Worker's Compensation Monthly

January 1998                                                                                         Volume 18, Number 1

Feature Articles:

Workers' Compensation Reform Rejected!
AMA Guides Contrary to Law?
Taking the Fifth
Reducing Lawyer Involvement!
Workers' Compensation Winning Political Issue
Back Sprains and Strains
Organized Labor Gearing Up on Workers' Compensation
Lost Time Next Big Push
$10 Billion in Workers' Compensation Claims?
Phalen, Tinel, Spurling, and Finklestein
Workers' Compensation Injury to Minors
TB Standard
Legal Malpractice and Workers' Compensation Attorneys

Monthly Sections:

Workers' Compensation Injuries and Conditions at a Glance
Selected Workers' Compensation Cases of Interest
Additional Workers' Compensation Cases

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January 1998 Articles

Workers' Compensation Reform Rejected!

In a stunning development, the voters in Ohio have rejected, by way of referendum, the complete 1997 Workers' Compensation Reform Act. Despite being outspent $6,000,000 to $1,000,000, organized labor joined with trial lawyers to repeal the workers' compensation legislation. The vote was 57 percent to 43 percent. Organized labor was quoted after the victory as saying:
They had the money, we had the votes ... if we got the people out they couldn't buy it ... working people are not stupid. They knew this was targeted at them.

The law S.B.45, which was repealed:

- Cut by 50 percent the time a claim remains open.
- Reduced duration of non-working wage loss benefits by 87 percent.
- Eliminated cumulative injury claims like carpal tunnel syndrome and back strains (they are the most common types of injuries).
- Made it harder to establish occupational disease claims and reduced coverage and compensation for such claims.
- Eliminated most claims for permanent total compensation by excluding disability information such as education, work experience and skills - factors that long have been considered essential by the Ohio Supreme Court. This would make Ohio the only state with this standard.
- Prohibited consideration of medical reports of injured workers' treating doctors, and requires awards be set by Bureau of Workers' Compensation doctors who have a history of recommending low and unfair awards.
- Prohibited workers' access to state safety documents by making such records secret; and
- Limited and changed existing law in numerous other areas which affected injured workers and their families.

Workers' compensation attorneys across the United States will now be considering this method of rolling back workers' compensation reform. For additional information contact Esther Weissman, Esq., at 216-579-1818.
 

AMA Guides Contrary to Law?

Chief Administrative Law Judge, Robert J. Smith, of the State of West Virginia Office of Judges, has found that the use of the DRE Model as required in the Fourth Edition of the AMA Guides is contrary to the West Virginia workers' compensation statute.

The case is Cottrell v. W.C. Division, Claim No. 92-66811 (d/o/i 7/7/91). Due to the importance of this decision, we have reproduced key portions of the decision. Judge Smith held:

The issue in this claim is the extent of permanent partial disability suffered by the claimant as a consequence of the compensable injury which occurred July 7, 1991. Furthermore, this claim is unusual and important because it involves a contention by the claimant that a key component of the  Guides to the Evaluation of Permanent Impairment, Fourth Edition, is contrary to the West Virginia Workers' Compensation statute. Specifically, counsel for the claimant argues that the diagnosis related estimated (DRE) model, the preferred methodology in the Guides for determining impairment involving spinal injuries, is inconsistent with West Virginia law. I agree and for the reasons hereinafter set forth, I find and conclude that the DRE is contrary to the West Virginia Workers' Compensation laws. Accordingly, any report prepared pursuant to the DRE is unreliable as a matter of law.

The primary usage of the Guides in workers' compensation cases has been for musculoskeletal injuries. The first Guides  edition established the methodology for determining musculoskeletal impairment. That methodology, the core of which has remained constant for more than 25 years, is the range of motion model. As the Guides became more accepted, the use of the range of motion model to determine musculoskeletal impairment similarly became more frequent. While the use of the Guides was not mandated by regulation or formal policy statement until 1996, based upon cases before the Office of Judges it is clear that for at least the past 10 years the majority of disability evaluators in musculoskeletal cases included a range of motion examination. While the range of motion model has some critics, it has for many years provided a reasonably consistent method for determining impairment. More importantly, its use was, and is, consistent with the statutory construct for determining permanent partial disability in West Virginia.

The fourth edition of the Guides, first published in 1993, continued the use of range of motion for musculoskeletal injuries of the upper and lower extremities. However, for injuries relating to the spine, the fourth edition mandated the use of a new rating model  - the diagnosis related estimate model (DRE).

The DRE differs in several important respects from the range of motion model (ROM). First, even though examinations in both models are conducted only after maximum medical improvement has been attained, the impairment rating using the DRE, sometimes referred to as the injury model, is not necessarily based on the worker's condition at the time of evaluation. The Guides provides as follows at page 100:
With the Injury Model, surgery to treat an impairment does not modify the original impairment estimate, which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient has a favorable or unfavorable response to treatment. (emphasis added)

The fact that a worker's condition has improved or worsened since the time of injury are not to be taken into account in the impairment rating using the DRE. Using the ROM, the impairment rating is based on the worker's condition at the time of the examination.

Second, the DRE does not take into account so-called developmental findings such as osteoarthritis or herniated disc without radiculopathy, either of which may be aggravated by the injury and in some cases caused by the injury. Impairment caused by those conditions, and they certainly can cause impairment, are taken into account in examinations using ROM.

Third, the rating structure established for use with the DRE rates a specific injury. It is not structured and cannot be utilized in cases where there are sequential injuries to the same body part. For example, the claimant in this case suffered a low back injury in 1985. The injury at issue herein is also to her lower back. The DRE was not designed for and does not take into account the prior injury. Dr. Mukkamala's report and conclusion in this case illustrate the point. Based on his examination under the DRE, he concluded the claimant had a 5 percent impairment based on what he labeled unverified radiculopathy she suffered in connection with her 1991 injury. He then concluded that the claimant's total impairment was 5 percent notwithstanding the prior award of 4 percent. The conclusion that claimant's impairment has only increased by 1 percent is untenable and is directly attributable to the use of the DRE. The ROM, on the other hand, permits the evaluator to consider the prior injury. If the claimant's range of motion is worse, the evaluator can see that. If neurological findings are different, the evaluator can account for that.

Finally, the DRE was designed for use in traumatic injuries. That is the apparent basis for excluding "developmental findings" from consideration in reaching an impairment rating. If all cases involving the spine were limited to one traumatic event to previously uninjured parts, the DRE tool may be appropriate. The fact is many back injuries, even those with a definable traumatic element, have an element which is the result of employment related wear and tear over time. See Lilly v. Commissioner, 225 S.E.2d 214 (1976). Because the impairment from such injuries is more developmental in nature, it cannot be properly evaluated by the DRE. The ROM has successfully rated such injuries for a number of years and captured the actual impairment at the time of evaluation.

However, in reality, the DRE does not rate a person's impairment at the time of the evaluation. Instead, the DRE requires that the claimant be rated not based on his condition at the time of the evaluation, but rather upon the claimant's condition at the time of injury. No matter how startling that assertion may appear, it is precisely what the DRE mandates. As noted above, whether a claimant's condition improves or degenerates has no impact on his impairment rating. See Guides, Fourth Edition, page 100. Moreover, in The Guides Newsletter, published by the American Medical Association, September/October 1996, Edition, Dr. Robert Haralson, III, one of the authors of the musculoskeletal portion of the Fourth Edition, states as follows, "In the spine, because the results of the injury are rated rather than results of the treatment, a patient with radiculopathy from a compensable ruptured disc can be rated within several days of the injury." Thus, a claimant who initially has verified radiculopathy would receive a 10 percent impairment even if the radiculopathy, as a result of treatment, were no longer present at the time of the examination for impairment rating. Under the West Virginia statute that result would not be appropriate since the claimant would not be rated based on his condition at the time of the examination. (This example reflects an over-compensation situation. Other examples, however, show under-compensation situations.) Accordingly, the DRE violates W. Va. Code Secs. 23A-4-6(i) and 23-4-7a because the claimant is not rated based on his condition after reaching his maximum degree of improvement at the time of the examination.

The DRE protocol also violates W. Va. Code Sec. 23-4-9b. That section provides that when rating a compensable injury, a preexisting impairment may be excluded, but only if the preexisting impairment is definitely ascertainable. As noted above, the DRE excludes from consideration developmental findings even though such findings may result from employment related wear and tear. The Guides justify that process by implying that all developmental findings are the result of aging. That simply is not accurate in many cases. In Sec. 23-4-9b, the Legislature has attempted to avoid such sweeping assumptions by permitting a preexisting impairment be excluded only if definitely ascertained. The DRE circumvents that process and an evaluation which excludes the claimant's developmental aspects in clearly in violation of the law.

The DRE also is contrary to Sec. 23-4-16, the reopening provisions of the statute. Under the law a claim may be reopened if the claimant's condition has grown worse subsequent to receiving an award or if there exist facts not previously considered. Under the DRE no additional award appears to be possible. It is clear that the impairment rating remains the same irrespective of whether there is a favorable or unfavorable response to treatment. It would necessarily follow that the impairment rating would not change thereafter in the absence of a new injury. Indeed, the DRE protocol specifically provides that surgery for treatment of any injury does not change the original impairment rating. Under the law, surgery, after an impairment rating, would certainly fall within the category of facts not previously considered and warrant a reopening in accordance with Sec. 23-4-16. Under the DRE a petition for reopening would be futile. Accordingly, the DRE is contrary to W. Va. Code Sec. 23-4-16.

