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August 1998
Volume 18, Number 9
Monthly Sections:
by Steven Babitsky, Esq.
After practicing workers' compensation law for 20 years, the thing that continued to amaze me was the different ways workers reacted to their workers' compensation injuries. The graphic examples stand out in my mind.
In the first case, a 35-year-old worker lost one half of his thumb in a table saw accident. When I saw him I asked, "How much time did you miss from work?" His reply was "two hours"! He had gone to the hospital, the finger could not be reattached. His hand was bandaged, and he was told to "keep it dry and clean". He then drove back to work two hours later.
In the second incident, a 38-year-old worker suffered a minor laceration to her ring finger. She was eventually able to locate a doctor who diagnosed "nerve damage". She underwent "corrective surgery", but had a stress reaction to the surgery and was hospitalized for months. She never returned to work.
Why the disparity in these two workers? We at SEAK have decided to explore the issue of "delayed recovery" in depth. The two-day intensive program will be held on October 28 and 29, 1998, in Atlanta, Georgia.
The topics to be discussed by nationally recognized and distinguished faculty are:
- Delayed recovery: Concepts, costs, and challenges
- Delayed recovery: Risks and red flags
- Pain management: Practical cost-effective approaches
- Iatrogenic disability: "First do no harm" - Where did we go wrong?
- Choices: Ability not disability
- Psychosocial and societal issues - What is really causing delayed recovery?
- High risk diagnoses: Challenges and solutions for the "infamous three letter diagnoses"
- Prevention and management of delayed recovery: Cost-effective strategies
- Preventing delayed recovery - Minimizing risks
- SPICE - An effective model for minimizing delayed recovery
- Early intervention strategies that work - Managing the individual and the system
- Practice and disability duration guidelines - What is their role?
- Diagnostic testing and delayed recovery: Cost-effective approaches
- Illness behavior - Identification and management
- Independent medical evaluations: Use and abuse
- Determining fitness for duty and achieving timely return to work
- Case closure strategies
- Outcomes and data management
The cost to attend the seminar is $595. For a copy of the full brochure and information about the pre-conference (October 27, 1998) "IME Best Practices" and the post-conference (October 30, 1998), "ACOEM Occupational Medicine Practice Guidelines" contact SEAK, Inc. at 508-457-1111 or fax your request for the 16-page brochure to SEAK, Inc. at 508-540-8304.
While workers' compensation insurers were "waging war" to stamp out "workers' compensation fraud" they were quietly overcharging employers hundreds of millions of dollars in workers' compensation premiums.
In Texas, employers will get between $85 million and $131 million in refunds from the state's residual market insurers. In Georgia, a class action suit was filed seeking a return of more than $1 billion in workers' compensation premiums.
A hundred thirty-one million here, a billion dollars there, after a while "it adds up to real money".
The U.S. Court of Appeals recently ruled that requiring that any teacher, aide, or clerical worker submit urine samples after an injury on the job is unconstitutional. The court found that the "collection of urine was a search" and that there must be an individualized suspicion of wrongdoing. The court found that:
While the state had an interest in not paying compensation for workplace injuries caused by drug use, mandatory testing without individual suspicion shifted the burden of proof from the state to the individual.
For additional information see United Teachers of New Orleans v. Orleans Parish School District, 5th Cir. No. 97-30885 (5/29/98).
Workers' compensation attorneys are starting to file privacy suits for injured workers against their employers. This type of litigation is not prohibited by the exclusivity provision of some workers' compensation statutes. In the state of Wisconsin, Judge Lynn Adelman (U.S. Dist. Ct. E.D.) of Milwaukee dealt with a company which illegally gained access to the medical records of an employee. This access was obtained when a company secretary opened a letter addressed to the employee at work concerning his chronic hepatitis C condition.
Counsel for the employer was able to overcome the exclusivity defense in the privacy claim. The judge found that the Workers' Compensation Act was enacted to compensate injured workers, while the Privacy Act was designed to affect the behavior of individuals to encourage respect for personal dignity and basic rights.
For additional information contact counsel for the plaintiff, Alan C. Olson, Esq. at 414-785-9606. Several other states, including North Carolina, are considering rules that would severely limit the right of an insurer to communicate with treating physicians.
AFL-CIO Calls IME Exams Biased
The AFL-CIO has issued a scathing report on the "use and misuse" of IME exams in the state of New York. According to the report, IME physicians are "biased, understate disability, and frequently are untrained". The quality of the IME reports were also found lacking.
The report calls for a complete restructuring of the IME system in New York.
For a copy of the report called "IME Examinations and Workers' Compensation in the State of New York" call 518-436-8516. There is no charge for the report.
Does due process and Goldberg v. Kelly require a full evidentiary hearing before terminating workers' compensation benefits? This is the issue that will be litigated shortly in the Connecticut case of Anguish v. TLM Inc. and The Travelers Insurance Company. The Connecticut Appellate Court will consider why a welfare recipient is entitled to a full hearing before termination of benefits but an injured worker on workers' compensation benefits is not entitled to the same protection.
The workers' compensation insurance industry is very concerned about the decision in this case and how it could impact other states with similar provisions.
The American Medical Associ-ation has recently "disbanded" its steering committee and senior advisory committees whose members were working on the Fifth Edition. A copy of the June 10th AMA memo follows:
Memo to: State and Specialty Societies, Interested Parties
From: The Executive Committee for Revision of the AMA Guides to the Evaluation of Permanent Impairment
Date: June 10, 1998
Subject: Update on the revision of the American Medical Guides to the Evaluation of Permanent Impairment (5th Edition)
***********
Issue: Update on the revision of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (Guides), 5th Edition.
Background: The AMA Guides, first published in 1971, has become the standard medical evaluation tool for determining permanent impairment. Over a year ago, a decision was made to revise the AMA Guides. This decision was based on two major factors: 1) the need to ensure that the recommendations in the Guides were more evidence-based, and 2) the need to update information since the 4th Edition release in June 1993. As of May 1998, all current projects of the AMA were re-evaluated, including plans for revision of the Guides. A restructured process is now being implemented to ensure the continued scientific integrity of the product, afford multiple stakeholders an opportunity to present their views and to optimize use of resources associated with development of the Guides.
Summary:
1. Three members of the AMA Council on Scientific Affairs, who served as the Executive Committee of the Guides, will continue in that capacity, oversee the project, and have complete authority and responsibility for all decision-making upon reviewing recommendations by a new Scientific Advisory Committee.
2. The two initial Steering and Senior Advisory Committees which reviewed the scope and content of the 4th Edition of the Guides and provided recommended changes for the 5th edition of the Guides will now be disbanded. The AMA is very grateful for their valued contributions. Individuals from those Committees will be acknowledged for their efforts in the upcoming edition of the Guides.
3. The Executive Committee will appoint a new Scientific Advisory Committee. Scientific Advisory Committee members will be chosen based on their extent of specialty experience and competence in evidence-based medicine. All prior nominees of the specialty societies and prior committee members will be considered. The Scientific Advisory Committee will follow processes determined by the Executive Committee to obtain expert input from all professional organizations and individuals (as time permits), with an interest in the Guides. Based upon the guidance they receive, the Scientific Advisory Committee will make recommendations to the Executive Committee concerning the direction and content of the Guides with specific attention to controversial issues such as whether pain evaluation requires a separate chapter as well as being discussed throughout the Guides. Using Executive Committee processes, the Scientific Advisory Committee will also identify potential chapter writers, review chapters, and provide oversight for the integrity and uniformity of editorial content and format processes. These activities will occur over the next 15 months.
4. It is anticipated that the 5th Edition of the Guides can be completed within 18 to 24 month. Interested parties can contact Arthur B. Elster, MD, Interim Vice President for Science, Technology and Public Health Standards.
The U.S. Department of Labor's latest statistics show that the number of "lost-time" workers' compensation cases dropped from 2.33 million in 1992 to 1.88 million in 1998. This is a reduction of approximately 20 percent. Insuring and business groups attribute the reduction to elimination of fraudulent workers' compensation claims?
For additional information see the June 1, 1998, article in Business Insurance entitled "Lost-Time Cases Drop 20% in Recent Years", pages 3 and 30.
The battle on causation in fibromyalgia workers' compensation cases continues. The Vancouver Consensus Report on fibromyalgia deals with causation but is not definitive. The report states as follows:
Causality: FM in the setting of work disability or compensation has been the subject of a number of reports. While the association between work disability or compensation and FM is well established, data regarding causality are largely absent. The clinical dilemma, whether an injury or workplace stress caused the patient's FM, a retrodictive (or It Did) causal proposition can rarely be determined to be certainly true or certainly false. Evidence that trauma can cause FM, a potential (or It Can) causal proposition, comes from a few case series or case reports and is insufficient to establish causal relationships. That trauma might cause FM sometimes, a predictive (or It Will) causal proposition, can only be addressed by epidemiological studies that measure the risk of potential exposures on the development of FM. Epidemiologic studies of trauma and FM needed to address potential or predictive causality are currently not available. The FM causality issue, as in other putative work and injury related syndromes, may be further complicated by the potential influence of the availability of compensation for the syndrome. In settings where compensation is widely available, illnesses similar to FM have been shown to increase in apparent prevalence, as measured by physician visits, then to fall when compensation availability declines.
