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March 1998
Volume 18, Number 3
Monthly Sections:
Organized labor and claimants' attorneys are now pushing to increase workers' compensation
benefits in the state of California. Billions of dollars have been saved in workers'
compensation premiums and profits, but little has been passed back to injured workers. The
broken promise is the one made by Governor Wilson who said in a press release when he
signed workers' compensation reform that half of all the savings would go to injured
workers. Organized labor is pushing for a 15 percent across-the-board increase for all
permanent partial disabilities and a 50 percent sharing of all "savings" from
the workers' compensation reform legislation.
Here is what the press release said:
SACRAMENTO - Governor Pete Wilson today signed legislation he has long sought to overhaul California's costly and much-maligned workers' compensation system.
"For years, California's fraud-ridden workers' compensation system has been the single greatest barrier to job creation in our state," said Wilson. "But today, we're starting the process of tearing down that barrier, freeing Californians to create tens of thousands of new jobs a year."
Wilson's comments came during a bill-signing ceremony held at the Governor's office, attended by leaders of the Senate and Assembly. Wilson signed a multi-bill package of workers' compensation reform legislation.
The reform legislation is expected to reduce workers' compensation costs by at least $1.5 billion, or nearly 14 percent of the current $11 billion system. Half of the savings will go to reduce premiums for employers and half will be used to increase benefits for injured workers over the next three and a half years.
"This package of reform saves money by tightening the standard for stress claims in the system, the fastest growing aspect of the workers' compensation," said Wilson. "It limits medical costs by allowing employers and insurance companies to use managed care organizations, and it imposes tighter cost controls on medical costs. It deflates the skyrocketing cost of medical-legal evaluations, caps the cost of vocational rehabilitation, and strengthens confict-of-interest rules. And finally, these reforms crack down on those who are defrauding the system," explained Wilson. "This legislation marks the beginning of the end for the stress-mill millionaires."
For additional information contact Frank D. Russo, Esq. at 510-452-0400.
At a recent insurance conference Edmund Kelly, the President of Liberty Mutual Insurance
Company, explained:
Workers' compensation has become extremely profitable in the past five years. For a few years, medical inflation was lower than overall inflation. But more importantly, the rate of medical inflation was much lower than forecast in the early 1990s. As a result, premiums and reserves based on these projections were set higher, leading to large profits.
For additional information see the December 15, 1997, issue of Business Insurance, page
12, "Workers' Compensation Market Must Adjust: Panel".
The rate of workplace injuries and illnesses in 1996 was the lowest it's been since the
early 1970s. A total of 6.2 million injuries and illnesses were reported in private
industry workplaces during 1996, resulting in a rate of 7.4 cases per 100 equivalent
full-time workers, according to a survey by the Bureau of Labor Statistics, U.S.
Department of Labor. Employers reported a 5 percent decrease in the number of cases and a
3 percent increase in hours worked compared with Sharp Drop in Workplace Injuries and
Illnesses
About 2.8 million injuries and illnesses in 1996 were lost workday cases, that is, they required recuperation away from work or restricted duties at work, or both. The incidence rate for lost workday cases has declined steadily from 4.1 cases per 100 full-time workers in 1990 to 3.4 cases per 100 workers in 1996. The rate for cases with days away from work has declined for six years in a row and, at 2.2 cases per 100 full-time workers in 1996, was the lowest level on record. By contrast, the rate for cases involving restricted work activity only rose from 0.7 cases per 100 workers in 1990 to 1.1 cases in 1995 and remained at that level in 1996. The latter types of cases may involve shortened hours, a temporary job change, or temporary restrictions on certain duties (e.g., no heavy lifting) of a worker's regular job. They are especially evident in manufacturing, where the rate of restricted work activity cases (2.4 per 100 full-time workers) is more than double the corresponding national rate.
Injuries and Illnesses
Injuries. Of the 6.2 million nonfatal injuries and illnesses in 1996, nearly 5.8 million were injuries that resulted in either lost worktime, medical treatment other than first aid, loss of consciousness, restriction of work or motion, or transfer to another job. Injury rates generally are higher for mid-size establishments employing 50 to 249 workers than for smaller or larger establishments, although this pattern does not hold within certain industry divisions. Nine industries, each having at least 100,000 injuries, accounted for about 8.1 million injuries, or 31 percent of the 5.8 million total.
Illnesses. There were about 439,000 newly reported cases of occupational illnesses in private industry in 1996. Manufacturing accounted for three-fifths of these cases. Disorders associated with repeated trauma, such as carpal tunnel syndrome and noise-induced hearing loss, accounted for 4 percent of the 6.2 million workplace injuries and illnesses. They were, however, the dominant type of illness reported, making up 64 percent of the 439,000 total illness cases. The number of repeated trauma cases reported in 1996 (281,000) was 9 percent lower than the corresponding 1995 figure (308,000) and 15 percent lower than the record 1994 figure (332,000).
For additional information: Technical information, 202-606-6179; Media information,
202-606-5902; Internet address: http://stats.bls.gov/oshhome.htm.
If you are involved in any De Quervain's tenosynovitis claims, you should review the October 10, 1997, Journal of Occupational and Environmental Medicine, vol. 30, no. 10. J. Steven Moore, MD, MPH, in his article covers: normal anatomy and kinesiology, history, diagnosis, pathology, pathophysiology, observations on etiology, epidemiology, and treatment. Models for the pathogenesis of De Quervain's tenosynovitis are proposed.
Dr. Moore presents clinical observations on etiology and the occupational factors
associated with the disorder. For additional information write to: J. Steven Moore, MD,
MPH, Department of Occupational and Environmental Medicine, University of Texas Health
Center at Tyler, P.O. Box 2003, Tyler, TX 75710.
The push for workers' compensation managed care is slowing according to a recent study by the Workers' Compensation Research Institute. Currently 40 jurisdictions have fee schedules, 37 restrict the injured worker in his/her choice of physicians, and 39 states limit the injured worker's right to change physicians.
For a copy of the report "Managed Care and Medical Cost Containment in Workers'
Compensation, 1997-1998" call 617-494-1240.
A Kentucky trial court in the case of Grubb v. Shamrock Coal Company has ruled that portions of the Workers' Compensation Reform Act were unconstitutional. Specifically the court rules that the provision requiring a 20 percent breathing impairment to trigger compensability when applied with the exclusivity provision was unconstitutional because it left claimants without a remedy.
Of equal and perhaps more use in other jurisdictions was the finding that the
"opt-out" provision under which an employee is deemed to have accepted the
exclusive remedy provision if he/she does not opt out of the workers' compensation system
in writing, was unconstitutional. The court found that the employees were deprived of
their constitutional right without notice.
Workers' compensation insurers are pushing integrated disability management. IDM
combines workers' compensation, short-term disability, and long-term disability, and has
four elements: (1) the common intake of claims; (2) managed care services; (3) return to
work programs; and (4) shared information systems.
Workers' compensation carriers and self-insurers find eight specific benefits to
integration:
1. Reduced occupational disability costs
2. Reduced non-occupational disability costs
3. Elimination of duplicate claims
4. Reduced cost of administration
5. Increased quality of medical care
6. Data consolidation
7. Reduced litigation
8. Increased quality of medical care
For additional information see the Winter 1998 Journal of Workers' Compensation, vol. 7
no. 2, and the article entitled "Landmark Survey: Best Practices in Integrated
Disability Management" North and Higdon, 800-682-5759.
Workers' compensation attorneys should be ready to withstand enormous pressure to
return injured claimants to work. Workers' compensation insurers and employers are now
being told that the quicker an injured worker goes back to work the more effective the
workers' compensation program is. Here is an example of this kind of reasoning:
Employees who are hurt on the job are getting back to work faster, according to a study
commissioned by Louisiana Workers' Compensation Corporation (LWCC), the state's largest
writer of workers' comp insurance. Increasing return-to-work rates translates into a
tremendous savings for employers since wage replacement payments account for nearly half
of claims costs which largely determine premiums.
LWCC measures return-to-work rates as one benchmark for success. "Return-to-work
rates are among the best means to evaluate the effectiveness of a workers' comp company's
claims management. They give timely feedback, keep the focus on the cost drivers of
claims, and help staff manage portfolios of similar claims," said Peter Rousmaniere
of Rousmaniere Designs, a Massachusetts-based disability management consulting firm which
conducted the study.
"When injured employees return to work sooner, employers save on indirect costs such
as retraining, temporary labor, and equipment downtime." These costs are often double
the amount spent on workers' comp premiums and are absorbed entirely by the employer,
according to NCCI.
For additional information contact Kimberly Young at 504-231-0942.
Workers' compensation attorneys should become familiar with a watch out for workers' compensation carve outs. These collectively bargained private workers' compensation programs have already spread to nine states: California, Florida, Hawaii, Kentucky, Maine, Maryland, Minnesota, Massachusetts, and New York.
Although the carve outs differ from state to state, most carve outs provide for:
- agreed medical network
- dispute avoidance
- ombudsman
- mediation
- arbitration
According to John H. Lewis, Esq.:
The success of collectively bargained programs, however, does not make them the answer to everyone's prayers. Some say a cooperative approach to workers' comp is impossible. Others say they are concerned about the loss of control of choice of physician. Still others say they are concerned about a new way of doing business, a new way that, if successful, will reduce the influence and incomes of some of the statutory system's most influential players.