Based on the above, I conclude that the DRE is contrary to the West Virginia Statutes relating to permanent partial disability. The DRE is a part of the Guides. The Guides were adopted as a regulation by the Compensation Programs Performance Counsel to determine whole body medical impairment. It is well settled that a regulation which is in conflict with law cannot be enforced. State v. West Virginia Board of Dental Examiners, 128 S.E.2d 620 (1962). Accordingly, any report based on the DRE is contrary to law and therefore unreliable as a matter of law.

For additional information contact Attorney M. Jane Glauser at 304-233-1220.

Taking the Fifth

Workers' compensation attorneys will now have to be well versed in criminal law if they are to advise their clients when to assert their Fifth Amendment rights not to testify. Does this problem seem hypothetical? We suggest you review the recent case of Williams v. Gary Breedlove Const. Co., 950 S.W.2d 557 (Mo.App. S.D. 1997). In the Williams case the workers' compensation claim was dismissed after the claimant refused to answer questions about smoking marijuana, purchasing it, growing it, etc.

The court eventually found that the claim should not have been dismissed as the employer made no showing that it could not come by the information sought in other ways. As you might expect, this type of cross-examination defense technique can effectively quickly destroy the credibility of the workers' compensation claimant.

How do you handle these types of situations? Please fax your suggestions to WCM, attention Steven Babitsky - 508-540-8304.

Reducing Lawyer Involvement!

Workers' compensation experts are advising employers and self-insurers how to make sure their injured workers don't seek the services of a workers' compensation lawyer. In a recent article entitled "The Halo Effect: Measuring the Power of Intangibles in Workers' Compensation", the author advises:

When workers are satisfied with their employer's treatment and with their medical care, they return to work sooner and are less likely to seek out a lawyer.

What is the profile of a "satisfied" worker?

Profile of Injured Worker Most Likely to Be Satisfied with Employer

- Had prior communications from employer about workers' compensation
- Received medical treatment on the first day
- Company arranged for or escorted worker to doctor
- Doctor set expectations for recovery and explained how injury would affect workers' ability to perform job
- Had enough information about workers' compensation, medical condition, and how to speed recovery
- Company and co-workers stayed in touch during the recovery period
- Employer believed injury was genuine
- Company had a return-to-work program
- Returned to work in less than a month
- Had a modified job environment until fully recovered

For a copy of the entire article see the Fall 1997 issue of The Journal of Workers' Compensation, vol. 7 no. 1, pages 9-22, or call 800-682-5759.

Workers' Compensation Winning Political Issue

Workers' compensation is one of the key political issues used by politicians and in particular by governors throughout the United States to help win reelection. A recent press release by Governor Arne H. Carlson of Minnesota is typical:

Governor Arne H. Carlson announced today that the estimated total cost of Minnesota's workers' compensation dropped by 13 percent in 1996. Based on preliminary numbers, the 1996 cost of the system is approximately $1.19 billion, down from the 1995 estimate of $1.36 billion.

"It's great to see workers' compensation costs for Minnesota's businesses continue to drop," Governor Carlson said. "The reforms have made a positive impact on Minnesota's overall business climate and our workers' compensation system will continue to improve as more of the 1995 reforms' long-term impact takes effect."

In 1992 and again in 1995, Governor Carlson led an initiative to pass comprehensive legislation designed to reduce employers' escalating costs in compensating workers for job-related injuries. These reforms cut medical and rehabilitation costs, reduced litigation, required more oversight of insurance rates, provided safety incentives, controlled costs, and increased compliance provisions for insurers and employers.

Workers' compensation pure premium rates rose almost every year between 1984 and 1994, and have dropped dramatically since then. Since 1994, Minnesota pure premium rates have fallen more than 50 percent. The recently released 1998 Minnesota pure premium rates are at 77 percent of 1984's base-year level, down from a 1994 high of 134 percent.

"We are encouraged by the 1996 results and will continue to look for ways to make  Minnesota's workers' compensation more efficient," said Commissioner Gary W. Bastian. "The outlook for 1997 and 1998 is very positive. We expect total system costs to drop below the $1 billion level."

This is the type of political issue workers' compensation has become. The greater the reform and reduction of costs and benefits, the "better" the issue is for a sitting governor in his/her reelection effort. With this type of political reality, the rollback of workers' compensation reform will be a slow process.
 

Back Sprains and Strains

The State of Oregon has completed a statistical analysis of their 1996 workers' compensation claims. Sprains or strains of the back were the most common injury, accounting for 21.3 percent of the claims accepted as disabling.
 
Claims Characteristics

Organized Labor Gearing Up on Workers' Compensation

NCCI Senior V.P. Barry I. Llewellyn recently stated that insurers and employers should be aware that workers' compensation is in a lull period. "We are starting to get some evidence of organized labor gearing up to go back to make changes in the next couple of years. The question is what form it will take."

Lost Time Next Big Push

Employers and self-insurers are being told to concentrate on reducing lost time from work for its next cost-cutting measure. A recent article entitled "It's Lost Time Stupid" explained the new push:

Although this latest news is encouraging, medical expenses only account for 37% of total workers' compensation costs. Lost time, lost wages, and legal fees make up the remaining 63%. If employers wish to continue to reduce their costs, they'll need to focus on the total loss picture, not just the medical discounts and the reduced treatment durations that come from managed care intervention.

"In short, risk managers are going to start telling their TPAs, `It's the lost time, stupid,'" says Larry Chase, V.P. Business Process Management, Crawford. "Whether it's statutory or non-statutory, workers comp., STD, or LTD, it's all a cost factor that can't be ignored."

For additional information see the September 1997 issue of Crawford and Co.'s Insights, or call 800-666-9432.
 
$10 Billion in Workers' Compensation Claims?

A recent study has concluded that there would be between $9.7 billion and $10.4 billion in workers' compensation claims filed if a 7.5 earthquake hit downtown Los Angeles at 2:00 p.m. on a workday. Query: How many of these claims would be denied? Which defenses would the insurance industry employ?

For a copy of this report call E.W. Branch Reinsurance Services at 214-398-6380.
 
Phalen, Tinel, Spurling, and Finklestein

A recent article entitled "Occupational Upper Extremity Cumulative Trauma Disorders - Growing Problem" describes the above and other tests to diagnose upper extremity disorders. Drs. Erdil and Glackin describe the symptoms, diagnosis, and optimal treatments for each disorder.

For a copy of the article (part 2), see the Fall 1997 issue of the Journal of Workers' Compensation. Part I of the article appeared in the Summer 1997 issue of the same journal and dealt with the scope of the problem and critical treatment factors.

For a copy of the complete articles, contact the Journal of Workers' Compensation at 800-682-5759.
 
Workers' Compensation Injury to Minors

You are representing a minor injured in a workers' compensation accident. Is he/she entitled to double compensation or a tort remedy due to a violation of state or federal child labor law or safety violation? What types of injuries are children more susceptible to? Which are the most foreseeable? The answers to these and many similar questions are found in a recent NIOSH publication.

NIOSH in August 1997 published an excellent 62-page monograph entitled "Child Labor Research Needs: Recommendations from the NIOSH Child Labor Working Team". For example, on sleep requirements, the NIOSH Special Hazard Review reports:

Sleep research has shown that the transition from childhood to the adult sleep-wake cycle includes several distinct steps and requires several years to complete. The adult pattern of afternoon sleepiness is first seen in children about halfway through puberty [Carskadon et al. 1980]. Yet the adult pattern of a reduced need for sleep (8 hr. per night) is not observed until sometime after age 18. Current laboratory research suggests that adolescents through age 18 (and perhaps older) require approximately 9 hrs. of sleep per night [Carskadon 1990]. However, cross-sectional surveys report an average of 7 hr. of sleep per night for high school students with part-time jobs - particularly among juniors and seniors working 20 to 30 hrs. per week [Carskadon 1989, 1990]. These data corroborate observations from high school teachers who report sleepy students, especially during early morning classes. Heavy part-time work schedules may result in inadequate sleep, fatigue, and increased risks for injuries while working or commuting.

Sleep research is rapidly unraveling a complex set of phenomena. The current indications are as follows:

- Episodes of early morning and mid-afternoon sleepiness in adolescents have a clear physiological basis.
- Rapidly growing adolescents require as much or more sleep than their younger peers.
- School, work, and social pressures combine to create a pattern of sleep deprivation and fatigue, particularly during the workweek, and particularly for students working 20+ hr. per week.
- Cumulative sleep deprivation and fatigue may place adolescents at increased risk for work-related injuries and illnesses - as well as for unintentional sleep episodes while driving to or from work.

For a copy of the Monograph DHHS (NIOSH) Pub. No. 97-143, fax your request to NIOSH at 513-533-8573.
 
TB Standard

OSHA has proposed a TB standard that would help protect 5.3 million workers in the United States. All workers' compensation attorneys need to be aware of this standard.

