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May 1998
Volume 18, Number 5
Monthly Sections:
The U.S. Court of Appeals in Sullivan v. Barnett, no. 96-2140 (3rd Cir.) found that the
provisions of the Pennsylvania Workers' Compensation Act which provide for the suspension
of an employee's medical benefits without prior notice or an opportunity to be heard
violates procedural due process. The new statutory utilization review process provides for
the suspension of the employee's medical benefits pending review. The court held that:
In conclusion, we hold that the supersedeas provisions of 77 Pa. Const. Stat. Ann. Sec. 531(5) and (6) are unconstitutional in that they violate an employee's procedural due process rights by failing to provide adequate notice that his/her medical benefits may be suspended upon the invocation of utilization review and by not granting the employee an opportunity to respond in writing before that termination takes effect. We also hold that the private insurance companies are state actors and thus may be joined in a Sec. 1983 action when they elect to invoke the supersedeas provisions to terminate or suspend an employee's constitutionally protected interests in receiving medical benefits.
If you have clients who have developed allergies due to the use of latex gloves, you should not overlook the possibility of a third party case. In the recent Green case a Milwaukee jury returned a jury verdict of $1 million for Linda Green who developed severe allergies and was forced to quit her job due to her allergic reaction to the latex gloves.
For additional information contact lead counsel Mark Young in Milwaukee, Wisconsin, at
414-785-1088. Mr. Young's firm, Habush, Habush and Davis has 34 additional latex glove
cases pending.
The next time you are faced with an allegation of malingering in a workers' compensation case, you may be able to use the following facts:
1) Malingering occurs in less than 5 percent or fewer patients with low back pain. Chapman, S.L., and Brena, S.F., "Pain and Litigation", Textbook of Pain. P.D. Wall, R. Melzack (eds.), 1989.
2) Neither the DSM-IV nor the ICD-10 include malingering as a diagnosis. Mendelson, G.,
and Mendelson, D., "Legal and Psychiatric Aspects of Malingering", Journal of
Law and Medicine 1(1993):23-24.
Some states are now offering minor rollbacks or concessions in the partial repeal of the workers' compensation reform legislation that resulted in substantial benefit cuts and increased profitability. For example, in West Virginia the legislature has "offered" organized labor legislation that would:
1) Reduce the threshold for permanent partial impairment from 50 percent to 35 percent;
2) Restore survivor's benefits for up to two years; and
3) Repeal the provision that cuts workers' compensation benefits once the injured worker reaches age 65 and begins to collect social security payments.
Organized labor has not rushed to accept the "rollback crumbs".
Employers and self-insureds are being advised that a good way to talk to the injured worker and his family about details of the accident and anticipated return to work is to "personally deliver a fruit basket to an injured worker's home." The benefit? "The claim can be discussed in more detail face-to-face than over the telephone."
For additional information contact Terri Dix at 605-448-3307.
Cost savings was the reason given for legislating away free choice of physicians for injured workers. A new study in Colorado proves that Colorado employers who chose medical providers for their workers' compensation claimants did not save any money over the "free choice" claimants.
For a copy of the study call 303-894-7499, ext. 311.
The State of Texas is studying setting up telemedical centers to utilize designated doctors to assign impairment ratings. The goal is to achieve "consistency and reduce time and expense".
For a copy of the study on telemedicine and workers' compensation call 512-469-7811.
According to a recently released study from Cornell University, workers in poorly
ventilated offices were twice as likely to suffer from sick building syndrome as compared
to workers in well-ventilated offices. The level of carbon dioxide was tied to sick
building syndrome. For a copy of the report call 607-255-2144.
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 1995, reducing the case rate from 8.1 in 1995 to 7.4 in 1996. The rate for 1996 was the lowest on record since the Bureau began reporting this information in the early 1970s.
For additional information call 202-606-6179.
The Executive Director of the Workers' Compensation Research Institute is telling
insurance people that "recent legislative enactments may have overreached and the
pendulum has swung back toward more pro-worker legislation". Mr. Victor cautioned
employers on "backsliding" in workers' compensation legislation.
For additional information see Business Insurance, March 16, 1998, page 59,
"Seven Key Cost Prediction Factors: Economist".
I. Background. In 1911, New Hampshire became one of the first states to enact a
valid workers' compensation law.1 Like other states, the New Hampshire workers'
compensation law was enacted in recognition of the burdens, delays, inadequate relief, and
unequal operation of law inherent in common law remedies. It was "designed to
substitute for unsatisfactory common law remedies in tort a liability without fault with
limited compensation capable of ready and early determination"2.
The legislature amended the law in 1947, mandating that employees elect between workers' compensation coverage and the common law right to sue their employer for injuries sustained in the course of employment.3 In 1959, the legislature further amended the workers' compensation statute, creating a conclusive presumption that all employees were to be covered by the workers' compensation law.4
It has always been a fundamental tenant of workers' compensation law that suit by an employee against his or her employer was precluded. And while New Hampshire law permitted an injured employee who had received workers' compensation benefits to sue a fellow employee that was responsible for the injury, that changed in 1978 when the legislature again amended the workers' compensation law enacting a statutory bar to negligent actions against co-employees.5 The constitutionality of the amended statute was addressed in Estabrook v. American Hoist and Derrick, Inc.,6 which held that tort immunity provided to co-employees for non-intentional acts was unconstitutional. And while Estabrook was subsequently limited7 by the New Hampshire Supreme Court, the New Hampshire legislature,8 in 1989, reaffirmed co-employee tort immunity.9
In reaffirming co-employee immunity, the legislature explained that the statutory immunity given employers was fundamental quid pro quo for providing no fault workers' compensation benefits for occupational injuries. In 1992, the Supreme Court ratified the legislature's express intent to confer full tort immunity on fellow employees for non-intentional acts performed on behalf of employers.10
II. The Prive Case. Since 1992, the New Hampshire workers' compensation law has clearly provided that an employee may not sue an employer or co-employee absent some intentional tort. Contrary to this established principle of workers' compensation law stands the 1979 case Prive v. M.W. Goodnow Construction, Inc.11 In Prive, the New Hampshire Supreme Court ruled that an employee of a subcontractor that does not have workers' compensation insurance may sue the general contractor with workers' compensation coverage in tort even though the general contractor is the subcontractor's "statutory" employer for workers' compensation purposes. Thus, while under the general workers' compensation law, employees may not sue their employers, under Prive, employees of an uninsured subcontractor (statutory employees) may sue their employer (the general contractor and statutory employer) in tort. The 1989 statutory amendments and a decision of the Supreme Court have changed the law since Prive and now call the Prive court's reasoning into question. These changes suggest a new rule; an uninsured subcontractor's employee that receives workers' compensation from the general contractor cannot sue the general contractor in tort.
In Prive, the plaintiff brought a common law tort action for personal injuries arising out of a work-related accident against the contractor that had become obligated to pay workers' compensation benefits under R.S.A. 281:14, I (now R.S.A. 281-A:18). The plaintiff alleged that the defendant contractor negligently maintained an unsafe workplace. the defendant contractor moved to dismiss on grounds that since it was liable for payment of workers' compensation benefits to the employee of its uninsured subcontractor, that it was therefore an "employer" and was immune under R.S.A. 281:12 (now R.S.A. 281-A:8, II(b)). The only issue on appeal was whether a contractor who had paid workers' compensation benefits to an employee of an uninsured subcontractor was immune from a third party tort action by that employee.12 The Supreme Court upheld the trial court ruling denying the defendant contractor's motion to dismiss, thus permitting lawsuits by statutory "employees" against statutory "employers" despite the immunity provisions of R.S.A. 281:4-a.13
The court's reasoning in Prive has been substantially eroded by the 1989 amendments to the workers' compensation statute14 and Thompson v. Forrest.15 The underlying premise in Prive was that an employee could sue any person or entity not his employer. In fact, the court relies on Butler v. King16 and Merchants Casualty Co. v. Tuttle17 for the premise that such a "third party" action may "be brought against a fellow employee and on the statutory provision allowing such suits against third persons other than the employer."18 Since the 1989 amendments and the reaffirmation of co-employee immunity under Thompson,19 the legislature and court have eroded this premise. Even the court's concern that it should not add "terms to the statute that the legislature did not see fit to include"20 has been eroded, specifically by the 1989 amendments to the workers' compensation statute and because the court has affirmed the co-employee immunity contained in the 1989 amendments. Given the erosion of the Prive premise by the legislature and the court, the rule for contractor-employer liability should be the same as with other employees: employers, whether statutory or not, are immune from suit by their employees whether a statutory employee or not for work-related injuries.