One detail of a collectively bargained program deserves mention: the need for a major change in attitude. To successfully implement a program, all parties must agree to compromise and cooperate. As one of the labor representatives who negotiated the first agreement in Massachusetts said, this is not the usual brand of collective bargaining. If
the result is not "win-win", if the parties go into the effort to beat the other side out of something, the program probably will not be born, let alone survive.
For additional information see the article "Workers' Compensation Carve Out: What
Are They", Lewis, Safety and Health, January 1998, pages 66-67, or call
630-775-2279.
Are workers' compensation injuries dropping due to improved workplace safety or are injured workers not reporting and filing for workers' compensation benefits even when legitimately injured on the job?
In California, the California Workers' Compensation Institute reports that:
The decline in work injuries in the face of rising employment reflects several factors: improved workplace safety, changes in the composition of jobs and nature of work, changes in employer reporting patterns, and workers' compensation anti-fraud efforts. For California employers, the 1996 results translate to 7.1 nonfatal work injuries and illnesses per 100 full-time workers, down from a rate of 7.9 a year earlier, and 28 percent below the peak of 9.9 recorded in 1990 and 1991. The most notable improvement was in the private sector, where employers reported 6.6 cases per 100 workers, compared to 7.4 in 1995.
This trend is not confined to California but is taking place nationally as well. For example, in New Hampshire the incident rates have fallen from 11.3 injuries per 100 workers in 1993 to 10.0 per 100 in 1997.
What the above statistics do not get at is why is there such a sharp drop in reported
workers' compensation injuries. Is the answer workers are just reporting fewer injuries?
The U.S. Chamber of Commerce has filed suit in the U.S. Court of Appeals alleging that OSHA is coercing employers to join its cooperative compliance program by threatening to inspect employers who don't join.
The Chamber of Commerce is arguing that the OSHA program is not voluntary as OSHA guarantees an inspection for companies that do not join.
The National Association of Manufacturers, the American Trucking Associations, and the
Food Marketing Institute have joined in the Chamber of Commerce suit.
OSHA has updated its 25-year-old standard for respirator protection for 5 million U.S. workers. The new standard reflects current respirator technology and better ways to ensure they fit. The revised standard also clarifies responsibility for administering a respirator program and its provisions, adds definitions, and provides specific guidance on respirator selection, use, hazard evaluation, medical evaluations, fit testing, and training.
Other major requirements of the respirator program as outlined in the standard are:
- Written plan with worksite-specific procedures to tailor program to each worksite.
- Hazard evaluation required to characterize respiratory hazards and conditions of work to assist employers in selecting appropriate respirators.
- Medical evaluation required to determine ability of workers to wear the respirator selected.
- Fit testing of tight-fitting respirators required to reduce faceseal leakage and ensure that the respirators provide adequate protection.
- Training required to ensure that employees use respirators safely.
- Periodic program evaluation required to ensure that respirator use continues to be effective.
For additional information contact Frank Kane at 202-219-8151.
Organized labor and workers' compensation attorneys have a large opportunity to educate employees about their health.
Employers are doing little to educate their employees about health conditions. A recent study by the Gallup Organization found that 44 percent of employees reported their employers do nothing in health education and less than 15 percent of employers distribute health information or sponsor exercise programs or onsite health seminars.
For a copy of the health study, "Personal Health: Who's Taking Charge?", call
215-761-7144.
How many injured workers diagnosed with RSD are really suffering from RSD? According to Lloyd R. Saberski, MD, as many as 90 percent of patients are misdiagnosed.
Typically, the term "RSD" is used only after investigation fails to determine
a more specific diagnosis. RSD is a diagnosis of exclusion, made on clinical grounds
without laboratory or reliable radiographic tests.
There are no standard, objective criteria for measurement of the disease/symptom complex. Thus, important underlying pathology can be overlooked. In 100 patients referred with diagnosis of RSD, more than 90, when carefully examined, did not have RSD/CRPS as their primary diagnosis, but had other primary pathologies which manifested with various forms of extremity pain. These included central nervous system (CNS) disease and injury; cervical cord myelopathy; Chiari malformations; syrinxes; and demyelinating diseases including MS.
- The Expert Witness Review (Winter 1997)
For a copy of the entire article "A Primer on Reflex Sympathetic Dystrophy"
fax your request to Medquest at 212-725-5090.
If you are representing a drycleaning employee, look to NIOSH for help on chemical exposures and conditions.
Perchloroethylene (PERC) is the most commonly used drycleaning solvent. PERC can enter the body through respiratory and dermal exposure. Symptoms associated with exposure include: depression of the central nervous system; damage to the liver and kidneys; impaired memory; confusion; dizziness; headache; drowsiness; and eye, nose, and throat irritation. Repeated dermal exposure may result in dermatitis. NIOSH considers PERC a potential human carcinogen.
NIOSH has issued a series of additional "Hazard controls" for drycleaning
shops. These including "Spotting chemical hazards", "Control of fire
hazards", "Control of ergonomic hazards", "Machine design", and
"Ventilation".
For additional information call 800-356-4674.
Top
ARM: AMPUTATION
Zimmerman by Zimmerman v. Valdak Corp., 570 N.W.2d 204 (N.D. 1997)
ANKLE BROKEN
State v. Turner, 952 S.W.2d 354 (Mo.App. W.D. 1997)
BACK
Bendion v. Penobscot Management, 570 N.W.2d 473 (Mich.App. 1997)
Bills v. Gail Armstrong Const., Inc., 946 P.2d 275 (Okl.Civ.App. Div. 3 1997)
Bohanan v. U.S.D. No. 260, 947 P.2d 440 (Kan.App. 1997)
Figured v. W.C.A.B. (USAir, Inc.), 702 A.2d 3 (Pa.Cmwlth. 1997)
Gibbons v. Shaddix Pulpwood Co., 699 So.2d 225 (Ala.Civ.App. 1997)
J.E. Merit Constructors, Inc. v. Butler, 700 So.2d 1111 (La.App. 5 Cir. 1997)
Lawrence v. Consolidated Edison Co., 659 N.Y.S.2d 117 (A.D. 3 Dept. 1997)
Mitchell v. New York City Transit Auth., 664 N.Y.S.2d 485 (A.D. 3 Dept. 1997)
Powell v. Nortex Investigation Services, 947 P.2d 614 (Okl.Civ.App. Div. 1 1997)
Sharon Steel Corp. v. W.C.A.B., 702 A.2d 378 (Pa.Cmwlth. 1997)
State Ex Rel. v. City Asphalt & Paving Co., 686 N.E.2d 516 (Ohio 1997)
State Ex Rel. Hall v. Indus. Comm., 685 N.E.2d 1245 (Ohio 1997)
State Ex Rel. Rawls v. Miami Margarine Co., 686 N.E.2d 511 (Ohio 1997)
Stofa v. W.C.A.B. (Florence Min. Co.), 702 A.2d 381 (Pa.Cmwlth. 1997)
Walsh v. Treasurer of the State, 953 S.W.2d 632 (Mo.App. S.D. 1997)
BACK: DEGENERATIVE DISC DISEASE
King v. Scotty's Distribution Center, 699 So.2d 308 (Fla.App. 1 Dist. 1997)
BACK: DISC
Fry v. Atlantic States Ins. Co., 700 A.2d 974 (Pa.Super. 1997)
Moorer v. City of Greenville, 701 So.2d 40 (Ala.Civ.App. 1997)
SIIS v. Bokelman, 946 P.2d 179 (Nev. 1997)
Skomal v. World of Food, 570 N.W.2d 542 (Neb.App. 1997)
BACK: FUSION
Shawnee Management Corp. v. Hamilton, 492 S.E.2d 456 (Va.App. 1997)
BACK: STRAIN
Lehsten v. NACM-Upstate New York, 663 N.Y.S.2d 687 (A.D. 3 Dept. 1997)
State Ex Rel. Toth v. Indus. Comm., 686 N.E.2d 514 (Ohio 1997)
BRAIN ANEURYSM
State Ex Rel. Workers' Comp. v. Waggener, 946 P.2d 808 (Wyo. 1997)
BURNS
Boone v. Vinson, 492 S.E.2d 356 (N.C.App. 1997)
Corriveau v. Home Ins. Co., 685 N.E.2d 1208 (Mass.App.Ct. 1997)
CARPAL TUNNEL SYNDROME
Fred Meyer, Inc. v. Crompton, 946 P.2d 1171 (Or.App. 1997)
Lee Co. v. Holland, 701 So.2d 18 (Ala.Civ.App. 1997)
CHEMICAL BURNS