Tuberculosis is a contagious disease caused by inhalation of airborne particles containing the bacterium Mycobacterium tuberculosis. OSHA estimates that as many as 13 million adults in the United States are currently infected with TB, and about five million workers are exposed at work. The proposed standard would cover those workers in more than 100,000 establishments, averting between 21,000-25,000 infections annually and between 138-190 deaths. Costs for the standard are $245 million annually, or $2,400 per establishment ($1,600 per small business establishment).
Scope - Covers occupational exposure in the following establishments:

(1) hospitals; (2) long-term care facilities for the elderly; (3) correctional facilities and other facilities that house inmates or detainees; (4) hospice facilities; (5) shelters for the homeless; (6) facilities that offer treatment for drug abuse; (7) facilities where high-hazard procedures are performed; (8) laboratories that handle specimens that may contain M. tuberculosis or process or maintain the resulting cultures or perform related activity that may result in the aerosolization of M. tuberculosis; (9) during the provision of social work, social welfare services, teaching, law enforcement or legal services if the services are provided in any of the work settings listed in (1) through (8), or in residences, to individuals who are in isolation or are segregated or otherwise confined due to having suspected or confirmed infectious TB; and (10) during the provision of emergency medical services home health care, or home-based hospice care.

For additional information and a copy of the complete proposal, contact Mr. Bill Wright at 202-219-8151.

Legal Malpractice and Workers' Compensation Attorneys

The Massachusetts Bar Association's professional liability insurance carrier recently reported on a legal malpractice claim filed against a workers' compensation attorney who settled a workers' compensation case. The client sued the lawyer alleging that he lost $90,000 in social security disability benefits due to the attorney's failure to properly allocate the lump sum settlement.

Caution: With the new social security offset regulations, all attorneys should proceed cautiously in settling cases with a social security offset. Do not promise more than you can deliver. It is safer to err on the side of caution!
 

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Workers' Compensation Injuries and Conditions at a Glance

 ANKLE
Ausburn v. W.C.A.B. (Merrell & Garaguso), 698 A.2d 1356 (Pa.Cmwlth. 1997)

ANKLE: FRACTURE
Varela v. Fisher Roofing Co., Inc., 567 N.W.2d 569 (Neb.App. 1997)

ARM
Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997)

ASBESTOSIS
Reynolds v. Todd Pacific Shipyards Corp., 122 F.3d 37 (9th Cir. 1997)

ASTHMATICS
Combes v. State, Indus. Spec. Indem. Fund, 942 P.2d 554 (Idaho 1997)

ATOPIC DERMATITIS
Grooms v. Ponderosa Inn, 942 P.2d 699 (Mont. 1997)

AVASCULAR NECROSIS
Consultants & Designers v. Brown, 697 So.2d 1228 (Fla.App. 1 Dist. 1997)

BACK
Burnworth v. Prime Equipment Co., 698 So.2d 404 (La.App. 3 Cir. 1997)
Davis v. Cajun Bag and Supply Co., 698 So.2d 39 (La.App. 3 Cir. 1997)
Dean v. N.D. Workers Compensation Bureau, 567 N.W.2d 626 (N.D. 1997)
Kendrick v. Bill Liberto Enterprises, 698 So.2d 22 (La.App. 3 Cir. 1997)
McMahan v. Industrial Com'n, 683 N.E.2d 460 (Ill.App. 4 Dist. 1997)
Priest v. United Parcel Service, 950 S.W.2d 476 (Ark.App. 1997)
Rollins v. Mason County Bd. of Educ., 489 S.E.2d 768 (W.Va. 1997)
Spady Bros. v. Indus. Claim Appeals Office, 942 P.2d 1340 (Colo.App. 1997)
State Ex Rel. Marion Dresser Indus., 684 N.E.2d 70 (Ohio 1997)
Tatano v. W.C.A.B., 698 A.2d 123 (Pa.Cmwlth. 1997)
 

BACK: ARTHRITIC CONDITION
Peziol v. Vaw of America, 661 N.Y.S.2d 839 (A.D. 3 Dept. 1997)

BACK: DEGENERATIVE DISC DISEASE
Davis-Dodson v. Department of Employment, 697 A.2d 1214 (D.C.App. 1997)
Smith v. ConAgra, Inc., 949 S.W.2d 917 (Mo.App. W.D. 1997)

BACK: DISC
Rodriquez v. La Mesilla Const. Co., 943 P.2d 136 (N.M.App. 1997)

BACK INJURY
Brush Greenhouse Partners v. Godinez, 942 P.2d 1278 (Colo.App. 1996)

BACK: SPRAIN
Coleman v. Workers Compensation Bureau, 567 N.W.2d 853 (N.D. 1997)

BLADDER CANCER
McDaniel v. N. Dak. Workers Comp. Bureau, 567 N.W.2d 833 (N.D. 1997)

BRAIN TRAUMA
Uhler v. A & P, 661 N.Y.S.2d 859 (A.D. 3 Dept. 1997)

CARPAL TUNNEL SYNDROME
LeJeune v. Trend Services, Inc., 699 So.2d 95 (La.App. 3 Cir. 1997)

COLITIS
Dibrito v. AFS, 942 P.2d 865 (Or.App. 1997)

EAR
Special Indem. Fund v. Wilson, 943 P.2d 151 (Okl.Civ.App. Div. 4 1996)

ELECTROCUTION
Preston v. Georgia Power Co., 489 S.E.2d 573 (Ga.App. 1997)

EYE
Pan Bldg. Corp. v. W.C.A.B. (Thompson), 698 A.2d 697 (Pa.Cmwlth. 1997)

FOOT: FRACTURE
Kortz v. Colt Energy Services, Inc., 698 So.2d 460 (La.App. 5 Cir. 1997)

HAND
Gonzales v. Texas Workers' Compensation Fund, 950 S.W.2d 380 (Tex.App.-Houston [14th Dist.] 1997)
Palm Springs General Hosp. v. Cabrera, 698 So.2d 1352 (Fla.App. 1 Dist. 1997)
Pate v. Adell Compounding, Inc., 970 F.Supp. 542 (M.D.La. 1997)
Regan v. Amerimark Bldg. Products, Inc., 489 S.E.2d 421 (N.C.App. 1997)

HAND: PARTIAL AMPUTATION
Suarez v. Dickmont Plastics Corp., 698 A.2d 838 (Conn. 1997)

HEARING LOSS
McSween v. Michelin Tire Corp., 698 So.2d 146 (Ala.Civ.App. 1997)
NGK Metals Corp. v. W.C.A.B. (Bailey), 698 A.2d 1365 (Pa.Cmwlth. 1997)
Sellari v. W.C.A.B. (NGK Metals Corp.), 698 A.2d 1372 (Pa.Cmwlth. 1997)

HEART ATTACK
Appeal of Gelinas, 698 A.2d 1248 (N.H. 1997)

HERNIA
Jenkins v. U.S. Fidelity and Guar. Co., 698 So.2d 765 (Ala. 1997)
Min-Ark Pallet Co., Inc. v. Lindsey, 950 S.W.2d 468 (Ark.App. 1997)

KNEE
Marcum v. City of Hermiston, 942 P.2d 879 (Or.App. 1997)

LEG: BROKEN
Whitlock v. Whitlock Mechanical, 489 S.E.2d 687 (Va.App. 1997)

LEGS
Andreson v. Brink Elec. Const. Co., 568 N.W.2d 290 (S.D. 1997)

LUNG CONDITION
Snyder v. Indus. Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997)

NECK
Buchanan v. Scoville, 661 N.Y.S.2d 351 (A.D. 4 Dept. 1997)
Carney v. TCI Cablevision of Tulsa, 942 P.2d 763 (Okl.Civ.App. Div. 3 1997)
Fred Meyer, Inc. v. Hayes, 943 P.2d 197 (Or. 1997)
Stephens Truck Lines v. Millican, 950 S.W.2d 472 (Ark.App. 1997)

NECK: DEGENERATIVE DISC DISEASE
Simpson v. Industrial Com'n of Arizona, 942 P.2d 1172 (Ariz.App. Div. 1 1997)

NECK: DISC
McCollum v. Workers Compensation Bureau, 567 N.W.2d 811 (N.D. 1997)

NECK: SPRAIN
Lombardo v. W.C.A.B. (Topps Co., Inc.), 698 A.2d 1378 (Pa.Cmwlth. 1997)

PHLEBITIS
Horton v. Indus. Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996)

PNEUMOCONIOSIS
Meade v. Spud Mining, Ky., 949 S.W.2d 584

POSTTRAUMATIC STRESS DISORDER
Bruce v. SAIF, 942 P.2d 789 (Or.App. 1997)

PSYCHOLOGICAL
Alvarez v. Liberty House, Inc., 942 P.2d 539 (Hawaii 1997)
Bates v. Mercier, 568 N.W.2d 362 (Mich.App. 1997)
Cabinet for Workforce Dev. v. Cummins, Ky., 950 S.W.2d 834

PSYCHOLOGICAL: DEPRESSION
State Ex Rel. Ondusko v. Indus. Comm., 683 N.E.2d 778 (Ohio 1997)