Overall, then, data from the literature are insufficient to indicate whether causal relationships exist between trauma and FM. The absence of evidence, however, does not mean that causality does not exist, rather that appropriate studies have not been performed.
For additional information see the Journal of Rheumatology, 1966, vol. 23, no. 3., for the article entitled "The Fibromyalgia Syndrome: A Consensus Report on Fibromyalgia and Disability".
Workers' compensation attorneys and risk managers expressed concern at a recent insurance seminar about the erosion of the exclusive remedy doctrine. They were warned to watch out for the dual capacity doctrine, intentional injury exception, employment, and contractual relationship lawsuits. A risk manager for Disney stated, "Vigilance is needed to counter pressure on injured workers to go before a jury in order to seek that `pot of gold.'"
For additional information see the May 11, 1998 issue of BNA's Workers' Compensation and the article entitled "Erosion of Doctrine of Compensation as Sole Remedy Means Employers Must Anticipate Risks", page 249.
You know the old joke, "how do you become a judge ... know a governor." In Massachusetts workers' compensation judges seeking reappointment are now being faced with the results of a performance survey done by the Massachusetts Bar Association. Judges who rated high in "bias" and lack of the understanding of the law were being closely scrutinized. An ironical twist is that the lowest rated judge is a former member of the governor's council. Stay tuned for further developments.
Large scale workers' compensation reform has ground to a halt. Why, from the insurer's perspective, should insurers, self-insurers, and employers change anything? Despite the abundance of profits and reduction of payments to injured workers, some states continue to try and reduce benefits even further! The worst example is the District of Columbia.
The District is attempting to pass legislation that would eliminate cost of living adjustments, reduce benefits, and eliminate the free choice of physicians. The proposed legislation was attacked by the AFL-CIO and branded "outrageous".
For a full wrap-up of the workers' compensation legislation passed and proposed in the U.S. see the June 29, 1998 article in Business Insurance entitled "Information Privacy Hot in Workers' Compensation".
A highly placed OSHA official stated that a summary of the proposed rule on ergonomics will be available on the agency's internet site. For a copy of the summary check http://www.osha.gov.
Did you know that you and your workers' compensation clients were in a "honeymoon period"? The HJH Group of Tampa, Florida, has reported that workers' compensation experts are increasingly pessimistic about the future of workers' compensation due to a "legislated liberalization of benefit levels and a backsliding or cost-saving strategies." The conclusion reached was that the "honeymoon" may soon be over. Or put in other words, injured workers may start to win back some of the benefits they have lost over the past 15 years.
For a copy of the report "Trends in Workers' Compensation and Workers' Compensation Managed Care" call HJH, attention Cathy Johnson, at 813-985-4535.
The 20 leading workers' compensation carriers had $16,000,548 in workers' compensation premiums in 1997. Total workers' compensation premiums for all companies was $26,141,959 in 1997.
The top 20 leading workers' compensation carriers were:
ANXIETY DISORDER
De Salvo v. Prudential Ins. Co., 670 N.Y.S.2d 613 (A.D. 3 Dept. 1998)
ARM: AMPUTATION
Kane v. BOC Group, Inc., 992 F.Supp. 773 (E.D.Pa. 1998)
ARM: FRACTURE
Quinones v. P.C Richard & Son, 707 A.2d 1372 (N.J.Super A.D. 1998)
ASTHMA
Bethlehem Steel Corp. v. W.C.A.B. (Baxter), 708 A.2d 801 (Pa. 1998)
Starkman v. Munholland United Methodist, 707 So.2d 1277 (La.App. 5 Cir. 1998)
BACK
Bolton v. Grant Parish School Bd., 709 So.2d 979 (La.App. 3 Cir. 1998)
Campbell v. W.C.A.B. (Foamex), 707 A.2d 1188 (Pa.Cmwlth. 1998)
Chaisson v. Cajun Bag & Supply Co., 708 So.2d 375 (La. 1998)
Colorado Springs v. Icao, 954 P.2d 637 (Colo.App. 1997)
Holsum Bakery v. Industrial Com'n, 955 P.2d 11 (Ariz.App. Div. 1 1997)
Jenkins v. Ford Motor Co., 498 S.E.2d 445 (Va.App. 1998)
Karpulk v. W.C.A.B. (Worth and Co.), 708 A.2d 513 (Pa.Cmwlth. 1998)
Menard v. Mama's Fried Chicken, 709 So.2d 303 (La.App. 3 Cir. 1998)
Perry v. Dept. of Law & Public Saf., 708 A.2d 688 (N.J. 1998)
Star Rails, Inc. v. May, 709 So.2d 44 (Ala.Civ.App. 1997)
Sutherland v. Queen of Peace Hosp., 576 N.W.2d 21 (S.D. 1998)
Wood v. Workers' Comp. Appeals Bd., 74 Cal.Rptr.2d 760 (Cal.App. 2 Dist. 1998)
BACK: BULGING DISC
Broughton v. W.C.A.B. (Disposal Corp.), 709 A.2d 443 (Pa.Cmwlth. 1998)
State Ex Rel. Gool v. Owens Illinois, 694 N.E.2d 962 (Ohio 1998)
BACK: DISC
SAIF v. Grover, 954 P.2d 820 (Or.App. 1998)
Saunders v. Pepsi Cola, 671 N.Y.S.2d 877 (A.D. 3 Dept. 1998)
Hodges v. Quail Tools, Inc., 709 So.2d 975 (La.App. 3 Cir. 1998)
Langman v. Nevada Administrators, Inc., 955 P.2d 188 (Nev. 1998)
BACK: FUSION
Walker v. State, 694 N.E.2d 258 (Ind. 1998)
BACK: PINCHED NERVE
Crosby v. Wal-Mart Store, Inc., 499 S.E.2d 253 (S.C.App. 1998)
BACK: STRAIN
State Ex Rel. Buswell v. Indus. Comm., 694 N.E.2d 900 (Ohio 1998)
CARPAL TUNNEL SYNDROME
Associated Indus. Ins. v. Federal Ins., 707 So.2d 880 (Fla.App. 1 Dist. 1998)
Leistman v. La. Workers' Comp. Corp., 709 So.2d 298 (La.App. 3 Cir. 1998)
Miller v. Unitog Co., 965 S.W.2d 373 (Mo.App. W.D. 1998)
Reyes v. Kit Mfg. Co., 953 P.2d 989 (Idaho 1998)
Williams v. Union Yarn Mills, Inc., 709 So.2d 71 (Ala.Civ.App. 1998)
CERVICAL SPONDYLOSIS
Rogers v. Cascade Pacific Ind., 95 P.2d 307 (Or.App. 1998)
CHEST
Matthews v. Taylor Temporary, Inc., 707 So.2d 1021 (La.App. 4 Cir. 1998)
ELBOW
Galloway v. Workers' Comp. Appeals Bd., 74 Cal.Rptr.2d 374 (Cal.App. 2 Dist. 1998)
EYE
Roadway Exp., Inc. v. W.C.A.B., 708 A.2d 132 (Pa.Cmwlth. 1998)
City of Butler v. W.C.A.B. (Botsis), 708 A.2d 1306 (Pa.Cwlth. 1998)
FOOT: CHRONIC PAIN
Valdez v. Wal-Mart Stores, Inc., 954 P.2d 87 (N.M.App. 1997)
FOOT: FRACTURE
Rite Aid Corp. v. W.C.A.B. (Bennett), 709 A.2d 447 (Pa.Cmwlth. 1998)
HAND
American Greetings Corp. v. Garey, 963 S.W.2d 613 (Ark.Ap. 1998)
Glodo v. Industrial Com'n of Arizona, 955 P.2d 15 (Ariz.App. Div. 1 1997)
Weld County School Dist. RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998)
HEAD
Delio v. Percom Equipment Rental Corp., 671 N.Y.S.2d 109 (A.D. 2 Dept. 1998)
HEARING LOSS
Scott Paper Co. v. Morris, 708 So.2d 185 (Ala.Civ.App. 1997)
HEART ATTACK
Oxley v. Dept. of Military Affairs, 575 N.W.2d 820 (Mich.App. 1998)
Transbay Container Terminal v. U.S. Dept. of Labor, 141 F.3d 907 (9th Cir. 1998)
HERNIA: INGUINAL
Woods v. Ryan Chevrolet, Inc., 709 So.2d 251 (La.App. 2 Cir. 1998)
HYPERTENSION
Marone v. City of Waterbury, 707 A.2d 725 (Conn. 1998)
KNEE
Micele v. CPC of Louisiana, Inc., 709 So.2d 1065 (La.App. 4 Cir. 1998)
PFS v. Industrial Com'n of Arizona, 955 P.2d 30 (Ariz.App. Div. 1 1997)
State Ex Rel. Kirschner v. Indus. Comm., 694 N.E.2d 460 (Ohio 1998)
LEG
Burden v. Huckaba, 708 So.2d 199 (Ala.Civ.App. 1997)
LEG: THROMBOPHLEBITIS
Underwood v. Eilers Mach. & Welding, 575 N.W.2d 878 (Neb.App. 1998)
LYME DISEASE
Bird v. Somerset Hills, 707 A.2d 1033 (N.J.Super. A.D. 1998)
MIGRAINE HEADACHES
Vargo-Adams v. U.S. Postal Service, 992 F.Supp. 939 (N.D. Ohio 1998)
NECK
Bailey v. Walker Regional Medical Center, 709 So.2d 35 (Ala.Civ.App. 1997)
Boutte v. Langston Companies, Inc., 707 So.2d 1315 (La.App. 3 Cir. 1998)
Broussard v. Mobile Home Repairs, Inc., 707 So.2d 1032 (La.App. 3 Cir. 1998)