Cronin v. Perry, 664 N.Y.S.2d 123 (A.D. 2 Dept. 1997)
CHEMICAL EXPOSURE
Wedeck v. Unocal Corp., 69 Cal.Rptr.2d 501 (Cal.App. 1 Dist. 1997)
CHRONIC OBSTRUCTIVE PULMONARY DISEASE
Breaux v. City of New Orleans, 699 So.2d 482 (La.App. 4 Cir. 1997)
CHRONIC PAIN SYNDROME
State Farm Ins. Co. v. Lyda, 946 P.2d 685 (Or.App. 1997)
EYE
Clodgo v. Rentavision, Inc., 701 A.2d 1044 (Vt. 1997)
FEMUR FRACTURE
Carrick v. Riser Foods, Inc., 685 N.E.2d 1261 (Ohio App. 8 Dist. 1996)
FIBULA: FRACTURE
Russell v. Orr, 700 So.2d 619 (Miss. 1997)
FOOT
Bowers v. Cotton Bayou Condominiums, 699 So.2d 166 (Ala.Civ.App. 1997)
HAND
Frontini v. W.C.A.B., 702 A.2d 8 (Pa.Cmwlth. 1997)
Kiser v. Building Erection Services, Inc., 973 F.Supp. 1269 (D.Kan. 1997)
HEAD
Estrada v. W.C.A.B., 69 Cal.Rptr.2d 176 (Cal.App. 2 Dist. 1997)
Process Equipment, Inc. v. Quinn, 701 So.2d 29 (Ala.Civ.App. 1997)
HEARING LOSS
Norstadt v. Murphy Plywood, 945 P.2d 654 (Or.App. 1997)
Soper v. Gouverneur Talc Co., 663 N.Y.S.2d 696 (A.D. 3 Dept. 1997)
Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904 (5th Cir. 1997)
HEART ATTACK
Augusta County Sheriff's Dept. v. Overbey, 492 S.E.2d 631 (Va. 1997)
HEART: MITRAL VALVE COLLAPSE
Rosser v. SIIS, 946 P.2d 185 (Nev. 1997)
HIGH BLOOD PRESSURE
Keser v. Elmira Psychiatric Center, 662 N.Y.S.2d 627 (A.D. 3 Dept. 1997)
INTRACEREBRAL HEMORRHAGE
Andrews v. W.C.A.B. (C & C Compost), 701 A.2d 1003 (Pa.Cmwlth. 1997)
KNEE
Beverly Enterprises v. Michl, 945 P.2d 658 (Or.App. 1997)
CBS Inc. v. Labor and Industry Review, 570 N.W.2d 446 (Wis.App. 1997)
Dandola v. New York City Dept. of Correction, 664 N.Y.S.2d 392 (A.D. 3 Dept. 1997)
Fail v. Community Hospital, 946 P.2d 573 (Colo.App. 1997)
FMC Corp. v. Perez, 128 F.3d 908 (5th Cir. 1997)
Fuhrman v. N.D. Workers Comp. Bureau, 569 N.W.2d 269 (N.D. 1997)
Jimenez v. District of Columbia, 701 A.2d 837 (D.C.App. 1997)
Meehan Seaway Serv. v. OWCP, U.S. Dept. of Labor, 125 F.3d 1163 (8th Cir. 1997)
Wells v. Swalling Const. Co., Inc., 944 P.2d 34 (Alaska 1997)
KNEE: STRAIN
Brown & Root Indus. v. Industrial Com'n, 947 P.2d 671 (Utah 1997)
LEG
Buhon v. Holi Temporary Services, Inc., 700 So.2d 1152 (La.App. 4 Cir. 1997)
MULTIPLE MYELOMA
Edmiston v. City of Hobbs, 944 P.2d 883 (N.M.App. 1997)
Morrell v. Onondaga County, 664 N.Y.S.2d 168 (A.D. 3 Dept. 1997)
NECK
Ross v. Oak Manor Farms, 700 So.2d 906 (La.App. 5 Cir. 1997)
NECK: DISC
Macica v. ARA Services Tidewater Vending, 492 S.E.2d 843 (Va.App. 1997)
Shaw v. Dover Furniture Mfg. Co., 700 So.2d 1382 (Ala.Civ.App. 1997)
State Ex REl. Eaton Corp. v. Indus. Comm., 686 N.E.2d 507 (Ohio 1997)
PARALYSIS
Lee v. Boeing Co., Inc., 123 F.3d 801 (4th Cir. 1997)
POLIO
Special Indem. Fund v. Estill, 943 P.2d 606 (Okl. 1997)
PSYCHOLOGICAL
Crims/PCA Solutions v. Collier, 700 So.2d 1231 (Fla.App. 1 Dist. 1997)
Henson v. Crisp, 946 P.2d 1252 (Wash.App. Div. 3 1997)
PSYCHOLOGICAL: POST-CONCUSSION SYNDROME
Reif v. W.C.A.B. (Funks Hauling Service), 700 A.2d 1362 (Pa.Cmwlth. 1997)
PSYCHOLOGICAL: POST-TRAUMATIC STRESS DISORDER
City of Springfield v. Industrial Com'n, 685 N.E.2d 12 (Ill.App. 4 Dist. 1997)
RIBS: FRACTURE
Theophile v. Trinity Industries, Inc., 977 F.Supp. 782 (E.D.La. 1997)
SHOULDER
Liberty Northwest Ins. Corp. v. Jensen, 946 P.2d 689 (Or.App . 1997)
McMillan v. U.S. Motors, 953 S.W.2d 907 (Ark.App. 1997)
SILICOSIS
Fairmount Foundry v. W.C.A.B. (Baylor), 702 A.2d 373 (Pa.Cmwlth. 1997)
Hinton v. Acme Steel & Malleable Iron, 663 N.Y.S.2d 693 (A.d. 3 Dept. 1997)
SUBLUXATING SHOULDER
George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 1997)
SUICIDE
Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa App. 1997)
THROMBOCYTOPENIA
Papco Oil Co. v. Farr, 492 S.E.2d 858 (Va.App. 1997)
TUBERCULOSIS
Lindenfeld v. Richmond Sheriff's Office, 492 S.E.2d 506 (Va.App. 1997)
WRIST
Quick v. Steuben County Self-Insurance Plan, 662 N.Y.S.2d 608 (A.D. 3 Dept. 1997)
Top
Appeal: Fax Notice of Appeal
WAGNER V. FULTON INDUSTRIES, INC.
686 N.E.2d 559 (Ohio App. 6 Dist. 1997)
The Ohio District Court dealt with the claimant, Wagner, who filed a workers'
compensation claim which was denied. Pursuant to R.C. 4123.511(B)(1), a party wishing to
appeal an initial adverse ruling of the BWC may do so within 14 days after the receipt of
the order. In this instance, the parties agree that the appeal period would have expired
on November 26, 1994, but since this was a Saturday, appellee had until November 28, 1994,
to perfect an appeal.
According to appellee, on Sunday, November 27, 1994, his counsel faxed a notice of appeal
to the Ohio Industrial Commission's Lima office. A copy of the filing was mailed the same
day. The mail communication apparently arrived at the commission office on November 29,
1994, as that is the date it was file stamped by the commission. The fax copy of the
appeal was not file stamped until much later.
The court found that the fax of the appeal gave rise to a reasonable inference that the
notice of appeal was timely delivered. The court stated:
Fax machines have become an essential tool of government and business as we approach the
end of the century. The legal community, courts, and administrative agencies are just now
beginning to formulate strategies to deal with this new technology. In this case, it
appears that the Industrial Commission has attempted to set a bright-line test for the
point at which an administrative appeal is filed pursuant to R.C. 4123.511: that being,
the moment in time at which the agency attaches its file stamp to the document.
In view of this definition, it seems clear that while the presence of an agency "time
stamp" or "file stamp" would be evidence that a document was filed, the
absence of such a stamp creates only a presumption that the document was not timely filed.
As with any presumption, this conclusion may be dispelled by sufficient evidence.
In this matter, appellee presented to the common pleas court unrebutted evidence giving
rise to a reasonable inference that his notice of appeal was timely delivered to the
appropriate office.
Dual Capacity: Cook in Hospital
RUSSELL V. ORR
700 So.2d 619 (Miss. 1997)
The Mississippi Court dealt with the plaintiff, Russell, who injured her ankle while
working for Valley. Valley had a contract to provide food services to the Pontotoc
Hospital. Russell drove herself to the nearby Pontotoc Hospital emergency room seeking
medical attention for her injury. There she was examined by Dr. Edwin R. Orr who worked at
the hospital pursuant to a January 1, 1988 contract between PHS and Emergency Medicine
Associates (EMA) (hereinafter referred to as Emergency Physicians Services (EPS)). During
the examination no x-rays were taken on Russell's ankle to determine the extent of the
injury. Russell claims that x-rays were not taken due to Dr. Orr's negligence. Dr. Orr
claims the x-rays were not taken because Russell insisted she did not have time and had to
return to her cooking duties. On December 28, 1989, Russell was examined again by Dr. Orr
and was diagnosed with a fractured left fibula. Subsequently, Russell was treated by Dr.
Massey for her injury. Russell received workers' compensation damages as a result of her
injury.
She sued the hospital and the doctor for medical malpractice. They attempted to interpose
an exclusivity defense. The court found that if the plaintiff sought the medical treatment
as a member of the general public the exclusivity defense would not apply. The court
stated:
We thus hold that where an employee is injured in the course of employment, and
subsequently seeks treatment from a co-employee which aggravates the injury, a question of
fact arises as to whether a sufficient nexus exists between the plaintiff's status as
employee and the treatment sought for the injury. Where treatment is sought at a
company-owned facility or first aid station maintained by the employer for the welfare and
benefit of employees, the connection between employment status and the subsequent
treatment is clear. However, where the plaintiff employee can demonstrate that separate
treatment was sought in the plaintiff's capacity as a member of the general public, then
any common law cause of action which arises as a result of that treatment will not be
excluded by the exclusivity provisions of Miss.Code Ann. Sec. 71-3-9.