QUADRIPLEGIA
Brawn v. Gloria's Country Inn, 698 A.2d 1067 (Me. 1997)

REFLEX SYMPATHETIC DYSTROPHY
Smith v. Sealed Air Corp., 489 S.E.2d 445 (N.C.App. 1997)
Sp. Disability Fund v. P.B. Newspaper, 697 So.2d 1226 (Fla.App. 1 Dist. 1997)

SHOULDER
Farmers Ins. Group v. Huff, 942 P.2d 853 (Or.App. 1997)

STRESS
Mitchell v. State, Dept. of Educ., 942 P.2d 514 (Hawaii 1997)

WRIST: NERVE
Bourgeois v. Avondale Shipyards, Inc., 121 F.3d 219 (5th Cir. 1997)
 

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Selected Workers' Compensation Cases of Interest

 AMA Guides: Disabling Pain

SIMPSON V. INDUSTRIAL COM'N OF ARIZONA
942 P.2d 1172 (Ariz.App. Div. 1 1997)
The Arizona Court dealt with the claimant, Simpson, who injured his neck and back in an auto accident and was re-injured in a 1994 incident at work. He was denied permanent impairment benefits due to the fact that the ALJ found the condition not to be rateable under the fourth edition of the Guides.
The court found that disabling pain is compensable even though the degree of impairment may not be rateable under the Guides. The court stated:
Although the current Guides indeed provide a methodology for rating "chronic pain complaints" that was absent when Cassey was decided, the Guides do not purport to do so for the entire spectrum of disabling pain. To the contrary, the fourth edition of the Guides narrowly defines "chronic pain" and distinguishes it from other forms of pain, including "persistent pain". Neither Dr. Stojic nor Dr. Kelley testified that Simpson had "chronic pain" as defined by the Guides; nor did either testify that the Guides' methodology for evaluating "chronic pain" would permit a fair and accurate measure of Simpson's form of pain; nor did either testify that Simpson had any other condition to which the Guides' methodology might apply. Dr. Kelley did not address the point, and Dr. Stojic merely testified that "pain itself" is "not sufficient ... to make a decision whether the patient incurred any permanency or not" under the Guides. This evidence does not support the ALJ's conclusion that the Guides provided a "fair, accurate measure of the degree of [Simpson's] impairment." Rather, it establishes the contrary to be true.

Because the Guides were inapplicable in this case, Simpson was entitled to introduce other evidence to meet this burden. Testimony from both medical experts established that Simpson's condition is medically stationary, that he suffers from industrially-related residual pain, and that his pain precludes his return to heavy farm labor. This evidence sufficed to establish impairment under Cassey.
 

AMA Guides: Most Current Edition

McCOLLUM V. WORKERS COMPENSATION BUREAU
567 N.W.2d 811 (N.D. 1997)
The North Dakota Supreme Court dealt with the claimant, McCollum, who injured his neck at work in 1986 and underwent disc surgery. On May 4, 1995, a permanent impairment rating was performed under the fourth edition of the AMA Guides, and he was awarded 5 percent impairment of the whole person. The claimant appealed alleging that the third edition of the AMA Guides should have been used.
The court found that as the third edition was the "most recent and current" edition at the time of the enactment of the impairment evaluation statute it should have been used. The court stated:
Dr. Martire's permanent partial impairment evaluation was performed on May 4, 1995. At that time, N.D.C.C. Sec. 65-05-12 required impairment evaluations to be done "in accordance with ... the most recent edition" of the AMA Guides. We have recently construed N.D.C.C. Secs. 65-05-12 and 65-01-02 (defining permanent impairment in accordance with the most current edition of the AMA Guides) as adopting the "most recent" or "most current" edition of the AMA Guides in existence at the time of their enactment. McCabe v. North Dakota Workers Comp. Bureau, 1997 ND 145, Sec. 16, 567 N.W.2d 201.
 When N.D.C.C. Secs. 65-05-12 and 65-01-02 were amended in 1989, the "most recent" and the "most current" edition of the AMA Guides was the Third Edition, which was first printed in November 1988. N.D.C.C. Sec. 65-01-02 was amended and reenacted in 1991. 1991 N.D. Laws, Ch. 714, Sec. 23. After its amendment in 1989, N.D.C.C. Sec. 65-05-12 was not again amended or reenacted. N.D.C.C. Sec. 65-05-12 was repealed in 1995. 1995 N.D. Laws, Ch. 624, Sec. 2. The 1995 legislation was referred and its operation was suspended under N.D. Const. Art. III, Sec. 5. It was approved in the June 11, 1996, primary election (1997 N.D. Laws, Ch. 566), and took effect thirty days later. N.D. Const. Art. III, Sec. 8. Because the Third Edition of the AMA Guides was the edition in existence when N.D.C.C. Sec. 65-05-12 was amended and reenacted in 1989 (until its repeal became effective in 1996), it was the edition of the AMA Guides applicable when McCollum's impairment was evaluated on May 4, 1995. Thus, we conclude McCollum's impairment should have been evaluated in accordance with the Third Edition of the AMA Guides, rather than the Fourth Edition.
 

AMA Guides: Rateable Injury

MORRIS V. INDUSTRIAL CLAIM APPEALS OFFICE
942 P.2d 1343 (Colo.App. 1997)
The Colorado Court dealt with the claimant, Morris, who suffered an admitted injury to her left wrist and arm in May 1992. A level II accredited physician rated claimant's permanent impairment as a scheduled injury to the left extremity of 42 percent. Neither party requested an independent medical examination (IME) on this issue.
The claimant was also treated for anxiety and depression stemming from her inability to perform a number of functions because of the pain and the physical limitations from the injury. One level II physician opined that claimant sustained a 6 percent whole person psychiatric impairment from this component of her injury under the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). In contrast, however, a division-selected examiner conducted an IME on claimant and rated her permanent psychiatric impairment at zero percent under the AMA Guides.
The court held that an injury or condition must be rateable under the AMA Guides before it is compensable for permanent impairment purposes. The court stated:
We view the holding of our supreme court in Mountain City Meat II as instructive in resolving the issue before us, and we conclude that an injury must be rateable under the AMA Guides before such is compensable under Sec. 8-42-107(8). Hence, we hold that a functional impairment that rates at zero percent under the AMA Guides is not a compensable injury under Sec. 8-42-107(8).
Unlike Strauch and Advanced Component Systems, the issue here is whether a non-scheduled injury must be rateable under the AMA Guides before the benefits provided under Sec. 8-42-107(8) may be awarded. As noted, we conclude that it must.
 

Appeal: Mailing Vs. Filing

McLAUGHLIN V. SAGA CORPORATION
661 N.Y.S.2d 313 (A.D. 3 1997)
The New York Court dealt with the claimant, McLaughlin, who received notice of an unfavorable decision on January 6, 1994. She had 30 days within which to file her appeal, i.e. February 5, 1994. She mailed her appeal on February 7, 1994. The court extended the appeal period due to the weekend and further found that proof of mailing and not filing was required. The court stated:
In the ordinary course of events, the 30-day limitations period set forth in Workers' Compensation Law Sec. 23 (providing that an application for Board review must be made within 30 days after notice of filing of the decision) would have expired on February 5, 1994. Because this date fell upon a Saturday, however, the time limit was automatically extended to Monday, February 7, 1994, (see, General Construction Law Sec. 25-a), the date upon which claimant's application for Board review was, in fact, mailed. This was sufficient to satisfy the time limitation of Workers' Compensation Law Sec. 23 despite the fact that the application for Board review was not actually filed with the Board until February 15, 1994. Effective September 1, 1989, 12 NYCRR 300.13(a) permits service in such matters by mailing the application for Board review rather than the actual filing thereof with the Board. Because claimant has submitted proof of mailing within the limitations period, we conclude that her application for Board review of the WCLJ's decision was timely.
 

Attendant Care: Van and Personal Care Assistant

BRAWN V. GLORIA'S COUNTRY INN
698 A.2d 1067 (Me. 1997)
The Maine Supreme Court dealt with the claimant, Brawn, who was rendered a quadriplegic in an industrial accident. As part of her attendant care benefits she sought a van to transport her and her special 300 lb. wheelchair and two personal care assistants for 24-hour care. The court approved the van and stated:
As the Board concluded, the van is reasonably necessary to facilitate the use of Brawn's wheelchair. The practical benefit of a 300 pound wheelchair is greatly diminished if Brawn is effectively precluded from traveling beyond the boundaries of her own home. Moreover, in Brawn's case, the van, like the wheelchair, is reasonably necessary to provide basic mobility. The days have long passed when transportation by car or similar vehicle could be considered a "luxury". This is especially true for severely handicapped individuals, like Brawn, who are greatly restricted in their choice of alternative transportation.
The court went on to approve the personal care attendant despite the fact that she performed some "housekeeping" duties.
The court stated:
"with a person as severely injured as [Brawn], it is artificial to say that certain of the tasks [the personal assistants] perform are purely medical and others are purely housekeeping." It is not necessary in this case to determine which tasks were purely housekeeping and which tasks were purely medical. We conclude that a personal care assistant who, by reason of medical necessity, must be in attendance at certain times of the day should be compensated for the reasonable time of service, even if incidental household services are performed.
 