Pesch v. Boddington Lumber Co., 954 P.2d 98 (N.M.App. 1998)
NECK: DISC
Waymon v. J & S Petroleum, Inc., 694 N.E.2d 767 (Ind.App 1998)
NECK: FUSION
Humphrey v. Faulkner Nursing Center, 964 S.W.2d 224 (Ark.App. 1998)
PARAPLEGIA
Galbraith v. L.A. Pottsratz Construction, 955 P.2d 319 (Or.App. 1998)
Wilmers v. Gateway, 575 N.W.2d 796 (Mich.App. 1998)
PNEUMOCONIOSIS
Campbell v. Universal Mines, Ky., 963 S.W.2d 623
PSYCHOLOGICAL
P.R. Hoffman Materials v. W.C.A.B., 707 A.2d 1184 (Pa.Cmwlth. 1998)
Wal-Mart Stores, Inc. v. Reinholtz, 955 P.2d 223 (Okla. 1998)
PSYCHOLOGICAL CONDITION
O'Neil v. National Union Fire, 954 P.2d 847 (Or.App. 1998)
PSYCHOLOGICAL: DEPRESSIVE NEUROSIS
Moniz v. Reitano Enterprises, Inc., 709 So.2d 150 (Fla.App. 4 Dist. 1998)
QUADRIPLEGIA
Olsten-Kimberly Quality Care v. Parr, Ky., 965 S.W.2d 155
Pearson v. C.P. Buckner Steel Erection, 498 S.E.2d 818 (N.C. 1998)
Seiferd v. Distinctive Service and Sign, 965 S.W.2d 410 (Mo.App. S.D. 1998)
RIBS
PA Turnpike Com'n v. W.C.A.B. (Collins), 709 A.2d 460 (Pa.Cmwlth. 1998)
SHOULDER
Fenyes v. Highland Park Medical Center, 708 So.2d 493 (La.App. 1 Cir. 1998)
SAIF v. Gaffke, 954 P.2d 179 (Or.App. 1998)
SUICIDE
Burlin v. C.D. Montz & Co., 708 So.2d 1054 (La.App. 5 Cir. 1998)
TOE
Kahlden v. Horseshoe Entertainment, 709 So.2d 873 (La.App. 2 Cir. 1998)
WEGENER'S GRANULOMATOSIS
Kiczula v. American Nat. Can Co., 708 A.2d 742 (N.J.Super. A.D. 1998)
WRIST
Greis v. Lake Charles Memorial Hosp., 709 So.2d 986 (La.App. 3 Cir. 1998)
WRIST: KIENBOCK'S DISEASE
Brown v. Family Dollar Distribution Ctr., 499 S.E.2d 197 (N.C.App. 1998)
Accidental Injury: Rape
WAL-MART STORES, INC. V. REINHOLTZ
955 P.2d 223 (Okla. 1998)
The Oklahoma Supreme Court dealt with the claimant, Reinholtz, who was employed at Wal-Mart at an assistant customer service position. She was forcefully and brutally raped at work by her supervisor. She suffered back injury and psychological problems. Her award for psychological injuries were vacated by the Court of Appeals.
The Supreme Court reversed the denial finding that the rape, although it was an intentional act, was a compensable accident under the workers' compensation statute.
The court rejected the attempt to deny benefits due to a "lack of physical injury". The court stated:
The Legislature's 1992 revision of that statute carves out those mental injuries "unaccompanied" by physical injury. The instant cause clearly entailed physical injury within the scope of the statue, which is accompanied by psychological injury, Claimant being unable to function outside her home as she had before the events of February 19, 1995. This accompaniment is all the statue requires. The Court of Civil Appeals attempt to place an additional requirement that Claimant's mental injury arise from her injury to the back, instead of resulting from the physical trauma of rape, is not persuasive as it obligates Claimant to establish more than the Legislature has required. As written, 85 O.S.1992 Supp. Sec. 3(7)(c) does not prevent Claimant from supporting a mental injury claim upon the results of the accidental injury, the forcible rape; such rape also included the essential element of physical injury to accompany the mental infirmity.
Attorney Fees: Reduction
PESCH V. BODDINGTON LUMBER CO.
954 P.2d 98 (N.M.App. 1998)
The New Mexico Court dealt with the claimant, Pesch, who injured his neck at work, and hired counsel to represent him. The case was settled before trial. Counsel sought attorney fees in the amount of $56,258.80 which represented approximately 54 hours of work at the rate of $110 per hour. The employer's insurer protested the amount of attorney fees, asking the WCJ to deny any recovery because of Counsel's "bad faith and oppressive conduct".
The claim of bad faith and oppressive conduct was based upon Counsel's communications with Worker's treating physician. On two occasions, Counsel communicated with the treating physician, Dr. Burg. The first communication, Counsel claims, was to determine whether Worker had a bona fide claim for workers' compensation benefits. Counsel claims that as a result of this communication, he learned of inaccuracies in Worker's medical records. Counsel then wrote Dr. Burg a letter.
The court remanded the case and cautioned all workers' compensation attorneys against overly aggressive lawyering and influencing the testimony of witnesses. The court stated:
The key is that counsel must, explicitly and implicitly, prepare the witness to give his or her own testimony, and not the testimony that the lawyer would favor or prefer. Most efforts to assist or empower the witness are ethical. Efforts at substitution or fabrication no matter how well-cloaked, are not.
To the extent that an attorney's contacts with a witness involve misconduct, unethical behavior, or fraud, this is also a factor for the WCJ to consider in reducing fees. The hours expended in pursuing such behavior as well as other unnecessary hours caused by such behavior would not be reasonable and necessary to a worker's recovery of compensation benefits. Nonetheless, in this case the WCJ found that Counsel's communications with the treating physician were not in bad faith and involved no misconduct or disregard for Insurer's rights.
Attorney Fees: Refusal to Pay Award
PRESTON V. BELL TRUCKING
693 N.E.2d 506 (Ill.App. 3 Dist. 1998)
The Illinois Court dealt with the claimant, Preston, who was injured at work and filed his claim on September 19, 1990. On January 29, 1996, an award of workers' compensation was made. The employer failed to file an appearance and delayed paying the award for 9 1/2 months. Then when attorney fees and costs were awarded to the claimant the employer denied it had "refused to pay the award".
The court affirmed the award and was not amused.
In law, as in life, a few simple rules make everything run more smoothly. Two of those rules would have made a world of difference in the instant case: Read the instructions. Play by the rules.
Some 9 1/2 months passed between the time the decision of the Commission became final and the time the defendant tendered payment to the plaintiff. During this time, the defendant filed an untimely petition for review, moved to dismiss the plaintiff's circuit court action, and even asked the circuit. court to sanction the plaintiff's attorneys for filing his complaint. Still, the defendant contends that it did not "refuse" to pay the plaintiff's award. While the plaintiff may never have expressly stated "we won't pay you", the fact that the defendant filed motion after motion seeking to be freed of its obligation certainly evinces a refusal to pay.
We find the defendant refused to pay the award to the plaintiff as that word used in section 19(g) of the Act.
Average Weekly Wage: Bonus
BLAINE V. UNUM LIFE INS. CO.
670 N.Y.S.2d 989 (A.D. 3 Dept. 1998)
The New York Court dealt with the claimant, Blaine, who became disabled on July 8, 1991, due to a workers' compensation injury. At that time, the claimant and MCI were disputing the amount of employer-sponsored bonuses to which he claimed entitlement for the 1990 sales year, claimant having alleged that he was owed an additional $182,394.98 beyond his base pay, a sum which MCI sharply disputed. By settlement agreement dated August 9, 1991, MCI agreed to pay - and the claimant agreed to accept - the sum of $88,000 in full settlement of this dispute.
After hearing on claimant's application for disability benefits, the Workers' Compensation Law Judge calculated claimant's average weekly wage by including the $88,000 settlement figure.