Estoppel: Statutory Employee Status
RICHFOOD, INC. V. RAGSDALE
492 S.E.2d 836 (Va.App. 1997)
The Virginia Court dealt with the claimant, Ragsdale, who was injured when unloading
some turkeys. Claimant filed suit against Richfood in the Circuit Court of the City of
Richmond, alleging common law negligence against Richfood under a theory of respondeat
superior. In response, Richfood filed a "Plea of Worker's [sic] Compensation,"
alleging that claimant "was a statutory employee of Richfood at the time of the
accident, [thus barring] his action against Richfood ... [under] the applicable provisions
of the Worker's [sic] Compensation Act." The trial court sustained Richfood's plea,
finding that the Act barred claimant's action at law and that Richfood "will cover
any injuries sustained by [claimant]." Claimant did not appeal this ruling.
Claimant then pursued a claim before the Virginia Workers' Compensation Commission, which
Richfood defended on the ground that claimant was not its statutory employee at the time
of the accident.
The court affirmed the finding that the employer was judicially estopped from arguing that
the truck driver was not its statutory employee. The court stated:
Claimant relying on the legal posture Richfood assumed before the trail court noted no
appeal of the Court's decision and submitted his claim for benefits under the Workers'
Compensation Act...
The Act precludes a double recovery, both in an action at law pursuant to claim under the
Act: Richfood seeks the converse of the axiom, a double avoidance of liability.
Exclusivity: Bad Faith by Insurance Carrier
VAUGHAN V. McMINN
945 P.2d 404 (Colo. 1997)
The Colorado Supreme Court dealt with the plaintiffs who filed common law tort claims
against the workers' compensation insurance company for bad faith handling of their
workers' compensation cases. The insurance carriers interposed a new workers' compensation
statute which raised penalties for the insurance carrier's mishandling of claims.
The Supreme Court found that as the workers' compensation statute did not explicitly or by
necessary implication preclude a civil remedy for bad faith the amendment did not abrogate
the common law tort of bad faith. The court stated:
Because the Colorado Workers' Compensation Act does not explicitly bar bad faith claims
brought by claimants against their insurance companies and because the 1991 amendment to
section 8-43-304(1) is not inconsistent with Savio, we decline to conclude that the
legislature intended the Act to abolish the common law remedy for bad faith that is
presently available to aggrieved claimants. We hold that the 1991 amendment to section
8-43-304(1) does not abrogate the common law tort of bad faith breach of insurance
contract set forth in Travelers Insurance Co. v. Savio, and that this case retains
its viability as binding precedent. We therefore reverse the respective district courts'
orders dismissing these complaints, and we remand each of these cases to the appropriate
district court for further proceedings consistent with this opinion.
Exclusivity: Sexual Harassment
GRISWOLD V. FRESENIUS USA, INC.
978 F.Supp. 718 (N.D. Ohio 1997)
The U.S. District Court (N.D. Ohio) dealt with the plaintiff, Griswold, who alleged
same-sex sexual harassment by a co-employer, Kinder. The plaintiff alleged that Kinder
sexually harassed him, and that Bill Griswold failed to act to remedy the harassment,
although he had actual knowledge of the situation. The plaintiff alleged further that he
was terminated in retaliation for his complaints of sexual harassment, and in retaliation
for complaining that Fresenius had produced and shipped defective and dangerous products.
The plaintiff sued his employer and the co-employee.
The court rejected the exclusivity defense and held that Ohio law recognized a cause of
action for the negligent failure to provide a safe work environment when sexual harassment
is involved.
The court explained that:
...workers' compensation is directed essentially at compensating a worker for lost resources and earnings. This is a vastly different concern than is addressed by the sexual harassment laws. While workplace injuries rob a person of resources, sexual harassment robs the person of dignity and self esteem. Workers' compensation addresses purely economic injury; sexual harassment laws are concerned with a much more intangible injury to personal rights.
Plaintiff has provided evidence that Tracy Kinder had a past history of sexually harassing behavior and a reputation for sexual harassment, that it was foreseeable that Kinder would engage in sexual harassment of his fellow employees, and that Defendants Griswold and Fresenius had actual knowledge of Kinder's behavior.
Exclusivity: Verbal Assault/Racial Remarks
CHEA V. MEN'S WEARHOUSE, INC.
932 P.2d 1261 (Wash.App. Div. 1 1997)
The Washington Court dealt with the plaintiff, Chea, who is a Cambodian of Chinese
descent and was employed as a clothing consultant. He was subject to racial remarks and
remarks about his height. The pivotal event for Chea occurred on September 18, 1992, when
regional manager Marty Morris reprimanded him. After some customers left the store without
making a purchase, Morris approached Chea and asked what happened. When Chea said he did
not know it was his "up" (turn to sell), Morris grabbed him by the lapels and
said "I don't give a fuck whose fucking up it is, I want a customer taken care
of." Morris admitted angrily approaching Chea, flipping up his lapels, and probably
using foul language. Morris told the district manager that he grabbed Chea. The store's
head tailor saw Morris's hands on Chea's lapel. Chea admitted that Morris did not make any
racial remarks on this occasion.
The plaintiff filed a workers' compensation claim which was denied as there was no
compensable occupational disease. The plaintiff then sued his employer for negligent
infliction of emotional distress. The court found that the emotional distress claim was
not barred by the exclusivity provision of the Workers' Compensation Act. The court
stated:
The IIA does not compensate for negligent infliction of emotional distress claims arising from workplace harassment, including verbal harassment or discrimination, so such claims are not barred by the IIA exclusivity provisions. Chea's claimed symptoms arising from the Morris verbal and physical assault and verbal taunts, which L & I determined not to be an injury or occupational disease and, therefore, not compensable, are not barred by the IIA exclusivity provisions. Second, because MWI did not appeal L & I's determination that Chea did not suffer from a compensable injury or occupational disease, it cannot now maintain that Chea's claim is barred by the IIA.
Forfeiture: Making False Statements
J.E. MERIT CONSTRUCTORS, INC. V. BUTLER
700 So.2d 1111 (La.App. 5 Cir. 1997)
The Louisiana Court dealt with the claimant, Butler, who injured his back at work in
September 1994 while lifting some equipment. The workers' compensation insurer defended on
the basis that the claimant had forfeited his right to workers' compensation by making
false statements to obtain workers' compensation. When Mr. Butler subsequently testified,
he readily admitted that he was involved in an automobile accident in October of 1992,
resulting in minor injury to his neck and back. As a result of that 1992 accident, Mr.
Butler received minimal treatment which consisted of heat and massage therapy. Mr. Butler
was discharged from the doctor's care in January of 1995 and received approximately
$750.00 in settlement from this accident. According to Mr. Butler, he never stopped
working because of the injuries received in the automobile accident, and in fact,
continued to perform heavy manual labor. Mr. Butler further testified that he did not
relate this prior accident to Mr. Moreau or Dr. Steiner because he thought that they were
only inquiring about serious back problems. Mr. Butler readily told Dr. Fleming about his
prior problems because Dr. Fleming asked him more detailed questions.
The court found that the earlier denial of any "prior back injuries" to the
adjuster was not a willful misrepresentation to obtain workers' compensation benefits. The
court stated:
Considering the testimony and evidence presented, the hearing officer did not find that Mr. Butler's statements were willful false statements made to unlawfully obtain workers' compensation benefits, and accordingly, she concluded that he did not forfeit his right to benefits.
In Course of Employment: Picking Up Paychecks
PROCESS EQUIPMENT, INC. V. QUINN
701 So.2d 29 (Ala.Civ.App. 1997)
The Alabama Court dealt with the claimant, Quinn, who was seriously injured in a June
16, 1994, auto accident. Quinn was a welder and a "field crew" employee who was
sent to mills on jobs. Quinn testified that he and Green left Birmingham on June 13, 1994,
and arrived in Franklin, Virginia, the next morning. Quinn and Green worked the 7 p.m. to
7 a.m. shift on June 14, 15, and 16, 1994. Quinn testified that when he and Green spoke to
the foreman, Anthony Jones, on the morning of June 16, they were told that the job was
finished and that they were released to return to Birmingham. He testified that he and
Green returned to their motel and slept until check-out time, when they left for
Birmingham. Quinn testified that approximately one hour after leaving Franklin, Virginia,
he and Green were involved in a one-car accident and that Green was killed and he was
injured.
The court affirmed the award of benefits finding that as the claimant was returning to get
his paycheck he was in the course of his employment when injured. The court stated:
In this case Quinn and Green did not have a regular job site or a regular shift. As "field crew" employees, they worked outside the employer's plants, and they were instructed weekly, and sometimes monthly, where to report for work. "Field crew" employees were paid weekly, and they received their paychecks and travel expense checks on Fridays at one of the employer's plants. The trial court specifically found that Quinn and Green were returning to Birmingham to get paid and to be ready for a new job assignment. This court has held that an accident occurring while an employee is traveling to collect his or her paycheck is in the course of one's employment.
In Course of Employment: Picking Up Paycheck
DANDOLA V. NEW YORK CITY DEPT. OF CORRECTION
664 N.Y.S.2d 392 (A.D. 3 Dept. 1997)
The New York Court dealt with the claimant, Dandola, who was employed as a correction
officer at Rikers Island. He was off duty when he slipped and fell on the curb in front of
the main entrance to the facility when en route to pick up his paycheck. The resulting
injury to claimant's left knee was determined to be causally related to his employment and
he was awarded workers' compensation benefits. The employer challenged this determination,
contending that claimant was not injured in the course of his employment because his fall
occurred while claimant was running an essentially personal errand on his day off.