Other states have reached this result. Forty-six states and the District of Columbia
now have "statutory employer" statutes providing, as noted in Prive, that
the general contractor is liable for compensation to an employee of an uninsured
sub-contractor.21 However, as Larson notes:
Since the general contractor is thereby, in effect, made the employer for the purposes of the compensation statute, it is obvious that he should enjoy the regular immunity of an employer from third party suit when the facts are such that he could be made liable for compensation; and the great majority of cases have so held.22
This is clearly so when the subcontractor is uninsured. There is a split of opinion where
the subcontractor is insured for workers' compensation, thus clearly establishing the
employee-third party contractor relationship. The trend, however, is toward granting
immunity to the general contractor, even where the subcontractor was insured for workers'
compensation and even when workers' compensation benefits had been paid under the
subcontractor's policy.23
III. Summary: In summary, recent statutory and case law changes by the New Hampshire Supreme Court supported the conclusion that the premise for the Prive holding has been eroded. In the proper case, the court should re-examine the holding in Prive in light of the statutory changes and case law, and, like a majority of other jurisdictions that have examined the issue, hold contractors of uninsured sub-contractors with an injured employee immune from third-party tort liability.
Notes:
1. Estabrook v. American Hoist and Derrick, Inc. 127 N.H. 162, 168 (1985).
2. Id., at 168-69 quoting Bilodeau v. Oliver Stores, Inc. 116 N.H. 83, 86 (1976).
3. Laws 1947, 266:10: See Park v. Rockwell International Corp. 121 N.H. 895, 896
(1981).
4. Laws 1959, 187:4; See Park supra. 121 N.H. at 896
5. Laws 1978, 46:1; Young v. Prevue Product, Inc. 130 N.H. 84, 87 (1987).
6. 127 N.H. 162 (1985).
7. Rounds v. Standex International 131 N.H. 71 (1988) and Tyler v. Fuller 132 N.H.
690 (1990).
8. Laws 1988, 194:2.
9. See Laws 1989, 294:1.
10. See Thompson v. Forest 136 N.H. 215 (1992).
11. 119 N.H. 914 (1979)
12. Id. 119 N.H. at 915.
13. Id. 119 N.H. at 918.
14. Laws 1989, 294:1.
15. 136 N.H. 215 (1992).
16. 99 N.H. 150 (1954).
17. 98 N.H. 349 (1953).
18. Prive, supra., 119 N.H. at 916.
19. 136 N.H. 215 (1992).
20. Id.
21. All except California, Delaware, Iowa, Maine and Rhode Island.
22. Larson, L., Larson's Workers' Compensation Section 72:31(a) at 14-45.
23. Id. At Section 72.31(b). Larson notes that it is the most extreme rule is to the
contrary (namely that the employee of an uninsured sub-contractor may receive both
workers' compensation benefits and tort damages from the general contractor) and is a
minority position. This is exactly where the Prive case falls. Id. Section 72.31(c).
For additional information contact J. Kirk Trombley, Esq. at 603-427-6688.
In the United States, 800,000 needlestick injuries occur in hospitals alone each year.
Occupational transmission of human immunodeficiency virus (HIV), hepatitis B virus (HBV),
and hepatitis C virus (HCV) has been well documented. The risk of infection with HIV
following one needlestick exposure is approximately 0.3 percent and ranges from 6 percent
to 30 percent for HBV and from 5 percent to 10 percent for HCV. The passage of the
Occupational Safety and Health Administration's (OSHA's) bloodborne pathogens standard (29
CFR 1910.1030) has increased compliance and awareness of prevention strategies. No single
sharps disposal container design meets all the disposal containment needs for all health
care settings or for an entire hospital. Container selection should be based on a
comprehensive site-specific hazard analysis.
The safety performance criteria for sharps disposal containers are divided into four areas. First, containers should remain functional during their entire use. They should be durable, leak resistant, and puncture resistant under all normal environmental conditions. Second, containers must be accessible to workers who use, maintain, or dispose of sharp devices. This criterion includes sufficient number, sufficient container volume, and safe access to the disposal opening on individual containers. Other important factors include convenient placement and (if necessary) portability of containers within the workplace. Third, containers should be visible to the workers who must use them. Container fill status and warning labels are also important visibility criteria. Fourth, container designs should accommodate the user, the facility, and the environment. Although engineering controls such as needleless IV systems and "safety" needles will reduce injuries, proper selection and use of sharps disposal containers are still important. Prevention strategies include implementing engineering controls, using personal protective equipment, training employees, and involving occupational health professionals and workers.
For additional information on needlestick injuries see DHHS (NIOSH) publication No.
97-111 call 800-356-4647 for your free copy of "Selecting, Evaluating and Using
Sharps Disposal Containers" (January 1998).
Physicians are following clinical guidelines in ordering diagnostic imaging procedures in
back cases. One of the major costs associated with the $24 billion in health care
expenditures in 1990 for low back problems is use of expensive diagnostic imaging
procedures such as magnetic resonance imaging (MRI), noncontrast computed tomography (CT),
and CT-myelography. It has been suggested that these imaging tests are often used
inappropriately for patients who do not have clinical symptoms to warrant their use.
A recent study compared the actual use of diagnostic imaging tests for persistent low back pain with the recommendations set forth in the clinical practice guidelines on low back pain, which was developed with support from the Agency for Health Care Policy and Research and released by AHCPR in 1994. The study, conducted by Stacey J. Ackerman, M.S.E., Ph.D., and colleagues at Johns Hopkins University, analyzed use of diagnostic imaging examinations in 2,374 patients with persistent low back problems who were enrolled in the National Low Back Pain Study from 1986 to 1991.
Patients who underwent MRI were distinguished from those who received only lumbosacral spine x-rays by more physician visits in the preceding 12 months, more functional impairment, presence of sciatica, and presence of neurologic signs/symptoms suggestive of nerve root compromise, as well as higher socioeconomic status. Those who underwent MRI had suspected soft tissue involvement; suspected structural involvement characterized those who received noncontrast CT. These findings represent the first indication that actual practice may be reasonably close to the guideline recommendations, according to the researchers.
Persons who underwent both MRI and CT-myelography were distinguished from those who received only CT-myelography only by nonclinical factors, such as higher annual household income, disability compensation, and male sex. Patients eligible for disability compensation may have complained of more severe or persistent symptoms, simply had coverage for two advanced imaging tests, or needed both tests to obtain disability compensation. These findings suggest that nonclinical factors, such as socioeconomic characteristics and patient preferences, play a substantial role in the diagnostic imaging decision. Nevertheless, the use of tests in this study closely followed clinical indications for their use recommended by the AHCPR-supported guideline.
See "Patient characteristics associated with diagnostic imaging evaluation of
persistent low back problems," by Dr. Ackerman, Earl P. Steinberg, M.D., M.P.P., R.
Nick Bryan, M.D., Ph.D., and others, in Spine 22(14), pp. 1634-1641, 1997.
As competition increases and workers' compensation premiums fall, 24-hour coverage plans
have become less and less attractive. Workers' compensation insurers who offer 24-hour
care products have been unable to keep up with the price competition. Was 24-hour care a
concept ahead of its time?