Constitutionality: Attorney Fees

INJURED WORKERS OF KANSAS V. FRANKLIN
942 P.2d 591 (Kan. 1997)
The Kansas Supreme Court dealt with an attack on the constitutionality of the 1993 Workers' Compensation Reform Act. The court dealt with the graduated contingency fee rates for attorneys. The statute provided:
(1) a reasonable amount for such services or (2) the amount equal to the total of 25 percent of that portion of total compensation recovered and paid which is less than $10,001, 20 percent of that portion of total compensation recovered and paid which is greater than $10,000 and less than $20,001, and 15 percent of that portion of the total amount of compensation recovered and paid which is in excess of $20,000, whichever is less, in addition to actual expenses incurred, and subject to the other provisions of this section.
The court upheld the constitutionality of the statute and stated:
The plaintiffs contend that K.S.A. 44-536 unconstitutionally violated the Due Process Clauses of the United States and Kansas Constitutions. The plaintiffs claim that their due process rights have been violated because their remedy for injuries suffered on the job, a workers' compensation award, is now more difficult to achieve.
Even assuming that the plaintiffs' remedy is more difficult to achiev because competent attorneys are less likely to take workers' compensation cases with reduced attorney fees, K.S.A. 44-536(a) does not violate due process.
Note: The court upheld the rest of the Workers' Compensation Reform Act and stated:
With these rights still available to injured workers under the amended Act, it cannot be said that the Act, which originally provided an adequate substitute remedy for the abrogation of an employee's common-law right to sue an employer for negligence, has been emasculated to the point where it is no longer an adequate quid pro quo. Neither the Act as a whole nor the individual 1993 amendments violate due process.
 

Constitutionality: Third Party Action

WORSHAM V. GREIFENBERGER
698 A.2d 867 (Conn. 1997)
The Connecticut Supreme Court dealt with the claimant, Worsham, who was involved in a work-related auto accident on September 23, 1991, and was paid workers' compensation benefits on July 1, 1992. His employer, National, instituted an action against the defendants under Sec. 31-293 in order to recover the workers' compensation benefits that it had paid to the plaintiff. Pursuant to Sec. 31-293, National notified the plaintiff of the initiation of those proceedings by a certified letter dated August 12, 1992. The letter identified the applicable court and docket number, and stated that the action was being taken pursuant to Sec. 31-293. The letter did not inform the plaintiff that, in accordance with Sec. 31-293, his cause of action against the defendants would abate if he failed to intervene in National's action within thirty days. The plaintiff did not intervene in that action.
The court found that the claimant was deprived of a property interest and due process as he was not informed that his failure to move to intervene within 30 days would result in complete abatement of his right to bring the action. The court stated:
Specifically, we hold that in order for the abatement provision of Sec. 31-293 to be invoked against a party, the notice given pursuant to that statute must have comported with both the statutory requirements and the due process clause. In compliance with the statute, the notice must contain (1) the fact that the action has been brought; and (2) the name of the court to which the writ in the action is returnable, and in compliance with the due process clause, the notice must also include a notice that the recipient's right to bring an action against the third party tortfeasor will be permanently lost if the recipient does not move to intervene in the action within 30 days of such notification.

Coverage: Farm Labor

J & C POULTRY V. REYES-GUZMAN
489 S.E.2d 853 (Ga.App. 1997)
The Georgia Court dealt with the claimant, Guzman, who was employed by a corporation which specialized in catching, boxing, and loading chickens. After he was injured on the job, his employer attempted to interpose a farm laborer exemption defense.
The court rejected the defense finding that the employee was not a farm laborer and was entitled to workers' compensation benefits. The court stated:
The focus of the exemption is the status of the employee, not the total activities of the employer.
 

Discrimination: Ceasing to Pay Health Insurance Premiums

ROLLINS V. MASON COUNTY BD. OF EDUC.
489 S.E.2d 768 (W.Va. 1997)
The West Virginia Court dealt with the claimant, Rollins, who injured her back at work on March 4, 1993. She received workers' compensation benefits until March 30, 1994, when her claim was closed. She appealed this closure.
On October 12, 1994, the Board notified her that it had paid her health insurance premiums for one year consistent with its obligations to an employee on an approved medical leave of absence, but that it would cease paying her health premiums as of November 11, 1994. She was informed by the Board that she would be responsible for paying her premiums if she desired to keep the medical coverage provided through PEIA. As of November 1, 1994, the Board ceased paying her health insurance premiums. The employee alleged that as she was an employee who was "claiming workers' compensation" her health insurance premiums could not be cancelled.
The court rejected this interpretation of the West Virginia discrimination statute and found that she was not "claiming" workers' compensation benefits. The court stated:
A workers' compensation claimant who is protesting the closure of her claim for temporary total disability benefits and/or the denial of additional temporary total disability benefits does not come within the meaning of the terms "is claiming" found in West Virginia Code Sec. 23-5A-2 (1994). Accordingly, an employer who ceases to pay the health insurance premiums for a claimant who is protesting or appealing the closure or denial of TTD benefits does not commit an act of discrimination within the legislative intent of West Virginia Code Sec. 23-5A-2.
 

Horseplay: Fall from Roof When Arm-Wrestling

VARELA V. FISHER ROOFING CO., INC.
567 N.W.2d 569 (Neb.App. 1997)
The Nebraska Court dealt with the claimant, Varela, who fell from a roof while arm-wrestling and broke his ankle. The judge found that the men were mocking Varela's work efforts for carrying a half-full bucket of material when others were carrying heavier buckets. In response, Varela issued a challenge to Gonzalez to arm-wrestle. The record is unclear as to exactly how the participants were physically positioned, except that Varela had one foot on the edge of a raised skylight and that both men fell, at which time Varela's ankle was severely fractured. Fisher's employee handbook, written in English, prohibits "[b]oisterous or disruptive activity in the workplace" and fighting. Varela does not read English.
The court affirmed the award of workers' compensation benefits finding that as the teasing was connected to work the horseplay was compensable. The court stated:
We believe that Larson and Larson's proposed test for compensability is appropriate and that certain incidents of horseplay, resulting in injury, may be within the scope of employment and arise out of it. We look to whether the deviation was substantial because, obviously, Varela and Gonzalez were not directly working when the injury occurred. We find that the work stoppage was of momentary duration, the injury happened at the very outset of the horseplay, this was not the sort of incident which carried a significant risk of serious injury, and the incident was a trifling matter, at least in its intention by the two employees. These factors lead to the conclusion that the arm-wrestling was an insubstantial deviation and did not measurably detract from the work (but for the injury). This is essentially the analysis followed by the Wisconsin Court of Appeals in Bruns Volkswagen Inc. v. DILHR, 110 Wis.2d 319, 328 N.W.2d 886 (Wis.App.1982), and that court also relied heavily on the test postulated by Larson and Larson, as do we. Thus, we hold that the injury occurred in the course of the employment as well as arose out of it. Accordingly, the Workers' Compensation Court trial judge did not err in awarding benefits.
 

In Course of Employment: Assault After Racial Remark

REDMAN INDUSTRIES, INC. V. LANG
943 P.2d 208 (Or. 1997)
The Oregon Supreme Court dealt with the claimant, Lang, a Caucasian male, who worked at employer's plant with [assailant], an African-American, male co-worker. The claimant installed windows on manufactured homes, and [assailant] installed doors. On August 3 or 4, 1994, the claimant jokingly caused [assailant] a `watermelon', which angered [assailant]. On August 4, referring to that or a similar remark, [assailant] told the claimant `don't be playing with me like that'. The next morning, the claimant referred to [assailant] as `watermelon' and, less than an hour later, as `buckwheat', `Kentucky Fried Chicken', and `watermelon eatin' fool'. Although [assailant] knew the claimant was trying to joke with him, [assailant] became angry and called claimant `cracker' and another name, possibly `honkey'.
"[Assailant] remained very upset by claimant's remarks. Within a few minutes, another worker called [assailant] a Spanish name that [assailant] believed was a racial slur. [Assailant] struck that worker.
The court found that as the claimant was not an "active participant" in the assault he was in the course of his employment when struck. The court affirmed the award of workers' compensation and stated:
The Board adopted that finding. Under the circumstances of this case, we agree that the claimant was not an active participant. The statutory provision expressly requires that a claimant be an "active participant in assaults or combats". (Emphasis added.) Those terms require more than a claimant anger an assailant in such a way that the assailant later assaults the claimant. Based on the text alone, we conclude that claimant was not an active participant in the assault that injured him. Therefore, claimant's injury is compensable under ORS 656.005(7).
 

