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June
1998
Volume 18, Number 6
Monthly Sections:
Top
A workers' compensation insurance company may be liable for its negligent
management of a claimant's medical care. (click here
for a synopsis of the case.)
In the Indiana case of Vakos v. Travelers the claimant had a workers' compensation
back injury and sued the workers' compensation carrier in tort for its referral of him to
a physiatrist instead of a spinal injury specialist. The plaintiff alleged that this
negligent referral and the failure to enroll him in an adequate physical therapy program
caused his back injury to not heal properly.
The court of appeals ruled that as the tort was committed subsequent to and independent
of the original injury it was not barred by the exclusive remedy provision of the Workers'
Compensation Act. The case is currently on appeal.
The AFL-CIO is proposing legislation that would permit injured workers to introduce a medical, dental, or hospital record as proof of the existence of a condition or the necessity of treatment. SBI passed the Maryland Senate but it is opposed by the Maryland Chamber of Commerce.
The AFL-CIO has proposed the legislation as a cost-savings measure as workers who are
receiving $200 in workers' compensation cannot afford to pay for the costs of having a
doctor testify in a contested workers' compensation case.
The Maryland Chamber of Commerce states that "the doctor's testimony is critical to
the outcome of compensation cases".
Workers' compensation insurers are fighting hard against federal legislation that
would increase the confidentiality of medical records in workers' compensation cases. The
patient authorization process will, according to insurers, "increase delays and
costs" in workers' compensation cases. According to the Alliance of American
Insurers, "the bill is on the radar screen of the entire business community."
For additional information see the "Health Care Personal Information Nondisclosure
Act of 1998" (S.1921) introduced by Senator Jim Jeffords of Vermont.
When a workers' compensation claimant earns $40 carving wooden mailboxes and
fails to report it as income, he is subject to criminal penalties for workers'
compensation fraud. What happens when workers' compensation insurers misreport premium
volume to the tune of $3.5 million?
The Arkansas Insurance Department treated this as a "misunderstanding" and
will not even assess fines or penalties. John Kennedy, the Chief Executive Officer of the
Commission, stated, "We are trusting the insurers to do what's right."
The historic battle known as the Irving case continues on in the federal courts.
For those who may have forgotten, Gail Irving was "grievously injured in 1979 in a
gruesome work accident" while working for a New Hampshire shoe company. Lead counsel
Paul R. Cox filed suit in the Federal District Court in an FTCA claim based upon two
negligent safety inspections by OSHA "compliance officers".
Between 1981 and 1995 the U.S. District Court Judge ruled in the government's favor three
times and the U.S. Court of Appeals vacated the decision and remanded the case with
instructions. On April 8, 1998, the U.S. Court of Appeals in a 99-page decision again
ruled for the plaintiff.
Will the litigation ever end? Lead counsel Paul R. Cox reports that the Justice Department has vowed to take this case to the U.S. Supreme Court if necessary.
For additional information call Paul R. Cox, Esq., at 603-742-2332.
Are 80 percent of injured workers staying out of work unnecessarily? According to a survey by ManagedComp, a national managed care organization, 24 percent of workplace injuries currently result in lost time. However:
Ninety percent of the physicians surveyed believe that, at most, 10 percent of work-related injuries warrant more than one to three days for recuperation. In fact, more than half of the 97 physicians surveyed believe that less than 5 percent of the injuries require lost time.
"These findings suggest that non-medical reasons are the usual cause for delay in returning an injured employee to work," said Jennifer Christian, M.D., vice president and chief medical officer at ManagedComp. More than two-thirds of the physicians surveyed said the following reasons commonly occur in their practice or their community:
1. The employer has a policy against light duty;
2. The employer cannot temporarily modify a job;
3. The treating doctor is unwilling to force a patient back to work;
4. The treating doctor is not equipped to determine the right restrictions and limitations;
5. A treating doctor feels caught in the middle between the employer's and employee's version of the situation;
6. Too little information about the physical demands of the job has been provided to the treating physician;
7. There is a conflict between the opinions of two physicians.
As a result of the above, ManagedComp concludes "80 percent of lost time is unnecessary".
If you don't believe the above, contact Ms. Julie Ferguson at 781-672-3056 for a full
copy of the survey.
A new study sponsored by NIOSH and being conducted at Michigan State University has found that injured workers are not filing legitimate workers' compensation claims because they are afraid to file them. As many as 75 percent of injured workers do not file a claim and 23 percent of workers who have lost seven consecutive days do not file claims.
The research indicated four main reasons the claims are not being filed:
1) Fear of loss of job, promotion, obtaining medical treatment, and of being labeled a malingerer.
2) Forty-seven percent have filed for sick leave or short-term disability instead of workers' compensation.
3) In many workers the "injury wasn't serious enough".
4) Many injured workers did not understand that they were entitled to workers' compensation benefits.
How pervasive is the fear of injured workers? Forty-four percent of workers who did not file their claims gave as their reason "fear of retaliation".
For additional information see the April 1998 issue of On Workers' Compensation,
entitled "Fear of Filing", or call 800-274-6774.
Despite an almost complete lack of reliable evidence, the incidence of
"workers' compensation fraud" continues to be blamed for many of the ills of the
state workers' compensation systems.
How bad is it? Here are the "latest signs of workers' compensation fraud":
- Rumors of illegitimate injury by co-workers;
- Employees or spouses who have a business
on the side;
- Complaints that do not match medical
evaluations;
- Refusal to undergo diagnostic procedures that
would confirm injury;
- Inability to verify an accident; and
- Delayed injury report to the supervisor.
For a copy of the entire article in which the above "signs of workers'
compensation fraud" appeared, see "Conducting a Self-Analysis: Are You in
Control of Workers' Compensation Costs" by Susan F. Hedrick, Journal of Workers'
Compensation, vol. 7 no. 3, or call 617-457-0600.
Workers' compensation insurers and self-insurers are being told that broad-based attempts to reverse the gains from workers' compensation reforms are a serious and real threat.
Barry L. Lellewellyn, Senior Vice President and Actuary for the NCCI, stated that the "threats will require diligence on all our parts if we want to hold onto the gains that have been made in the workers' compensation market."
Lellewellyn cited organized labor for spending $35 million to "bolster their influence with state legislators" and an attack by the courts on workers' compensation reform as well.
Lellewellyn stated, "We are not seeing very many proposals to take additional
benefits out of the system; they are going the other way."
The state and federal workers' compensation systems will have to develop more
sophisticated workers' compensation case law to deal with the increasing number of workers
who are working flexible work schedules.
In May 1997, about 25.0 million full-time wage and salary workers had flexible work
schedules that allowed them to vary the time they began or ended work, the Bureau of Labor
Statistics of the U.S. Department of Labor reported. The proportion of workers with such
schedules was 27.6 percent, up sharply from the 15.1 percent recorded when the data were
last collected in May 1991. The increase in flexible work schedules was widespread across
demographic groups, occupations, and industries.
These findings were obtained from a supplement to the May 1997 Current Population Survey (CPS), a monthly survey of about 50,000 households that provides the basic data on national employment and unemployment. The information presented in this release pertain to wage and salary workers who were at work during the May 1997 reference week and who usually worked 35 or more hours per week. The survey also collected information about the prevalence of shift work. Some of the highlights from the 1997 survey are:
- Men were somewhat more likely to be working flexible schedules than women (28.7 and 26.2 percent, respectively).
- Private-sector employees were more likely to have flexible work hours than those in the public sector (28.8 versus 21.7 percent).
- About 15.2 million persons normally worked a shift other than a regular daytime schedule.
For additional information call 202-606-6378.
American Re-Insurance Company has released its 1998 booklet entitled "Workers'
Compensation Claim Settlements". The booklet contains the answers to the following
questions in 51 jurisdictions:
For a complimentary copy of the booklet fax your request to 609-243-4558.
Don't look now but telemedicine may be coming to your workers' compensation system. How will "telemedicine" streamline permanent impairment evaluations, dispute resolution, and surgical second opinions?
The Texas Research and Oversight Council on Workers' Compensation explains in their report "Telemedicine Applications in the Texas Workers' Compensation System":
In addition to extending the reach of general medical care, telemedicine offers unique opportunities to a workers' compensation system that must deal with complex insurance arrangements, the final impact of permanent impairment, and dispute resolution, among other issues. Applying telemedical technologies to the Designated Doctor system and the Spinal Surgery Second Opinion process can potentially bring significant efficiencies and expertise to areas that have historically proved complicated and contentious. Telemedicine is especially suited to the type of follow-up consultative examinations that are common in the impairment rating and second opinion process. A pilot program would enable the Texas workers' compensation system to test specific telemedical applications before making a full-scale commitment, addressing problem areas in order to maximize the benefits to the overall system. Some of these potential benefits are:
- Greater conformity in the impairment rating process
- Utilization of doctors familiar with the system
-Improved satisfaction of users
- Fewer disputes
- Collaborative efforts among medical professionals, increasing quality of care
- Creation of an electronic mail audit
For a complimentary copy of the full report call 512-469-7811 or fax your request to
512-469-7481.
