an icy ramp and suffered a compensable injury to his neck and back. Westark and its workers' compensation insurance carrier, appellee Public Employee Claims Division (PECD), accepted a 5 percent permanent physical impairment rating but contested the extent of Golden's permanent partial disability rating. Westark and PECD also argued that any benefits received by Golden, who was 67 years old at the time of his injury, should be offset by any retirement benefits received as provided by Sec. 11-9-522(f). Golden, in turn, challenged the constitutionality of the offset provision.

The court rejected the statutory offset finding that it was unconstitutional as it violated the equal protection clause.

The court stated:

In sum, it is not the mere age-based classification that is troublesome to this court, though there is clearly disparate treatment by the General Assembly for those age 62 through 64 and those age 65 and older, but the fact that we perceive no rational basis for offsetting these two benefits irrespective of the age. To be sure, economic viability of the workers' compensation program and eradication of duplicate benefits are worthy and lofty goals, but we fail to see how workers' compensation benefits paid for loss of the ability to earn the same wages and a retirement benefit under social security are duplicative in any respect. The economic objective behind Sec. 11-9-522(f) to save money may be reasonable but the means for achieving that particular end are not and, hence, the statute fails to withstand constitutional scrutiny.

Preemption: ADA

BAILEY V. REYNOLDS METALS

959 P.2d 84 (Or.App. 1998)

The Oregon Court dealt with the claimant, Bailey, who in January and February 1995, sought treatment for a flare-up of back pain that came on suddenly while she was sitting at work and for pain in the left neck and left sciatic nerve that came on shortly thereafter. Dr. Johnson diagnosed muscle spasms. Cigna Insurance Companies (Cigna), employer's workers' compensation carrier, never had issued a formal written acceptance of claimant's 1989 injury and contended that the acceptance of the 1989 injury claim was limited to the lumbar strain and did not include the cervical or thoracic areas. In March 1995, it issued a denial of responsibility, a denial of an aggravation claim.

The court affirmed the rejection of the ADA preemption agreement, i.e. that the ADA preempted state workers' compensation provisions imposing a more onerous burden of proof for workers with preexisting conditions.

The court stated:

We reject claimant's contention that the ADA preempts the two statutory provisions at issue. The ADA allows states to supplement, but not supplant, its provisions. 42 USC Sec. 12201(b) provides:

Nothing in this chapter shall be construed to invalidate or limit the remedies, rights or procedures of any ... law ... that provides greater or equal protection for the rights of individuals with disabilities than are provided by this chapter.

Relying on that provision, courts have held that workers' compensation systems provide benefits in addition to a worker's rights under the ADA. The ADA protects workers who are able to work from discrimination in the terms and condition of employment. Workers' compensation benefits, in contrast, protect workers precisely when they are not protected by the ADA, Harding, 907 F.Supp. at 392; Cramer, 885 F.Supp. at 1553, i.e., when they are unable to work because of disability. Thus, the provision of workers' compensation benefits to a worker who is disabled from work in part as a result of a preexisting condition complements, but does not supplant, the ADA. Different treatment of workers with preexisting conditions is not a source of conflict with the ADA, which does not relate to benefits for disabled workers. There is no basis for preemption.

Presumption: Use of Marijuana

EXPRESS HUMAN RESOURCES III V. TERRY

968 S.W.2d 630 (Ark.App. 1998)

The Arkansas Court dealt with the claimant, Terry, who fell through a hole in a roof at work but was denied benefits because he tested positive for marijuana two days after the accident.

At the hearing, the claimant testified that on the day of his injury, he had worked seven days straight and was in his twenty-eighth hour of overtime. He had been at work since 7:00 a.m. and had a thirty-minute lunch break; the accident occurred at approximately 3:40 p.m. He had carried pressed boards weighing between 150 and 200 pounds for most of the day, and he believed the accident was caused by his fatigue. At the time of the accident, he was walking forward, carrying one end of a four-foot by sixteen-foot pressed board with his supervisor, Bobby Cole, who was walking backward. He could not see his feet or the hole, but he believed that Mr. Cole could see the hole because he was in front, guiding their path. Mr. Cole avoided the hole, but appellee fell through it onto the floor below. None of this testimony was controverted by appellants.

He testified that he had not smoked marijuana since March 6, 1996, and denied smoking it on March 7, 8, 9, or 10. He denied being impaired on March 10.

The court found that the presumption of intoxication was overcome by the testimony the claimant, his coworkers, and a toxicologist who testified that a person might test positive from anywhere from two days to six weeks after usage. The toxicologist admitted that he could tell very little about the time frame in which the claimant had used marijuana. The co-workers testified that the claimant did not seem impaired on the date of the accident.