The court affirmed the inclusion of the settlement bonus amount as it was an amount determined by agreement "after a dispute". The court stated:
... the bonus was determined in accordance with Workers' Compensation Law Sec. 357.2(a) and therefore is properly includable in the total amount of compensation paid during the eight-week period preceding the date of disability. Since the Board included the $88,000 settlement in the calculation of earnings for determining claimant's disability benefits, a sum which the parties themselves agreed upon, the Board's decision was certainly based upon more than "some credible evidence" and should be affirmed in all respects.
Employee Status: National Guard
OXLEY V. DEPT. OF MILITARY AFFAIRS
575 N.W.2d 820 (Mich.App. 1998)
The Michigan Court dealt with the claimant, Oxley, who began working for the Michigan Air National Guard in 1967 after several years in the United States Air Force. In order to hold his position, he had to be a member of the Air National Guard. In 1968, he became an administrative specialist in the personnel office. On January 1, 1969, his position was classified as part of the federal civil service as a result of an act of Congress, the National Guard Technician Act of 1968, 32 U.S.C. Sec. 709.
He filed an application for hearing in September 1990, alleging continuing disability due to work-related injuries. He alleged that the stress and strain of acting as a computer operator without sufficient training caused him to suffer heart attacks in 1985, 1986, and 1987. He claimed that he was an employee of both the state of Michigan and the federal government. The state claimed that he was an employee of the federal government only.
The court held that Oxley was in fact employed by the state National Guard and state despite the "reclassification" of his position as part of the federal civil service. The court stated:
Defendant contends that plaintiff and other technicians wear two hats. While acting as technicians they are civilian federal employees, but while acting as members of the National Guard, for example when in training or in actual service, they are members of the military and arguably employed by the state. We disagree, rejecting defendant's "balkanization of technicians' work" for the reasons given by the court in Wright v. Park, 5 F.3d 586, 588 (C.A.1, 1993). Even while acting as a technician, plaintiff's work was military in character and he was required to remain a member of the National Guard in order to retain his employment as a technician. Because plaintiff was voluntarily in the service of the state and subject to its direction and control in connection with his work as a technician, under the economic reality test he was employed by the state of Michigan for purposes of the Workers' Disability Compensation Act.
Evidence: Lyme Disease
BIRD V. SOMERSET HILLS
707 A.2d 1033 (N.J.Super.A.D. 1998)
The New Jersey Court dealt with the claimant, Bird, who lives in a "residential town" area in Greenbrook. His backyard is fenced in and he has a cat and a dog. Around March 1989, Bird began his employment at Somerset Hills, a golf club located in a relatively undeveloped setting that is home to many types of wildlife such as woodchucks, squirrels, deer, ducks, geese, chipmunks, birds, and other animals. His job consisted of picking up trees and tree limbs, maintaining the lawn, and otherwise tidying up the golf course year round.
According to Bird's testimony, around the summer of 1991 he began experiencing extreme fatigue and drowsiness and went to his doctor with these complaints. Based upon Bird's daily activities and a series of tests ruling out other illnesses, his treating doctor testified that in October 1992 he diagnosed Bird with Lyme disease. This was corroborated by a specialist to whom Bird was referred by his treating doctor. At the time of his workers' compensation hearing Bird was still suffering from the symptoms of Lyme disease and remained unable to work.
The court affirmed the award of benefits finding no need to prove a "tick bite at work". The court found the fact that it was more probable than not that he contracted the disease at work sufficient. The court stated:
Causation in Lyme disease cases is a difficult question. A number of jurisdictions have held that Lyme disease in some situations was probably contracted at work and therefore held it compensable. See, e.g., Montgomery v. Industrial Comm'n of Arizona, 173 Ariz. 106, 840 P.2d 282 (Ct.App. 1992); Foxbilt Elec. v. Stanton, 583 So.2d 720 (Fla.Dist.Ct.App. 1991); review dismissed 589 So.2d 290 (Fla. 1991); Cigna Ins. Co. of Texas v. Evans, 847 S.W.2d 417 (Tex.Ct.App. 1993). But cf. Maxwell v. Carl Bierbaum, Inc., 48 Ark.App. 159, 893 S.W.2d 346 (1995) (Cooper, J., dissenting); Koester v. State Ins. Fund, 124 Idaho 205, 858 P.2d 744 (1993).
Exclusivity: Infliction of Emotional Distress
PHILLIPS V. GEMINI MOVING SPECIALISTS
74 Cal.Rptr.2d 29 (Cal.App.2 Dist. 1998)
The California Court dealt with the plaintiff, Phillips, who was employed as a packer at a moving and storage company. Due to a misunderstanding when gassing up the van, the wrong type of gas was put in the van causing a breakdown. The cost of towing the van was $70. Gemini asked plaintiff to pay one-half of that sum, and plaintiff agreed, but stated he did not want the $35 taken out of his very next paycheck (due October 31, 1995) because his rent was coming due at the same time. Nevertheless, Gemini deducted $93.75 from plaintiff's October 31, 1995 paycheck. Thereafter, Gemini refunded $58.75 to plaintiff in the payroll period ending November 15, 1995. Plaintiff never gave written authorization to have any money deducted from his paycheck for the purpose of compensating Gemini for its costs associated with the van problem.
The plaintiff was then fired and sued his employer for wrongful discharge and infliction of emotional distress. The court found that the causes of action were not barred by the exclusivity provisions of the Workers' Compensation Act as the alleged wrongful termination would be a violation of public policy. The court stated:
It is true that generally an employee can have no tort recovery for emotional distress resulting from his employment. The emotional distress which stems from an employer's unfavorable supervisory decisions, including termination of employment, is a normal part of the employment relationship, even when the distress results from an employer's conduct that is intentional, unfair, or outrageous. Thus, the employee is left to his workers' compensation remedy. However, a plaintiff can recover for infliction of emotional distress if he or she has a tort cause of action for wrongful termination in violation of public policy or wrongful termination in violation of an express statute because then, emotional distress damages are simply a component of compensatory damages.
Exclusivity: Sexual Harassment
MONIZ V. REITANO ENTERPRISES, INC.
709 So.2d 150 (Fla.App. 4 Dist. 1998)
The Florida Court dealt with the plaintiff, Moniz, who was injured in an attack by her supervisor at work. She settled her workers' compensation case for $20,000, i.e. $12,000 in monetary workers' compensation and $8,000 for past and future remedies. While the workers' compensation claim was pending, Moniz filed a seven count complaint against her employer, Reitano, and her supervisor, Appellee Daniel Parish. In count I, Moniz stated a cause of action for sexual harassment and retaliation, in violation of 42 U.S.C. section 2000e-5(f)("Title VII"). This count alleged a pattern of sexual harassment mainly by Parish. She claimed that he continually made sexual suggestions and threatened to fire her if she did not "do the right thing". This sexual harassment "included his touching of Ms. Moniz's breasts, grabbing her buttocks, pulling her underwear, and rubbing up against her in an aroused condition." The complaint also alleged Parish's attack on her which formed the basis of the workers' compensation claim.
The court found that the election of remedies provision barred the assault and battery and false imprisonment counts but did not bar the court for intentional inflection of emotional distress.
The court stated:
Count I under Title VII and count II for intentional infliction of emotional distress allege a much broader course of conduct than the battery by Parish in the biting incident. These counts also allege a more "traditional" pattern of sexual harassment by touching and verbal comments. This extended throughout Moniz's employment with the company. This conduct concerns the "intangible injury to personal rights" explained in Byrd. Thus, to the extent that this course of conduct can be separated from the actual biting incident for which compensation has already been received, it should not be barred either by the exclusivity of the workers' compensation remedy or by the election of remedies, because these rights are distinct. Pursing a remedy for the continuous course of conduct of sexual harassment is not inconsistent with pursuing a remedy for the physical injury suffered in the biting incident.
Good Faith and Fair Dealing: Workers' Compensation Insurer
MacGREGOR YACHT CORP. V. SCIF
74 Cal.Rptr.2d 473 (Cal.App. 2 Dist. 1998)
The California Court dealt with an insured employer, MacGregor, which sued its workers' compensation carrier for breach of contract for failure to investigate, defend, settle, and reserve claims reasonably. Many similar workers' compensation stress claims were involved and an expert for the plaintiff testified to $367,359 in damages due to miscoding and overstatement of reserves.
The court upheld the $300,000 judgment. As to the reserving policies, the court stated:
However, SCIF's new reserving language defined adequate reserves as the "maximum probable potential cost." And in "questionable cases" under the new policy (e.g., where there is an issue as to whether the injury arose out of the course of employment), "estimates should reflect full liability until a W.C.A.B. judge has ruled that [SCIF] has less than full liability." The "maximum probable potential" standard means that the adjuster reserves for the absolute most SCIF may have to pay without any exercise of discretion or judgment as to the realistic value of each claim. The unreasonableness of such a policy and its adverse impact on insureds are highlighted by SCIF's admission that the greater the claim reserves, the greater the insured's loss history, which in large part determines the insured's experience modification factor - which in turn is used by SCIF to calculate the insured's premium. Claim reserves also impact whether an insured receives a dividend or not.