The upcoming AMA Guides Newsletter (May-June Issue No. 11) will contain an interesting article on "Illness Behavior: A Potential Confounder in Evaluating Permanent Impairment", written by Leon H. Ensalada, MD. Dr. Ensalada defines "illness behavior" as the ways in which given symptoms may be differently perceived, evaluated, and acted upon by different persons.
Interestingly, Dr. Ensalada states that "symptom exaggeration is not mutually exclusive with disease, impairment, or disability".
To order the AMA Guides Newsletter No. NG034096AFA or for information call
800-621-8335.
NIOSH has released its criteria for a recommended standard for occupational exposure to metalworking fluids (MWFs). This January 1998 223-page book contains comprehensive sections on occupational health risks for workers exposed to MWFs and current occupational recommendations and standards.
This criteria document reviews available information about the adverse health effects associated with occupational exposure to MWFs and MWF aerosols. Substantial evidence indicates that workers currently exposed to MWF aerosols have an increased risk of nonmalignant respiratory disease and skin diseases. To prevent or greatly reduce the risk of adverse health effects on exposed workers, NIOSH recommends the exposures to MWF aerosols be limited to 0.4 mg/m3 of air for thoracic particulate mass (or 0.5 mg/m3 for total particulate mass) as a time-weighted average (TWA) concentration for up to 10 hr/day during a 40-hr workweek. Total particulate mass is an acceptable substitute for thoracic particulate mass until thoracic samplers are widely available. This recommended exposure limit (REL) is based on evaluation of heath effects data, sampling and analytical feasibility, and technological feasibility. The NIOSH recommendation for reducing MWF aerosol exposures is supported by substantial evidence associating some MWFs used before the mid-1970s with cancer at several organ sites, and by the potential for current MWFs to pose a similar carcinogenic hazard. However, the primary basis of the NIOSH recommendation is the risk that MWFs pose for nonmalignant respiratory disease.
For a complimentary copy of DHHS (NIOSH) publication no. 98-102 (1/98) fax your request
to 513-533-8573.
After a "dramatic turnaround", workers' compensation premiums were again reduced in Massachusetts bringing the "amount saved" by employers to over $2 billion since the 1993 reforms were enacted. The DIA caseload has dropped from 49,725 to 24,969. But the staff has only been reduced by 11 people, from 333 to 312 full-time employees.
If employers saved $2 billion, how many injured workers have gone without the benefits
they deserve?
The Insurance Service Office, Inc. has unveiled a new employment-related practices liability coverage form which will be utilized in most states after April 1, 1998. This may impact workers' compensation lawyers who also handle employment cases.
The new policy covers: (1) discrimination, (2) wrongful termination, (3) sexual harassment, (4) workplace torts, and (5) coercion.
For a full description of the new policy see the April 1998 issue of The Risk Report, or call 972-960-7693.
Top
ACHILLES TENDON
Wilson v. State Farm Ins., 952 P.2d 528 (Or. 1998)
ARM
Carlson v. Icao, 950 P.2d 663 (Colo.App. 1997)
Pine Timber Trucking Co. v. Teal, 496 S.E.2d 270 (Ga.App. 1998)
ARTERIOSCLEROSIS
Metro. Poultry v. DC Employment Services, 706 A.2d 33 (D.C. 1998)
BACK
Campbell v. W.C.A.B., 705 A.2d 503 (Pa.Cmwlth. 1998)
Cardenas v. Continental Ins. Co., 960 S.W.2d 401 (Tex.App.-Corpus Christi 1998)
Carpet Palace, Inc. v. Salehi, 494 S.E.2d 870 (Va.App. 1998)
Cunningham v. Leisure Inn, 573 N.W.2d 412 (Neb. 1998)
Duenas v. Garland Indep. School Dist., 961 S.W.2d 19 (Tex.App.-Dallas 1996)
Graham v. Turnage Employment Group, 960 S.W.2d 453 (Ark.App. 1998)
Joyce v. W.C.A.B. (Ogden/Allied), 705 A.2d 417 (Pa. 1997)
Lorrain v. Lorrain Carpets, 705 A.2d 536 (Vt. 1997)
McCarty v. Workers Compensation Bureau, 574 N.W.2d 556 (N.D. 1998)
Palermo v. Tension Envelope Corp., 959 S.W.2d 825 (Mo.App. E.D. 1997)
Prior v. Wegmans Food Markets Inc., 667 N.Y.S.2d 852 (A.D. 3 Dept. 1998)
Rodriguez v. Service Lloyds Ins. Co., 961 S.W.2d 318 (Tex.App.-Houston [1st Dist.] 1997)
Seaco v. Richardson, 136 F.3d 1290 (11th Cir. 1998)
Sharpe v. Case Produce Co., 495 S.E.2d 790 (S.C.App. 1997)
BACK: BULGING DISC
Soriano v. Gold Coast Aerial Lift, Inc., 705 So.2d 636 (Fla.App. 1 Dist. 1998)
BACK: DISC
Plantation Mfg. Co. v. Industrial Com'n, 691 N.E.2d 13 (Ill.App. 2 Dist. 1997)
BACK: SPRAIN
Vakos v. Travelers Ins., 691 N.E.2d 499 (Ind.App. 1998)
BRAIN STEM STROKE
Hill v. Bethlehem Steel Corp., 690 N.E.2d 1191 (Ind.App. 1997)
BURNS
Akers v. Warson Garden Apartments, 961 S.W.2d 50 (Mo.banc 1998)
BURNS: CHEMICAL
Lewis v. Georgia-Pacific Corp., 496 S.E.2d 280 (Ga.App. 1998)
CARPAL TUNNEL SYNDROME
Alberty v. Excel Corp., 951 P.2d 967 (Kan.App. 1998)
Ruddick v. Boeing Co., 949 P.2d 1132 (Kan. 1997)
Leathers v. Bath Iron Works & Birmingham Fire Ins., 125 F.3d 78 (1st Cir. 1998)
CARPAL TUNNEL SYNDROME BILATERAL EPICONDYLITIS
Kelly v. CNA Ins. Co., 706 So.2d 198
EMOTIONAL DISTRESS
Talcove v. Buckeye Pipe Line Co., 668 N.Y.S.2d 666 (A.D. 2 Dept. 1998)
EMPHYSEMA
Bath Iron Works v. Dir., Office of Workers' Comp., 136 F.3d 34 (1st Cir. 1998)
EPILEPSY
Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933 (3rd Cir. 1997)
EYE
Harding v. Plumley, 496 S.E.2d 29 (S.C. 1998)
HAND: PARTIAL AMPUTATION
Lenane v. Continental Maritime of San Diego, 72 Cal.Rptr.2d 121 (Cal.App. 4 Dist. 1998)
HANDS
Gilchrist v. Newport News Shipbuilding & Dry Dock, 135 F.3d 915 (4th Cir. 1998)
HANDS: REPETITIVE MOTION DISORDER
Johnson v. First Union Corp., 496 S.E.2d 1 (N.C.App. 1998)
HEARING LOSS
Clanton v. Teledyne Neosho, 960 S.W.2d 532 (Mo.App. S.D. 1998)
HEART ATTACK
Gooden v. Director, O.W.C.P., 135 F.3d 1066 (5th Cir. 1998)
LaTourette v. W.C.A.B., 72 Cal.Rptr.2d 217 (Cal. 1998)
LaTourette v. W.C.A.B., 951 P.2d 1184 (Cal. 1998)
Walker v. Distran Steel Fabrication, 705 So.2d 1299 (La.App. 3 Cir. 1998)
HYPERTENSIVE PNEUMONITIS
Polk v. Planet Ins. Co., 951 P.2d 1015 (Mont. 1997)
KNEE
Buckingham v. Health South Rehab. Hosp., 952 P.2d 20 (N.M.App. 1997)
Rhoads v. Board of Trustees, 689 N.E.2d 266 (Ill.App. 1 Dist. 1997)
State Ex Rel. Workers' Comp. Div. v. Gerdes, 951 P.2d 1170 (Wyo. 1997)
Takaki v. Allied Machinery Corp., 951 P.2d 507 (Hawaii App. 1998)
KNEE: CHONDROMALACIA
Nationwide Mut. Ins. Co. v. Kidwell, 691 N.E.2d 309 (Ohio App. 4 Dist. 1996)
LEG: FRACTURE
Brown v. Alabama Elec. Co., 959 S.W.2d 753 (Ark.App. 1998)
LUNG DISEASE
Knorr v. W.C.A.B. (Reading Anthracite), 705 A.2d 1370 (Pa.Cmwlth. 1998)
MULTIPLE CHEMICAL SENSITIVITY
Knapp v. Vestal Cent. School Dist., 668 N.Y.S.2d 718 (A.D. 3 Dept. 1998)
NECK
Gendreau v. Tri-Community Recycling, 705 A.2d 1106 (Me. 1998)
Gray v. Graves Mountain Lodge, Inc., 494 S.E.2d 866 (Va.App. 1998)
Udvari v. W.C.A.B. (USAir, Inc.), 705 A.2d 1290 (Pa. 1997)
PARAPLEGIA
Lesniewski v. W.B. Furze Corp., 705 A.2d 1243 (N.J.Super.A.D. 1998)
PARKINSON'S DISEASE
De Basa v. NYC Dept. of Highways, 668 N.Y.S.2d 280 (A.D. 3 Dept. 1998)
PNEUMOCONIOSIS
Dixon v. Blue Diamond Coal Co., Ky.App., 960 S.W.2d 475
POSTTRAUMATIC STRESS DISORDER
Palevsky v. New York City Bd. of Educ., 667 N.Y.S.2d 991 (A.D. 3 Dept. 1998)
PSYCHOLOGICAL
Davis v. Medical Arts Laboratory, 952 P.2d 52 (Okla.Civ.App. Div. 3 1997)
PSYCHOLOGICAL: DEPRESSION
Terrell v. Arkansas Trucking Service, Inc., 959 S.W.2d 70 (Ark.App. 1998)
PSYCHOLOGICAL INJURIES
Cummings v. Omaha Public Schools, 574 N.W.2d 533 (Neb.App. 1998)
SHOULDER
Burnside v. Cessna Aircraft Co., 951 P.2d 1315 (Kan.App. 1998)
Department of Parks & Tourism v. Helms, 959 S.W.2d 749 (Ark.App. 1998)
Smart v. Scrivner/Food 4 Less, 574 N.W.2d 505 (Neb. 1998)
SMALL AIRWAY DISEASE
Robinson v. B.O.C. Group, 691 N.E.2d 667 (Ohio 1998)
ULNAR NERVE NEUROPATHY
Rocha v. State, 705 A.2d 965 (R.I. 1998)
Top
Bad Faith: Advice on Medical Care
VAKOS V. TRAVELERS INS.