The court affirmed the award of workers' compensation finding as the claimant was
"instructed" to pick up his paychecks he was in the course of his employment
when injured. The court stated:
We find this to be true under the circumstances presented here where the record includes a document promulgated by the employer, entitled "Paycheck Distribution Procedures", which indicates that while arrangements may be made for the employer to mail paychecks to an employee's residence, the expected procedure is for employees to pick up their paychecks in person. We conclude that substantial evidence supports the decision that claimant's injury arose out of and in the course of his employment.
In Course of Employment: Slip on Lobby Floor
EVANS V. COATS & CLARK
492 S.E.2d 807 (S.C.App. 1997)
The South Carolina Court dealt with the claimant, Evans, who was employed by an
insurance company. She slipped and fell on a marble floor while leaving work through the
lobby of the building in which her employer leased office space on the third floor. At the
time of her fall she was on her way home and had finished work for the day.
The court reversed the denial of benefits finding that the accident arose out of and in
the course of her employment. The court stated:
This case, however, does not involve a parking lot but a common area situated in the lobby of the building that housed Evans's place of employment. "When the place of employment is a building, it is not necessary that the employer own or lease the place where the injury occurred. It is sufficient if the employer has some kind of right of passage, as in the case of ... elevators [or] lobbies ..." 1 Arthur Larson, Workers' Compensation Law, Sec. 15.43 (1997).
In Course of Employment: Twisting Body Getting Up from Desk
LEHSTEN V. NACM-UPSTATE NEW YORK
663 N.Y.S.2d 687 (A.D. 3 Dept. 1997)
The New York Court dealt with the claimant, Lehsten, whose job duties as a collection
assistant involved making phone calls and entering information into a computer. When she
completed these tasks on May 26, 1993, she had to bring some materials to her supervisor.
As she got up from her desk, her chair went to the right and she twisted her body. At that
point, she experienced a sudden severe pain in her lower back. Subsequently, she was
diagnosed as having sustained an acute sprain of her lower back which resulted in a mild
partial disability that prevented her from working. The employer controverted the claim
alleging that it was not sustained in the course of employment.
The court affirmed the award finding that this was not merely a fortuitous event at work
and was in fact an accident sustained in the course of her employment. The court stated:
In our view, the Board's determination in this case is supported by substantial evidence since the facts fall comfortably within the broad interpretation of accident. Not only was claimant injured while performing her job duties, its occurrence was not simply fortuitous as there is an identifiable work-related cause for the injury, i.e., her twisting to the right in response to the movement of her chair. These facts further establish that claimant's injury arose out of and in the course of her employment.
Jurisdiction: Settlement of Jones Act and Longshore Claims
CNA INS. CO. V. W.C.A.B.
68 Cal.Rptr.2d 115 (Cal.App. 2 Dist. 1997)
The California Court dealt with the claimant, Baker, who was employed as a bartender on
the vessel Catalina King and fell off the gangway on the deck due to a surge of water from
another vessel. She filed and settled her Jones Act case and longshore case for $55,000
and $36,235, respectively. She also filed a state California workers' compensation claim.
The court found concurrent jurisdiction and rejected the customary double recovery
argument. The court stated:
Professor Larson has simply stated that "in those rare instances in which a `successful' Jones Act proceeding might precede a compensation claim, the normal principle ought logically to be that the same rules apply as in the much more numerous cases in which the sequence is reversed." (9 Larson's Workers' Compensation Law, Sec. 90.52, p. 16-547.)
Here, Baker is a California resident, employed under a contract made within this state, and injured within territorial waters where the City of Avalon has control over the floating dock involved. All parties accept that the LHWCA and the state have concurrent jurisdiction where there is a showing of local interest. We conclude that Baker's contacts with California, coupled with the state's interest in the welfare of its citizens, conferred upon it concurrent jurisdiction with the Jones Act as well.
The amount assessed CNA consists of several small unpaid medical bills and money advanced by the California Employment Development Department. While the record indicates that Baker received the services billed and the income, there is no evidence these constituted a double recovery.
Medical Care: Air Purifier, Vitamin Supplements and Organic Food
MORRELL V. ONONDAGA COUNTY
664 N.Y.S.2d 168 (A.D. 3 Dept. 1997)
The New York Court dealt with the claimant, Morrell, who developed multiple myeloma as
a result of exposure to formaldehyde at work. Thereafter, the claimant requested that the
self-insured employer pay for organic food, vitamin supplements, and an air purifier in
order to alleviate problems associated with claimant's upper airway irritation and chronic
sinusitis resulting therefrom.
The court found that the sinusitis was work related and ordered the insurer to pay for the
air purifier and organic foods and vitamins to the extent they exceeded the cost of
conventional food products. The court stated:
Based upon Lax's testimony concerning claimant's heightened sensitivity to common household substances and chemicals present in conventional food products, the need for organic foods in an effort to prevent her exposure to irritating chemicals, for an air purifier to remove irritants from her environment, and for vitamin and mineral supplements due to the suppressed state of claimant's immune system, we conclude that the contested items properly fall within the statute's provision for "other attendance or treatment".
As such, the employer's liability for payment for the cost of organic foods should be limited to so much of the total cost as exceeds the cost of corresponding conventional food product. The Board's decision shall be reversed and the matter remitted for the purpose of determining the average weekly increase in claimant's food cost based upon her purchase of organic foods and tailoring the Board's award on the basis of that determination.
Medical Care: Idiopathic Condition
PAPCO OIL CO. V. FARR
492 S.E.2d 858 (Va.App. 1997)
The Virginia Court dealt with the claimant, Farr, who injured his back at work in a
compensable accident on March 7, 1994. He underwent three back operations and was forced
to undergo medical care for underlying conditions: (1) June 26, 1994 through July 5, 1994
and September 19, 1994 through September 27, 1994 medical treatment related to claimant's
idiopathic thrombocytopenia (ITP); (2) January 30, 1995 through February 8, 1995 medical
treatment related to his deep venous thrombophlebitis (DVT) and pulmonary embolism; (3)
May 16, 1995 through May 24, 1995 medical treatment related to his DVT and pulmonary
embolism; and (4) coumadin therapy.
The court found that the employer was liable for this additional medical care and
treatment as it was medically necessary to continue the treatment of his back injury. The
court stated:
Credible medical evidence established that claimant's ITP was diagnosed during medically necessary treatment of his compensable back injury. To continue treatment of claimant's back with further surgeries in July and September, 1994, claimant's physicians required limited treatment of the ITP to normalize his platelet count. Thus, treatment of the ITP was a medically necessary adjunct to the successful completion of that care required by claimant's work-related back injury.
The medical records established that Dr. Brooks prescribed the coumadin therapy to prevent pulmonary emboli, which might be caused by claimant's left lower extremity DVT. Accordingly, the commission did not err in holding employer responsible for the cost of the coumadin therapy.
Medical Care: Refusal to Stop Smoking
SHAWNEE MANAGEMENT CORP. V. HAMILTON
492 S.E.2d 456 (Va.App. 1997)
The Virginia Court dealt with the claimant, Hamilton, who slipped on a wet floor at a
Hardee's Restaurant and injured her back. She had smoked cigarettes for 20 years. She
underwent a lumbar fusion which was unsuccessful. On December 8, Dr. Kostuik examined
claimant, concluded that she had "a nonunion of her fusion," and opined that she
might benefit from an "anterior innerbody fusion." Dr. Kostuik gave claimant
"a good prognosis for recovery" if she underwent the proposed operation.
However, Dr. Kostuik told claimant that "she has to stop smoking and try to [lose]
some weight" before he would perform the surgery.
The employer interposed an unjustifiable refusal of medical treatment defense for her
refusal to stop smoking. The court rejected the defense finding that the claimant tried to
stop smoking and thus she did not refuse medical treatment. The court stated:
Dr. Zoller wrote in his examination notes on February 22, 1995 that claimant had reduced her smoking to ten cigarettes per day. At the hearing on June 8, 1995, claimant testified that she was smoking about a quarter of a pack per day and was still continuing her effort to "try and stop altogether." In addition, the record fails to establish that claimant rejected medical treatment that would have expedited her complete abandonment of cigarettes or that employer offered such treatment. In light of claimant's long history with cigarettes, the sizable reduction in her smoking, and her testimony that she had not abandoned her current effort to quit, credible evidence supports the commission's finding that claimant had not "refused" to comply with her physicians' directives to stop smoking.
Recreational Accident: Downhill Skiing on Day Off
CBS INC. V. LABOR AND INDUSTRY REVIEW
570 N.W.2d 446 (Wis.App. 1997)
The Wisconsin Court dealt with the claimant, Kamps, who was hired to work as a runner
by CBS, Inc., to cover the Winter Olympic games in February 1994 in Lillehammer, Norway.
This required Kamps to travel and work in Lillehammer from February 6 through February 27,
1994. On February 21, CBS gave Kamps and the rest of his work crew the day off. Kamps was
free to do as he wished, as CBS placed no restrictions on his activities. At the
suggestion of his immediate supervisor, Kamps and nine other members of the crew,
including the supervisor, decided to go downhill skiing as a group. CBS provided the group
with transportation, as well as free ski lift passes. The ten-member group remained
on-call during this time and had to let the producer know where it was going to be in case
it was needed to tape additional footage. During this ski outing, Kamps fell and injured
his knee.