Top
ALLERGIC CONTACT DERMATITIS
A New Leaf, Inc. v. Webb, 495 S.E.2d 510 (Va.App. 1998)
ARM
Minor v. Philips Products, 494 S.E.2d 819 (S.C. 1997)
Weaver v. Southern Bell, 703 So.2d 1213 (Fla.App. 1 Dist. 1997)
ARTERIOSCLEROSIS
Furch v. Bucci, 666 N.Y.S.2d 300 (A.D. 3 Dept. 1997)
ARTERIOSCLEROTIC CARDIOVASCULAR DISEASE
Cunningham v. Shelton Sec. Services, Inc., 958 S.W.2d 338 (Tenn. 1997)
BACK
Liberty Northwest Ins. Corp. v. Rector, 905 P.2d 387 (Or.App. 1997)
Rosetti v. Land Reclamation, 704 A.2d 312 (Me. 1997)
Saipan Stevedore v. Director, Workers' Comp. Programs, 133 F.3d 717 (9th Cir. 1998)
Smith v. S.C. Dept. of Mental Health, 494 S.E.2d 630 (S.C.App. 1997)
Wash. Tran. Auth. v. Dept. of Employ. Ser., 703 A.2d 1225 (D.C.App. 1997)
Willamette Industries, Inc. v. Titus, 950 P.2d 318 (Or.App. 1997)
BACK: BULGING DISC
State Ex Rel. v. Indus. Comm., 687 N.E.2d 1379 (Ohio 1998)
BACK: COMPRESSION FRACTURES
Magulick v. W.C.A.B. (Bethlehem Steel), 704 A.2d 176 (Pa.Cmwlth. 1997)
Murillo v. Blackhawk Foundry, 571 N.W.2d 16 (Iowa 1997)
Schultz v. Springfield Forest Products, 951 P.2d 169 (Or.App. 1997)
BACK: DEGENERATIVE DISC DISEASE
Hausauer v. N. Dak. Workers Comp. Bureau, 572 N.W.2d 426 (N.D. 1997)
BACK: DISC
Church v. Uniroyal Goodrich Tire Co., 703 So.2d 998 (Ala.Civ.App. 1997)
Jordan v. W.C.A.B. (Consol. Elec. Distributors), 704 A.2d 1063 (Pa. 1997)
BACK: LAMINECTOMY
Jones v. Evangeline of Natchitoches, Inc., 704 So.2d 905 (La.App. 3 Cir. 1997)
BACK: SPONDYLOSIS
Burglund v. Liberty Mut. Fire Ins. Co., 950 P.2d 1371 (Mont. 1997)
BACK: STRAIN
University of Ark. Med. Sciences v. Hart, 958 S.W.2d 546 (Ark.App. 1997)
BRONCHITIS
Seal v. Gaylord Container Corp., 704 So.2d 1161 (La. 1997)
BUTTOCKS
Wilson v. Gerstenzang, Wiener, 666 N.Y.S.2d 332 (A.D. 3 Dept. 1997)
CARPAL TUNNEL SYNDROME
Howard v. Square-D Co., 494 S.E.2d 606 (N.C.App. 1998)
McCabe v. Zeller Corp., 690 N.E.2d 85 (Ohio App. 3 Dist. 1997)
Pacific Employers Ins. Co. v. Dayton, 958 S.W.2d 452 (Tex.App.-Fort Worth 1997)
CHILBLAIN
Southern Express v. Green, 495 S.E.2d 500 (Va.App. 1998)
CLOSED HEAD INJURY
Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App. 1997)
DUST DISEASE
Matott v. St. Joe's Lead, 666 N.Y.S.2d 849 (A.D. 3 Dept. 1997)
ELECTROCUTION
Flint Elec. Membership v. Ed Smith Const., 495 S.E.2d 136 (Ga.App. 1997)
EYE
Middletown Ranch of Pomo Ind. v. W.C.A.B., 71 Cal.Rptr.2d 105 (Cal.App. 1 Dist. 1998)
FOOT
Commercial Union Ins. v. Workers' Comp., 704 A.2d 358 (Me. 1997)
Kozak v. Moiduddin, 689 N.E.2d 217 (Ill.App. 1 Dist. 1997)
Odessey/Americare of Oklahoma v. Worden, 948 P.2d 309 (Okl. 1997)
Pollard v. The Placers, Inc., Del.Supr., 703 A.2d 1211 (1997)
Varela v. Fisher Roofing Co., Inc., 572 N.W.2d 780 (Neb. 1998)
HAND: CRUSHED
Haddock v. Multivac, Inc., 703 So.2d 969 (Ala.Civ.App. 1996)
HEAD INJURY
Estate of Gross v. Three Rivers Inn Inc., 667 N.Y.S.2d 71 (A.D. 3 Dept. 1997)
HEARING LOSS
Jones Stevedoring Co. v. Director, OWCP, 133 F.3d 683 (9th Cir. 1997)
Ramey v. Stevedoring Services of America, 134 F.3d 954 (9th Cir. 1998)
HEART ATTACK
Holden v. Ford, 572 N.W.2d 268 (Mich.App. 1997)
Rocor Intern. v. Guyton, 494 S.E.2d 571 (Ga.App. 1997)
HYPERTENSION
McTier v. Bayfront Medical Center, 703 So.2d 1163 (Fla.App. 1 Dist. 1997)
KNEE
Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997)
State Ex Rel. v. Indus. Comm., 689 N.E.2d 951 (Ohio 1998)
Uninsured Employer's Fund v. Harper, 495 S.E.2d 540 (Va.App. 1998)
WMATA v. DC Dept. of Employment Services, 704 A.2d 295 (D.C.App. 1997)
NECK
Arellano v. Pam E. K's Donuts Shop, 495 S.E.2d 519 (Va.App. 1998)
Harrington v. Adams-Robinson Enterprises, 495 S.E.2d 377 (N.C.App. 1998)
McQueen v. New York State Div. of Parole, 666 N.Y.S.2d 317 (A.D. 3 Dept. 1997)
NECK STRAIN
Holcomb v. Pepsi Cola Co., 494 S.E.2d 609 (N.C.App. 1998)
PERIODONTAL DISEASE
DePozo v. Shawnee Resort, 704 So.2d 150 (Fla.App. 1st Dist. 1997)
PSYCHOLOGICAL: DEPRESSION
Leggio v. Suffolk County Police Dept., 666 N.Y.S.2d 815 (A.D. 3 Dept. 1997)
PSYCHOLOGICAL: MAJOR DEPRESSION
SAIF Corp. v. Weathers, 950 P.2d 405 (Or.App. 1997)
POST-TRAUMATIC STRESS DISORDER
Abernathy v. City of Albany, 495 S.E.2d 13 (Ga. 1998)
Muller v. Automobile Club of Southern Cal., 71 Cal.Rptr.2d 573 (Cal.App. 4 Dist. 1998)
ROTATOR CUFF TEAR
Holaus v. William J. Zickell Co., 958 S.W.2d 72 (Mo.App. E.D. 1997)
SHOULDER
State Ex Rel. Kroger Co. v. Indus. Comm., 687 N.E.2d 768 (Ohio 1998)
SHOULDER: OVERUSE
Fred Meyer, Inc. v. Hofstetter, 950 P.2d 322 (Or.App. 1997)
SUBDERMAL HEMATOMA
Harris v. Ohio Bur. of Workers' Comp., 690 N.E.2d 19 (Ohio App. 1 Dist. 1996)
Cannizzaro v. Neiman Marcus, Inc., 979 F.Supp. 465 (N.D.Tex. 1997)
WRIST
Beckstead v. W.C.A.B., 71 Cal.Rptr.2d 27 (Cal.App. 2 Dist. 1997)
WRIST: LACERATIONS
Dixon v. City of Durham, 495 S.E.2d 380 (N.C.App. 1998)
Top
Accident: Exposure to Cold
SOUTHERN EXPRESS V. GREEN
495 S.E.2d 500 (Va.App. 1998)
The Virginia Court dealt with the claimant, Green, who was employed at a convenience
store stacking beer and soft drinks in a refrigerated room She worked in the refrigerated
room from 2:00 a.m. until 6:00 a.m. wearing only a short-sleeved shirt and no gloves. She
testified that she was unable to leave the room because she could not get the door open.
She further testified that when she came out of the refrigerated room at the end of her
work shift, she was cold and shivering. She testified that her "hands had gotten all
balled up and [her] face had begun to - had sores on it." Later that day, she went to
the hospital. She was diagnosed with frostbite and a cold "injury consistent with
chilblain."
The court affirmed the award of benefits finding that her condition was an injury by
accident and not a "gradually incurred injury".
Awarding Green medical treatment for her injuries, the commission cited Byrd and noted
that "[i]t is well established that exposure to cold or hot temperatures resulting in
conditions such as frostbite or heatstroke may constitute an injury by accident."
This was Green's first and only day working in the refrigerated room, and she did not have
any protective clothing. Green was wearing a short-sleeved shirt and no gloves when she
was assigned to work in the refrigerated room for four hours. Thus, the facts in evidence
prove an extraordinary exposure that distinguishes this case from Robinette and prove
Green was subjected to a greater hazard in the refrigerated room than she otherwise would
have been exposed. The harmful exposure that Green experienced was due to a particular and
specific work event, as in Byrd, and was not the result of a series of events, as in
Robinette.
The testimony and medical evidence provide credible evidence to support the commission's
decision that Green suffered an "injury by accident".
Attorney Fees: Ability to Hire Counsel
JONES V. EVANGELINE OF NATCHITOCHES, INC.
704 So.2d 905 (La.App. 3 Cir. 1997)
The Louisiana Court dealt with the claimant, Jones, who injured her back while employed
as a laundry worker. A series of motions and hearing resulted in the employer being
ordered to pay $74.00 a week in workers' compensation, plus medical bills for her surgery
and $3,000 in penalties, interest, and attorney fees of $7,500.