691 N.E.2d 499 (Ind.App. 1998)
The Indiana Court dealt with the plaintiff, Vakos, who injured his back at work on May
27, 1992. The workers' compensation insurer retained Crawford and Company who in turn
retained Conservco. Conservco assigned a nurse case manager, Smith, who changed the
treating physician to a physiatrist, Dr. Graham. A recommended chronic pain management
program was determined to be "too costly". The claimant did not make a good
recovery.
The claimant alleged his medical care was mismanaged and caused him additional injuries.
He sued the workers' compensation insurer, Crawford and Company, and the case manager in
tort.
The court rejected the exclusivity defense and found that the harm was a subsequent injury
and not barred by the workers' compensation statute.
The court stated:
Here, Vakos is not claiming that the appellees fraudulently or wrongfully denied or discontinued his compensation benefits with respect to any work-related injury. Nor is Vakos seeking the type of damages which would flow from such a claim: past due benefits, interest, costs, and fees. Instead, Vakos is claiming that the appellees caused his direct physical harm (a PPI rating of 20 percent amounting to a decreased potential for rehabilitation) through their negligence in directing and advising him to obtain medical care, which Vakos alleges was improperly given to him. The acts of negligence, which Vakos alleges the appellees committed, were committed subsequent to and independent of the original injury. Such injuries allegedly occurred as the result of the appellees' negligence in directing Vakos's medical treatment, and not in processing the claim for benefits for the underlying injury. We, therefore, find that the Workers' Compensation Act does not preclude Vakos's suit and that the trial court erred in granting the appellees' motion to dismiss.
Bad Faith: Fraud by Employer and Insurer
JOHNSON V. FIRST UNION CORP.
496 S.E.2d 1 (N.C.App. 1998)
The North Carolina Court dealt with the plaintiff, Johnson, who developed repetitive
motion disorder at work. She signed an agreement as to compensation which was later
"whited out" and changed to limit the duration of her benefits. The insurer then
intentionally provided her physician with a videotape which inaccurately depicted her
work-related activities. Based upon the fraudulent videotape her physician withdrew his
opinion that she was disabled and she was denied workers' compensation.
The plaintiff then sued her employer and the workers' compensation insurer for bad faith
in tort.
The court found that the exclusive remedy provision of the Act did not bar the claim for
intentional infliction of emotional distress, bad faith, unfair or deceptive trade
practices, and civil conspiracy.
The court stated with regard to unfair trade practices:
When "an insurance company engages in conduct manifesting an inequitable assertion of power or position", including conduct which can be characterized as "unethical", that "conduct constitutes an unfair trade practice." In this case the alleged alteration of the Form 21 agreement and the misrepresentation of plaintiff's work duties to plaintiff's physicians by the insurer are actions which meet this definition. Thus the plaintiff's claim for relief on these grounds was improperly dismissed against the insurers.
Claim: 13 Years Late
BURNSIDE V. CESSNA AIRCRAFT CO.
951 P.2d 1315 (Kan.App. 1998)
The Kansas Court dealt with the claimant, Burnside, who began working for Cessna
Aircraft Company (Cessna) in August 1972 as a sheet metal assembler. The claimant had to
work overhead and lift parts over her head that weighed well in excess of ten pounds. The
claimant testified that on April 2, 1981, she was holding a bucking bar (a big piece of
heavy metal regularly used by sheet metal assemblers) into which a co-employee was driving
rivets, when she felt a sharp pain in her right shoulder. The claimant further testified
that the bucking bar had hit her in the shoulder.
She was out of work for four months and then returned to work. On June 13, 1994, some 13
years later she filed her workers' compensation claim.
The court found that as the employee's report of accident was never filed her claim was
not time barred as the time to file the claim was tolled by the failure to file the
accident report.
As to the doctrine of laches, the court rejected this defense as well and stated:
Distilled to its essence, Cessna claims the claimant's application for benefits should be estopped by the doctrine of laches. However, Cessna cites no Kansas cases or statutory authority to support this argument. Furthermore, there is some question if this argument is properly before this court. Even if we assume we have jurisdiction to decide this issue, Cessna is not entitled to any relief. Under the "strict application" principles announced in Continental Can, there is no statutory authority in Kansas which would permit the doctrine of laches to time bar a claimant's application for workers' compensation benefits, because the Kansas Workers' Compensation Act is complete within itself.
Constitutionality: Change of Medical Provider
CARLSON V. ICAO
950 P.2d 663 (Colo.App. 1997)
The Colorado Court dealt with the petitioner, Carlson, who is a physician and who
started to treat the claimant after her industrial arm injury. The workers' compensation
insurer sought a medical utilization review.
The MUR panel unanimously agreed that petitioner's care was not reasonably necessary to
cure or to relieve claimant of the effects of the industrial injury and that petitioner
should not continue to treat claimant. Giving great weight to this recommendation, as
required by Sec. 8-43-501(3)(d), C.R.S.1997, the Director of the Division of Labor ordered
that a change of physicians be made in accordance with Sec. 8-43-501(4), C.R.S.1997.
Petitioner timely appealed the director's order and requested a hearing.
The court found that the physician had standing to bring the suit but that the
physician did not have a due process right to a hearing before the claimant was ordered to
change physicians.
The court found that the physician lacked a property interest and stated:
Further, while an accredited provider is entitled to a hearing under certain circumstances, such as when payment of fees has been retroactively denied or when the provider's accreditation has been revoked, such entitlement does not create a property interest that independently entitles the petitioner to a hearing on the matters at issue here.
Accordingly, we conclude that petitioner lacks either a sufficient property or liberty interest under the present circumstances to be entitled to due process protections.
Constitutionality: Third Party Suit
LEGROS V. WESTLAKE POLYMERS CORP.
704 So.2d 876 (La.App. 3 Cir. 1997)
The Louisiana Court dealt with the plaintiff, Legros, who fell off a roof and was
injured at work. He received workers' compensation benefits and then filed a third party
suit. The workers' compensation insurer, St. Paul, attempted to intervene in the third
party suit, i.e. become actively involved in the depositions and trial before the jury.
The workers' compensation insurer challenged the constitutionality of any decision which
would deprive them of their "due process right" to actively participate in the
liability phase of the third party suit.
The court affirmed the denial finding no constitutional infirmity.
The court stated:
However, by allowing the employer to participate in the damages phase of the proceedings, "[t]he employer's right to indemnity is preserved and double recovery by the employee prevented by authorizing the employer to intervene in the employee's suit and requiring that the judgment be in favor of the employer to the extent required to indemnify him. Thus, only the excess goes to the employee." Austin and St. Paul are not denied equal protection in not being allowed to participate in the liability phase of the proceedings.
Austin and St. Paul finally argue that they will be denied access to court to defend their property right, in violation of the guarantee of La. Const. art. I, Sec. 22, the open courts provision. This is a mandate to the judiciary rather than a limitation on the legislature. As we have pointed out, Austin and St. Paul do not have a cause of action that is a vested property right until a third party is found liable. Therefore, this constitutional provision affords no substantive relief in the present case.