The court affirmed the award of workers' compensation finding that the skiing was a
reasonable recreational activity and was in fact encouraged by the employer.
The court stated:
So here, LIRC's determination makes sense. Kamps was in Lillehammer, Norway, the site of the Winter Olympics, where downhill skiing was a major venue. It is what people do in Lillehammer. It is not unreasonable to expect that an employee, during lull time, would ski as a form of recreation. This is especially so here because the facts are that a supervisor suggested the activity, and CBS provided the lift tickets and kept Kamps on-call during the ski outing. Certainly, LIRC cannot be faulted for concluding that skiing was a reasonable form of recreational activity under the facts and circumstances of this case.
Based on these facts and circumstances, we conclude that there was sufficient credible evidence for LIRC to conclude that skiing was a reasonable form of recreation incidental to living in Lillehammer and that the risks of skiing were not unreasonable, nor were they unexpected or unsanctioned by CBS.
Rehabilitation: Refusal for Good Cause
FUHRMAN V. N.D. WORKERS COMP. BUREAU
569 N.W.2d 269 (N.D. 1997)
The North Dakota Supreme Court dealt with the claimant, Fuhrman, who was injured at
work on January 31, 1994. He was placed on workers' compensation benefits. He was later
evaluated for rehabilitation and then told to attend a Minneapolis, Minnesota, training
program starting March 4, 1996 and to be completed in the summer of 1997. When he told the
Workers' Compensation Bureau he did not have the funds to relocate to Minnesota, his
workers' compensation benefits were terminated for "refusal to comply" with the
rehabilitation plan.
The court reversed the suspension finding that the claimant had good cause for failing to
comply with the rehabilitation plan. The court stated:
Fuhrman is married and owns a home in Bismarck. He presumably has all of the financial responsibilities associated with home ownership. Prior to his injury he was earning $36,000 per year. Fuhrman's weekly disability benefits of $447.50, including the additional 25 percent household allowance while attending the out-of-state training, are considerably less than his pre-injury earnings. When Fuhrman notified the Bureau he was financially unable to relocate to Minneapolis for the training, without an advance on the household allowance, the Bureau made no further investigation of the facts but simply found him in noncompliance without good cause. On this record, we conclude the Bureau's finding that Fuhrman did not have good cause for failing to attend the training program is not supported by a preponderance of the evidence.
Settlement: Best Interest of the Claimant
SHAW V. DOVER FURNITURE MFG. CO.
700 So.2d 1382 (Ala.Civ.App. 1997)
The Alabama Court dealt with the claimant, Shaw, who injured her neck at work on
September 21, 1994, and underwent surgery. On June 1, 1995, she lump-summed her case and
waived her future vocational rehabilitation and medical benefits. Three months later she
filed a motion to set aside the settlement arguing that a back injury was related to her
industrial neck injury and thus the settlement was not in her best interest.
The court set aside the settlement finding that as the judge who approved the settlement
recommended against it it was not in the best interest of the claimant. The court stated:
We hold that the better practice is for the trial judge to make a specific finding on the record that the settlement is in the employee's best interest. If the trial judge does not specifically make such a finding, then the record must affirmatively show that the settlement is in the employee's best interest. In the present case, the circuit judge's own statements at the Rule 60(b) hearing negate a finding that the settlement was in the best interest of the employee. At the hearing, the judge, who had also approved the settlement, reminded the employee that he had "recommended against" her agreeing to the settlement and told her that, if she agreed, she "would be taking the settlement against [the court's] advice."
Settlement: Vocational Rehabilitation
ESTRADA V. W.C.A.B.
69 Cal.Rptr.2d 176 (Cal.App. 2 Dist. 1997)
The California Court dealt with the claimant, Estrada, who was injured at work due to
repetitive stress in his job as a lithographer. On the date his case was set for trial he
settled the case including an agreement regarding both accrued and future vocational
rehabilitation benefits. Fifteen months later the claimant requested vocational
rehabilitation services.
The court held that an employee cannot settle their rights to vocational rehabilitation.
The court stated:
Nevertheless, we hold that the Board's post-Thomas construction and application of section 5100.6, whereby it permits the settlement of accrued vocational rehabilitation benefits where no basis for the application of the good faith exemption is shown to exist, is contrary to the plain language of section 5100.6 and therefore invalid. Under that section, the commutation or settlement of vocational rehabilitation rights is prohibited. The focus of an injured worker should be rehabilitation towards becoming a productive member of society in some employment position, not negotiating to sell rehabilitation rights for the most money he or she can obtain from the employer. We therefore conclude that in the absence of circumstances demonstrating a Thomas good faith exemption, section 5100.6 clearly prohibits any commutation or settlement of vocational rehabilitation benefits, whether accrued or prospective.
Note: To avoid the reopening of thousands of cases the court found that this holding
applied prospectively only.
Stress: Brain Aneurysm
STATE EX REL. WORKERS' COMP. V. WAGGENER
946 P.2d 808 (Wyo. 1997)
The Wyoming Supreme Court dealt with the claimant, Waggener, who was sent by his
employer to open up a branch office. The claimant worked five days a week while he was in
Gillette, once he got to Rock Springs, he worked ten to twelve days at a time, and the
days were longer than the ones he worked in Gillette. He had to drive a lot and was on
call at night. He initially stayed in his own motel room in Rock Springs, but in October
the employer required that he and the other employees move into the employer's doublewide
trailer. At times, seven or eight employees, along with several children, were living in
the trailer, and privacy was difficult to achieve.
The claimant traveled to Gillette on Christmas Eve with his son, who also worked for the
employer. During this trip, the claimant told his son that he was not happy with the
living conditions and that he was not satisfied with his job. He said that he might not be
working for the company much longer and that he was going to talk to the employer about
the situation. When the claimant arrived at home, he unloaded his personal items and tool
boxes from the company pickup. The claimant subsequently met with the employer, and,
during that meeting, he suffered a ruptured brain aneurysm.
The court affirmed the award finding that work-related stressors caused his aneurysm.
There was difficulty adducing testimony due to the claimant's memory problems. The court
stated:
The claimant's wife also testified that the claimant was unhappy with the long hours, the stressful living conditions, and the loss of privacy. She said that, when the claimant came home, he seemed exhausted and depressed. Additionally, although the claimant could not recall what had happened during his meeting with the employer, he did testify about various things regarding his employment which caused him stress. Furthermore, both doctors testified that psychological stressors could cause blood pressure to increase which in turn could cause a preexisting aneurysm to burst. Dr. Krauth opined that, to a reasonable medical probability, the work-related stressors documented throughout this case, which included the long sequence of work days followed by a long drive and the anticipation of a stressful meeting with the employer, caused the aneurysm to rupture.
Workfare: Control Over Claimant's Work
QUICK V. STEUBEN COUNTY SELF-INSURANCE PLAN
662 N.Y.S.2d 608 (A.D. 3 Dept. 1997)
The New York Court dealt with the claimant, Quick, who was a recipient of public
assistance provided by the Steuben County Department of Social Services and who injured
her wrist while participating in a workfare program sponsored by the County. The injury
occurred while claimant was working as a kitchen aide for the Salvation Army at premises
which it owned.
The court found that despite the fact that the Salvation Army controlled the specific
details of the work performed the county retained sufficient control over the work to be
deemed her general employer and liable for workers' compensation benefits. The court
stated:
Claimant was referred to the Salvation Army by the County and was hired by the Salvation
Army as a kitchen aide. She was supervised by a Salvation Army employee and used equipment
supplied by the Salvation Army to perform her work. It is clear that the Salvation Army
had virtually complete control over claimant's day-to-day activities. Notwithstanding
this, we find that substantial evidence supports the Board's finding that the County
retained sufficient overall control over important aspects of claimant's work to be deemed
her general employer. Accordingly, the County was properly held responsible for the
payment of claimant's workers' compensation benefits.
Apportionment: Of Permanent Total Disability Award If Subsequent Injury and Wage Not
Affected or Influenced by Prior Disability
SIIS V. BOKELMAN
946 P.2d 179 (Nev. 1997)
Apportionment: Reliance on Mechanical Use of AMA Guides Not Permitted
ROSSER V. SIIS
946 P.2d 185 (Nev. 1997)
Average Weekly Wage: Does Not Include Wages Earned in Noncovered Employment
BENDION V. PENOBSCOT MANAGEMENT
570 N.W.2d 473 (Mich.App. 1997)
Average Weekly Wage: Fringe Benefits Are to Be Included in Computation
BATISTE V. CAPITOL HOME HEALTH
699 So.2d 395 (La.App. 3 Cir. 1997)
Average Weekly Wage: General Farm Laborer's Work Not Exclusively Seasonal in Nature
DOUBLE D HOP RANCH V. SANCHEZ
947 P.2d 727 (Wash. 1997)
Average Weekly Wage: Of Teacher Calculated by Dividing Annual Salary by 12 Not 9.2
Months
STOFA V. W.C.A.B. (FLORENCE MIN. CO.)