The court affirmed the award including the $7,500 in attorney fees. The court found that
consideration of claimant's ability to hire counsel when setting the fee was proper. The
court stated:
While a worker's ability to hire counsel is not a listed factor in setting attorney's fees, we find it a valid consideration in workers' compensation cases. The injured worker would effectively be denied the protection offered by the workers' compensation statutes if he or she was unable to find an attorney to represent his or her interests.
Constitutionality: Television Advertising for Workers' Compensation Cases
TILLMAN V. MILLER
133 F.3d 1402 (11th Cir. 1998)
The U.S. Court of Appeals (11th Cir.) dealt with a constitutional attack, by a workers'
compensation lawyer, on the Georgia "Workers' Compensation Truth in Advertising
Act" which required that the following notice be kept in 36-point type for five
seconds on all TV commercials:
NOTICE
Willfully making a false or misleading statement or representation to obtain or deny workers' compensation benefits is a crime carrying a penalty of imprisonment and/or a fine of up to $10,000.00. O.C.G.A. Sec. 34-9-31.
The court found that the act was unconstitutional as violative of the First Amendment. The
court stated:
Plaintiff advertises on television, but he is not in the telecommunications business. The advertisements in this case are not deceptive or misleading. The message, which Georgia wishes plaintiff to carry piggyback for free on the advertisement for which he pays, is not tied to an inherent quality of the thing he is trying to sell - his legal services. And Georgia has presented no proof that television advertising of legal services causes fraudulent workers' compensation claims to be filed or that including the pertinent compelled disclosure would likely significantly reduce fraudulent claims in Georgia. In such circumstances, Georgia is not justified in placing, on a television advertiser, the burden of the cost of educating the public.
Constitutionality: Time Limit on Hearing
SMITH V. S.C. DEPT. OF MENTAL HEALTH
494 S.E.2d 630 (S.C.App. 1997)
The South Carolina Court dealt with the claimant, Smith, who was 35 when he injured his back at work. He read at a third grade level and had an IQ of 64. He was paid workers' compensation until he was terminated after a hearing. At the hearing after approximately two hours of testimony, the single commissioner refused to permit any further evidence to be presented by the attorneys. The commissioner indicated that much of the evidence already presented was irrelevant or immaterial, stating, "I feel ... sometimes during this proceeding that we missed the issue and perhaps we didn't come as close as when the relief troops were dropping food in Bosnia and Croatia." The commissioner then called Smith to the stand and questioned him about his injuries and his ability to work. The commissioner did not allow Smith's attorney or DMH's attorney to question Smith. While the commissioner did allow the parties to proffer, in written form, a summary of the evidence they would have elicited from their witnesses had the hearing continued, he stated that he would not consider the proffered testimony, but that it would be included in the record for appellate review.
The court found that cutting the claimant and his counsel off without an opportunity to question him violated due process and ordered a de novo hearing. The court stated:
... we conclude that the single commissioner improperly excluded testimony necessary for the Commission to make an informed decision, thus depriving Smith of his right to a full and fair hearing. ("No person shall be finally bound by a judicial or quasi-jusidical decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard.") We therefore reverse the factual findings of the Commission relating to the amount of Smith's impairment and the percentage of any disability and remand for the taking of additional evidence. On remand, the Commission at a minimum shall allow the parties to present the testimony of the previously excluded witnesses, and, most importantly, shall allow Smith to be examined by his attorney and the attorney for DMH. The Commission in its discretion may conduct a de novo hearing in which testimony from all witnesses is again taken.
Evidence: Muscle Spasms as Objective Findings
UNIVERSITY OF ARK. MED. SCIENCES V. HART
958 S.W.2d 546 (Ark.App. 1997)
The Arkansas Court dealt with the claimant, Hart, who injured her back and neck while
working as a nursing assistant. She was diagnosed with a back strain but as she was 5 1/2
months pregnant extensive diagnostic testing could not be performed. The workers'
compensation statute, Ark. Code Ann. 11-9-102(5)(D) provides that a compensable injury
must be established by medical evidence, supported by "objective findings" as
defined in 11-9-102(16). "Objective findings" are defined as findings that
cannot come under the voluntary control of the patient. The claimant on examination did
exhibit both back and neck muscle spasms.
The court affirmed the finding that claimant's muscle spasms constituted "objective
findings". The court stated:
Dr. Lewis's examination of appellee revealed back and neck spasms. Appellee cites us to the following definition of "spasm":
1. An involuntary muscular contraction ... 2. Increased muscular tension and shortness which cannot be released voluntarily and which prevent lengthening of the muscles involved; [spasm] is due to pain stimuli to the lower motor neuron.
Stedman's Medical Dictionary 1304 (23d ed. 1976). Dr. Lewis agreed that muscle spasms are out of the voluntary control of the patient, although he did state that "50 percent" was "objective" and "50 percent" was under patient control.
Substantial evidence supports the determination that appellee's muscle spasms constitute "objective findings" in support of her claim of a compensable injury. Upon examination of appellee, Dr. Lewis observed back and neck spasms. This observation of "[a]n involuntary muscular contraction" or "[i]ncreased muscular tension and shortness which cannot be released voluntarily" constitutes an objective finding.
Evidence: Presumption of Disability
HARRINGTON V. ADAMS-ROBINSON ENTERPRISES
495 S.E.2d 377 (N.C.App. 1998)
The North Carolina Court dealt with the claimant, Harrington, who injured his neck,
knee, and head at work on August 24, 1993. He was placed on weekly workers' compensation
benefits. After several physicians released him to work the employer sought termination of
his benefits which was granted retroactive to January 18, 1994.
The court reversed the termination of benefits finding that the release to return to work
by three physicians did not overcome the presumption of disability.
The court stated:
By January 1994, three doctors had released plaintiff to return to work. However, "[a]n employee's release to return to work is not the equivalent of a finding that the employee is able to earn the same wage earned prior to the injury, nor does it automatically deprive an employee of the benefit of the Watkins v. Motor Lines presumption." Radica v. Carolina Mills, 113 N.C.App. 440, 447, 439 S.E.2d 185, 190 (1994).
As in Radica, there is no evidence to support a finding that the plaintiff retained any earning capacity after he was released by his doctors. The defendant-employer has not met its burden of proving that the plaintiff-employee was capable of earning the same wages. A release from a doctor is not enough to rebut the presumption of a disability. Accordingly, the Full Commission erred when it terminated plaintiff's benefits after 18 January 1994.
Exclusivity: State Safety Inspection
DIAZ V. MAGMA COPPER CO.
950 P.2d 1165 (Ariz.App. Div. 2 `997)
The Arizona Court dealt with the decedent, Diaz, who was killed while working as a
miner. His parents sued the employer, the state, and the mine inspector in tort. The court
rejected all of the claims based on the exclusivity doctrine except for the negligent
inspection by the state.
The court found that as the negligent conduct by the state involved the implementation of
administrative rules and regulations and not policy judgments the state was not shielded
by absolute immunity. The court stated:
Thus, while certain decisions concerning what and when to inspect may be policy determinations of the sort protected by the immunity statute, the Diazes' claim does not involve those kinds of decisions. They essentially alleged that the state inspector negligently implemented those decisions by overlooking patent safety violations which caused Diaz's death, and presented evidence that the level where Diaz worked was inspected shortly before the accident and that proper inspection includes a review of all safety equipment, including safety lines. After the accident, a federal mine inspector discovered that Diaz's safety line was improperly installed in several respects, which caused the line to sag. The assistant state mine inspector testified he had inspected Diaz's level, but could not recall whether he had tested Diaz's line or checked its installation. Mining regulations require safety lines to prevent miners from falling into raises, and if safety equipment is not in compliance with the regulations, the inspector must give the mine written notice or a written exception to enforcement. Neither was issued here. These actions involve the implementation of administrative rules and regulations, not policy judgments shielded by absolute immunity.
Immigration and Reform Control Act: Undocumented Workers
CHAMPION AUTO BODY V. ICAO
950 P.2d 671 (Colo.App. 1997)
The Colorado Court dealt with the claimant, Gallegos, who on February 8, 1996,
sustained a compensable workers' compensation injury while preforming his duties as a
painter's helper at the employer's auto body shop. When he filed for workers' compensation
benefits the employer argued that as the claimant was a Mexican national who did not
possess legal work status in the United States he was not entitled to workers'
compensation. The employer argued that as the claimant lacked a "legal work
status" this was a "disability" which was the sole cause of his disability.
As you might expect, the court rejected this argument finding that the Immigration Reform
Control Act (IRCA) did not prohibit the claimant from entering into an employment
contract. The court affirmed the award of benefits and stated:
Since IRCA did not prohibit the claimant from entering into an employment contract, we disagree with employer's argument that claimant was under a "legal disability" which prevented him from working. See Mendoza v. Monmouth Recycling Corp., 288 N.J.Super. 240, 672 A.2d 221 (1996) (the disability under which an illegal alien works does not justify withholding workers' compensation benefits).