Denial: Choice of Retirement Benefits
ROCHA V. STATE
705 A.2d 965 (R.I. 1998)
The Rhode Island Supreme Court dealt with the claimant, Rocha, who had worked as a
stenographer in the Family Court and the Workers' Compensation Court for over 25 years. In
June of 1987 she began receiving workers' compensation benefits because of a work-related
injury she sustained, bilateral ulnar nerve neurotherapy, that eventually required
corrective surgery. Against her doctor's recommendation and despite concerns about her
ability to perform her job-related duties, Rocha returned to work on May 8, 1989. Soon
thereafter, however, she began experiencing increasing physical discomfort, and her
condition eventually deteriorated to a point where she could no longer tolerate the pain.
As a result, Rocha stopped working on June 22, 1989, and began discharging her accumulated
sick time and vacation days.
She retired on "regular service retirement" and then filed for workers'
compensation benefits. The judge denied her claim due to the fact that he found the
claimant took her regular retirement and not a service retirement so she could collect
both workers' compensation and retirement. He found this destroyed her credibility.
The court reversed the denial finding that filing for regular retirement did not impact
the credibility of the claimant.
The court stated:
Similarly, the "obvious disapproval" of the trial judge in this case regarding Rocha's choice of retirement benefits cannot form the basis for the denial of compensation benefits. Rocha's election of two legal options available to her has absolutely no bearing on credibility, and such a decision constitutes a manifest error of law. Furthermore, Rocha's credibility was not a significant factor in determining whether she had suffered a compensable injury. The sole issue before the court was whether Rocha experienced a return of her incapacity. To that end Rocha presented the uncontroverted testimony of her physician, Dr. Hubbard, who testified that he had advised Dr. Rocha against returning to work because of its repetitive activity and the post-surgery discomfort she continued to experience.
Exclusivity: Negligent Infliction of Emotional Distress
MALIK V. CARRIER CORP.
986 F.Supp. 86 (D.Conn. 1997)
The U.S. District Court (D. Connecticut) dealt with the plaintiff, Malik, who was
employed by Carrier Corp. in a two-year leadership associated program. After a rocky two
years, the plaintiff was not placed and then was fired. He filed suit against his employer
and obtained a $400,000 verdict for negligent infliction of emotional distress.
The court found that as the workers' compensation reform statute "legislated out
mental-mental cases" the exclusivity provision no longer barred negligent infliction
of emotional distress claims against the employer.
The court stated:
In 1993, the Connecticut's Workers' Compensation Act was amended to exclude from the definition of "personal injury ... [a] mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease." C.G.S.A. Sec. 31-275(16)(B)(ii). Thus, since the workers' compensation bar on common-law claims applies only to personal injuries, and since after July 1, 1993, emotional distress that does not arise from a physical injury or occupational disease is not a "physical injury", it naturally follows that the Workers' Compensation Act does not bar negligent infliction of emotional distress claims incurred after July 1, 1993. Bennett v. Beiersdorf, supra, 889 F.Supp. at 50.
The court went on to uphold the verdict and stated:
There was sufficient evidence from which the jury could have concluded that the activities of defendant's Human Resources persona were excessive and unnecessary and, indeed, even retaliatory, causing the plaintiff severe emotional distress. We cannot say, therefore, that there was a complete absence of evidence to support the verdict in plaintiff's favor.
Exclusivity: Racial Discrimination
TAKAKI V. ALLIED MACHINERY CORP.
951 P.2d 507 (Hawaii App. 1998)
The Hawaii Court dealt with the plaintiff, Takaki, who injured his knee at work in 1990
and was later discharged due to racial discrimination. The plaintiff filed a
discrimination complaint with the EEOC and then filed suit in state court.
The employer attempted to interpose a workers' compensation exclusivity defense. The court
rejected the defense finding that there was a genuine issue of material fact as to whether
the employers' terminating employee in alleged context of racial discrimination was so
unreasonable or outrageous so as to constitute intentional infliction of emotional
distress.
The court stated:
Takaki's affidavit in opposition to appellees' motion, however, stated that "[h]e did sometimes say that he would not work for his immediate supervisor, [Bonawitz], especially after [Bonawitz] called [Takaki] `names', such [as] ... `lousy f--king Jap', and so on, which was quite often". We are mindful that "the inferences to be drawn from the underlying facts alleged in the materials (such as depositions, answers to interrogatories, admissions, and affidavits) considered by the court in making its determination must be viewed in the light most favorable to the party opposing the motion", and we instruct the court on remand to view Takaki's affidavit in such a light.
Exclusivity: Refusal to Pay Medical Expenses
KELLY V. CNA INS. CO.
706 So.2d 198 (La.App. 2 Cir. 1998)
The Louisiana Court dealt with the plaintiff, Kelly, who due to repetitive work
developed carpal tunnel syndrome bilateral epicondylitis. She had surgery and returned to
work. She had to stop working and was paid workers' compensation and medical benefits
until the workers' compensation insurer terminated these benefits. The claimant alleges
that CNA, "for no reason whatsoever", terminated these benefits. She further
alleged that this action devastated her financially, cast her into clinical depression,
and made her suicidal. She specifically alleged that CNA and Shield Pack knew of her
deteriorating condition but took no steps to assist her; continuing to withhold benefits,
they aggravated her condition. In addition to her mental condition, Ms. Kelly alleged that
the defendants' action caused her physical condition to deteriorate for lack of proper
care. She concluded, in paragraph 11, that the worsening of her condition resulted from
"either intentional conduct on the part of the Defendants or conduct that they should
have known would cause petitioner's injury to worsen, and that this worsening is separate
and distinct from the injury sustained on the job."
The court found that the exclusivity provision of the Workers' Compensation Act did not
bar the case.
The court stated:
... we hold that the injured employee states a tort cause of action when he alleges (1) he suffered what it not disputed to be a compensable injury; (2) intentional and arbitrary refusal to pay reasonable and necessary medical expenses results in a significant, immediate deterioration of his health; (3) this result would not have occurred otherwise and could not have been averted by recourse to the Act; and (4) the employer or insurer knew that such results were substantially certain to follow from the refusal to pay.
In Course of Employment: Sexual Assault
GOODMAN-HERRON V. SAIF CORP.
950 P.2d 932 (Or.App. 1997)
The Oregon Court dealt with the claimant, Goodman, who was employed by SAIF and who
traveled with a co-worker, Hirsch, to meet with customers. On March 8, 1994, following a
business dinner, Hirsch and the claimant returned to claimant's hotel room to prepare for
meetings the next day. After finishing her work, she took some pain medication for her
neck, later falling asleep while watching television. During this time, Hirsch continued
to work in the claimant's room. Later, claimant awoke to find Hirsch sexually assaulting
her. Afterward, Hirsch convinced the claimant that she would lose her job if she reported
the incident. The claimant did not immediately contact the police or inform employer.
The claimant continued to work for employer, hoping to put the incident behind her.
However, after returning from Virginia, Hirsch continually subjected claimant to sexual
harassment, including unwanted physical touching. The claimant became increasingly
despondent over the situation and, in April 1994, she reported the Quantico incident to
two co-workers.
The court reversed the denial of benefits finding that unless the assault was personal the
assault would be in the course of employment and covered by the Workers' Compensation Act.
The court stated:
The court held that "[a]n injury arises out of employment if the risk of injury results from the nature of the claimant's work or from the work environment". By adding the factor "work environment", the court constructed a test that "does not [necessarily] require that the motivation for a coemployee's assault be an argument over job performance or some other work-related factor".
Thus, in the absence of evidence showing that the motivation for the assault was personal to the claimant, and accordingly, imported into the work environment, "the risk of an assault by a coemployee in the workplace is a risk to which the work environment exposes an employee".
In Course of Employment: Skip-Stepped
WILSON V. STATE FARM INS.
952 P.2d 528 (Or. 1998)
The Oregon Supreme Court dealt with the claimant, Wilson, who was employed as a
secretary for a certified public accountant (employer). Shortly before the end of her
workday on a Friday afternoon, she asked her employer if she could leave work early. Her
employer told her that she could leave work early, after she transferred the office
telephone to the answering service. As claimant walked from her employer's office to her
work area, she "skip-stepped" around a corner. In doing so, she tore her
Achilles tendon, an injury requiring medical attention.
The court reversed the denial of benefits finding just because the claimant used an
"unusual means of ambulation" does not mean that her accident did not arise out
of the course of her employment.
The court stated:
If an injury resulting from a prohibited method of accomplishing a task is compensable, a fortiori, an injury resulting only from an unusual method of doing so generally is compensable. In short, the fact that employer did not contemplate or expect claimant's precise method of rounding the corner as she returned to her office does not render her resulting injury noncompensable.
We conclude that claimant has satisfied the "arising out of" prong of the work-connection test by showing a causal link between her injury and her work. The "in the course of" prong was uncontested. Thus, claimant demonstrated her entitlement to compensation.