Top

Additional Workers' Compensation Cases

Accident: Injury from Stepping Off Curb Awkwardly Not Compensable

BUCKLEY V. DEL. VALLEY REHAB. SERVICES

Del.Supr., 711 A.2d 789 (1998)

Appeal: Denial of Application to Reactivate Claim Appealable Issue

COLE V. COMPLETE AUTO TRANSIT, INC.

696 N.E.2d 289 (Ohio App. 1 Dist. 1997)

Appeal: Evidence Substantial Claimant Failed to Request Hearing in Timely Fashion

SHENEMAN V. DIVISION OF WORKERS' SAFETY

956 P.2d 344 (Wyo. 1998)

Appeal: Not Premature

WHITTAKER V. WRIGHT

Ky., 969 S.W.2d 209

Attorney Fees: Dispute Over Fees for Award Later Reversed Did Not Belong in Workers' Compensation Court

MATTER OF SALAZAR

956 P.2d 173 (Okla.Civ.App. Div. 1 1998)

Attorney Fees: Refusal to Award Attorney Fees Was an Abuse of Discretion

SMITH V. CITY OF SAUK CENTRE

578 N.W.2d 755 (Minn. 1998)

Available Work: Fact That Acceptance of Position Would Have Resulted in Reduction of Retirement Benefits Did Not Make Job "Unavailable"

LONGTIN V. CITY OF LEWISTON

710 A.2d 901 (Me. 1998)

Bad Faith: Statute Prohibiting Bad Faith Claims Applied Retroactively

MADERA V. STATE INDUS. SYSTEM

956 P.2d 117 (Nev. 1998)

Claim: Board Had Power to Require Claimant to Answer Questions About Prior Employers and Doctors

PAOLINO V. INDUSTRIAL ACC. BD.

Del.Super., 711 A.2d 800 (1997)

Collateral Source: Precluded Plaintiff from Award for Medical Expenses Paid by Employer

CASTILLO V. AMERICAN GARMENT FINISHERS

965 S.W.2d 646 (Tex.App.-El Paso 1998)

Concurrent Wage: Claimant Not Concurrently Employed as Never Worked One Day for Both Employers

CATO CORP. V. STUART

711 So.2d 1375 (Fla.App. 1 Dist. 1998)

Constitutionality: Each Workers' Compensation Carrier Must Be Notified and Joined in One Claim

PFL LIFE INS. CO. V. FRANKLIN

958 P.2d 156 (Okla. 1998)

Constructive Trust: Not Imposed on Workers' Compensation Benefits as Not Assignable

SARA LEE CORP. V. CARTER

500 S.E.2d 732 (N.C.App. 1998)

Coverage: Existed for Disabling Injuries Attributable in Part to Sexual Harassment

PARKHURST V. D.C. DEPT. OF EMP. SERVICES

710 A.2d 854 (D.C. 1998)

Coverage: Insurer's Sending Notice to Department of Labor Insufficient Election of Workers' Compensation

CARDINALE V. CENTRAL PORTABLE HEATING

711 A.2d 1128 (R.I. 1998)

Decision: Inadequate as Failed to Consider Increase in Degree of Partial Disability

BURTON V. W.C.A.B. (HERSHEY AUTOMATIC)

711 A.2d 596 (Pa.Cmwlth. 1998)

Dependency: Legitimate Posthumous Child Fully Dependent on Employee

HEYSE V. ERNEST BAXLEY LOGGING, INC.

712 So.2d 112 (La.App. 2 Cir. 1997)

Disability Payments: Did Not Include Vocational Rehabilitation Maintenance Payments

EDGAR V. W.C.A.B.

76 Cal.Rptr.2d 83 (Cal.App. 4 Dist. 1998)

Dual Capacity: Restaurant Functions Not Distinct from Functions as Lessee

FOLSOM V. BURGER KING

958 P.2d 301 (Wash. 1998)

Election of Remedies: None Until Employee Receives Result from Option Selected

DANKER V. WILIMEK

577 N.W.2d 634 (Iowa 1998)

Employee Status: Court Officers Were in the Same Employ as City Police Officers

WAKSHUL V. CITY OF PHILADELPHIA

998 F.Supp. 585 (E.D.Pa. 1998)

Employee Status: Pilot Hired to Fly V.P. Not Employee

LIMPERT V. KAYOR ELECTRIC

673 N.Y.S.2d 762 (A.D.3 Dept. 1998)

Employer: State Not Virtual Proprietor of Logging Company Worker

HARPOLE V. STATE

958 P.2d 594 (Idaho 1998)

Employment Status: Roofer Was Not Assistant's Employer

OSMAN HOME IMP. V. INDUSTRIAL COM'N

958 P.2d 240 (Utah App. 1998)

Evidence Substantial: Benefits Denied as Claimant Did Not Prove Major Depression

CHATEAU V. CITY OF KENNER

712 So.2d 256 (La.App. 5 Cir. 1998)

Evidence Substantial: Knee Injury in Unwitnessed Fall Not Compensable

CIRCO V. A-CORD ELEC.