702 A.2d 381 (Pa.Cmwlth. 1997)
Average Weekly Wage: Payroll Records and Tax Documents Insufficient to Overcome
Claimant's Testimony
BOWERS V. COTTON BAYOU CONDOMINIUMS
699 So.2d 166 (Ala.Civ.App. 1997)
Average Weekly Wage: Vacation and Sick Leave Not Used in Determining Average Weekly
Wage
BOHANAN V. U.S.D. NO. 260
947 P.2d 440 (Kan.App. 1997)
Award: Judge Without Jurisdiction to Award Psychiatric Care Because Final Order Pending
Appeal
CRIMS/PCA SOLUTIONS V. COLLIER
700 So.2d 1231 (Fla.App. 1 Dist. 1997)
Bias: Claimant Entitled to Hearing on Motion to Rescue
LANGLEY V. BECHTEL CO.
700 So.2d 890 (La.App. 5 Cir. 1997)
Combined Condition: Carpal Tunnel Syndrome and Pregnancy Was Not Combined Condition
FRED MEYER, INC. V. CROMPTON
946 P.2d 1171 (Or.App. 1997)
Constitutionality: Hearing Officers Lack Subject Matter Jurisdiction to Determine
Constitutional Issues
ALBE V. LOUISIANA WORKERS' COMPENSATION
700 So.2d 824 (La. 1997)
Contempt: Workers' Compensation Attorney Not in Contempt as Attorney Never Directly
Ordered to Appear
RUNNION V. W.C.A.B.
69 Cal.Rptr.2d 105 (Cal.App. 1 Dist. 1997)
Continuance: Denial of Joint Motion to Continue Case Not Abuse of Discretion
EX PARTE SPARKS
699 So.2d 1268 (Ala.Civ.App. 1997)
Costs: Claimant Not Entitled to Payment of Photocopy Expenses
STATE EX REL. TOTH V. INDUS. COMM.
686 N.E.2d 514 (Ohio 1997)
Criminal Conviction: Evidence Substantial on Conviction for Failure to Obtain Workers'
Compensation Coverage
STATE V. TURNER
952 S.W.2d 354 (Mo.App. W.D. 1997)
Date of Injury: For Cumulative Injury When Claimant Knew of Injury and Impact on Jury
GEORGE A. HORMEL & CO. V. JORDAN
569 N.W.2d 148 (Iowa 1997)
Defense Base Act: Jurisdiction for Judicial Review Lay in Appropriate District Court
LEE V. BOEING CO., INC.
123 F.3d 801 (4th Cir. 1997)
Denial: Employer Who Failed to Comply with Disclaiming Responsibility Waived Defense
NORSTADT V. MURPHY PLYWOOD
945 P.2d 654 (Or.App. 1997)
Dependency Benefits: No Extension Beyond 500 Weeks for Mentally Incapacitated Son of
Decedent
COHOON V. FRUEHAUF TRAILER
570 N.W.2d 158 (Mich.App. 1997)
Disfigurement: Claimant Not Entitled to Disfigurement for Scarring to Legs
CORRIVEAU V. HOME INS. CO.
685 N.E.2d 1208 (Mass.App.Ct. 1997)
Due Process: Delay of Over Four Years for Decision of Review Board Decision Not Denial
of Due Process
MEEHAN SEAWAY SERV. V. OWCP, U.S. DEPT. OF LABOR
125 F.3d 1163 (8th Cir. 1997)
Evidence: Doubts in Workers' Compensation Cases Are to Be Resolved in Claimant's Favor
JIMENEZ V. DISTRICT OF COLUMBIA
701 A.2d 837 (D.C.App. 1997)
Evidence: Medical Evidence Not Inadmissible After Admitted Without Objection
BILLS V. GAIL ARMSTRONG CONST., INC.
946 P.2d 275 (Okl.Civ.App. Div. 3 1997)
Evidence: Vocational Rehabilitation Report Did Not Have to Be Made Available to Parties
Seven Days Before Hearing
WALSH V. TREASURER OF THE STATE
953 S.W.2d 632 (Mo.App. S.D. 1997)
Evidence Substantial: Back Injury During Return to Work Exam Did Not Result in
Disability
STATE EX REL. RAWLS V. MIAMI MARGARINE CO.
686 N.E.2d 511 (Ohio 1997)
Evidence Substantial: Claimant Had Work Restriction After Reaching Maximum Medical
Improvement
KING V. SCOTTY'S DISTRIBUTION CENTER
699 So.2d 308 (Fla.App. 1 Dist. 1997)
Evidence Substantial: Claimant Retired Voluntarily and Not Entitled to Reinstatement of
Benefits
FIGURED V. W.C.A.B. (USAIR, INC.)
702 A.2d 3 (Pa.Cmwlth. 1997)
Evidence Substantial: Employee Did Not Injure His Shoulder at Work
McMILLAN V. U.S. MOTORS
953 S.W.2d 907 (Ark.App. 1997)
Evidence Substantial: Injury Major Contributing Cause of Chronic Pain Syndrome
STATE FARM INS. CO. V. LYDA
946 P.2d 685 (Or.App. 1997)
Evidence Substantial: Retaliatory Discharge Not Proven
MOORER V. CITY OF GREENVILLE
701 So.2d 40 (Ala.Civ.App. 1997)
Evidence Substantial: Sitting and Jostling of Bus Driver Did Not Cause Back Injury
MITCHELL V. NEW YORK CITY TRANSIT AUTH.
664 N.Y.S.2d 485 (A.D. 3 Dept. 1997)
Evidence Substantial: Widow Failed to Prove That Work-Related Injury Led to Suicide
FRYE V. SMITH-DOYLE CONTRACTORS
569 N.W.2d 154 (Iowa App. 1997)
Exclusive Remedy: Did Not Preclude Indemnification Action Against Employer
SIVILLA V. PHILIPS MEDICAL SYSTEMS
700 A.2d 1179 (Conn.App. 1997)
Exclusivity: Barred Claim for Bad Faith Delay of Workers' Compensation Benefits
FRY V. ATLANTIC STATES INS. CO.
700 A.2d 974 (Pa.Super. 1997)
Exclusivity: Barred Claim for Intentional Infliction of Emotional Distress
JENKINS V. MCI TELECOMMUNICATIONS CORP.
973 F.Supp. 1133 (C.D.Cal. 1997)
Exclusivity: Barred Claim of Medical Malpractice as Medical Care Not Generally
Available to Public
CRONIN V. PERRY
664 N.Y.S.2d 123 (A.D. 2 Dept. 1997)
Exclusivity: Barred Subcontractor's Employee Negligence Action Against Crane Operator
KISER V. BUILDING ERECTION SERVICES, INC.
973 F.Supp. 1269 (D.Kan. 1997)
Exclusivity: Company Worker Assigned to on Temporary Basis Was Worker's Special
Employer
WEDECK V. UNOCAL CORP.
69 Cal.Rptr.2d 501 (Cal.App. 1 Dist. 1997)
Exclusivity: County Statutorily Immune from Negligent Action from Employee's Injury on
County Property
BRENTANO V. MARION COUNTY
946 P.2d 705 (Or.App. 1997)
Exclusivity: Dual Capacity Doctrine Did Not Apply to Employee of Public Defender's
Office Suing Highway Department
SINGHAS V. NEW MEXICO STATE HIGHWAY DEPT.
946 P.2d 645 (N.M. 1997)
Exclusivity: No Intentional Tort for Firing Toy Gun at Plaintiff
HENSON V. CRISP
946 P.2d 1252 (Wash.App. Div. 3 1997)
Exclusivity: No Tort Suit for Employee Who Received Workers' Compensation Benefits
DIAKAKIS V. BEDRICK
663 N.Y.S.2d 850 (A.D. 1 Dept. 1997)
Exclusivity: Provision of Workers' Compensation Statute Does Not Preempt ADA
FAIL V. COMMUNITY HOSPITAL
946 P.2d 573 (Colo.App. 1997)
Exclusivity: Whether Someone Is Special Employee Is a Question of Fact
SINGH V. METROPOLITAN CONST. CORP.
663 N.Y.S.2d 870 (A.D. 2 Dept. 1997)
Exclusivity: Workers' Compensation Act Did Not Preclude Recovery for True Intentional
Torts
ZIMMERMAN BY ZIMMERMAN V. VALDAK CORP.
570 N.W.2d 204 (N.D. 1997)
Exclusivity: Workers' Compensation Exclusive Remedy for Injuries Sustained by
Subcontractor on Contractor's Work Site
BOONE V. VINSON
492 S.E.2d 356 (N.C.App. 1997)
Exposure: Insurer on Risk at Time of Claimant's Last Exposure Liable for Workers'
Compensation
HINTON V. ACME STEEL & MALLEABLE IRON
663 N.Y.S.2d 693 (A.D. 3 Dept. 1997)
Horseplay: Injury After Shooting Staples Not Compensable
CLODGO V. RENTAVISION, INC.
701 A.2d 1044 (Vt. 1997)
IME: Request Denied Where Claimant Totally Disabled Due to Silicosis
FAIRMOUNT FOUNDRY V. W.C.A.B. (BAYLOR)
702 A.2d 373 (Pa.Cmwlth. 1997)
In Course of Employment: Carpenter's Work in Hanging Shelters on House Was Part of
Property Owner's Trade or Business
ROSS V. OAK MANOR FARMS
700 So.2d 906 (La.App. 5 Cir. 1997)
In Course of Employment: Injury in Parking Lot in Course of Employment
BRAZEAL V. CITGO PETROLEUM CORP.
946 P.2d 680 (Okl.Civ.App. Div. 4 1997)
In Course of Employment: "Rocking Soda Machine" Not in Course of Employment
CARRICK V. RISER FOODS, INC.