Longshore: Container Royalty and Holiday/Vacation Payments
SEACO V. RICHARDSON
136 F.3d 1290 (11th Cir. 1998)
The U.S. Court of Appeals (11th Cir.) dealt with the claimant, Richardson, who on April
8, 1991, injured his back while working as a longshoreman. In December 1991 he received a
$10,000 payment pursuant to his longshoremen's contract for container royalty and
holiday/vacation pay. The employer attempted to offset this $10,000 against his workers'
compensation benefits.
The court affirmed the denial of the offset finding that as the $10,000 was not intended
as an advance payment of workers' compensation it could not be credited against the
longshore benefits due.
The court stated:
We agree. The lump-sum container royalty and holiday/vacation payments received by Richardson in December 1991 were principally earned as a result of Richardson's pre-injury employment during the contract year ending September 1991. The "gratuity" hours that Richardson received during his period of disability were credited to Richardson pursuant to the terms of the ILA union contract and were not based on any services rendered by Richardson to SEACO. Therefore, we hold that Richardson's receipt of container royalty and holiday/vacation payments does not represent post-injury "wage-earning capacity" under Sec. 8(h), that the payments do not convert his temporary total disability to a partial disability, and thus that the petitioners are not entitled to any credit for these payments to Richardson during the period of his disability.
Medical Care: Angina and Arteriosclerosis
METRO. POULTRY V. DC EMPLOYMENT SERVICES
706 A.2d 33 (D.C. 1998)
The District of Columbia Court dealt with the claimant, Robinson, who worked as a truck
driver and delivery man for Metropolitan. On November 8, 1988, while unloading a delivery
of chickens from his refrigerated truck, he developed severe chest pains and was taken to
a hospital, where he was diagnosed as having unstable angina (a "group of symptoms
coming on suddenly and intermittently as a result of a sudden contraction of the smaller
arteries which supply blood to the heart muscle"). Robinson was admitted and, during
his stay, the unstable angina continued. On November 14 a cardiac catheterization
discovered preexisting coronary artery disease, or arteriosclerosis. Due to this
condition, double bypass surgery was performed on November 22. Both the cardiac
catheterization and the bypass surgery were elective but recommended by Robinson's
doctors. Robinson recovered and returned to work on January 24, 1989, on light duty.
The workers' compensation insurer contested the medical care for the "underlying
heart conditions".
The court affirmed the award finding that the aggravation of a preexisting condition was a
compensable accidental injury.
The court stated:
While the arteriosclerosis was a preexisting condition, according to Dr. Schwartz it would likely have remained quiescent for an indefinite time but for the exertion that led to Robinson's angina attack. Accordingly, the compensation award is affirmed.
Medical Care: Chiropractor Not a Physician
GRAY V. GRAVES MOUNTAIN LODGE, INC.
494 S.E.2d 866 (Va.App. 1998)
The Virginia Court dealt with the claimant, Gray, who suffered injuries to her neck,
back, and hip when she fell on concrete steps while employed by Graves Mountain Lodge,
Inc. When Gray's claim for benefits was pending before the commission, the commission
ordered the employer to "provide to [Gray] a panel of three or more physicians who
have reviewed the medical records in this case, who are qualified to treat [Gray's]
injuries, including the anatomical parts involved, and who are willing to examine [Gray]
with the expectation of rendering continuing medical treatment to [Gray] as her authorized
treating physician." After Gray filed an application for enforcement of the
commission's order, the employer proffered a panel, consisting of two medical doctors and
one chiropractor. Asserting that a chiropractor is not a physician within the meaning of
Code Sec. 65.2-603(A), Gray requested that her application for enforcement of the order be
put on the hearing docket.
The court held that a chiropractor was not a "physician" and thus could not be
included on the panel of physicians.
The court stated:
If the legislature had intended the term "physician" to include chiropractors, it could have specifically included language in the 1982 amendment to state that a chiropractor shall be deemed a "physician" within the subsection. We cannot read such language into the statute when the legislature did not include it. We believe it is clear from the language of the statute that the legislature did not intend the term "physician", as that term is used in Code Sec. 65.2-603, to include chiropractors.
This legislative action clearly establishes that the General Assembly intended to include "chiropractic service or treatment" within the ambit of the broad range of "other necessary medical attention". Nothing in these amendments, however, permits an inference that the General Assembly intended that a chiropractor may be included on a panel of three physicians. Indeed, because the statute was not modified to include the term "chiropractor" within the definition of "physician", the inference is clear that the legislature did not intend that result.
Medical Care: Psychiatric Evaluation
TERRELL V. ARKANSAS TRUCKING SERVICE, INC.
959 S.W.2d 70 (Ark.App. 1998)
The Arkansas Court dealt with the claimant, Terrell, who was working as a truck driver
when he was in a vehicle accident and injured his neck, shoulder, and back. He was placed
on workers' compensation and later became depressed.
After the accident he began having recurring dreams in which a truck he was driving would
go off of a bridge, explode, or catch on fire with him inside, apparently unable to get
out. He said he also began to have frequent headaches and debilitating pain and was afraid
to drive a truck again. Following a recommendation by Joyce Kay Hamilton, M.L.A., a
psychotherapist who interviewed appellant in connection with the work-hardening program,
his treating physician referred him to Dr. Louis E. Deere, D.O., a psychiatrist. However,
he said Dr. Deere visited with him for only about 15 minutes and scheduled him for a
return appointment for evaluation. The insurer refused to authorize payment, and he did
not go back. He felt like he needed continued medical treatment because he suffers from
sleep deprivation, chronic pain, and nightmares about the accident.
The court reversed the denial of benefits and found that he was entitled to a
psychological evaluation to determine if his depression was the result of his workers'
compensation accident.
The court stated:
In the case at bar, the claimant has been only superficially evaluated by a psychotherapist, who interviewed appellant in connection with a work-hardening program, and by a psychiatrist who talked to him briefly. We emphasize that our decision affords appellant only a psychological evaluation by a licensed psychiatrist or psychologist to determine if his mental problems are the result of the injuries he sustained in the accident.
Modification of Benefits: Retroactivity
STARKS V. CORNHUSKER PACKING CO.
573 N.W.2d 757 (Neb. 1998)
The Nebraska Supreme Court dealt with the claimant, Starks, who was injured at work and
found permanently and totally disabled on August 25, 1993. Cornhusker later obtained a
private investigator to observe Starks. Based on the investigator's observations from June
to October 1995, Cornhusker obtained information that Starks was involved in various forms
of unlawful activity, including an illegal cab service ("jitney" service),
buying and selling food stamps, and selling illegal drugs. Cornhusker also obtained
evidence that Starks was selling used cars and was climbing trees to stay physically fit.
Relying on this information, Cornhusker terminated Starks's benefits as of October 29,
1995, without obtaining a modification award.
The court found that as a matter of first impression the retroactive modification could
not go back before the employer's petition for modification.
The court affirmed the modification as changed and stated:
Based on the information obtained from the private investigator, Cornhusker unilaterally terminated Starks's payment of benefits. The compensation court modified Starks's award retroactively to the date of the change in Starks's condition, August 27, 1995, not the date Cornhusker filed the application for modification, November 30. The compensation court's award is modified to the extent that Cornhusker owes Starks total and permanent disability payments from the time it unilaterally discontinued paying benefits to Starks, October 29, 1995, until the date Cornhusker filed an application for modification, November 30 - one month of workers' compensation benefits.
Occupational Disease: Test of Causation
POLK V. PLANET INS. CO.
951 P.2d 1015 (Mont. 1997)
The Montana Supreme Court dealt with the claimant, Polk, who worked in an agricultural
factory for eight years. He was exposed to dust, fumes, and airborne mold. He developed
"farmers' lung", but the causation issue was complicated by the fact that he
smoked 1 1/2 packs of cigarettes per day for 30 years. The hearing examiner denied his
workers' compensation claim.
The court reversed the denial of benefits finding that the standard used, "major or
substantial factor causing the condition", was incorrect as a matter of law.
The court stated:
Therefore, we hold that Polk need not prove that occupational exposures were the major or substantial factor causing his chronic pulmonary condition. Rather, Polk must prove that he is suffering from a disease that is proximately caused by his employment or that exposure to dust and other irritants while in the course of his employment at Koch contributed to or aggravated a preexisting condition. Having stated the appropriate test for causation, we proceed to apply it to this case.
By adopting the doctors' threshold requirement that Polk's occupational exposures be the major or primary factor causing his medical condition rather than reviewing their testimony to determine whether it supports a finding that an occupational exposure contributed to or aggravated Polk's condition, the hearings examiner applied the wrong standard of causation. We hold that the workers' compensation court erred in not overruling the Department of Labor's decision based on this error of law.
Retaliatory Discharge: Exercising Workers' Compensation Rights
PALERMO V. TENSION ENVELOPE CORP.
959 S.W.2d 825 (Mo.App. E.D. 1997)
The Missouri Court dealt with the plaintiff, Palermo, who on April 13, 1988, injured
her back while pushing a carton of envelopes from a table stand to a conveyor belt. In
June 1988, she filed a claim for workers' compensation. After the injury, Palermo was on
and off work due to back pain. Palermo did not return to work after February 2, 1990, and
Tension terminated her employment in November 1990.