The trial court found that SCIF's policy would lead to "unreasonably high reserves." As SCIF so adversely redefined its reserve policy, admittedly without any consideration for the interests of the insured, and did so without any concrete evidence of any fiscal necessity to do so, its reserve policy was unreasonable as a matter of law. Essentially, SCIF sought to avoid that which it must accept - the very real business risk that a particular claim may have been underreserved.
In Course of Employment: Accident on Way Home
OLSTEN-KIMBERLY QUALITY CARE V. PARR
Ky., 965 S.W.2d 155
The Kentucky Supreme Court dealt with the claimant, who was employed as a certified nursing assistant and provided home health care services. After performing services for a private patient on August 3, 1993, the claimant was involved in an automobile accident which occasioned serious injuries and rendered her permanently quadriplegic. The claimant testified that she departed from the patient's home without completing the required paperwork, intending to complete such when she returned to her home. Resultantly, the claimant filed an application for benefits. Ultimately, the parties stipulated that she was permanently and totally occupationally disabled, but disagreed as to whether the incident occurred in the course and scope of the subject employment.
The court affirmed the award of benefits finding that as she was providing a service to the employer the claim fell within an exception to the "going and coming" rule. The court stated:
... this is not a case where the employer's business did not benefit, and claimant's employment relationship did not begin, until she reached a particular job site. Rather, driving to and from the patients' homes was a part of her job responsibilities as it was incident to the employer's enterprise. Specifically, as the very character of the employer's services included sending a health care provider to the patients' homes, claimant's travel was occasioned by the very purpose of the employer's business. Therefore, we agree with the Court of Appeals that travel was an integral and necessary part of the employment relationship herein.
IME Exam: Out of State
SCHOOL DIST. V. W.C.A.B. (LANDON)
707 A.2d 1176 (Pa.Cmwlth. 1998)
The Pennsylvania Court dealt with the claimant, Landon, who on April 21, 1987, was injured in the course of her employment as a welding instructor for the School District when she jumped from a loading platform. A notice of compensation payable was issued on June 9, 1987. The claimant relocated to San Francisco in November of 1988. The claimant was last examined by a physician chosen by the School District in January of 1990. On or about November 24, 1993, the School District petitioned to have her orthopedically and psychiatrically examined in Pennsylvania under Section 314 of the Act, alleging that she failed to appear for an examination in Philadelphia on November 5, 1992.
The court affirmed the finding that the claimant was not required as a matter of law to return to Pennsylvania to undergo an IME. The court found that it was within the discretion of the workers' compensation judge to determine a reasonable time and place for the IME.
The court stated:
The School District failed to establish by any substantial evidence credited by the WCJ that the claimant periodically returns to the Philadelphia area, that an examination could be scheduled to accommodate her during such a return, that they offered to pay her expenses, that the claimant was actually notified of the prior scheduled examinations, and if so, whether she had an adequate excuse for not attending. Essentially, the School District failed to convince the Board that the WCJ committed an abuse of discretion.
Medical Care: Fees in Excess of Fee Schedule
FRESHWATER V. BAKER
707 So.2d 937 (Fla.App. 3 Dist. 1998)
The Florida Court dealt with the claimant, Dr. Freshwater, who treated an injured worker, Baker, who was injured in an explosion at work. The worker settled his third party case for $300,000. Dr. Freshwater had 1/3 of his medical bill paid per the workers' compensation fee schedule and then sought the remainder from the injured worker.
The court found that regardless of the third party settlement and a letter from the attorney for the injured worker (which implied full payment was to be forthcoming) the doctor could not recover a fee in excess of the fee schedule.
The court stated:
We disagree that either of these letters established personal liability on the part of Baker. First, it appears from the record that Baker's settlement with the tortfeasor was for a lump sum $300,000 amount, without specifying a certain portion for medical expenses. Baker's counsel indicated that the $300,000 settlement could not have included and did not include the medical expenses, as this would have been an improper "windfall" for Baker. In any event, we do not believe it would matter even if the settlement had specified an amount for medical expenses. Based upon the two facets of the Sun Bank decision - (1) the health care provider may not recover a fee in excess of the fee schedule amount and (2) the health care provider may not recover directly from the worker - Freshwater cannot recover the excess amount of his bill from Baker. These propositions would also prevent Freshwater from recovering from Baker based upon the August 18 letter.
Medical Care: Specially Equipped Van
WILMERS V. GATEWAY
575 N.W.2d 796 (Mich.App. 1998)
The Michigan Court dealt with the claimant, Wilmers, who was left a paraplegic after an auto accident in the course of his employment in 1977. After using a specially equipped van for a number of years, he asked Michigan Property & Casualty Guaranty Association to furnish him with a new van to replace the previously provided one, but his request was denied. At the hearing before a worker's compensation magistrate, the claimant testified that the van needed to be replaced because its mileage was getting quite high and it was beginning to require both minor and major repairs more frequently. He also presented expert testimony from his treating physician who opined that because of a combination of claimant's work-related injuries and his somewhat unusual height (6'7"), he is unable to get in and out of a car, even a specially equipped one, and therefore use of a van is medically required.
The court reversed the denial and held that the entire van and not just the special modifications were a "specially necessary appliance" and "compensable". The court stated:
We reject defendants' contention that plaintiff is seeking "something he would need whether he had ever been injured at work or not." While it is possible that plaintiff might have procured a new car or even a van for himself had he not been injured, it is not certain that he necessarily would have needed to do so. Presumably, as an uninjured person, plaintiff would have had several options to using a motor vehicle of his own for his transportation needs, such as using ordinary public transportation, carpooling, bicycling, and so forth. However, because of his work-related injuries, he is no longer able to use most of those alternative means of transport. For that reason, plaintiff's need for a specially equipped van, not merely its special equipment, is related to his work injury. Even if most or all of plaintiff's travel in the van is strictly personal in nature and unrelated to treatment for his injuries, his need for the van remains work-related for purposes of Sec. 315(1).
The order of the WCAC is reversed in part, to the extent it denies plaintiff the full cost of a replacement van under Sec. 315(1), and this case is remanded to the WCAC for entry of an order granting plaintiff the full cost of the replacement van, not merely its special modifications.
Settlement: Reopening
CAMPBELL V. UNIVERSAL MINES
Ky., 963 S.W.2d 623
The Kentucky Supreme Court dealt with the claimant, Campbell, who was last exposed to the hazards of coal workers' pneumoconiosis in December 1990. In April 1992, he filed a claim for a retraining incentive benefit (RIB), alleging that he had contracted the disease. Pulmonary function studies taken at the time indicated some respiratory impairment, but not to the extent to entitle him to income benefits under KRS 342.732(1)(b) or (c). X-ray interpretations ranged from negative for the disease to category 1/2 disease. The claim was settled in October 1992 for a lump sum of $13,000.00, with the agreement indicating that the settlement represented the compromise of a RIB claim.
In April 1995, Campbell filed a motion to reopen the settled award. The court found that as the claimant made the required statutory showing that his underlying pneumoconiosis had progressed to compensability he was entitled to reopen the settlement.
The court stated:
Campbell made the required prima facie showing that his underlying pneumoconiosis had progressed from category 1 to category 2, satisfying the threshold of compensability set forth in KRS 342.732(1)(d). He also presented evidence of progression of pulmonary impairment, although not to the extent that it would be compensable under KRS 342.732(1)(b) or (c). That was all that was required of him under KRS 342.125(2)(a).
Statute of Limitations: Notice by Employer
GALLOWAY V. WORKERS' COMP. APPEALS BD.
74 Cal.Rptr.2d 374 (Cal.App. 2 Dist. 1998)
The California Court dealt with the claimant, Galloway, who injured his elbow and neck at work in 1991. He had surgery on the elbow but did not file a claim for the neck until November 11, 1994. The insurer then interposed a statute of limitations defense. The claimant had a sixth grade education and had limited abilities to read and understand what he read. The employer in this case did not comply with the notice provisions which provide as follows:
Within five working days of notice or knowledge of any injury, the employer shall advise the employee of the compensation to which he or she may be entitled and the rights, benefits, and obligations under the workers' compensation law. ... (b) The advice shall be in writing, in non-technical terms available in both English and Spanish, and shall include the following information: ... (1) An explanation of an injured employee's rights to medical care and to select or change the treating physician ... (5) An explanation of the procedures for claimant compensation, time limits for filing a claim ...
The court found that the failure to comply with the notice provision tolled the statute of limitations. The court stated:
That purpose would be totally frustrated were we not to grant this petition. To condone the failure to comply with section 9882 would result in a reward to an employer who has failed to adhere to the regulations which absolutely require an advisement of the time limits in which to make a claim. Galloway was prejudiced by the failure to receive notice under section 9882, as he was not advised of the time limits in which to file a claim. Accordingly, the statute of limitations was tolled until Galloway became aware of the time limits to file such a claim, which was in November of 1994. The claim was therefore timely.