685 N.E.2d 1261 (Ohio App. 8 Dist. 1996)
Interest: Only on Past Due Payments as They Became Due
STRICKLAND V. CAROLINA CLASSICS CATFISH
492 S.E.2d 362 (N.C.App. 1997)
Jurisdiction: Airplane Flight Engineer Had Insufficient Contacts with Ohio
MONTALVO V. AIR TRANSPORT INTERNATL.
685 N.E.2d 1329 (Ohio App. 6 Dist. 1996)
Jurisdiction: Workers' Compensation Bureau Had Jurisdiction to Determine Second Injury
Fund Third Party Lien
McMIDDLETON V. INJURY FUND
570 N.W.2d 484 (Mich.App. 1997)
Last Injurious Exposure Rule: Not Applicable Where Successive Injuries for Same
Employer and Insurer
WELLS V. SWALLING CONST. CO., INC.
944 P.2d 34 (Alaska 1997)
Litigation Costs: Include Costs for Witnesses, Medical Exams, and Reimbursed Lost Time
to Attend Hearings
RITTER V. W.C.A.B. (BOB'S BIG BOY)
702 A.2d 24 (Pa.Cmwlth. 1997)
Longshore: Attorney Fees Rejected as Employer Did Not Refuse Any Compensation
FMC CORP. V. PEREZ
128 F.3d 908 (5th Cir. 1997)
Longshore: Injury While Moving Tool Box from Boat to Dock Was Maritime Employment
BIENVENU V. TEXACO
124 F.3d 692 (5th Cir. 1997)
Longshore: Pipefitter Was Borrowed Employee of Shipbuilder
THEOPHILE V. TRINITY INDUSTRIES, INC.
977 F.Supp. 782 (E.D.La. 1997)
Medical Care: Abandoned by Failing to Return to Treating Physician as Scheduled
SHIELDS V. J.E. DUNN CONST. CO.
946 P.2d 94 (Kan.App. 1997)
Medical Care: Refusal to Follow Medical Advice Cured by Subsequent Actions
MACICA V. ARA SERVICES TIDEWATER VENDING
492 S.E.2d 842 (Va.App. 1997)
Necessary and Integral: Security Guard's Work Specialized and Thus Not Necessary and
Integral Part of Construction Site
POWELL V. NORTEX INVESTIGATION SERVICES
947 P.2d 614 (Okl.Civ.App. Div. 1 1997)
Notice: Actual Notice Sufficient Statutory Notice Not Required
MOSBY V. TREASURER OF STATE OF MO.
954 S.W.2d 11 (Mo.App. E.D. 1997)
Penalties: For Failure to Pay Claimant's Medical Bills
REIF V. W.C.A.B. (FUNKS HAULING SERVICE)
700 A.2d 1362 (Pa.Cmwlth. 1997)
Penalty: 50% Additional Workers' Compensation for Frivolous Delay by Insurer
SCOTT V. INDUSTRIAL COM'N
686 N.E.2d 609 (Ill.App. 2 Dist. 1997)
Penalty: For Failure to Credit Employer for Wages within Ten Days
KESER V. ELMIRA PSYCHIATRIC CENTER
662 N.Y.S.2d 627 (A.D. 3 Dept. 1997)
Permanent and Total Disability: For Carpal Tunnel Syndrome
LEE CO. V. HOLLAND
701 So.2d 18 (Ala.Civ.App. 1997)
Permanent and Total Disability: For Claimant Who Had Eight Back Injuries
SKOMAL V. WORLD OF FOOD
570 N.W.2d 542 (Neb.App. 1997)
Permanent and Total Disability: For 53-Year-Old Illiterate Claimant with Back Injury
STATE EX REL. HALL V. INDUS. COMM.
685 N.E.2d 1245 (Ohio 1997)
Preexisting Condition: Medical Evidence Lacking of Preexisting Condition
BEVERLY ENTERPRISES V. MICHL
945 P.2d 658 (Or.App. 1997)
Preexisting Condition: Workplace Injury Need Not Worsen Preexisting Condition for
Recovery
EDMISTON V. CITY OF HOBBS
944 P.2d 883 (N.M.App. 1997)
Prejudgment Interest: Accrued 14 Days After Date of Claim
WILKERSON V. INGALLS SHIPBUILDING, INC.
125 F.3d 904 (5th Cir. 1997)
Premiums: Insurer Entitled to Change Jurisdictional Basis of Premium Calculation
Retroactively
HARTFORD ACC. & INDEM. CO. V. PRO-FOOTBALL, INC.
127 F.3d 1111 (D.C. Cir. 1997)
Presumption: Of Heart Disease for Law Enforcement Officer Overcome by Substantial
Evidence
AUGUSTA COUNTY SHERIFF'S DEPT. OF OVERBEY
492 S.E.2d 631 (Va. 1997)
Reinstatement: Of Benefits Where Claimant Is Subsequently Laid Off Light Job
SHARON STEEL CORP. V. W.C.A.B.
702 A.2d 378 (Pa.Cmwlth. 1997)
Retaliatory Discharge: Claimant Fired for Filing Workers' Compensation Claim
LAWRENCE V. CONSOLIDATED EDISON CO.
659 N.Y.S.2d 117 (A.D. 3 Dept. 1997)
Return-to-Work: Leaving Job to Move to Another State Did Not Exempt Claimant from
Return-to-Work Provisions
GIBBONS V. SHADDIX PULPWOOD CO.
699 So.2d 225 (Ala.Civ.App. 1997)
Scheduled Award: Concurrent Payment of Schedule Award and Total Disability Not Legally
Authorized
SOPER V. GOUVERNEUR TALC CO.
663 N.Y.S.2d 696 (A.D. 3 Dept. 1997)
Second Injury Fund: Lay Witness Sufficient to Prove Claimant's Status as Physically
Impaired Person
SPECIAL INDEM. FUND V. ESTILL
943 P.2d 606 (Okl. 1997)
Second Injury Fund: No Recovery for Injury Which Preceeded Date Statute Went into
Effect
VAN WAGNER V. MISSOURI DIRECTOR OF REVENUE
954 S.W.2d 647 (Mo.App. W.D. 1997)
Settlement: Abuse of Discretion in Setting Aside Settlement Agreement Based on Mistake
of Law
DOW-UNITED TECH. COMPOSITE V. WEBSTER
701 So.2d 22 (Ala.Civ.App. 1997)
Settlement: Had to Be Signed by Workers' Compensation Carrier, Claimant, and General
Contractor
WHALEN V. U.S. WEST COMMUNICATIONS, INC.
570 N.W.2d 531 (Neb. 1997)
Settlement: Self-Insured Workers' Compensation Program Administrator Had Inherent
Authority to Compromise Workers' Compensation Lien
ORTIZ V. DUFF-NORTON CO., INC.
975 F.Supp. 713 (E.D.Pa. 1997)
Statutory Construction: Statute Dealing with Medical Bills After Three Years Not to Be
Applied Retroactively
BROWN & ROOT INDUS. V. INDUSTRIAL COM'N
947 P.2d 671 (Utah 1997)
Statutory Employer: Premises Owner Not Statutory Employer of Independent Contractor's
Scaffolding Carpenter
MOORE V. SAFEWAY, INC.
700 So.2d 831 (La.App. 1 Cir. 1996)
Stress: Sexual Assault Enough to Trigger Physical-Mental Injury
CITY OF SPRINGFIELD V. INDUSTRIAL COM'N
685 N.E.2d 12 (Ill.App. 4 Dist. 1997)
Subrogation: Employer Not Entitled to Subrogation of Underinsured Motorist Benefits
RIVER GAS CORP. V. SUTTON
701 So.2d 35 (Ala.Civ.App. 1997)
Suitable Employment: Modified Work Offer Need Not State Duration of Job
LIBERTY NORTHWEST INS. CORP. V. JENSEN
946 P.2d 689 (Or.App. 1997)
Supplemental Earnings Benefits: Erroneous to Base It on Failure to Provide Vocational
Rehabilitation
DUHON V. HOLI TEMPORARY SERVICES, INC.
700 So.2d 1152 (La.App. 4 Cir. 1997)
Supplemental Earnings Benefits: Retirement Terminated Right to Supplemental Earnings
Benefits
BREAUX V. CITY OF NEW ORLEANS
699 So.2d 482 (La.App. 4 Cir. 1997)
Temporary Total: Benefits Precluded When Claimant Reached Maximum Medical Improvement
STATE EX REL. EATON CORP. V. INDUS. COMM.
686 N.E.2d 507 (Ohio 1997)
Termination: Of Benefits Due to the Finding That Disability Due to Work-Related Injury
Ceased
FRONTINI V. W.C.A.B.
702 A.2d 8 (Pa.Cmwlth. 1997)
Traveling Employee: Presumed to Be Engaged in Activities Furthering Employer's
Interests
ANDREWS V. W.C.A.B. (C & C COMPOST)
701 A.2d 1003 (Pa.Cmwlth. 1997)
Tuberculosis: Ordinary Disease of Life and Not Caused by Employment as a Deputy Sheriff
LINDENFELD V. RICHMOND SHERIFF'S OFFICE
492 S.E.2d 506 (Va.App. 1997)
Wage Loss: None Despite Fact that Job He Obtained After Injury Paid Less Than One at
Time of Injury
STATE EX REL. V. CITY ASPHALT & PAVING CO.
686 N.E.2d 516 (Ohio 1997)
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