Accordingly, we hold that IRCA provisions barring employers from hiring undocumented workers did not create a legal disability that precluded the claimant as a matter of law from proving an entitlement to temporary disability benefits.
In Course of Employment: Employer Provided Transportation
MEDLIN V. UPSTATE PLASTER SERVICE
495 S.E.2d 447 (S.C. 1998)
The South Carolina Supreme Court dealt with the claimant, Medlin, who was hired to
install stucco sidings. He informed his employer that he did not have a driver's license.
He was told "if he could make it to the employer's office the employer would provide
him transportation from there." On March 25, 1994, Medlin was scheduled to work in
Rutherfordton, North Carolina, which was an hour away from employer's office. On that day,
co-worker was having trouble with his vehicle, so Garris lent him his personal truck so
that co-worker and Medlin could travel to Rutherfordton. While returning from
Rutherfordton in the truck, co-worker and Medlin were involved in an automobile accident.
Medlin, who was riding as the passenger in the truck, was injured.
The court reversed the denial of benefits finding that the employer's provision of
transportation was not a gratuitous act but was directly related to company work. The
court found that the claimant came under the exception to the going and coming rule and
thus was entitled to workers' compensation. The court stated:
Medlin testified that before starting work with employer, he had informed Garris that he did not have a driver's license. Garris asked if Medlin could get to the office; Garris could then provide transportation from there. Garris's own testimony reveals that employer had agreed to provide transportation. In response to the question, "But Mr. Medlin did not provide his own transportation, did he?", Garris responded: "No. We had to furnish him a ride. One of the men would take him ..." This admission by Garris clearly establishes that the provision of transportation to Medlin was not simply a gratuitous act by Garris, but was directly related to the work of employer. As such, we find that Medlin clearly comes under the first exception to the "going and coming rule".
In Course of Employment: Going and Coming Rule
RECEVEUR CONST. V. ROGERS
Ky., 958 S.W.2d 18
The Kentucky Supreme Court dealt with the decedent, Rogers, who was a project
superintendent. As a result of his newly acquired promotion to project superintendent,
Rogers was issued a company truck which contained a walkie-talkie style CB radio which
allowed him to communicate with the office during the business day at distances of 30-35
miles. The employer concedes that it provided the truck to Rogers as a work vehicle to be
used during the course of the workday, and as a means of direct transportation between his
home and the job site.
On March 23, 1993, Rogers, according to the employer's instructions, worked with
co-employee Cornett at a job site in Clarksville, Indiana, from 8:00 p.m. that evening
until 4:00 a.m. the next morning. The testimony indicates that after the co-workers left
the job site in the company-issued truck, they went to the employer's office in Louisville
to unload a truckload of rubbish. Thereafter, Cornett got into his own vehicle and
proceeded home; whereas, Rogers, while still driving the company truck, was involved in a
fatal automobile accident while en route to his home.
The court affirmed the award of workers' compensation based upon the finding that the
death was work-related under service to employer exception to the going and coming rule.
The court found that the use of the truck was of benefit to the company and that as the
decedent was performing a service to the employer at the time of his death he did come
under the service to the employer exception to the going and coming rule.
In Course of Employment: Horseplay
VARELA V. FISHER ROOFING CO., INC.
572 N.W.2d 780 (Neb. 1998)
The Nebraska Supreme Court dealt with the claimant, Varela, who was injured when
arm-wrestling with a co-employee. Varela and other crew members were on the roof of a
school in Harrisburg, Nebraska, preparing to do work on the roof. Varela was carrying a
bucket of paint when a co-worker, Pastor "Tony" Gonzales, asked Varela why he
chose to carry the lightest bucket. Upon hearing this, Varela put the bucket down and, in
a good-natured manner, challenged Gonzales to an arm-wrestling match. Gonzales initially
declined the challenge because he knew that such conduct was against Fisher's rules.
Varela continued to challenge Gonzales to arm-wrestle, calling him "chicken".
Gonzales apparently accepted the challenge, and as they either prepared to arm-wrestle or
actually started, Varela put his right foot on the edge of a raised skylight. Varela's
foot slipped off the skylight, causing him to fall and injure his right foot.
The court found that as a matter of first impression, this injury, resulting from
horseplay, was compensable. The court based this upon the fact that the arm-wrestling was
an "insubstantial deviation and did not detract from the work". 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).
In Course of Employment: Special Hazard Rule
RUCKMAN V. CUBBY DRILLING, INC.
689 N.E.2d 917 (Ohio 1998)
The Ohio Supreme Court dealt with the claimants Riggs and Brosius who worked as part of
a four-man drilling crew assigned to work a shift beginning at 10:30 p.m. and ending at
6:30 a.m. at a drilling site in Champion, Ohio. On the first day of their assignment, the
drilling crew met in Canton, Ohio, in order to participate in a ridesharing arrangement to
the Champion drilling site. Cubby neither required nor encouraged its employees to share
rides; the employees independently came to this arrangement in order to share the expenses
associated with driving to remote drilling sites. Regardless of how Cubby employees got
themselves to the drilling sites, Cubby paid each employee a per diem bonus based on a
graduated scale set by the distance between the drilling site and Cubby's Midvale home
base.
The traffic accident injuring Riggs and Brosius occurred on a state route in Paris, Ohio,
approximately 30 minutes before the scheduled beginning of their shift at the Champion
drilling site.
The court found that the employees were "fixed-situs" employees but came under
the special hazard rule and thus were in the course of their employment when injured. The
court found that the constantly changing location, the temporary nature of the jobs, and
the long travel distances involved made travel to the sites a "special hazard"
of employment. The court affirmed the award of workers' compensation and stated:
We hold that a fixed-situs employee is entitled to workers' compensation benefits for injuries occurring while coming and going from or to his or her place of employment where the travel serves a function of the employer's business and creates a risk that is distinctive in nature from or quantitatively greater than risks common to the public.
In Course of Employment: Walking to Car
SCHOENFELDER V. WINN & JORGENSEN
704 So.2d 136 (Fla.App. 1st Dist. 1997)
The Florida Court dealt with a claimant, Schoenfelder, who is an attorney and employed
by appellee, Winn & Jorgensen, P.A. Schoenfelder took a client's case file home the
evening of April 17, 1995, to prepare for the deposition of a physician the following
morning at 8:30. The parties stipulated that on April 18, Schoenfelder began preparing for
the deposition between 7:00 and 7:15 a.m., and that while walking to his car to drive to
the scheduled deposition, he was struck by a vehicle. The parties also agreed that it was
an essential part of Schoenfelder's employment to travel to client's homes, hospitals,
courts in different jurisdictions, and various professional offices for physician and
expert depositions.
The court reversed the denial of benefits finding that the going and coming rule did not
apply as the claimant had already "started work" when he looked over the file in
his house for 15 minutes. The court stated:
In reaching our decision, we find no significant break or interruption in Schoenfelder's employment activity beginning with his preparation for taking the deposition and his embarkation to the site of the deposition. This type of trip was a regular part of his employment, and it cannot be equated with an employee's routine travel to his or her office to begin a workday.
Hence, the going and coming rule did not apply to preclude compensation.
Schoenfelder had begun his work at home, was still engaged in his task when he was hurt, and was not on the way to his regular place of employment.
Medical Care: Periodontal Disease
DEPOZO V. SHAWNEE RESORT
704 So.2d 150 (Fla.App. 1st Dist. 1997)
The Florida Court dealt with the claimant, DePozo, who appealed an order in which the
judge of compensation claims denied her claim for payment by Shawnee Resort and Crawford
and Company of bills for unauthorized and unrequested non-emergency medical evaluations,
denied authorization for further treatment at a pain clinic, denied any attendant care
from July 27, 1995 to April 26, 1996, denied more than eight hours of attendant care per
day thereafter, and denied payment for treatment for Ms. DePozo's periodontal disease.
The court, on appeal, rejected all of her claims except for the treatment for the
periodontal disease. The court found that as the dental condition was caused by depression
resulting from her accident it was compensable. The court stated:
The unrefuted record evidence was that Ms. DePozo's dental condition was caused by a lack of oral hygiene, which was caused, at least in part, by depression attributable to her accident at work. In his order, the judge of compensation found that:
claimant's periodontal disease stems from her lack of oral hygiene ... I further find that ... claimant's depression contributed to her not brushing her teeth.
Having found a causal relationship, the JCC erred in determining that Ms. DePozo's periodontal disease was not compensable.