Statutory Construction: State Policy in Circular
PERRY V. DEPT. OF LAW & PUBLIC SAF.
708 A.2d 688 (N.J. 1998)
The New Jersey Supreme Court dealt with the claimant, Perry, who was employed as a state trooper. She injured her back shoveling snow in an attempt to back her state vehicle out of her driveway in order to commute to work. The state initially argued that state troopers who are injured during commuting are not in the course of their employment. The state later concluded that on the basis of Circular No. 93-04-GSA, that the State typically "would provide [W]orkers['] [C]ompensation coverage for State employees who are injured while driving to work in state cars."
The court found it was appropriate to remand the case so that the workers' compensation judge could consider the impact of the circular. The court stated:
We recognize that if the Circular were interpreted to authorize the payment of benefits not statutorily prescribed by the Act, the Division of Workers' Compensation may not have jurisdiction over a proceeding seeking review of the denial of a claim for benefit based solely on the Circular. Nevertheless, because this proceeding commenced in the Division of Workers' Compensation, without objection by the State, we deem it appropriate and consistent with the interests of justice to remand the matter to the Division to resolve Trooper Perry's claim for benefits on the basis of the policy reflected in Circular No. 93-04-GSA. As a matter of sound discretion, the Judge of the Division of Workers' Compensation may permit the parties to supplement the record to the extent necessary for a full resolution of the claim petition. Jurisdiction is not retained.
Suitable Employment: Commutable Labor Market
WELD COUNTY SCHOOL DIST. RE-12 V. BYMER
955 P.2d 550 (Colo. 1998)
The Colorado Supreme Court dealt with three workers' compensation claims in which permanent and total disability benefits were sought for claimants based on the lack of suitable employment within their commutable labor markets.
The court affirmed the cases in which the benefits were awarded and reversed the denial of benefits in the third case.
The court found that the statute did not preclude consideration of whether the employment was reasonably available to claimant. The court also found that this consideration would not interfere with the quick and efficient delivery of permanent and total disability benefits.
The court stated:
We hold that, in determining eligibility for PTD benefits, it is appropriate to consider various, well-settled human factors related to the claimant's ability to earn wages. These factors may include consideration of the claimant's commutable labor market or other analogous concept which depends upon the existence of employment that is reasonably available to the claimant under his or her particular circumstances.
Suitable Employment: Length of Commute
KARPULK V. W.C.A.B. (WORTH AND CO.)
708 A.2d 513 (Pa.Cmwlth. 1998)
The Pennsylvania Court dealt with the claimant, Karpulk, who injured his back at work on January 9, 1991. On May 17, 1991, the employer sought to terminate the workers' compensation benefits due to the failure of the claimant to accept "suitable employment". The claimant stated that both of the jobs offered required him to drive 150 miles round trip and thus he was justified in not accepting the jobs.
The court reversed the denial of benefits despite the fact that the claimant drove the same distance to work before the workers' compensation injury. The court found that the injury itself made the commute a nightmare.
The court stated:
We recognize that, in terms of distance, the length of this commute is identical to that which claimant had to complete prior to his work-related injury. However, pre-injury, claimant completed the one-hundred and fifty mile daily round-trip commute in an hour to an hour and a half each way, per ten hour workday, five days a week, without having to get out of his car. After the work-related injury, this same daily round-trip became a commute of five hours, requiring claimant to stop and stretch for fifteen to twenty minutes after every twenty minutes to a half hour of travel. Thus, if claimant accepted the offered jobs, he would be forced to endure a daily round-trip commute of five hours, for the same ten hour workday, five days a week. We would consider such a lengthy and difficult commute unreasonable, as a matter of law, even if it were not occasioned by claimant's work-related injury. Moreover, claimant's commute here would be disproportionate to the duration of his workday. Therefore, we hold that, as a matter of law, the potential positions offered to claimant were not actually available to him.
Third Party Action: Defamation and Emotional Distress
McKAY V. TOWN AND COUNTRY CADILLAC, INC.
991 F.Supp. 966 (N.D.Ill. 1997)
The U.S. District Court (N.D. Illinois) dealt with the plaintiff, McKay, who was employed as a new car sales and lease manager. Cohen was the president and owner of Town and Country. On or about May 30, 1996, the following events occurred: (1) McKay informed Cohen that McKay was a recovering alcoholic; (2) Cohen "verbally abused" McKay concerning his alcoholism; (3) Cohen called McKay a "drunk" and a "drug addict"; (4) Cohen accused McKay of driving his demonstration vehicle under the influence of alcohol and of allowing his alcoholism to negatively affect his job; (5) Cohen told McKay he was taking away McKay's demonstration vehicle because of his alcoholism and ordered a Town and Country employee to do so.
The plaintiff then filed a multi-court suit against his employer. The court found no claim for intentional infliction of emotional distress but did find defamation per se.
The court stated:
Defendant claims that none of plaintiff's allegations support a claim of defamation per se; however, the Court rejects this claim. Plaintiff specifically alleges that defendant Cohen accused plaintiff of driving his demonstration vehicle under the influence of alcohol, and repeated that statement to others. Of course, driving an automobile under the influence of alcohol is a crime in Illinois. Thus, Cohen's alleged statement squarely fits into the first category of per se defamatory statements, those which impute commission of a crime. While some or all of the other alleged statements at least arguably are capable of reasonable innocent constructions, there simply is no innocent construction of the Cohen's alleged drunk-driving accusation - it clearly and unavoidably imputes that plaintiff committed the crime of driving under the influence of alcohol. Accordingly, the alleged statement is defamatory per se.
Willful Intention to Injure: Suicide
BURLIN V. C.D. MONTZ & CO.
708 So.2d 1054 (La.App. 5 Cir. 1998)
The Louisiana Court dealt with the decedent, Burlin, who was injured on the job on January 4, 1994. He aggravated a prior back condition and got hooked on the pain medications viocadin and vistaril and became despondent. The claimant was recommended to attend a pain clinic and started psychiatric treatment for a major depression. His wife, Christine, testified as to the last time she saw her husband alive. She stated that he demanded she obtain medication for him through her orthopedic physician. She refused and he lost control. In their 14-year marriage he had never struck her, but he did on this occasion. He also threatened to kill her and himself if he did not have pain medication. She testified that he would have excruciating pain when he had no pain medication. She left the home with their daughter.
Christine called him after she arrived a her sister's home, but Craig continued to threaten to kill her and himself if he did not have pain medication. Her husband had never before threatened her. She did not believe he was sincere. When Craig did not respond to the sister's arrival at the family home the next day, Christine went to the home the following day, accompanied by a friend. She discovered her husband was dead from a shotgun wound to the head.
The court used the chain of causation test and affirmed the award of workers' compensation finding that the suicide did not come under the "willful intention to injure himself" exception to the Act.
The court stated:
The record reveals the only relief he had from the pain was the pain medication. His treating psychiatrists' records contain several statements made by him in which he threatened to kill himself if nothing were done to alleviate his pain. Furthermore, the medical records indicate he expressed frustration at repeated delays in medical testing recommended by his treating physicians.
A chain-of-causation was overwhelmingly established and we find no manifest error in the trial judge's conclusion the work injury caused the major depression and resulted in a dependence on pain medication.
Accident: Claimant Who Punched Metal Door After Being Asked to Work Late Not Entitled to Workers' Compensation
GLODO V. INDUSTRIAL COM'N OF ARIZONA
955 P.2d 15 (Ariz.App. Div. 1 1997)
Accident: Injury from Heavy Lifting Not Compensable as No "Accident" Involved
MATTHEWS V. TAYLOR TEMPORARY, INC.
707 So.2d 1021 (La.App. 4 Cir. 1998)
Aggravation: No Recovery for Asthma as Claimant Had Fully Recovered from Aggravation
BETHLEHEM STEEL CORP. V. W.C.A.B. (BAXTER)
708 A.2d 801 (Pa. 1998)
Aggravation: No Workers' Compensation Due to Failure to Prove Accident Caused Aggravation
REYES V. KIT MFG. CO.
953 P.2d 989 (Idaho 1998)
Answer: By Employer Was Late and Precluded Raising Defenses
RITE AID CORP. V. W.C.A.B. (BENNETT)
709 A.2d 447 (Pa.Cmwlth. 1998)
Appeal: By Insurer Not Frivolous as Not Taken Solely for Delay
HODGES V. QUAIL TOOLS, INC.
709 So.2d 975 (La.App. 3 Cir. 1998)
Appeal: Failure by Employer to Raise Issue Below Waived Issue
PA TURNPIKE COM'N V. W.C.A.B. (COLLINS)
709 A.2d 460 (Pa.Cmwlth. 1998)
Appeal: Order of Remand Not Final Appealable Order
HUMPHREY V. FAULKNER NURSING CENTER
964 S.W.2d 224 (Ark.App. 1998)
Attorney Fees: Awarded as Employer Not Justified in Discontinuing Benefits Based on One Doctor's Report
BROUSSARD V. MOBILE HOME REPAIRS, INC.