In Course of Employment: Attack in Parking Lot

FRED MEYER, INC. V. HAYES
943 P.2d 197 (Or. 1997)
The Oregon Supreme Court dealt with the claimant, Hayes, who was a retail department manager for Fred Meyer, Inc. At 8 p.m. on March 20, 1994, she completed her shift. For the next 15 to 20 minutes, claimant shopped in employer's grocery department and purchased items for her personal use. After completing her shopping, she left the store through the grocery exit and walked directly toward her car, pushing a cart containing groceries. When she left the store, the parking lot was about half full of cars. The claimant's car was parked about 72 yards from the grocery exit in an area on the perimeter of employer's parking lot where employer had directed its employees park. That area of the parking lot was not well lit. As she approached her car, she was attacked by a man with a knife. The assailant stabbed her in the neck and right thumb.
The court found that despite her "shopping" she was in the course of her employment as she was put at increased risk by being forced to park in a dimly lit section of the parking lot. The court stated:
Claimant was required by the employer to park in an area on the perimeter of the parking lot. The closest lights were halfway between the area where claimant parked and the store. Claimant indicated that the area where her car was parked and where the attack took place was not well lit. In addition, witnesses testified that `transients' were sometimes a problem on the employer's parking lot and premises.

The Board further found that claimant's employment exposed her to a risk of assault, because her employer required her to park at the "fringes" of the parking lot in an area that was not well lit and that "[those] factors made claimant vulnerable to an attack" and created the risk that such an attack would occur. The Board concluded that claimant's injury arose out of a risk to which her employment exposed her. We agree with the Board that claimant's injury "arose out of" her employment.
 

In Course of Employment: Traveling Employee

EVERSMAN V. CONCRETE CUTTING & BREAKING
568 N.W.2d 387 (Mich.App. 1997)
The Michigan Court dealt with the claimant, Eversman, who was sent on a multistate assignment. He and a co-employee operated a machine which broke concrete. On July 12, 1990, the job was cancelled for the day due to bad weather. After a day of drinking the claimant was hit by a car when attempting to cross a four-lane road to get to his hotel room. He had a 0.23 percent blood alcohol level when tested at the hospital.
The court reversed the denial of benefits finding that the claimant was within the scope of his employment as a traveling employee and entitled to workers' compensation despite his intoxication.
The court stated:
In this case, as a traveling employee, plaintiff was in the course of his employment throughout July 12, 1990. The evidence does not show a distinct departure for a personal errand. Plaintiff had to eat, and he had to sleep. He was injured when he was returning from dinner directly to his motel room. Returning to his room after a meal was in the course of plaintiff's employment as a traveling employee.
The fact that plaintiff had been drinking or was intoxicated at the time of the accident is not itself dispositive. An employee who became intoxicated at the employer-sponsored event and who later died in an automobile accident was entitled to benefits in Allison v. Pepsi-Cola Bottling Co., 183 Mich.App. 101, 454 N.W.2d 162 (1990). More importantly, the evidence in this case did not show that plaintiff's drinking contributed to the accident in which he was injured.
 

Longshore: 10 Days to Make Payment

BURGO V. GENERAL DYNAMICS CORP.
122 F.3d 140 (2nd Cir. 1997)
The U.S. Court of Appeals (2nd Cir.) dealt with the claimant, Burgo, who settled his case for $140,000. His attorney received the check 13 days after the order was filed. As the payment was three days late, a $28,000 penalty under Sec. 914(f) was ordered. The employer appealed the penalty.
The court rejected the argument that the statute should be interpreted to mean ten working days. The court found ten days means ten calendar days and affirmed the penalty award. The court stated:
Had Congress intended to exclude weekends and holidays, it could have specified that payment must be made within ten business days. While, as appellant notes, Congress might also have made its intent more clear by declaring the Sec. 914(f) penalty due after ten calendar days, the modifier "calendar" is employed primarily to distinguish calendar days from business days when both phrases are used. Because the most natural interpretation of the bare phrase ten days is clearly ten calendar days, we will not find an ambiguity in the legislative language simply because Congress could have reinforced its meaning with the use of additional language.
 

Notice: Hearing Loss Claims

NGK METALS CORP. V. W.C.A.B. (BAILEY)
698 A.2d 1365 (Pa.Cmwlth. 1997)
The Pennsylvania Court dealt with 11 workers' compensation claimants who filed claims for hearing loss as a result of their work at a metal plant. One of the defenses raised by the employer was that some of the claimants did not file their notice within the 120-day period and thus the claims were time barred.

The court found that the mere belief by the claimants that their hearing loss was work-related was not sufficient to start the running of the 120-day period. The court required a diagnosis of work-relatedness and stated:
A claimant's belief, without more, that the hearing loss is work-related does not rise to the level necessary to begin the running of the statute of limitations under the Act. Indeed, the "[m]ere knowledge or suspicion of a significant hearing loss and a possible causal relationship with employment ... is not sufficient evidence of a compensable hearing loss." Boeing Helicopter 629 A.2d at 189. Here, none of the claimants admitted, and the facts of each case do not evidence that prior to their dates of diagnosis, they knew for certain that their hearing loss was of such a degree and was caused by work-related noise exposure. As such, Hermanson is factually distinguishable.
All of the claimants' petitions were filed in a timely fashion, specifically on June 16, 1993. This evidences that these claimants also provided timely notice to NGK, that is, within 120 days from the date of diagnosis of the specific loss of use of hearing.
 

Stress: Resulting from Disciplinary Action

MITCHELL V. STATE, DEPT. OF EDUC.
942 P.2d 514 (Hawaii 1997)
The Hawaii Supreme Court dealt with the claimant, Mitchell, who was a sixth grade teacher. A student, Joseph, jumped out of his seat and rushed across to her desk, yelling. He started grabbing papers on her desk. Mitchell tried to grab the papers back, never stood up, but bumped Joseph with the inside of her forearm. Joseph accused Mitchell of striking him for stealing cookies and throwing the papers. Several students wrote letters in support of Mitchell's position that she did not hit Joseph. Nakashima, however, after conducting his own investigation of the incident, recommended to the superintendent that Mitchell be suspended for five days, without pay, for violating the DOE's rule prohibiting corporal punishment. Following Nakashima's recommendation for suspension, Mitchell became feverish, disoriented, and confused; she found it difficult to work and frequently left work early. She last reported to work on February 5, 1990. She then filed a workers' compensation stress claim.
The court reluctantly awarded workers' compensation benefits finding that as the workers' compensation statute did not prohibit the award of workers' compensation benefits in response to employee misconduct it was covered by the Act. The court stated:
Because the injury in this case arose "out of and in the course of the employment" and is not excluded by the Wharton rule, we are compelled to hold that it is compensable under HRS Sec. 386-3. We note that many jurisdictions with statutes similar to HRS chapter 386 have expressly amended them to exclude from coverage psychological or stress-related injuries resulting from good faith disciplinary actions.
In the absence of an express exception in HRS Sec. 386-3, we cannot unilaterally pronounce one. To do so would run counter to the clear import of HRS Sec. 386-3. If the legislature should deem it advisable in the future, it can - as have the jurisdictions cited supra - amend HRS chapter 386 to exclude from coverage those injuries resulting from disciplinary action taken in good faith by the employer. However, unless and until the Hawaii legislature chooses to amend HRS chapter 386, we are compelled to reach the result we have today.
 

Temporary Total: Intervening Injury

HORTON V. INDUS. CLAIM APPEALS OFFICE
942 P.2d 1209 (Colo.App. 1996)
The Colorado Court dealt with the claimant, Horton, who sustained a compensable injury in 1992. On September 23, 1994, her treating doctor recommended surgery. However, because the claimant had sustained a fall in March 1994 that aggravated her pre-existing phlebitis, the surgery could not be scheduled until December 26, 1994, when the phlebitis treatment was completed.
On October 26, 1994, petitioners filed a motion to suspend temporary total disability benefits. In addressing that motion, the Administrative Law Judge (ALJ) concluded that the March 1994 fall constituted an intervening injury that delayed claimant's attainment of maximum medical improvement for the industrial injury, and granted petitioners a suspension of benefits from October 26, 1994, to December 26, 1994.
The court affirmed the finding that the employer was not entitled to suspend benefits as the claimant was already disabled when the intervening accident happened. The court stated:
Here, petitioners admitted liability for temporary total disability benefits and they did not content that the claimant's disability abated prior to the fall and the subsequent recommendation for surgery. Since the claimant was already totally disabled by the injury at the time of the alleged "intervening event", the subsequent wage loss was necessarily caused to some degree by the injury. Thus, the ALJ's findings establish that claimant's injury contributed in part to the subsequent wage loss. Therefore, under PDM Molding, Inc. v. Stanberg, supra, claimant was entitled to temporary disability benefits for the disputed period.
 

Third Party Action: Uninsured Motorist

STANDISH V. AMERICAN MFRS. MUT. INS. CO.
698 A.2d 599 (Pa.Super. 1997)
The Pennsylvania Court dealt with the claimant, Standish, who on April 29, 1994, was involved in a motor vehicle accident while at work. He was paid $2,443 in workers' compensation benefits and then recovered $7,000 in uninsured motorist benefits from his personal auto liability insurance policy. The workers' compensation insurer then asserted a lien on the $7,000 recovery.
The court rejected the attempt at subrogation finding that the uninsured motorist carrier claim was not a claim "against a third party tortfeasor". The court stated:
... the uninsured motorist benefits is within the purview of Section 1720. We note that, contrary to American Manufacturers' assertion, our decision today does not violate the legislature's prohibition against double recovery of both workers' compensation benefits and damages in tort. In this case, appellant did not receive damages in tort. Rather, he received an award of benefits which were in the nature of an accident policy for the benefits of the insured.