969 S.W.2d 228 (Mo.App. W.D. 1998)

Evidence Substantial: No Causal Relationship Between Work as Truck Driver and Arthritis

LAMMERT V. VESS BEVERAGES, INC.

968 S.W.2d 720 (Mo.App. E.D. 1998)

Evidence Substantial: Running in High Heels Did Not Aggravate Back Condition

ORANGE COUNTY MIS DEPT. V. HAK

710 So.2d 998 (Fla.App. 4 Dist. 1998)

Evidence Substantial: Second Heart Blockage Not Related to First Blockage

JETER V. B.R. McGINTY MECHANICAL

968 S.W.2d 645 (Ark.App. 1998)

Evidence: Testimony of Coworker as to Job Duties of Claimant Admissible

PREJEAN V. EUCLID BD. OF EDN.

696 N.E.2d 606 (Ohio App. 8 Dist. 1997)

Exclusivity: Barred Claim for Negligent Hiring, Supervision, and Retention

STEWART V. HOUSTON LIGHTING & POWER CO.

998 F.Supp. 746 (S.D.Tex. 1998)

Exclusivity: Battery Was Intentional Tort and Not Prohibited by Exclusivity Provision

ALLEN V. PAYNE & KELLER CO., INC.

710 So.2d 1138 (La.App. 1 Cir. 1998)

Exclusivity: Claims for Intentional Infliction of Emotional Distress Barred by Workers' Compensation Act

HINCHEY V. NYNEX CORP.

144 F.3d 134 (1st Cir. 1998)

Exclusivity: Employer's General Liability Policy Did Not Waive Exclusivity of Workers' Compensation Law

BRANTNER V. ABC MFG. CO.

579 N.W.2d 742 (Wis.App. 1998)

Exclusivity: Did Not Bar Sec. 1983 Claim for Unreasonable Search and Seizure

JENSEN V. CITY OF OXNARD

145 F.3d 1078 (9th Cir. 1998)

FMLA: Punitive Damages and Damages for Emotional Distress Not Available Under FMLA

SETTLE V. S.W. RODGERS CO., INC.

998 F.Supp. 657 (E.D.Va. 1998)

Forfeiture: For Failing to Answer Questions About Preexisting Conditions Truthfully

MAYO V. CASCO CONST. CO., INC.

712 So.2d 169 (La.App. 2 Cir. 1998)

Forfeiture: For Willful False Statements on Mileage Reimbursement Request

JOHNSON V. BASIC INDUSTRIES, INC.

711 So.2d 843 (La.App. 3 Cir. 1998)

FTCA: Postal Worker Could Not Sue for Employment-Related Torts

KENNEDY V. U.S. POSTAL SERVICE

145 F.3d 1077 (9th Cir. 1998)

Hearing: By Phone Not Abuse of Discretion

MATTER OF EVERHEART

957 P.2d 847 (Wyo. 1998)

In Course of Employment: Accident On Way to Pick Up Paycheck on Day Off Not Compensable

HOFFMAN V. W.C.A.B. (WESTMORELAND HOSP.)

711 A.2d 567 (Pa.Cmwlth. 1998)

In Course of Employment: Aneurysm Caused Fall and Was Not Compensable

KNIPP V. NORDYNE, INC.

969 S.W.2d 236 (Mo.App. W.D. 1998)

In Course of Employment: Reserve Officer Injured on Way to Provide Backup Not Covered by Workers' Compensation

LANMAN V. OKLA. COUNTY SHERIFF'S OFFICE

958 P.2d 795 (Okla. 1998)

In Course of Employment: Traveling 60 Miles to Construction Not Covered by Workers' Compensation

MOUNTAIN WEST FABRICATORS V. MADDEN

958 P.2d 482 (Colo.App. 1997)

Injury: Back Injury from Twisting Compensable

ROBERTSHAW CONTROLS V. W.C.A.B.

710 A.2d 1232 (Pa.Cmwlth. 1998)

Interest: Due on Late Installments of Temporary Benefits

D'ANDREA V. WAL-MART STORES, INC.