Note: The court implied that had this case come under the "major contributing
cause" statute it might not have been compensable.
Misrepresentation: Medical Release
COMMERCIAL UNION INS. V. WORKERS' COMP.
704 A.2d 358 (Me. 1997)
The Maine Supreme Court dealt with the claimant, Thiel, who injured her foot at work.
During an informal conference two years later representatives of Commercial Union made
statements leading Thiel to believe that Commercial Union had obtained records from the
hospital that did not relate to her work injury. Thiel obtained a copy of the
"Statement of Injured" form from Mayo Regional Hospital and discovered that it
had been altered so that all but the last paragraph, containing the broadly written
release, had been removed. An insurance adjuster confirmed that both forms, including the
altered form, were in Commercial Union's file and that at least one of the forms had been
sent to Mayo.
The court found that a $2,500 penalty against the workers' compensation insurer was
warranted as the insurer had intentionally misrepresented the scope of the claimant's
medical release in order to obtain medical information which was unrelated to the workers'
compensation injury. The court stated:
The Board's finding of a willful violation of the Act is supported by evidence that Commercial Union used an unauthorized, altered medical release form to obtain medical information while intentionally misrepresenting the scope of that release to Thiel and Mayo Hospital. Commercial Union contends, however, that, absent some evidence that it actually received records not pertinent to the work injury, there is no basis for finding a violation of the Act. We disagree. Commercial Union's violations of section 360(2) were complete when it sought the release of information by intentional misrepresentation or used an altered, unauthorized release form in willful violation of the Act. We therefore conclude that the Board acted within its discretion in ordering the penalty.
Occupational Disease: Allergic Contact Dermatitis
A NEW LEAF, INC. V. WEBB
495 S.E.2d 510 (Va.App. 1998)
The Virginia Court dealt with the claimant, Webb, who was employed as a floral
designer. She arranged and processed flowers. The claimant developed dermatitis. The
claimant underwent "patch tests" that revealed she was allergic to both
alstroemeria and tulips. Dr. Magee diagnosed claimant with "allergic contact
dermatitis to tulips and alstroemeria". Dr. Magee later opined that the claimant's
allergic contact dermatitis was caused by her exposure to alstroemeria and tulips at work.
She stated that allergic contact dermatitis is "a very common problem with
florists". She opined that the claimant's allergic contact dermatitis "was most
likely caused by at least two and probably more physical contacts with the chemicals
contained in alstroemeria and tulips during her employment".
The claimant filed a workers' compensation claim alleging an occupational disease. The
employer attempted to interpose a non-cumulative traumatic condition which would have
barred the claim.
The court affirmed the award finding that contact dermatitis due to exposure to floral
allergens was an occupational disease. The court stated:
Having decided that claimant's allergic contact dermatitis is not a "cumulative trauma" condition that is barred per se from compensation under the Act, we next consider whether it is a compensable disease as a matter of law. We hold that, based on the policies underlying the Supreme Court's prior construction of the term "disease", the purpose of the Act, and the nature of claimant's ailment, the General Assembly intended its "carefully limited" coverage of occupational diseases to include allergic contact dermatitis caused by exposure to floral allergens in the workplace.
Request for Autopsy: Motion to Exhume
CUNNINGHAM V. SHELTON SEC. SERVICES, INC.
958 S.W.2d 338 (Tenn. 1997)
The Tennessee Supreme Court dealt with the decedent, Cunningham, who was involved in a
heated verbal confrontation with a patron while working as a security guard. He was found
unconscious several minutes later and was pronounced dead on arrival at the hospital. The
medical examiner certified the cause of death as "arteriosclerotic cardiovascular
disease". The death certificate, dated April 17, 1992, indicates that no autopsy was
performed.
On August 31, 1995, a workers' compensation claim was filed. On October 28, 1996, the
employer asked the court permission to exhume the body and autopsy the decedent's remains
based upon the argument that the cause of death could not be ascertained.
The court rejected the proposed exhumation finding that the request was not made in a
timely fashion. The court stated:
We find that the respondents had reasonable notice from the pleadings that causation would be an issue - perhaps the only seriously contested issue. Once the respondents took a position regarding causation in their answer filed October 4, 1995, it became their responsibility to develop the issue promptly. Especially is this true in light of the cause of death listed in the certificate, which was available to all parties as early as April 17, 1992. The respondents filed the autopsy request on October 28, 1996 - over a year after they filed their answer, and approximately four and a half years after the death certificate became available. This delay is longer than the delay in previous workers' compensation cases in which a request for an autopsy was found untimely. Huey Bros. Lumber Co. v. Anderson, 519 S.W.2d 588, 590 (Tenn. 1975) (eight month delay unreasonable); Robinson, 503 S.W.2d at 93 (nine month delay unreasonable). Therefore, within the context of the facts and circumstances here presented, we find that the respondents' request for exhumation and autopsy was not timely made.
Stress: 911 Operator
LEGGIO V. SUFFOLK COUNTY POLICE DEPT.
666 N.Y.S.2d 815 (A.D. 3 Dept. 1997)
The New York Court dealt with the claimant, Leggio, who was employed by the Suffolk
County Police Department as a 911 operator and, in conjunction therewith, was required to
work rotating shifts. Although she apparently worked under such conditions without
incident for a number of years, she began experiencing problems in 1985 and 1986, which
eventually resulted in three separate psychiatric admissions. The claimant returned to her
job following the first two hospitalizations but was unable to do so after her last
admission and was unable to return to work. She then filed a workers' compensation stress
claim. The board rejected her claim finding that the stress she was exposed to was no
greater than normally encountered in the workplace.
The court reversed the denial finding a complete lack of evidence of normally encountered
stress.
The court stated:
In this regard, "a mental injury need not be caused by a discrete, identifiable psychic trauma, but can result from emotional stress extending over a period of months" ... and may be found even in instances where the cause adversely affects the claimant due only to his or her particular sensitivities...
... our review of the record compels us to conclude that the Board's findings in this regard simply are not supported by substantial evidence. Given claimant's clear and unequivocal testimony, and absent any testimony from claimant's coworkers or supervisors regarding their typical work environment, there was no basis for the Board to conclude that the stress encountered by claimant was no greater than that routinely occurring in the normal work environment.
Stress: Reasonableness of Employer's Conduct
SAIF CORP. V. WEATHERS
950 P.2d 405 (Or.App. 1997)
The Oregon Court dealt with the claimant, Weathers, who started with the Department of
Corrections in 1982. There was a question of whether he would be given credit for some
time he worked in an "underfilled position" so he would not have to be
transferred. On July 19, 1993, he was sent a letter that he was being transferred the next
day. At this point, the claimant became very depressed and stressed out as a result of the
manner in which the transfer had occurred. He had been led to believe all along that he
was at no risk for a transfer and then at the last minute the State changed its mind and
transferred him in violation of the terms of his union contract. Accordingly, the claimant
returned to his psychiatrist, Dr. Mead, who[m] he had previously seen for treatment. Dr.
Mead diagnosed a major episode of depression. Ultimately, claimant was taken off work and
has not yet returned to work.
The court reversed the denial which was based on the reasonableness of the conduct of the
employer. The court found the test to be whether the depression was caused by an
employment condition not generally inherent in every working station. The court stated:
Thus, a transfer, in and of itself, is a condition generally inherent in every working situation. However, the manner and circumstances surrounding the decision to transfer, and how it is carried out, may result in a compensable mental disorder. Further, it is not a question of whether the employer, the union, or both caused claimant's illness; as long as the illness was caused by a condition of employment, and that condition is not generally inherent in every working situation, it is compensable. Thus, the Board was substantially correct in its articulation of the law.
The Board also relied on its finding that employer acted unreasonably. The test is whether the manner and circumstances of the transfer caused the mental illness and whether those circumstances are generally inherent in every transfer. The reasonableness of employer's conduct may be a factor when considering whether the circumstances of the transfer are generally inherent in every transfer and whether they affected claimant's perception of employer's actions, but reasonableness is not the test.
Wage Loss: For Time Lost Due to Medical Treatment
STATE EX REL. V. INDUS. COMM.
687 N.E.2d 1379 (Ohio 1998)
The Ohio Supreme Court dealt with the claimant, Laker, who injured her back at work on
July 13, 1989. She received treatment both as an inpatient and outpatient. She then filed
a claim for the time she lost while undergoing physical therapy on an out-patient basis.
The physical therapy clinic was not open at night.
The court, in a matter of first impression, dealt specifically with the issue of whether
an employee injured at work can receive wage loss compensation for time missed for medical
treatments pertaining to the workplace injury.