707 So.2d 1032 (La.App. 3 Cir. 1998)
Attorney Fees: For Arbitrary or Capricious Termination of Workers' Compensation After Attempt to Return to Work
BOLTON V. GRANT PARISH SCHOOL BD.
709 So.2d 979 (La.App. 3 Cir. 1998)
Average Weekly Wage: No Adjustment for Unreported Tips
CORKERY V. BEST WINGS OF CAPE CORAL
707 So.2d 884 (Fla.App. 1 Dist. 1998)
Average Weekly Wage: Substantial Evidence That Average Weekly Wage Higher Than $4.50 an Hour
PATRICK V. CLARK OIL & REFINING CO.
965 S.W.2d 414 (Mo.App. S.D. 1998)
Carpal Tunnel Syndrome: No Proof It Was Occupational Disease
ASSOCIATED INDUS. INS. V. FEDERAL INS.
707 So.2d 880 (Fla.App. 1 Dist. 1998)
Claim: Notification to Employer Insufficient to Toll Period to File for Payment of Occupational Therapy Bill
LEISTMAN V. LA. WORKERS' COMP. CORP.
709 So.2d 298 (La.App. 3 Cir. 1998)
Confidentiality: Employee Not Entitled to Damages for Violation of Confidentiality Statute
BOUTTE V. LANGSTON COMPANIES, INC.
707 So.2d 1315 (La.App. 3 Cir. 1998)
Constitutionality: Permanent and Total Disability Restricted for Loss of Feet, Legs, Hands, or Sight Constitutional
VALDEZ V. WAL-MART STORES, INC.
954 P.2d 87 (N.M.App. 1997)
Constitutionality: Requiring Claimant to Undergo Physical Exam Did Not Deprive Him of Due Process
FINDLEY V. W.C.A.B.
707 A.2d 1220 (Pa.Cmwlth. 1998)
Constitutionality: Statute Providing No Benefits to Independent Adult Children of Deceased Worker Constitutional
MEISNER V. POTLATCHCORP.
954 P.2d 676 (Idaho 1998)
Contribution: No Contribution from Employer Regardless of Comparative Negligence
KANE V. BOC GROUP, INC.
992 F.Supp. 773 (E.D.Pa. 1998)
Coverage: No Insured's Claim Against Workers' Compensation Carrier to Recover Costs of Defending Civil Suit
TAMRAC, INC. V. CALIFORNIA INS. GUAR. ASSN.
74 Cal.Rptr.2d 338 (Cal.App. 2 Dist. 1998)
Decision: Lacked Adequate Findings of Fact
WAYMAN V. J & S PETROLEUM, INC.
694 N.E.2d 767 (Ind.App. 1998)
Denial: Carrier's Response Constituted Express Denial of Fracture Injuries
GALBRAITH V. L.A. POTTSRATZ CONSTRUCTION
955 P.2d 319 (Or.App. 1998)
Dependency: Adult Partially Dependent Child No Entitlement to Workers' Compensation
FISHER V. STATE FARM MUT. AUTO. INS. CO.
955 P.2d 622 (Kan. 1998)
Dependency: Grandson Was Financially Dependent on Claimant
FARMER V. METRO LIGHT & ELEC. SERVICES
708 So.2d 1251 (La.App. 4 Cir. 1998)
Dependency: Stepchild Did Not Prove That She Relied on Deceased for Necessities and Thus She Was Not Entitled to Dependency Benefits
ADAMS V. TEXFI INDUSTRIES
498 S.E.2d 885 (S.C.App. 1998)
Dual Capacity: Amendment to Workers' Compensation Act Precluded Suit Against Lessee of Employment Premises
DOUGLAS V. HILLHAVEN REST HOME, INC.
709 So.2d 1079 (La.App. 1 Cir. 1998)
Evidence: Double Hearsay i.e. What H.R. Manager Was Told That Doctor Said to Employee Not Competent Evidence
CHAISSON V. CAJUN GAB & SUPPLY CO.
708 So.2d 375 (La. 1998)
Evidence Substantial: Anxiety Disorder Not Compensable
DE SALVO V. PRUDENTIAL INS. CO.
670 N.Y.S.2d 613 (A.D. 3 Dept. 1998)
Evidence Substantial: Decedent Was Independent Contractor for Company He Was Conducting Aerial Surveys
CAMPBELL V. KEYSTONE AERIAL SURVEYS, INC.
138 F.3d 996 (5th Cir. 1998)
Evidence Substantial: Pulmonary Disease Aggravated by Employment
KICZULA V. AMERICAN NAT. CAN CO.
708 A.2d 742 (N.J.Super.A.D. 1998)
Evidence Substantial: Shoulder Injury Where Treating Doctor Found No Impairment Not Work-Related
SAIF V. GAFFKE
954 P.2d 179 (Or.App. 1998)
Evidence Substantial: Specific Loss Benefits Due for Loss of Use of Eye from Firing Shotgun
CITY OF BUTLER V. W.C.A.B. (BOTSIS)
708 A.2d 1306 (Pa.Cmwlth. 1998)
Evidence: Videotape Admissible as Impeachment Evidence
STARKMAN V. MUNHOLLAND UNITED METHODIST
707 So.2d 1277 (La.App. 2 Cir. 1998)
Exclusivity: Barred Claim for Negligent Infliction of Emotional Distress
GERSON V. GIORGIO SANT'ANGELO
671 N.Y.S.2d 958 (Sup. 1998)
Exclusivity: Barred Suit for Bad Faith Delay in Paying Workers' Compensation Benefits
GUNDERSON V. MAY DEPT. STORES CO.
955 P.2d 346 (Utah App. 1998)
Exclusivity: Intentional Tort Exception Did Not Apply to Failure to Provide Safe Workplace
MICELE V. CPC OF LOUISIANA, INC.
709 So.2d 1065 (La.App. 4 Cir. 1998)
15% Permanent Partial: For Leg with Thrombophlebitis
UNDERWOOD V. EILERS MACH. & WELDING
575 N.W.2d 878 (Neb.App. 1998)
FMLA: Migraine Headaches May Qualify as Serious Medical Condition
VARGO-ADAMS V. U.S. POSTAL SERVICE
992 F.Supp. 939 (N.D.Ohio 1998)
Forfeiture: False Statements Regarding Earlier Back Injuries Resulted in Loss of Workers' Compensation Benefits
MENARD V. MAMA'S FRIED CHICKEN
709 So.2d 303 (La.App. 3 Cir. 1998)
Hearing: No Full Scale De Novo Hearing Requested for Claim for Medical Treatment
O'NEIL V. NATIONAL UNION FIRE
954 P.2d 847 (Or.App. 1998)
Horseplay: Injury During Arm Wrestling Not Compensable
QUINONES V. P.C. RICHARD & SON
707 A.2d 1372 (N.J.Super.A.D. 1998)
Idiopathic Fall: Not Compensable
CROSBY V. WAL-MART STORE, INC.
499 S.E.2d 253 (S.C.App. 1998)
Impaired Earning Capacity: Assertion by Claimant That No Wages Earned Insufficient to Establish Claim
STATE EX REL. GOOL V. OWENS ILLINOIS
694 N.E.2d 962 (Ohio 1998)
In Course of Employment: Fall on Icy Public Sidewalk En Route to Work from Parking Lot Not Compensable
FREDERICK COUNTY V. VACHE
709 A.2d 155 (Md. 1998)
In Course of Employment: Fatal Injury to DOT Employee Crossing Four-Lane Roadway to Retrieve Car to Drive Home Compensable
KRISTIANSEN V. MORGAN
708 A.2d 1173 (N.J. 1998)
Interest: On Penalties and Attorney Fee Awards Run from Date of Judgment
KAHLDEN V. HORSESHOE ENTERTAINMENT
709 So.2d 873 (La.App. 2 Cir. 1998)
Issue Preclusion: Did Not Bar Claimant from Asserting Prior Knee Injury Resulted in Lost Earning Capacity
PFS V. INDUSTRIAL COM'N OF ARIZONA
955 P.2d 30 (Ariz.App. Div. 1 1997)
Jurisdiction: FECA Had Exclusive Jurisdiction Over Case Where Nurse Employed by Federal Government Killed in Ambulance Accident
POURIER V. U.S.
138 F.3d 1267 (8th Cir. 1998)
Jurisdiction: Parties to Claim Cannot by Agreement Endow Commission with Authority to Decide Claim
MARONE V. CITY OF WATERBURY
707 A.2d 725 (Conn. 1998)
Jurisdiction: Workers' Compensation Court Lacked Jurisdiction to Decide Case of Insurance Agency Malpractice
HEFLEY V. NEELY INS. AGENCY, INC.