Palermo filed a claim against Tension alleging discriminatory treatment and discharge in
violation of Section 287.780. In her petition, Palermo alleges that after exercising her
rights under the workers' compensation laws, Tension discriminated against her by
assigning her to a more difficult machine and not assisting her when she operated certain
machinery which they had done for her before her injury and which they would do for other
machine operators. Palermo further alleges that the discrimination by Tension resulted in
the constructive discharge of Palermo as of February 2, 1990.
The court reversed the summary judgment for the defendant finding that when an employee
alleges emotional distress from discriminatory treatment or discharge by his/her employer
the exclusivity provisions of the Workers' Compensation Act do not apply.
The court stated:
At a minimum, the record demonstrated the following allegations of discrimination against Palermo by Tension: Tension set her machine's production level at almost double the production level of the machine from when Palermo ran it prior to the injury and ran it at a faster speed than is required of other employees; prior to her injury, her supervisors had discussed promoting her to assistant lead lady, but after the injury and filing her workers' compensation claim, these discussions ceased; her supervisors reprimanded Palermo for taking too long on breaks while other employees who took the same amount of time, if not longer, were not reprimanded; her supervisors allowed her to sit and inspect envelopes, a favored and less strenuous assignment given to employees if their machines are inoperative, prior to her injury, but post-injury she was not allowed to do this; she was no longer allowed to take breaks to smoke cigarettes while other employees were allowed... .
Statute of Limitations: Prior Claim
PALEVSKY V. NEW YORK CITY BD. OF EDUC.
667 N.Y.S.2d 991 (A.D. 3 Dept. 1998)
The New York Court dealt with the claimant, Palevsky, who on January 23, 1986, had his
nose broken in breaking up a fight at a school for emotionally disturbed children. He
filed a claim and was paid 11 weeks of workers' compensation benefits. On October 9, 1992,
he requested workers' compensation for consequential posttraumatic stress disorder. The
employer interposed a statute of limitations defense.
The court found that as the posttraumatic stress disorder claim was related to the prior
injury and claim the statute of limitations did not bar the claim for additional benefits
six and one-half years later.
The court stated:
It is clear, however, that when a subsequent claim for disability compensation is related to injuries included in an earlier, timely claim, the two-year time limit set forth in Workers' Compensation Law Sec. 28 does not bar amendment of the timely claim to include the latter injury. Insofar as there is evidence in the record supporting the Board's finding that claimant's posttraumatic stress disorder was related to the January 1986 accident and because claimant unquestionably filed a timely claim for his nose injuries in 1986, we reject the employer's argument.
Third Party Action: Removal of Guard of Power Press
LENANE V. CONTINENTAL MARITIME OF SAN DIEGO
72 Cal.Rptr.2d 121 (Cal.App. 4 Dist. 1998)
The California Court dealt with the plaintiff, Lenane, who was employed by CMSD as a
sheetmetal mechanic at CMSD's shipyard, which is located on the waterfront of the San
Diego bay. CMSD is engaged exclusively in the business of ship repair and related work,
and Lenane spent all of his work time at CMSD performing this work. When Lenane was not
working aboard vessels, he worked in the sheetmetal shop at the CMSD shipyard.
On June 2, 1994, while Lenane was working for CMSD in the sheetmetal shop bending
sheetmetal for vents, his left hand was crushed by a power press resulting in the partial
or complete amputation of three fingers. Lenane filed a claim for California workers'
compensation benefits under the CWCA, and began to receive temporary total disability and
vocational rehabilitation benefits.
In July 1994 Lenane filed an application for adjudication with the California Workers'
Compensation Appeals Board. He later filed a claim for federal workers' compensation
benefits under the LHWCA. The court found that the Longshore Act does not preempt a
shore-based maritime employee from pursuing an action under the California Workers'
Compensation Act for removal of a guard from a power press.
The court found that this was a "sun ship" situation and stated:
California has a legitimate interest in assuring the enforcement of its workers' compensation laws, including the section 4558 exception to the CWCA exclusive remedy rule, with respect to covered injuries sustained within its jurisdiction. In this regard, we agree with the observation of one commentator that because the Supreme Court's jurisprudence has given "free rein" to a covered "twilight zone" worker's choice to pursue his or her remedies under state law.
Voluntary Intoxication: Alcohol Withdrawal
ERC CONTRACTOR YARD & SALES V. ROBERTSON
961 S.W.2d 36 (Ark.App. 1998)
The Arkansas Court dealt with the claimant, Robertson, who on September 18, 1995, fell
10 to 15 feet from scaffolding sustaining a workers' compensation injury. The employer
defended the case based upon a voluntary intoxication defense.
The court affirmed the award of benefits finding that as his blood alcohol level was less
than .01% he was not intoxicated but was in fact suffering from alcohol withdrawal when he
fell.
The court found that despite his long-term alcohol use the fall due to alcohol withdrawal
was compensable.
The court stated:
The medical records indicate that the claimant's physicians believe he suffered an alcohol withdrawal seizure. Based upon those opinions we find that the claimant suffered a fall which was related to alcohol withdrawal. As such, the claimant's fall was caused by a condition which was personal in nature and has been defined as an idiopathic fall. Injuries from idiopathic falls do not arise out of the claimant's employment unless the employment contributed to or aggravated the risk or the injury. While the fall would normally not be compensable because it is personal in nature, in this case, claimant was placed on a scaffold 12 to 15 feet off the ground thereby increasing the effects of his fall. Therefore, claimant's idiopathic fall is compensable.
We agree with the Commission's rationale. Appellee's treating physicians opined that appellee's seizure was the result of alcohol withdrawal. Appellee's employment and his placement on scaffolding 12 to 15 feet above ground increased the effects of the fall, thereby making the fall compensable. Though the seizure appellee suffered was the result of his long-term use of alcohol, we cannot find that appellee's injury was substantially occasioned by such use of alcohol, where his employer and girlfriend corroborated his testimony that he had not had alcohol on the date of the injury.
Voluntary Withdrawal from Labor Market
PRIOR V. WEGMANS FOOD MARKETS INC.
667 N.Y.S.2d 852 (A.D. 3 Dept. 1998)
The New York Court dealt with the claimant, Prior, who when a high school student in
1991 suffered a back injury which the parties concede was causally related to his
part-time employment as a sales clerk. The claimant received workers' compensation
benefits based upon his actual weekly part-time earnings until his employer terminated
benefits on the ground that he voluntarily withdrew from the labor market by enrolling as
a full-time college student. After the claimant was found to have a permanent partial
disability, the parties stipulated to an average weekly wage of $500 for wage expectancy
purposes.
The court affirmed the award of benefits finding that remaining in college did not
constitute a voluntary withdrawal from the labor market.
The court stated:
We affirm. Inasmuch as claimant continued to work on a part-time basis while attending college, we find that there is substantial evidence in the record to support the Board's conclusion that he was sufficiently connected to the labor market to justify an award of workers' compensation benefits. Contrary to the employer's contention, claimant's decision to remain in college rather than accept an offer of full-time employment was entirely reasonable under the circumstances and was not tantamount to a voluntary withdrawal from the labor market.
Accident: Failing to Comply with Lifting Restrictions Resulted in Noncompensable Back
Injury
CARPET PALACE, INC. V. SALEHI
494 S.E.2d 870 (Va.App. 1998)
Aggravation: Claimant Entitled to Workers' Compensation for Aggravation of Preexisting
Back Condition
SHARPE V. CASE PRODUCE CO.
495 S.E.2d 790 (S.C.App. 1997)
Answer: Claimant's Failure to Send Copy of Claim Petition to Employer Did Not Validate
Employer's Delay in Filing Answer
GHEE V. W.C.A.B. (UNIVERSITY OF PA)
705 A.2d 487 (Pa.Cmwlth. 1997)
Appeal: Bureau's Order Dismissing Claim Was Final Appealable Order
McCARTY V. WORKERS COMPENSATION BUREAU
574 N.W.2d 556 (N.D. 1998)
Appeal: Failure to Raise Issue Below Waived Claimant's Right to Contest Issue
CARDENAS V. CONTINENTAL INS. CO.
960 S.W.2d 401 (Tex.App.-Corpus Christi 1998)
Appeal: Failure to Seek Attorney Fees Before Trial Court Waived Issue
ALLSTATE INDEM. CO. V. KNIGHTEN
705 So.2d 240 (La.App. 2 Cir. 1997)
Appeal: May Be Dismissed by Claimant Even Though Employer Appealed
ROBINSON V. B.O.C. GROUP
691 N.E.2d 667 (Ohio 1998)
Appeal: Pleadings Stricken for Failure to File Record
RODRIGUEZ V. SERVICE LLOYDS INS. CO.
961 S.W.2d 318 (Tex.App.-Houston [1st Dist.] 1997)
Appeal: Saturdays, Sundays and Holidays Not Included in Computing Time Periods
WOLF V. W.C.A.B. (COUNTY OF BERKS)
705 A.2d 483 (Pa.Cmwlth. 1997)
Attorney Fees: Due for Obtaining Increase in Attendant Care Benefits
REA V. 7-11 STORES SOUTHLAND CORP.