The court found that the claimant was entitled to the benefits as she met the three-prong
test set forth by the Supreme Court. The court stated:
Accordingly, we hold that when a claimant suffers a work-related injury, receives workers' compensation benefits therefor, and the claimant misses work to receive prescribed, approved treatments for the injury, that claimant may recover wage-loss compensation for the time absent from work only if the claimant proves (1) that the treatment was medically necessary for the claimant to perform his or her job, (2) that without the treatment he or she could not continue to work full time, and (3) that treatment was only available during the claimant's hours of employment.
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Abuse of Discretion: For WCAB Not to Consider Compensability of Wrist Injury Under
Cumulative Injury Theory
BECKSTEAD V. W.C.A.B.
71 Cal.Rptr.2d 27 (Cal.App. 2 Dist. 1997)
Appeal: Commission Could Review Issue Even Though Parties Did Not Seek Review of Issue
ARELLANO V. PAM E. K'S DONUTS SHOP
495 S.E.2d 519 (Va.App. 1998)
Appeal: Insurer Which Did Not Appeal Order to Pay Death Benefits Precluded from Raising
Issue
LIBERTY NORTHWEST INS. CORP. V. FRYMIRE
950 P.2d 325 (Or.App. 1997)
Appeal: Letter by Counsel to Dismiss Appeal with No Opposition Insufficient
MILAR ELEVATOR V. DEPT. OF EMPLOYMENT SER.
704 A.2d 291 (D.C.App. 1997)
Appeal: Superior Court Exceeding Its Authority in Ordering Remand to Consider
Conclusive Evidence
ROCOR INTERN. V. GUYTON
494 S.E.2d 571 (Ga.App. 1997)
Appeal: Where Commission Rejects Credibility Determination It Must Enter Its Own
Findings
HOLCOMB V. PEPSI COLA CO.
494 S.E.2d 609 (N.C.App. 1998)
Apportionment: Arbitration Sole Method for Resolving Apportionment Issues
ROSETTI V. LAND RECLAMATION
704 A.2d 312 (Me. 1997)
Attorney Fees: Hourly Rate Lowered for Time Spent on Fee Petition
POLLARD V. THE PLACERS, INC.
Del.Supr., 703 A.2d 1211 (1997)
Attorney Fees: None as Denial Was Not Arbitrary and Capricious
SEAL V. GAYLORD CONTAINER CORP.
704 So.2d 1161 (La. 1997)
Attorney Fees: Rules Regulating Attorney Fees Under Merit Personnel Act Not Violative
of Due Process
CORNELIOUS V. DC EMPLOYEES' COMP. APP. BD.
704 A.2d 853 (D.C. 1997)
Average Weekly Wage: Judge Not Required to Depend Solely on Testimony of Claimant as to
Future Intent
PERRY V. FIRE BARRIER SYSTEMS
704 So.2d 559 (Fla.App. 1 Dist. 1997)
Average Weekly Wage: Subsequent Wage Increase If Reasonably Anticipated May Be Included
in Average Weekly Wage
GROSSMONT HOSP. V. W.C.A.B.
69 Cal.Rptr.2d 842 (Cal.App. 4 Dist. 1997)
Bad Faith: For Denying Claim When Insurer Had No Legitimate Reason to Deny Claim
ROGERS V. HARTFORD ACCIDENT & INDEMN. CO.
133 F.3d 309 (5th Cir. 1998)
Claim Preclusion: Denial of Groin Claim Did Not Bar Subsequent Back Claim
LIBERTY NORTHWEST INS. COP. V. RECTOR
950 P.2d 387 (Or.App. 1997)
Collateral Estoppel: Barred Employer from Denying Police Chief Was Entitled to Benefits
HOUSING AUTH. OF CITY OF L.A. V. W.C.A.B.
70 Cal.Rptr.2d 738 (Cal.App. 2 Dist. 1998)
Constitutionality: Not Violated by Exempting Small Agricultural Businesses
ZORN V. CARL R. SMITH POTATOES
704 A.2d 864 (Me. 1997)
Constitutionality: Not Violated by Requirement That ALJ Decision Pending Before
Benefits Review Board for More Than One Year Be Affirmed
RAMEY V. STEVEDORING SERVICES OF AMERICA
134 F.3d 954 (9th Cir. 1998)
Constitutionality: Permanent and Total Disability Statute Not Unconstitutional Despite
Harsh Results
LOBB V. INDUSTRIAL CLAIM APPEALS OFFICE
948 P.2d 115 (Colo.App. 1997)
Coverage: Homeowner Vicariously Liable for Inadequate Contractor's Employee
ANDREINI V. SUPERIOR COURT (SOLORIO)
71 Cal.Rptr.2d 153 (Cal.App. 1 Dist. 1998)
Denial: Employer's Denial Did Not Raise Issue of Medical Causation
FRED MEYER, INC. V. HOFSTETTER
950 P.2d 322 (Or.App. 1997)
Dependency: Children Had Reasonable Expectation of Support and Entitled to
Benefits
LAWHON FARM SERVICES V. BROWN
958 S.W.2d 538 (Ark.App. 1997)
Earning Capacity: Special Accommodation Can Be Factored into Workers' Compensation
Award
MURILLO V. BLACKHAWK FOUNDRY
571 N.W.2d 16 (Iowa 1997)
Employee Status: Chicken Farmer Repairing Chain Feeder Independent Contractor
WINGLOVITZ V. AGWAY INC.
667 N.Y.S.2d 509 (A.D. 3 Dept. 1998)
Employee Status: Determined by Date of Injury
ZELLERS V. PLAYA PACIFICA, LTD.
70 Cal.Rptr.2d 919 (Cal.App. 2 Dist. 1998)
Employee Status: Local Church's Pastor Not Employee of Local Church
UNINSURED EMPLOYER'S FUND V. HARPER
495 S.E.2d 540 (Va.App. 1998)
Evidence Substantial: Arm Injury Caused by Accident at Work
MINOR V. PHILIPS PRODUCTS
494 S.E.2d 819 (S.C. 1997)
Evidence Substantial: Arteriosclerosis Not Related to Duties as Firefighter
FURCH V. BUCCI
666 N.Y.S.2d 300 (A.D. 3 Dept. 1997)
Evidence Substantial: Back Condition Caused by Prior Injury and Surgery
BURGLUND V. LIBERTY MUT. FIRE INS. CO.
950 P.2d 1371 (Mont. 1997)
Evidence Substantial: Claimant Had Fully Recovered from Work Injury
JORDAN V. W.C.A.B. (CONSOL. ELEC. DISTRIBUTORS)
704 A.2d 1063 (Pa. 1997)
Evidence Substantial: Disc Injury Did Not Result from Forklift Accident
CHURCH V. UNIROYAL GOODRICH TIRE CO.
703 So.2d 998 (Ala.Civ.App. 1997)
Evidence Substantial: Record Did Not Support Finding That Claimant Suffered from Dust
Disease
MATOTT V. ST. JOE'S LEAD
666 N.Y.S.2d 849 (A.D. 3 Dept. 1997)
Evidence Substantial: Torn Rotator Cuff Not Caused by Altercation with Co-Workers
HOLAUS V. WILLIAM J. ZICKELL CO.
958 S.W.2d 72 (Mo.App. E.D. 1997)
Exclusivity: Barred Breach of Contract and Implied Covenant of Fair Dealing Against
Employer
MULLER V. AUTOMOBILE CLUB OF SOUTHERN CAL.
71 Cal.Rptr.2d 573 (Cal.App. 4 Dist. 1998)
Exclusivity: Barred Claim for Negligence and Negligent Infliction of Emotional Distress
Claim
McGRENAGHAN V. ST. DENIS SCHOOL
979 F.Supp. 323 (E.D.Pa. 1997)
Exclusivity: Barred Claims for Negligent Training, Supervision and Retention
CANNIZZARO V. NEIMAN MARCUS, INC.
979 F.Supp. 465 (N.D.Tex. 1997)
Exclusivity: Employer Is Not Estopped from Asserting After Denying Claim
HODEL V. GUNDLE LINING CONST. CORP.
572 N.W.2d 764 (Minn.App. 1997)
Forfeiture: Of Benefits for Willfully Making False Statements and Failing to Reveal
Prior Injury
HAUSAUER V. N. DAK. WORKERS COMP. BUREAU
572 N.W.2d 426 (N.D. 1997)
Forfeiture: Of Intentional Tort Action by Continuing to Receive Workers' Compensation
Benefits
WILSON V. GERSTENZANG, WIENER
666 N.Y.S.2d 332 (A.D. 3 Dept. 1997)
In Course of Employment: Accident During Drive After Buying Lunch Not Compensable
CONINGSBY V. DEPT. OF CORRECTIONS
667 N.Y.S.2d 101 (A.D. 3 Dept. 1997)
In Course of Employment: Idiopathic Fall Not Compensable
HARRIS V. OHIO BUR. OF WORKERS' COMP.