 
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Additional Workers' Compensation Cases

Accident: Exposure to Dust and Grass Resulting in Asthmatics Not Compensable Injury
COMBES V. STATE, INDUS. SPEC. INDEM. FUND
942 P.2d 554 (Idaho 1997)

Aggravation: None for Knee Problem Three Years After Original Injury
MARCUM V. CITY OF HERMISTON
942 P.2d 879 (Or.App. 1997)

AMA Guides: Impairment Should Have Been Rated Under Third Edition
COLEMAN V. WORKERS COMPENSATION BUREAU
567 N.W.2d 853 (N.D. 1997)

Appeal: Claimant Could Appeal Issue of Compensability Based on Change of Condition
MANASCO V. LUMBERMENS MUT. CAS. CO.
951 S.W.2d 286 (Tex.App.-Beaumont 1997)

Appeal: Filing Motion to Reopen Tolled the 20-Day Appeal Period
ALVAREZ V. LIBERTY HOUSE, INC.
942 P.2d 539 (Hawaii 1997)

Appeal: Frivolous Appeal Subjects Claimant to Pay Employer Attorney Fees
AUSBURN V. W.C.A.B. (MERRELL & GARAGUSO)
698 A.2d 1356 (Pa.Cmwlth. 1997)

Appeal: On Medical and Rehabilitation Expenses Filed 56 Days After Decision Untimely
P.R.I.D.E. V. TEXAS WORKERS' COMP. COM'N
950 S.W.2d 175 (Tex.App.-Austin 1997)

Appeal: Petition Which Employee Must File Within 30 Days of Employer's Appeal Not Violative of Due Process
WHITEHURST V. PERRY TWP.
684 N.E.2d 96 (Ohio App. 10 Dist. 1996)

Apportionment: Of Disability Due to Back Condition Warranted
PEZIOL V. VAW OF AMERICA
661 N.Y.S.2d 839 (A.D. 3 Dept. 1997)

Attorney Fees: None Due to Lack of Contest of Compensability
FARMERS INS. GROUP V. HUFF
942 P.2d 853 (Or.App. 1997)

Attorney Fees: $7,500 for 71 Hours of Work
LeJEUNE V. TREND SERVICE, INC.
699 So.2d 95 (La.App. 3 Cir. 1997)

Average Weekly Wage: Could Not Be Calculated by Reference to Gross Earnings of Persons Performing Same Work
APPEAL OF GELINAS
698 A.2d 1248 (N.H. 1997)

Average Weekly Wage: May Not Be Aggregated to Include Wages Earned in Employment Other Than That in Which Employee Injured
McANINCH V. BUNCOMBE COUNTY SCHOOLS
489 S.E.2d 375 (N.C. 1997)

Bad Faith: No Claim as Fund Had Reasonable Basis to Deny Claim
GONZALES V. TEXAS WORKERS' COMPENSATION FUND
950 S.W.2d 380 (Tex.App.-Houston [14th Dist.] 1997)

Bad Faith: No Claim as Reasonable Basis for Denial Existed
ALVARADO V. OLD REPUBLIC INS. CO.
951 S.W.2d 254 (Tex.App.-Corpus Christi 1997)

Conflict of Laws: Massachusetts Law Applied to Resident of Massachusetts Who Was Employed by Massachusetts Company
PIMENTAL V. CHERNE INDUSTRIES, INC.
698 A.2d 361 (Conn.App. 1997)
Constitutionality: Inability to Pay for Second Exam Did Not Deprive Her of Right to Legal Redress
GROOMS V. PONDEROSA INN
942 P.2d 699 (Mont. 1997)

Constitutionality: Residential Property Exemption Not Violative of Equal Protection Clauses
BROWN V. MUTO
943 P.2d 38 (Colo.App. 1996)

Coverage: Employee Was Statutory Employee of Contractor and Therefore Excluded from CGL Policy
FLORIDA INS. GUAR. ASS'N V. REVOREDO
698 So.2d 890 (Fla.App. 3 Dist. 1997)

Decision: Hearing Officer Required to Explain Why He Ignored Physician's Inconsistent Statements
McDANIEL V. N. DAK. WORKERS COMP. BUREAU
567 N.W.2d 833 (N.D. 1997)

Decision: Remanded Due to Inadequate Findings
STATE EX REL. V. MARION DRESSER INDUS.
684 N.E.2d 70 (Ohio 1997)

Denial: Failure to File Notice of Denial Operated as Denial of Every Allegation in Petition
RUSSELL CORP. V. BROOKS
698 So.2d 1334 (Fla.App. 1 Dist. 1997)

Dismissal: For Claims Analyst Who Made Material False Statements with Regard to Her Claim
DEAN V. N.D. WORKERS COMPENSATION BUREAU
567 N.W.2d 626 (N.D. 1997)

Due Process: Right to Cross-Examine Witnesses Extends to Parties Appearing Before Workers' Compensation Commission
PRIEST V. UNITED PARCEL SERVICE
950 S.W.2d 476 (Ark.App. 1997)

Earning Capacity: 74-Year-Old Claimant Suffered 75% Loss of Earning Capacity
ZIEGLER V. CHENANGO COUNTY SELF-INS. PLAN
661 N.Y.S.2d 867 (A.D. 3 Dept. 1997)

Election of Remedies: Acceptance of Workers' Compensation Waived Common-Law Tort Rights
RIGGINS V. STONG
661 N.Y.S.2d 170 (Dist.Ct. 1997)

Election of Remedies: Claimant Who Obtained Legal Judgment Against Third Party Not Entitled to Additional Workers' Compensation
ANDRESON V. BRINK ELEC. CONST. CO.
568 N.W.2d 290 (S.D. 1997)

Employee: Sole Proprietor Was an Independent Contractor and Not Employee
WHITLOCK V. WHITLOCK MECHANICAL
489 S.E.2d 687 (Va.App. 1997)

Employee: Volunteer Member of Unit to Assist Park Rangers Not Employee Under Volunteer Police and Fire Statute
CONOVER V. LAKE CTY. METRO PARKS SYS.
683 N.E.2d 808 (Ohio App. 11 Dist. 1996)

Evidence: Claimant Need Only Prove Injury Due to Objective Medical Findings
STEPHENS TRUCK LINES V. MILLICAN
950 S.W.2d 472 (Ark.App. 1997)

Evidence: Medical Expert Permitted to Testify Outside His Medical Specialty
LOMBARDO V. W.C.A.B. (TOPPS CO., INC.)
698 A.2d 1378 (Pa.Cmwlth. 1997)

Evidence: Self-Serving Testimony of Claimant and Girlfriend Insufficient to Prove Claim
BURNWORTH V. PRIME EQUIPMENT CO.
698 So.2d 404 (La.App. 3 Cir. 1997)

 Evidence Substantial: Avascular Necrosis Causally Related to Exposure to Chemicals at Work
CONSULTANTS & DESIGNERS V. BROWN
697 So.2d 1228 (Fla.App. 1 Dist. 1997)

Evidence Substantial: Claimant Could Perform Light Work
BRUCE V. SAIF
942 P.2d 789 (Or.App. 1997)

Evidence Substantial: Claimant Who Could Do Light Work Not Totally Disabled
GAFF V. NORTH STAR TRUCKING
661 N.Y.S.2d 859 (A.D. 3 Dept. 1997)

Evidence Substantial: Hearing Loss Due to Heredity and Not Noise on the Job
McSWEEN V. MICHELIN TIRE CORP.
698 So.2d 146 (Ala.Civ.App. 1997)

Evidence Substantial: Hernia from Lifting Heavy Pallets Compensable
MIN-ARK PALLET CO., INC. V. LINDSEY
950 S.W.2d 468 (Ark.App. 1997)

Evidence Substantial: Neck Injury Not a Result of Constantly Turning Head to Use Computer
CARNEY V. TCI CABLEVISION OF TULSA
942 P.2d 763 (Okl.Civ.App. Div. 3 1997)

Exclusivity: Chemical Corporation Had Exclusive Right to Discharge Temporary Labor Employee and Was Protected by Workers' Compensation Act
PRESTON V. GEORGIA POWER CO.
489 S.E.2d 573 (Ga.App. 1997)

Expert Testimony: Nonexamining Physician's Testimony Supported Decision on Utilization Review
TATANO V. W.C.A.B.
698 A.2d 123 (Pa.Cmwlth. 1997)

In Course of Employment: Fall Due to Preexisting Gait Imbalance Not Compensable
SVEHLA V. BEVERLY ENTERPRISES
567 N.W.2d 582 (Neb.App. 1997)

Indemnification: Company Did Not Have Implied Duty to Indemnify Based on "Workmanlike" Language in Contract
UNITED CABLE OF JEFFCO V. MONTGOMERY LC
942 P.2d 1230 (Colo.App. 1996)

Intentional Tort: Forcing Claimant to Clean Moving Machine with Hand Not Intentional Tort
SUAREZ V. DICKMONT PLASTICS CORP.
698 A.2d 838 (Conn. 1997)

Jurisdiction: Employer and Company Fraudulently Joined to Defeat Diversity Jurisdiction
PATE V. ADELL COMPOUNDING, INC.
970 F.Supp. 542 (M.D.La. 1997)