704 So.2d 120 (Fla.App. 1 Dist. 1997)
Attorney Fees: Due for Obtaining Neurological Evaluation
SORIANO V. GOLD COAST AERIAL LIFT, INC.
705 So.2d 636 (Fla.App. 1 Dist. 1998)
Average Weekly Wage: Does Not Include Mileage for Use of Personal Vehicle
ZANDERS V. GOLDEN AGE HOME CARE CENTER
705 So.2d 296 (La.App. 1 Cir. 1997)
Average Weekly Wage: For Claimant Hired for One Day at $42 Based on $42 Per Week
UNINSURED EMPLOYER'S FUND V. THRUSH
496 S.E.2d 57 (Va. 1998)
Average Weekly Wage: Vested Sick Leave Not Includable in Average Weekly Wage
ORANGE COUNTY SCHOOL BD. V. MUSCANELL
705 So.2d 1026 (Fla.App. 1 Dist. 1998)
Borrowed Employee: Issue of Material Fact Existed as to Whether Worker Was Borrowed
Employee of Manufacturer
BARRAZA V. TOOTSIE ROLL INDUSTRIES, INC.
690 N.E.2d 612 (Ill.App. 1 Dist. 1997)
Borrowed Servant: Plaintiff Borrowed Servant of Employer to Whom Services Were Contracted
Out to
LEWIS V. GEORGIA-PACIFIC CORP.
496 S.E.2d 280 (Ga.App. 1998)
Choice of Law: New York Law on Indemnification and Contribution, i.e. Place of Injury
Controlled
GLUNT V. ABC PAVING CO., INC.
668 N.Y.S.2d 846 (A.D. 4 Dept. 1998)
Claim: Hearing Examiner Could Award Retroactive Benefits Despite Lack of Correct Claim
STATE EX REL. WORKERS' COMP. DIV. V. GERDES
951 P.2d 1170 (Wyo. 1997)
Collateral Estoppel: Claimant Who Originally Pursued Tort Action Estopped from Later
Claiming Causation in Workers' Compensation Case
LORRAIN V. LORRAIN CARPETS
705 A.2d 536 (Vt. 1997)
Collateral Estoppel: Lump Sum Settlement of Workers' Compensation Case Did Not Estop
Pension Board from Relitigating Act of Duty Issue
RHOADS V. BOARD OF TRUSTEES
689 N.E.2d 266 (Ill.App. 1 Dist. 1997)
Complaint: Claimant Had Right to Voluntarily Dismiss Complaint
SCHADE V. OHIO BUR. OF WORKERS' COMP.
691 N.E.2d 772 (Ohio App. 8 Dist. 1997)
Constitutionality: Office of Workers' Compensation Could Not Determine
Constitutionality of Workers' Compensation Statute
PIERCE V. LA FOURCHE PARISH SCHOOL
706 So.2d 178 (La.App. 1 Cir. 1997)
Contribution Claim: Not Covered Claim within Meaning of Insurance Guaranty Association
Act
HUNNIHAN V. MATTATUCK MFG. CO.
705 A.2d 1012 (Conn. 1997)
Coverage: Construction Company with Two Employees Did Not Have Requisite Number of
Employees to be Subject to Coverage
HARDING V. PLUMLEY
496 S.E.2d 29 (S.C. 1998)
Date of Injury: Was Last Date Worked Before Work Restrictions Implemented
ALBERTY V. EXCEL CORP.
951 P.2d 967 (Kan.App. 1998)
Decision: Judgment Rendered on 22nd Day After Hearing Nullity an Lower Decision
Affirmed by Operations of Law
PINE TIMBER TRUCKING CO. V. TEAL
496 S.E.2d 270 (Ga.App. 1998)
Decision: Remand Required to Determine if Attorney Fee Award Based on Present Value of
Future Medical Benefits
BUCKINGHAM V. HEALTH SOUTH REHAB. HOSP.
952 P.2d 20 (N.M.App. 1997)
Dependency: Can Be Determined at Time of Injury or at Claimant's Death
MEADOWOOD V. KELLER
705 A.2d 142 (Md.App. 1998)
Dependency: Widow on Books and Reviewing Salary Was Partially Self-Supporting and Not
Wholly Dependent
BEVERAGE CAPITAL V. MARTIN
705 A.2d 1175 (Md.App. 1998)
Election of Remedies: Acceptance of Workers' Compensation Benefits Barred Subsequent
Tort Case Against Employer
TALCOVE V. BUCKEYE PIPE LINE CO.
668 N.Y.S.2d 666 (A.D. 2 Dept. 1998)
Election of Remedies: After Pursuing Occupational Disease Claim Cannot Proceed
Under Workers' Compensation Act
KNORR V. W.C.A.B. (READING ANTHRACITE)
705 A.2d 1370 (Pa.Cmwlth. 1998)
Employment Status: Mason Was Not Employee of Company Which Contracted with General
Contractors to Build Building
LESNIEWSKI V. W.B. FURZE CORP.
705 A.2d 1243 (N.J.Super.A.D. 1998)
Evidence: Failure to Disclose Medical Reports Results in Them Not Being Admissible
CUNNINGHAM V. LEISURE INN
573 N.W.2d 412 (Neb. 1998)
Evidence Substantial: Claim of Disability Not Credible and Benefits Terminated
HUNTSBERRY V. MARTIN MILLS, INC.
704 So.2d 356 (La.App. 3 Cir. 1997)
Evidence Substantial: Claimant Failed to Prove Engaged in Extraordinary and Unusual
Work
WALKER V. DISTRAN STEEL FABRICATION
705 So.2d 1299 (La.App. 3 Cir. 1998)
Evidence Substantial: Claimant Not Entitled to Award for Psychological Injuries
CUMMINGS V. OMAHA PUBLIC SCHOOLS
574 N.W.2d 533 (Neb.App. 1998)
Evidence Substantial: Claimant's Disability Did Not Arise from Cause Unrelated to Work
Injury
CAMPBELL V. W.C.A.B.
705 A.2d 503 (Pa.Cmwlth. 1998)
Evidence Substantial: Heart Attack While on Business Trip Did Not Occur in the Course
of Employment
LaTOURETTE V. W.C.A.B.
72 Cal.Rptr.2d 217 (Cal. 1998)
Evidence Substantial: Parkinson's Disease Unrelated to Work
DeBASA V. NYC DEPT. OF HIGHWAYS
668 N.Y.S.2d 280 (A.D. 3 Dept. 1998)
Evidence Substantial: Psychological Injury in Oklahoma Bombing Preexisting and Not
Compensable
DAVIS V. MEDICAL ARTS LABORATORY
952 P.2d 52 (Okla.Civ.App. Div. 3 1997)
Evidence Substantial: Teacher Failed to Prove Employment at School Resulted in Multiple
Chemical Sensitivity
KNAPP V. VESTAL CENT. SCHOOL DIST.
668 N.Y.S.2d 718 (A.D. 3 Dept. 1998)
Evidence: Undisputed Affidavit from Expert Sufficient to Establish That Airline Had Not
Paid Workers' Compensation Benefits
IN RE AIR CRASH NEAR CALI, COLOMBIA ON DECEMBER 20, 1995
985 F.Supp. 1106 (S.D.Fla. 1997)
Evidence: Wife of Decedent Could Not Collaterally Attack Decision as to Employment
Status in Personal Injury Law Suit
FELTT V. OWENS
668 N.Y.S.2d 757 (A.D.3 Dept. 1998)
Exclusivity: Bars Claim for Intentional Infliction of Emotional Distress
MATCZAK V. FRANKFORD CANDY AND CHOCOLATE CO.
136 F.3d 933 (3rd Cir. 1997)
Exclusivity: Exposing Employee to Toxic Chemicals Did Not Take Case Out of Workers'
Compensation Exclusivity Bar
TOMPKINS V. INTER. BUSINESS MACHINES
668 N.Y.S.2d 673 (A.D.2 Dept. 1998)
Fall: Unprotected Fall Due to Brain Stem Stroke
HILL V. BETHLEHEM STEEL CORP.
690 N.E.2d 1191 (Ind.App. 1997)
Fraud: Penal Code Provision Was Repealed Before Conduct Took Place
STATE V. McFALL
961 S.W.2d 588 (Tex.App.-San Antonio 1997)
In Course of Employment: Accident While Being Driven Home by Insured in Course of
Employment
STATE FARM MUT. AUTO. INS. CO. V. ROE
573 N.W.2d 628 (Mich.App. 1997)
In Course of Employment: Employees Injured While Traveling Home from Work Site Covered
KEITH V. GELCO CORP.
705 So.2d 244 (La.App. 2 Cir. 1997)
In Course of Employment: Fatal Accident on Way to Work Not Compensable
CARLSON V. DEPT. OF MILITARY AFFAIRS
496 S.E.2d 107 (Va.App. 1998)
In Course of Employment: Fatal Injury from Infection from Being Treated for Heart
Attack on Business Trip Not Compensable
LaTOURETTE V. W.C.A.B.