711 So.2d 1373 (Fla.App. 1 Dist. 1998)

Jurisdiction: Court No Jurisdiction to Determine Permanent and Total Status Before Exhaustion of Rehabilitation Panel Procedures

BARE V. LIBERTY MUT. FIRE INS. CO.

958 P.2d 71 (Mont. 1998)

Longshore: Did Not Bar Suit Against Coemployee for Intentional Tort

MALBROUGH V. HALLIBURTON LOGGING SERV.

710 So.2d 1149 (La.App. 1 Cir. 1998)

Longshore: Employee Assigned to Duck Hunting Camp Not Covered by Longshore Act

GREEN V. VERMILION CORP.

144 F.3d 332 (5th Cir. 1998)

Longshore: Jones Act and Longshore Act Are Mutually Exclusive

FOULK V. DONJON MARINE CO., INC.

144 F.3d 252 (3rd Cir. 1998)

Major Cause Analysis: Did Not Apply to Requests for Continuing Medical Treatment

GENERAL ELEC. RAILCAR REPAIR V. HARDIN

969 S.W.2d 667 (Ark.App. 1998)

Medicaid: Assignment Provision Allowed Equitable Reduction in HSD Right to Full Reimbursement

KAHRS V. SANCHEZ

956 P.2d 132 (N.M.App. 1997)

Medical Care: Remand to Determine If Changing Physicians Authorized

SIBLEY V. MEMORIAL HOSP. V. DC DOES

711 A.2d 105 (D.C. 1998)

Modification Petition: Commuted Partial Disability Award and Collateral Estoppel Effect

JOYCE V. W.C.A.B. (STYLETTE PLASTICS)

709 A.2d 1011 (Pa.Cmwlth. 1998)

Offset: Employer and Insurer Entitled to a 50% Offset of Employee's Social Security Disability Benefits

NEWELL V. OUT OF THE WOODS, INC.

711 So.2d 800 (La.App. 1 Cir. 1998)

Penalties and Interest: Due for Failure to Pay Workers' Compensation in Timely Fashion

MAGGARD V. BOH BROS. CONST. CO.

712 So.2d 247 (La.App. 5 Cir. 1998)

Permanent and Total Disability: Claimant Did Not Prove Unable to Work

COZART V. SPECIAL INDEM. FUND

958 P.2d 176 (Okla.Civ.App. Div. 3 1998)

Permanent and Total Disability: Claimant with 11% Permanent Partial Not Totally Disabled

THOMAS V. SPECIAL INDEM. FUND

958 P.2d 168 (Okla.Civ.App. Div. 3 1998)

Permanent and Total Disability: Commission Not Bound by Approved Closed Period

STATE EX REL. TAPP V. PARSEC, INC.

696 N.E.2d 591 (Ohio 1998)

Permanent and Total Disability: For Claimant with Chronic Pain After Back Injury

RIDEAUX V. ST. LANDRY PARISH SCHOOL BD.

711 So.2d 819 (La.App. 3 Cir. 1998)

Permanent and Total Disability: Not Due to Heirs Upon Death of Claimant

PALOMO V. J.R. SIMPLOT CO.

955 P.2d 1093 (Idaho 1998)

Permanent Impairment: Disputed Rating Impairment Transferred to Medical Commission

MATTER OF LYLES

957 P.2d 843 (Wyo. 1998)

Permanent Partial: Began Accruing When Temporary Total Benefits Ended

POLLARD V. THREE M CO.

710 So.2d 922 (Ala.Civ.App. 1998)

Permanent Partial: 1% for Carpal Tunnel Syndrome and Fusion Surgery

MOSELY V. FORD MOTOR CO.

Ky.App., 968 S.W.2d 675

Premiums: Drywall Contractors Not Employees of Contractor

OREGON DRYWALL V. NATIONAL COUNCIL

958 P.2d 195 (Or.App. 1998)

Premises: Not Synonymous with Property and Key Is Use Made and Benefit Received by Employer

WHITE V. U.S.

143 F.3d 232 (5th Cir. 1998)

Rapid Repetitive Motion: Carpal Tunnel Syndrome Fell within Definition of Rapid Repetitive Motion

KILDOW V. BALDWIN PIANO & ORGAN

969 S.W.2d 190 (Ark. 1998)

Rapid Repetitive Motion: Requirement Basis for Denial of Workers' Compensation Benefits

MALONE V. TEXARKANA PUBLIC SCHOOLS

969 S.W.2d 644 (Ark. 1998)

Rehabilitation: Workers' Compensation Benefits Reduced by 50% for Period Claimant Failed to Fully Participate

DABNEY V. BOH BROS. CONST. CO.