954 P.2d 135 (Okla. 1998)
Last Exposure Rule: Second Employer Liable for Carpal Tunnel Syndrome
MILLER V. UNITOG CO.
965 S.W.2d 373 (Mo.App. W.D. 1998)
Lessor: No Liability for Independent Negligence in Maintenance and Repair of Its Vehicles
DELIO V. PERCOM EQUIPMENT RENTAL CORP.
671 N.Y.S.2d 109 (A.D. 2 Dept. 1998)
Longshore: Risk Factors Discoverable from Medical Records Insufficient to Establish Preexisting Condition Manifest to Employer
TRANSBAY CONTAINER TERMINAL V. U.S. DEPT. OF LABOR
141 F.3d 807 (9th Cir. 1998)
Medical Care: After Claimant Made De Facto Choice of Physicians She Was Not Permitted to Change
FENYES V. HIGHLAND PARK MEDICAL CENTER
708 So.2d 473 (La.App. 1 Cir. 1998)
Medical Care: Employer Must Do More Than Reimburse Medicaid for Portion of Cost of Medical Care
PEARSON V. C.P. BUCKNER STEEL ERECTION
498 S.E.2d 818 (N.C. 1998)
Medical Care: Exercise Program by Workers' Compensation Claimant on Own Can Be Reasonable and Necessary
ROGERS V. CASCADE PACIFIC IND.
955 P.2d 307 (Or.App. 1998)
Medical Care: No Need for Change of Physician When Treating Doctor Refers Claimant to Specialist
JONESBORO HUMAN DEVELOPMENT CENT. V. TAYLOR
963 S.W.2d 617 (Ark.App. 1998)
Medical Care: Treatment by Specialist Recommended by Treating Doctor Reasonable
AMERICAN GREETINGS CORP. V. GAREY
963 S.W.2d 613 (Ark.App. 1998)
Medical Care: Unauthorized Treatment of Carpal Tunnel Syndrome Not Compensable
WILLIAMS V. UNION YARN MILLS, INC.
709 So.2d 71 (Ala.Civ.App. 1998)
Medical Report: Sufficient for Doctor to State Muscle Testing True - No Need to Identify Qualifications of Person Administering Test
WOOD V. WORKERS' COMP. APPEALS BD.
74 Cal.Rptr.2d 760 (Cal.App. 2 Dist. 1998)
Misrepresentation: Truck Driver's Misstatements on Job Placement Medical Questionnaire Not False Statements Precluding Workers' Compensation
FELAN V. F & F TRUCKING, INC.
708 So.2d 430 (La.App. 3 Cir. 1998)
Notice: Receipt of Actual Notice of Dismissal Precluded Claim to Extension to File Petition
DONEFF V. TREASURER OF STATE OF MISSOURI
965 S.W.2d 255 (Mo.App. E.D. 1998)
Partial: No Consideration Due for Inflation in Arriving at Partial Benefits
SAUNDERS V. MacBRIDE DUNHAM MANAGEMENT
708 A.2d 1030 (Me. 1998)
Permanent and Total Disability: Awarded Despite Mention of Vocational Rehabilitation in Order
STAR RAILS, INC. V. MAY
709 So.2d 44 (Ala.Civ.App. 1997)
Permanent and Total Disability: Claimant Could Not Be Permanent and Totally Disabled and at the Same Time Be Temporarily Totally Disabled
SAIF V. GROVER
954 P.2d 820 (Or.App. 1998)
Permanent and Total Disability: Denied Due to Young Age, Education, and Mild Physical Findings
STATE EX REL. BUSWELL V. INDUS. COMM.
694 N.E.2d 900 (Ohio 1998)
Permanent Partial Disability: Award Did Not Preclude Entitlement to Impaired Earning Capacity Benefits
STATE EX REL. KIRSCHNER V. INDUS. COMM.
694 N.E.2d 460 (Ohio 1998)
Premiums: Workers' Compensation Insurer Failed to Present Sufficient Proof of Unpaid Premiums
LOUISIANA NBOA CONST. V. LIU
707 So.2d 1002 (La.App. 2 Cir. 1997)
Rehabilitation Benefits: None Due as Registered Nurse Was Offered Suitable Employment
SUTHERLAND V. QUEEN OF PEACE HOSP.
576 N.W.2d 21 (S.D. 1998)
Reopening: Denied as Claimant Failed to Prove Original Back Injury Was Primary Cause of Later Injury
LANGMAN V. NEVADA ADMINISTRATORS, INC.
955 P.2d 188 (Nev. 1998)
Retaliatory Discharge: Claim Precluded Due to Inability to Work
BAILEY V. WALKER REGIONAL MEDICAL CENTER
709 So.2d 35 (Ala.Civ.App. 1997)
Second Injury Fund: Not Liable for Asymptomatic Pre-Existing Condition
SAUNDERS V. PEPSI COLA
671 N.Y.S.2d 877 (A.D. 3 Dept. 1998)
Settlement: Permitted to Agree to Provide Credit Against Claimant's Right to Receive Future Medical Benefits
HOLSUM BAKERY V. INDUSTRIAL COM'N
955 P.2d 11 (Ariz.App.Div. 1 1997)
Statutory Construction: Multiple Employment Provision Not Retroactive
SEIFERD V. DISTINCTIVE SERVICE AND SIGN
965 S.W.2d 410 (Mo.App. S.D. 1998)
Statute of Limitations: Hearing Loss Claim Not Brought Within Two Years of Last Exposure Time Barred
SCOTT PAPER CO. V. MORRIS
708 So.2d 185 (Ala.Civ.App. 1997)
Statute of Limitations: Not Tolled by Employer's Conduct in Controlling Claimant's Medical Treatment
JENKINS V. FORD MOTOR CO.
498 S.E.2d 445 (Va.App. 1998)
Statute of Limitations: Tolled Until Doctor Told Claimant Eyesight Lost for All Intents and Purposes
ROADWAY EXP., INC. V. W.C.A.B.
708 A.2d 132 (Pa.Cmwlth. 1998)
Statute of Limitations: Workers' Compensation Carrier May Have Made Misrepresentations to Lull Claimant into Inaction
HIGGINBOTHAM V. BEVERLY ENTERPRISES, INC.
709 So.2d 32 (Ala.Civ.App. 1997)
Stress: Claim from Overhearing Remark About Insufficient Money for Pension Fund Not Compensable
P.R. HOFFMAN MATERIALS V. W.C.A.B.
707 A.2d 1184 (Pa.Cmwlth. 1998)
Suitable Employment: Seamstress Position Offered Did Not Constitute Reasonable Employment as It Was Temporary in Nature
WALKER V. STATE
694 N.E.2d 258 (Ind. 1998)
Temporary Total: Claimant Disabled After He Was Medically Released to Return to Work
WOODS V. RYAN CHEVROLET, INC.
709 So.2d 251 (La.App. 2 Cir. 1998)
Temporary Total: For Aggravation of Undiagnosed Kienbock's Disease
BROWN V. FAMILY DOLLAR DISTRIBUTION CTR.
499 S.E.2d 197 (N.C.App. 1998)
Temporary Total: No Work Search Needed When Claimant on Partial Fired Due to Restrictions
PADGETT V. WAFFLE HOUSE, INC.
498 S.E.2d 499 (Ga. 1998)
Temporary Total: None Absent Showing That Second Injury Caused Actual Temporary Wage Loss
COLORADO SPRINGS V. ICAO
954 P.2d 637 (Colo.App. 1997)
Temporary Total: None for Claimant Who Failed to Prove Inability to Work
GREIS V. LAKE CHARLES MEMORIAL HOSP.
709 So.2d 986 (La.App. 3 Cir. 1998)
Temporary Total: Not Reinstated Due to Lack of Transportation to Job
CAMPBELL V. W.C.A.B. (FOAMEX)
707 A.2d 1188 (Pa.Cmwlth. 1998)
Termination: Of Workers' Compensation for Claimant That Had Fully Recovered from Workers' Compensation Injury
BROUGHTON V. W.C.A.B. (DISPOSAL CORP.)
709 A.2d 443 (Pa.Cmwlth. 1998)
Third Party Action: Co-Worker Immune from Liability and Thus Contribution Claim Against Co-Worker Barred
SHELTON V. AZAR, INC.
954 P.2d 352 (Wash.App. Div. 1 1998)
Third Party Action: Owner of Timber Rights Not Liable to Workers' Compensation Claimant Where Claimant Received Workers' Compensation from Employer
REYNOLDS V. INTERNATIONAL PAPER CO.
671 N.Y.S.2d 813 (A.D. 3 Dept. 1998)
Vocational Retraining: None for Claimant Who Was on Permanent and Total Due to Chronic Pain
BURDEN V. HUCKABA
708 So.2d 199 (Ala.Civ.App. 1997)
Voluntary Intoxication: Caused Fatal Collision with Truck
PURCELL V. AMERICAN SIP CORPORATION
670 N.Y.S.2d 222 (A.D. 3 Dept. 1998)
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