Loaned Employee: Driver Did Not Consent to Work for Manufacturer as Special Employee
BORNEMAN V. CORWYN TRANSPORT, LTD.
567 N.W.2d 887 (Wis.App. 1997)

Longshore: Claimant Who Fabricated Bulkheads Welding Them to Scow Was "Shipbuilding"
JONES V. DUTRA CONST.
67 Cal.Rptr.2d 411 (Cal.App. 1 Dist. 1997)

Longshore: Settlement of Third Party Claim Without Employer's Approval Precluded Longshore Claim
REYNOLDS V. TODD PACIFIC SHIPYARDS CORP.
122 F.3d 37 (9th Cir. 1997)

Longshore: Voluntary Payment Did Not Trigger Penalty Provisions
BOURGEOIS V. AVONDALE SHIPYARDS, INC.
121 F.3d 219 (5th Cir. 1997)

Maximum Medical Improvement: Death Did Not Cause Employee to Reach Maximum Medical Improvement
DEPENDENTS OF NUNNALLY V. WAL-MART STORES, INC.
943 P.2d 26 (Colo.App. 1996)

Medical Advisor: When Health Care Providers Disagree Judge Required to Appoint Expert Advisor
PALM SPRINGS GENERAL HOSP. V. CABRERA
698 So.2d 1352 (Fla.App. 1 Dist. 1997)

Medical Benefits: Right to Medical Benefits Separate and Distinct from Right to Income Benefits
DAVIS-DODSON V. DEPARTMENT OF EMPLOYMENT
697 A.2d 1214 (D.C.App. 1997)

Medical Care: Judge Was Correct in Refusing to Preclude Back Surgery as Appropriate Treatment
RODRIQUEZ V. LA MESILLA CONST. CO.
943 P.2d 136 (N.M.App. 1997)

Offset: Employer Entitled to Offset Social Security Despite Fact That Claimant Was Already Drawing Benefits When He Started Job
DAVIS V. CAJUN BAG AND SUPPLY CO.
698 So.2d 39 (La.App. 3 Cir. 1997)

Penalties: CCIA Not a Person and Not Entitled to Procedural Due Process on Imposition of Penalties
DIVERSIFIED VETERANS CORPORATE V. HEWUSE
942 P.2d 1312 (Colo.App. 1997)

Penalties: Due from Employer Who Fails to Investigate Claim in Timely Fashion
KORTZ V. COLT ENERGY SERVICES, INC.
698 So.2d 460 (La.App. 5 Cir. 1997)

Penalties: Employer Required to Pay Claimant Separate Penalties for Concurrent Delinquencies
KENDRICK V. BILL LIBERTO ENTERPRISES
698 So.2d 22 (La.App. 3 Cir. 1997)
 
 
 

Penalties and Attorney Fees: Due to Employer's Delay in Paying Workers' Compensation Benefits
McMAHAN V. INDUSTRIAL COM'N
683 N.E.2d 460 (Ill.App. 4 Dist. 1997)

Permanent and Total Disability: Access to Labor Market Where Claimant Resided Could Not Be Considered in Reaching Permanent and Total Decision
SPADY BROS. V. INDUS. CLAIM APPEALS OFFICE
942 P.2d 1340 (Colo.App. 1997)

Permanent and Total Disability: Award Does Not Establish Right to Continue Permanent and Total Benefits Beyond Closed Period in Order
STATE EX REL. ONDUSKO V. INDUS. COMM.
683 N.E.2d 778 (Ohio 1997)

Permanent and Total Disability: Standard Is Whether Claimant Can Earn Any Wages in His Commutable Labor Market
BRUSH GREENHOUSE PARTNERS V. GODINEZ
942 P.2d 1278 (Colo.App. 1996)

Premiums: State Was Not Bound to Pay Funds Placed in Surplus Escrow Account of Accident Fund to Fund Policyholders
FUN 'N SUN R.V., INC. V. STATE
567 N.W.2d 460 (Mich.App. 1997)

Remand: To Determine If Claimant Was Performing His Preinjury Job Without Restrictions When Laid Off
PAN BLDG. CORP. V. W.C.A.B. (THOMPSON)
698 A.2d 697 (Pa.Cmwlth. 1997)

Retraining Benefits: On Appeal Award Becomes Final and Triggers 208-Week Period for Award
MEADE V. SPUD MINING
Ky., 949 S.W.2d 584

 Safety Violation: Claimant Failed to Meet Burden of Proof of Intentional Violation of Safety Violation
CABINET FOR WORKFORCE DEV. V. CUMMINS
Ky., 950 S.W.2d 834

Second Injury Fund: Histrionic Personality Disorder Not Preexisting Impairment
SP. DISABILITY FUND V. P.B. NEWSPAPER
697 So.2d 1226 (Fla.App. 1 Dist. 1997)

Second Injury Fund: Morbid Obesity Not Preexisting Disability
SMITH V. ConAGRA, INC.
949 S.W.2d 917 (Mo.App. W.D. 1997)

Second Injury Fund: Reopening Must Be Based on Further Material Increase of Disability
SPECIAL INDEM. FUND. V. WILSON
943 P.2d 151 (Okl.Civ.App. 4 1996)

Security Deposit: State Fund Required to Make Security Deposit Equal to Amount of Unpaid Claims
EDWARDS V. INDUSTRIAL COM'N OF STATE
943 P.2d 47 (Idaho 1997)

Settlement: Unsupported Averments of Fraud Insufficient to Set Aside Settlement
WEAVER V. MINNEAPOLIS STAR & TRIBUNE
568 N.W.2d 169 (Minn. 1997)

Statute of Limitations: On Settlement Runs from Date of Settlement Not Date of Discovery
JENKINS V. U.S. FIDELITY AND GUAR. CO.
698 So.2d 765 (Ala. 1997)

Statute of Limitations: Psychological Aversion to Filing Claim Did Not Constitute Mental Incapacity Tolling Statute of Limitations
BATES V. MERCIER
568 N.W.2d 362 (Mich.App. 1997)

Statute of Limitations: Tolled Due to Mental Incompetency
UHULER V. A & P
661 N.Y.S.2d 859 (A.D. 3 Dept. 1997)

Statute of Limitations: Tolled Until Claimant Was Informed by Physician That He Had Hearing Loss
SELLARI V. W.C.A.B. (NGK METALS CORP.)
698 A.2d 1372 (Pa.Cmwlth. 1997)

Statutory Construction: Court Would Not Defer to DOES Interpretation of Statue and Would Remand Instead
MUSHROOM TRANSP. V. D.C. DEPT. OF EMP. SVCS.
698 A.2d 430 (D.C.App. 1997)

Statutory Construction: "Grave Injury" Language of Indemnification Statute Applied Retroactively
MAJEWSKI V. BROADALBIN-PERTH CENT. SCHOOL
661 N.Y.S.2d 293 (A.D. 3 Dept. 1997)

Statutory Employer: Contractor Was Statutory Employer of Employee of Indiana Subcontractor
MARION POWER SHOVEL CO. V. HARGIS
698 So.2d 1246 (Fla.App. 3 Dist. 1997)

Statutory Employer: General Contractor Statutory Employer of Employee of Subcontractor
BROGNO V. W & J ASSOCIATES, LTD.
698 A.2d 191 (R.I. 1997)

Stress: Not Major Contributing Cause of Colitis Condition
DIBRITO V. AFS
942 P.2d 865 (Or.App. 1997)

Subrogation: None Against Employee's Uninsured Motorist Coverage
DODD V. MIDDLESEX MUT. ASSUR. CO.
698 A.2d 859 (Conn. 1997)

 Temporary Total: Employer Liable Until Petition to Terminate Approved
SNYDER V. INDUS. CLAIM APPEALS OFFICE
942 P.2d 1337 (Colo.App. 1997)

Third Party Action: Attorney's Motion for Fees from Third Party Action Should Have Been Allowed
STRICKLAND V. RIDDLE BRADLEY, INC.
698 So.2d 784 (Ala.Civ.App. 1997)

Third Party Action: Employer Was Entitled to Credit Based on Settlement Between Claimant and Third Party
WENTWORTH V. SPARKS REGIONAL MED. CENTER
950 S.W.2d 221 (Ark.App. 1997)

Third Party Action: Insurance Carrier Denied Motion to Intervene Four Weeks Before Trial
THOMAS V. COOK DRILLING CORP.
684 N.E.2d 75 (Ohio 1997)

Third Party Settlement: Approval Nunc Pro Tunc Dependent on Whether Workers' Compensation Insurer Prejudiced
BUCHANAN V. SCOVILLE
661 N.Y.S.2d 351 (A.D. 4 Dept. 1997)

Total Disability: Employer Failed to Show Suitable Jobs Were Available for Claimant
SMITH V. SEALED AIR CORP.
489 S.E.2d 445 (N.C. App. 1997)

Willful and Wanton Conduct: Permitting Manual Cleaning of Unguarded Coater Not Willful Misconduct
REGAN V. AMERIMARK BLDG. PRODUCTS, INC.
489 S.E.2d 421 (N.C.App. 1997)

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