690 N.E.2d 19 (Ohio App. 1 Dist. 1996)
In Course of Employment: No Workers' Compensation Due for Claimant Injured After
Workers' Compensation Doctor's Appointment
WORKERS' SAFETY AND COMP. DIV. V. BRUHN
951 P.2d 373 (Wyo. 1997)
In Course of Employment: Physician Killed en Route to Hospital Covered as She Was on
24-Hour Call
EGLOFF V. OB-GYN ASSOCIATES
667 N.Y.S.2d 116 (A.D. 3 Dept. 1997)
In Course of Employment: Slip in Yard While Walking to Car Not Compensable
ODYSSEY/AMERICARE OF OKLAHOMA V. WORDEN
948 P.2d 309 (Okl. 1997)
Indemnification Claim: By Employer Under High Voltage Safety Act Barred by Exclusivity
Provision
FLINT ELEC. MEMBERSHIP V. ED SMITH CONST.
495 S.E.2d 136 (Ga.App. 1997)
Interest: Due at 10% Per Annum from Date That Each Payment Was Due
GUIGGEY V. GREAT NORTHERN PAPER, INC.
704 A.2d 375 (Me. 1997)
Issue Preclusion: Barred Relitigation of Issue Even When Employee Withdrew Appeal of
ALJ Decision
STANICH V. PRECISION BODY AND PAINT, INC.
950 P.2d 328 (Or.App. 1997)
Jurisdiction: WCAB Does Not Have Jurisdiction Over Indian Tribe
MIDDLETOWN RANCH OF POMO IND. V. W.C.A.B.
71 Cal.Rptr.2d 105 (Cal.App. 1 Dist. 1998)
Last Injurious Exposure Rule: Not Invoked in Back Case Where No Independent
Contribution to Injury
WILLAMETTE INDUSTRIES, INC. V. TITUS
950 P.2d 318 (Or.App. 1997)
Lifetime Income Benefit: For Total Loss of Use of Hands from Carpal Tunnel Syndrome
PACIFIC EMPLOYERS INS. CO. V. DAYTON
958 S.W.2d 452 (Tex.App.-Fort Worth 1997)
Longshore: Applied to Unincorporated Territories, i.e. Commonwealth of Northern Mariana
Islands
SAIPAN STEVEDORE V. DIRECTOR, WORKERS' COMP. PROGRAMS
133 F.3d 717 (9th Cir. 1998)
Longshore: Seawall Not "Pier or Other Adjoining Area" for Coverage
BROOKER V. DUROCHER DOCK AND DREDGE
133 F.3d 1390 (11th Cir. 1998)
Longshore: 30 Day Notice Ran from Time Claimant's Attorney Received Audiogram
JONES STEVEDORING CO. V. DIRECTOR, OWCP
133 F.3d 683 (9th Cir. 1997)
Modification: Employee Must Make Showing of Change of Condition Before Burden Shifts to
Employer
WASH. TRAN. AUTH. V. DEPT. OF EMPLOY. SER.
703 A.2d 1225 (D.C.App. 1997)
Permanent Impairment: Rule That Where Impairment Is 5% or More No Unscheduled Chronic
Condition Impairment Is Valid
SCHULTZ V. SPRINGFIELD FOREST PRODUCTS
951 P.2d 169 (Or.App. 1997)
Premiums: Workers' Compensation Insurer Was Not Fiduciary for Insured with Respect to
Retrospective Premium Policy
CHERNE CONTRACTING CORP. V. WAUSAU INS.
572 N.W.2d 339 (Minn.App. 1997)
Presumption: That Loss in Earning Capacity Unrelated Where He Returned to Preinjury Job
with Restrictions
MAGULICK V. W.C.A.B. (BETHLEHEM STEEL)
704 A.2d 176 (Pa.Cmwlth. 1997)
Reopening: ALJ Could Reduce Award to Reflect Amount Paid on Original Award
KUZIEL V. PET FAIR, INC.
948 P.2d 103 (Colo.App. 1997)
Res Judicata: Not Applicable as Issue Not Specifically Decided in Prior Proceeding
STATE EX REL. KROGER CO. V. INDUS. COMM.
687 N.E.2d 768 (Ohio 1998)
Res Judicata: Prior Unsuccessful Injury Claim Did Not Bar Present Claim
McCABE V. ZELLER CORP.
690 N.E.2d 85 (Ohio App. 3 Dist. 1997)
Rule: On Incapacity and Death Benefits Not Retroactive
WEEKS V. ALLEN & COLES MOVING SYSTEMS
704 A.2d 320 (Me. 1997)
Second Injury Fund: Payment of Medical Bills Did Not Constitute Payment of Workers'
Compensation Benefits
McQUEEN V. NEW YORK STATE DIV. OF PAROLE
666 N.Y.S.2d 317 (A.D. 3 Dept. 1997)
Second Injury Fund: Prior Injury Must Be Manifest to Employer Before Second Injury
WMATA V. DC DEPT. OF EMPLOYMENT SERVICES
704 A.2d 295 (D.C.App. 1997)
Settlement: Provided for Future Medical Care for Hypertension and Renal Insufficiency
McTIER V. BAYFRONT MEDICAL CENTER
703 So.2d 1163 (Fla.App. 1 Dist. 1997)
Special Employee: Design Engineer Assigned by Agency to Plant Was Special Employee
HANCHETT V. GRAPHIC TECHNIQUES INC.
667 N.Y.S.2d 436 (A.D. 3 Dept. 1997)
State Fund: Purchase of Assets Was Not De Facto Merger
STATE EX REL. V. BUR. OF WORKERS' COMP.
687 N.E.2d 763 (Ohio 1998)
Statute of Limitations: Employer Did Not Have Actual Knowledge of Use of Sling to Toll
Statute of Limitations
WEAVER V. SOUTHERN BELL
703 So.2d 1213 (Fla.App. 1 Dist. 1997)
Statute of Limitations: Runs When Employee Informed of Condition and Employee Incapable
of Earning Same Wages
HOWARD V. SQUARE-D CO.
494 S.E.2d 606 (N.C.App. 1998)
Statutory Construction: Workers' Compensation Statute Restricting Subrogation Under
No-Fault Did Not Apply as Accident Was in Another State
McHENRY V. STATE INS. FUND
666 N.Y.S.2d 221 (A.D. 3 Dept. 1997)
Stress: Generalized Stress Did Not Result in Compensable Heart Injury
HOLDEN V. FORD
572 N.W.2d 268 (Mich.App. 1997)
Stress: Not Preceded or Accompanied by Physical Injury Is Not Compensable
ABERNATHY V. CITY OF ALBANY
495 S.E.2d 13 (Ga. 1998)
Suitable Employment: Refusal of Position Which Was Not Suitable Did Not Disqualify
Claimant
DIXON V. CITY OF DURHAM
495 S.E.2d 380 (N.C.App. 1998)
Temporary Total: Award Not Precluded by Prior Determination of Permanency
STATE EX REL. V. INDUS. COMM.
689 N.E.3d 951 (Ohio 1998)
Third Party Action: Settlement Could Not Be Approved Without Determination of
Subrogation Issues
REYNOLDS V. CITY OF SYRACUSE
667 N.Y.S.2d 564 (A.D. 4 Dept. 1997)
Third Party Action: Subrogation Not Dependent on Employee Being Made Whole
CASTLEMAN V. ROSS ENGINEERING, INC.
958 S.W.2d 720 (Tenn. 1997)
Third Party Action: Suit for Willful and Intentional Removal of Safety Guard Permitted
to Proceed
HADDOCK V. MULTIVAC, INC.
703 So.2d 969 (Ala.Civ.App. 1996)
Third Party Action: Suit Which Alleged Worker Not Injured in Course of Employment
Stated Contribution Claim
CHIANG V. WILDCAT GROVES, INC.
703 So.2d 1083 (Fla.App. 2 Dist. 1997)
Third Party Action: Workers' Compensation Insurer Entitled to Pursue Medical
Malpractice Claim
KOZAK V. MOIDUDDIN
689 N.E.2d 217 (Ill.App. 1 Dist. 1997)
Willful Intention: Exception Worked to Deny Coverage for Professional Buyers
ESTATE OF GROSS V. THREE RIVERS INN INC.
667 N.Y.S.2d 71 (A.D. 3 Dept. 1997)
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