951 P.2d 1184 (Cal. 1998)
In Course of Employment: Roustabout Injured En Route from Home to Heliport Not Covered
by Workers' Compensation
BERGERON V. MAR-CON, INC.
705 So.2d 232 (La.App. 3 Cir. 1997)
Incarceration: Benefits Are Suspended During Period of Incarceration
BANIC V. W.C.A.B. (TRANS-BRIDGE LINES)
705 A.2d 432 (Pa. 1997)
Injury: Occurred When Claimant Reported Employer His Hands Tingling and Falling Asleep
LEATHERS V. BATH IRON WORKS & BIRMINGHAM FIRE INS.
135 F.3d 78 (1st Cir. 1998)
Jurisdiction: Trial Court Lacked Jurisdiction Where Claimant Failed to Exhaust Its
Administrative Remedies
PACIFIC EMPLOYERS INS. CO. V. REYNOLDS
961 S.W.2d 516 (Tex.App.-San Antonio 1997)
Longshore: Administrative Law Judge Could Not Consider Loss of Wage Earning Capacity in
Calculating Scheduled Injury
GILCHRIST V. NEWPORT NEWS SHIPBUILDING & DRY DOCK
135 F.3d 915 (4th Cir. 1998)
Longshore: Automatic Affirmance of Administrative Law Judge's Decision Did Not Deny
Claimant's Due Process Rights
GOODEN V. DIRECTOR, O.W.C.P.
135 F.3d 1066 (5th Cir. 1998)
Longshore: Contractor Not Entitled to Tort Immunity Under Borrowed Employee Doctrine
BABIN V. NORTH FLORIDA SHIPYARDS, INC.
705 So.2d 66 (Fla.App. 1 Dist. 1997)
Longshore: Decision Failed to Provide Basis for Conclusion That Claimant Reached
Maximum Medical Improvement
MOREHEAD MARINE SERVICE, INC. V. WASHNOCK
135 F.3d 366 (6th Cir. 1998)
Longshore: Employer Not Entitled to Special Fund Relief for Claimant's Smoking-Related
Emphysema
BATH IRON WORKS V. DIR., OFFICE OF WORKERS' COMP.
136 F.3d 34 (1st Cir. 1998)
Longshore: River Pilot Not Covered Under Longshore Act
BLANCQ V. HAPAG-LLOYD A.G.
986 F.Supp. 376 (E.D.La. 1997)
Medical Care: Claimant's Ability to Pay Not Relevant to Employer's Duty to
Provide Medical Care
PLANTATION MFG. CO. V. INDUSTRIAL COM'N
691 N.E.2d 13 (Ill.App. 2 Dist. 1997)
Modification: Of Benefits as Claimant Failed to Make Good Effort to Obtain Work
JOYCE V. W.C.A.B. (OGDEN/ALLIED)
705 A.2d 417 (Pa. 1997)
Offset: Employer's Sick Leave Was Wage Continuation Plan That Could Be Offset Against
Workers' Compensation
GENDREAU V. TRI-COMMUNITY RECYCLING
705 A.2d 1106 (Me. 1998)
Penalty: 15% Increase in Workers' Compensation Benefits Due to Safety Violation
AKERS V. WARSON GARDEN APARTMENTS
961 S.W.2d 50 (Mo.banc 1998)
Penalty: None for Agreement to Extend 180 Day Pay without Prejudice Period
CASE OF GUILFOYLE
690 N.E.2d 1245 (Mass.App.Ct. 1998)
Permanent Impairment: No Support for 4% Impairment Based on Subjective Range of Motion
Testing
DEPARTMENT OF PARKS & TOURISM V. HELMS
959 S.W.2d 749 (Ark.App. 1998)
Premiums: Insured's Failure to Pay Premiums Did Not Relieve Agent of Liability for
Negligent Misrepresentation
U.S. FIDELITY & GUAR. V. PAUL ASSOCIATES
496 S.E.2d 283 (Ga.App. 1998)
Reactivate: Commission Had No Jurisdiction to Reactivate Claim Seven Years After
Originally Closed
CLANTON V. TELEDYNE NEOSHO
960 S.W.2d 532 (Mo.App. S.D. 1998)
Regulation: On Continuing Benefits During Appeal Conflicted with Statute and Void
RUDDICK V. BOEING CO.
949 P.2d 1132 (Kan. 1997)
Retraining Incentive Benefits: Original Employer and Not Last Employer Liable for
Retraining Incentive Benefits
DIXON V. BLUE DIAMOND COAL CO.
Ky.App., 960 S.W.2d 475
Settlement: Commission Had No Authority to Set Aside Compromise Settlement After
Approving It
DUENAS V. GARLAND INDEP. SCHOOL DIST.
961 S.W.2d 19 (Tex.App.-Dallas 1996)
Settlement: No Recision for Unilateral Mistake in Settling Case for $38,000
CIGNA INS. CO. OF TEXAS V. RUBALCADA
960 S.W.2d 408 (Tex.App.-Houston [1st Dist.] 1998)
Statute of Limitations: Claim for Extended Benefits Covered by the Four-Year Statute of
Limitations
WRIGHT V. STATE EX REL. WORKERS' SAFETY
952 P.2d 209 (Wyo. 1998)
Statute of Limitations: Not Tolled by Payment of Medical Case Management Services
SMART V. SCRIVNER/FOOD 4 LESS
574 N.W.2d 505 (Neb. 1998)
Statute of Limitations: Three-Year Statute of Limitations Applied to Failure to Provide
Workers' Compensation Coverage Suit
MILLS V. CONTINENTAL TRANSP. NETWORK
690 N.E.2d 458 (Mass.App.Ct. 1998)
Statutory Construction: Amendment to Workers' Compensation Act of Time to Docket
Appeals Not Retroactive
TRUCKSTOPS OF AMERICA, INC. V. ENGRAM
494 S.E.2d 709 (Ga.App. 1997)
Subrogation: Employer Entitled to Workers' Compensation When on Underinsured Motorist
Benefits
ANSERT MECHANICAL CONTRACTORS V. ANSERT
690 N.E.2d 305 (Ind.App. 1997)
Subrogation: Employer's Right to Sue Third Party Engaged in Common Enterprise Must Be
Grounded in Negligence
MINNESOTA BREWING CO. V. EGAN & SONS CO.
574 N.W.2d 54 (Minn. 1998)
Subrogation: Self-Insurer Had No Subrogation Rights Under Prior Workers' Compensation
Statute
NATIONWIDE MUT. INS. CO. V. KIDWELL
691 N.E.2d 309 (Ohio App. 4 Dist. 1996)
Termination: Doctor's Testimony That Claimant "Completely Healed" Sufficient
to Terminate Benefits
UDVARI V. W.C.A.B. (USAIR, INC.)
705 A.2d 1290 (Pa. 1997)
Third Party Action: Claimant Not Entitled to Approval of Settlement Beyond Statutory
Three-Month Period
GILSON V. NATIONAL UNION FIRE INS. CO.
668 N.Y.S.2d 287 (A.D. 3 Dept. 1998)
Third Party Action: Physician Who Assumed Care of Patient May Be Liable to Employee
Injured by Patient
CHAMBERS V. HERMANN HOSP. ESTATE
961 S.W.2d 177 (Tex.App.-Houston [1st Dist.] 1996)
Third Party Action: Scaffolding and Drywall Subcontractor in Same Employ as a Matter of
Law
TUCKER V. ACTION EQUIP. AND SCAFFOLD CO.
951 P.2d 1027 (Neb. 1997)
Third Party Action: Workers' Compensation Act Barred Action for Damages Against Owner
of Premises Who Is Also Officer of Corporation
HALSTEAD V. WIGHTMAN
668 N.Y.S.2d 850 (A.D. 4 Dept. 1998)
Third Party Action: Workers' Compensation Carrier Could Not Assert Lien on Employee's
Uninsured Motorist Benefits
STEWART V. AUTO-OWNERS INS. CO.
495 S.E.2d 882 (Ga.App. 1998)
Third Party Action: Workers' Compensation Insurer Subrogated to Contract for Attorney
Fees
EMP. MUT. LIABILITY INS. CO. V. TUTOR-SALIBA
951 P.2d 420 (Cal. 1998)
Voluntary Intoxication: Accident Due to Use of Illegal Drugs and Thus Not Compensable
BROWN V. ALABAMA ELEC. CO.
959 S.W.2d 753 (Ark.App. 1998)
Voluntary Intoxication: Accident Occasioned by Use of Illegal Drugs
GRAHAM V. TURNAGE EMPLOYMENT GROUP
960 S.W.2d 453 (Ark.App. 1998)
Waiver: Of Right to Sue Employer Void as a Matter of Public Policy
MARTINEZ V. IBP, INC.
961 S.W.2d 678 (Tex.App.-Amarillo 1998)
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