710 So.2d 1106 (La.App. 4 Cir. 1998)

Reinstatment: None Where Plant Later Shut Down

PALMER V. W.C.A.B. (HELEN MIN. CO.)

710 A.2d 1245 (Pa.Cmwlth. 1998)

Release: Claimant Was Required to Release to Employer Information About His SSD Benefits

VERNON V. CONTROLLED TEMP.

580 N.W.2d 452 (Mich.App. 1998)

Res Judicata: Did Not Bar Second Attempt at Termination Proceeding

GREEN V. W.C.A.B.

711 A.2d 575 (Pa.Cmwlth. 1998)

SEB Benefits: Claimant Failed to Prove Unable to Earn 90% of Preinjury Wage

IHS/HERITAGE MANOR OF KAPLAN V. SMITH

710 So.2d 1204 (La.App. 3 Cir. 1998)

Second Injury Fund: Agreement Between Workers' Compensation Insurers Not Determinative on Second Injury Fund Liability

FIMINI V. STAR GALLO DISTRIBUTORS, INC.

710 A.2d 1374 (Conn.App. 1998)

Statute of Limitations: Date of Injury Commenced Running of Three Year Statute of Limitations

BOND V. W.C.A.B. (BELMONT CENTER)

711 A.2d 554 (Pa.Cmwlth. 1998)

Statutory Construction: Election Statute Was Substantive and Did Not Apply Retroactively

OLSEN V. SAMUEL McINTYRE INV. CO.

956 P.2d 257 (Utah 1998)

Statutory Construction: Summary Affirmance Statute Did Not Effect Act of 1928

WASHINGTON METRO. AREA TRANSIT AUTHORITY V. BEYNUM

145 F.3d 371 (D.C. Cir. 1998)

Stress: Aggravation of Schizophrenia Must Be Decided Under Mental-Mental Standard

GULICK V. W.C.A.B.

711 A.2d 585 (Pa.Cmwlth. 1998)

Stress: Benefits Denied as Claimant Was Not Incurably Insane

NATIONAL UNION FIRE INS. CO. V. BURNETT

968 S.W.2d 950 (Tex.App.-Texarkana 1998)

Temporary Partial: Based on Claimant's Deemed Earnings as He Did Not Actively Pursue Business

WEST PALM BEACH FIRE DEPT. V. NORMAN

711 So.2d 628 (Fla.App. 1 Dist. 1998)

Temporary Total: Claimant Could Not Receive Temporary Total and Unemployment at Same Time

BALLARD V. BOOK HEATING & COOLING, INC.

696 N.E.2d 55 (Ind.App. 1998)

Termination: Not Permitted Where Dermatitis Likely to Recur If He Returned to Work at Job Site

SCHRADER BELLOWS V. W.C.A.B. (EARLE)

711 A.2d 578 (Pa.Cmwlth. 1998)

Third Party Action: Employee Could Pursue Claim for Loss of Earning Capacity Over Workers' Compensation Recovery

SAYRE V. McGOUGH CONST. CO., INC.

580 N.W.2d 503 (Minn.App. 1998)

Third Party Action: Employee Failed to Prove Sexual Harassment

HERRIED V. PIERCE COUNTY PUBLIC TRANSP.

957 P.2d 767 (Wash.App. Div. 2 1998)

Third Party Action: Employer Entitled to Be Reimbursed for Amount of Paid Medical Expenses

WYATT V. RED STICK SERVICES, INC.

711 So.2d 745 (La.App. 3 Cir. 1998)

Third Party Action: Insurer Not Required to File Its Own Separate Notice of Claim

HARMS V. WILLIAMSON

956 P.2d 649 (Colo.App. 1998)

Third Party Action: Not Automatically Assigned to Workers' Compensation Carrier One Year After Accident

OAKS V. McQUILLER

955 P.2d 971 (Ariz.App. Div. 2 1998)

Third Party Action: Once Claim Assigned to Workers' Compensation Carrier Employee May Not File Action

PALLEN V. UNITED PARCEL SERVICE GENERAL SERVICES

997 F.Supp. 1367 (D.Or. 1998)

Third Party Action: Statute of Limitation Tolled When State Filed Subrogation Suit Against Driver to Recoup Workers' Compensation Benefits

STATE V. AZIOS

966 S.W.2d 869 (Tex.App.-Beaumont 1998)

Work Search: Claimant Did Not Follow Through in Good Faith with Job Referrals

PROCESS INSTRUMENT V. W.C.A.B. (DRAINA)