Courts are starting to hold IME doctors liable for malpractice. Traditionally, IME doctors have been able to argue successfully that as "no physician-patient" relationship existed they could not be held liable. Courts have started to look past this defense and have found IME doctors potentially liable for: failure to inform the examinee of cancer, calling the examinee a malingerer, failure to diagnose a latent brain tumor, and failure to inform the examinee of abnormal results of tests during a preemployment physical.

In the most important recent case, Webb v. T.D., D.C., R.K.S. M.D., and C.H.A. M.D., 951 P.2d 1008 (1998) the court reviewed all of the pertinent cases and held:

What we do hold, in this case, is that a health care provider in Montana who is retained by a third party to do an independent medical examination has the following duties:

1. To exercise ordinary care to discover those conditions which pose an imminent danger to the examinee's physical or mental well-being and take reasonable steps to communicate to the examinee the presence of any such condition; and

2. To exercise ordinary care to assure that when he or she advises an examinee about her condition following an independent examination, the advice comports with the standard of care for that health care provider's profession.

The above standard is currently the law in several jurisdictions and is likely to be adopted in other jurisdictions when they are presented with the issue.

ADA and Workers' Compensation Denials

Employers are being told one way they can deny workers' compensation claims is to ask for a medical history once employment has been offered.

One of the questions on the medical history of a post-offer physical should be "have you ever filed a claim or received benefits as a result of an industrial injury or disease?" A dishonest answer could constitute falsification of employment records and be grounds for termination. BNA Workers' Compensation Report - "Comp Dollars and Sense", vol. 9, no. 15, p.390 (July 20, 1998)

Willreturn Council

The role that family support plays in helping to get injured workers back to work is significant. Fortis Insurance Company has determined:

... through extensive research that family support is an important element in recovery. Family members must carry a significant additional load themselves during a loved one's disability often performing as nurse, counselor, and sole breadwinner in addition to taking on the daily parenting and household duties formerly shared.

The Willreturn Council has been honoring workers who have demonstrated extraordinary courage by overcoming a disability with perseverance awards.

For additional information contact the Willreturn Council at 816-881-8968.

Medical Privacy Model Act

The NAIC has adopted a Health Information Privacy Model Act. The insurance industry is very concerned about their liability for damages for wrongful exchange of information.

With respect to workers' compensation, specifically, the Model (1) preserves the ability of workers' compensation insurers to collect, use, and disclose protected health information without an authorization; (2) clarifies that a carrier's general authority to disclose protected health information to an insured employer without separate authorization, if necessary for performing the employer's and carrier's rights and duties under a workers' compensation act, includes disclosures to an insured employer's risk manager, where retained by the employer rather than the carrier; and (3) clarifies a carrier's authority to exchange protected health information with "insurance support organizations" such as the Index Bureau and ratemaking organizations. AIA, Workers' Compensation, p.1.

For additional information see the June 1998 issue of AIA Workers' Compensation or call 202-828-7100. For a copy of the Model Act see the AIA's home page under current news. Their address is www.aiadc.org.

NORA

The National Occupational Research Agenda (NORA) is available without charge to workers' compensation attorneys. NORA priority research areas are:

• Category Priority Research Areas
• Disease and Injury Allergic and Irritant Dermatitis
• Asthma and COPD
• Fertility and Pregnancy Abnormalities
• Hearing Loss
• Infectious Diseases
• Low Back Disorders
• Musculoskeletal Disorders of the
• Upper Extremity
• Traumatic Injuries
• Work Environment Emerging Technologies
• and Workforce Indoor Environment
• Mixed Exposures
• Organization of Work
• Special Populations at Risk
• Research Tools and Cancer Research Methods
• Approaches Control Technology and Personal
• Protective Equipment
• Exposure Assessment Methods
• Health Services Research
• Intervention Effectiveness Research
• Risk Assessment Methods
• Social and Economic Consequences of
• Workplace Illness and Injury
• Surveillance Methods

For information on NORA contact NIOSH at 800-356-4674 or visit the NIOSH homepage at: http://www.cdc.gov/niosh/norahmpg.html.

Carpal Tunnel Syndrome and Workers' Compensation

Physicians have started to break down carpal tunnel syndrome (CTS) into three distinct categories:

Classic CTS: Middle-age women (30-50) who suffer from paresthesia in the thumb, index finger, middle finger, and radial half of the ring finger.

Occupational or Dynamic CTS: Younger individuals who experience an onset of symptoms during work activities.

Subclinical CTS: Those individuals with an increased risk of CTS.

For a detailed article on the above three categories see the vol. 7, no. 3 Spring 1998 issue of the Journal of Workers' Compensation, "Understanding the Types of Carpal Tunnel Syndrome" by J. Mark Melhorn, MD, or call 800-682-5759.

"Best Years Are Behind Us"

Workers' compensation insurers are reporting that insurers in many states are now experiencing their third or fourth double-digit rate on loss cost reduction in a row. In addition, the NCCI reported that combined ratios for workers' compensation insurance in 1997 show accident year results deteriorated to 115 percent from 110 percent. The workers' compensation insurers are now saying that "the best years may now be behind the workers' compensation industry".

You Don't Need a Lawyer

Allstate Insurance Company is facing class-action lawsuits for the "advice" it has been giving people injured in auto accidents with Allstate insureds.

The accident victims all get a letter entitled "Do I need a lawyer". These lawsuits allege that the insurer misled victims into accepting less than they were owed or caused them to lose a chance to sue by persuading them they didn't need an attorney. The West Virginia Bar Association found that Allstate was engaged in the unauthorized practice of law.

Question: Are workers' compensation insurers potentially liable for the "advice" they have been giving unrepresented claimants for years?

For additional information see the article entitled "Accident Victims Sue Allstate Alleging the Insurer Misled Them", Wall Street Journal, July 28, 1998, p. B5.

Workplace Depression Compensable

Many workers' compensation attorneys do not consider depression a valid and potentially compensable workplace disability. This could be a mistake and may be an overreaction to the enactment of the workers' compensation "stress statutes".

A recent article in Occupational Health Management was entitled "Watch for Workplace Depression; It's a Work Disability and Your Responsibility". Attorney Sally Keith of Raleigh, North Carolina, who won a workers' compensation depression case, stated:

... while the case is not the first of its kind, such cases will be seen more frequently. More courts are recognizing the legitimacy of depression as a workplace disability, she says, and trends in the American work force are likely to create more cases. She cites downsizing and the type of increased workload and increased monitoring that were factors in the Williford case.

"These are legitimate claims," Keith says. "This is not just 'my job is hard, and I'm stressed about it.' The law makes that distinction quite clear. The standards are very strict and dependent on the doctor's testimony much more than what the claimant has to say."

Anyone can fall victim to depression, but to be work-related, the clinical depression must result from a job situation that puts the person at greater risk of depression than the average person."

For additional information see the June 1998 issue of Occupational Health Management or call 800-688-2421.

Why Are Workers' Compensation Costs Likely to Increase?

Attorneys representing injured workers should start to "gear up" for the next round of cost-cutting and benefit cuts. HJH Group, Inc., a managed care consulting company in Tampa, Florida, advised employers and insurers why workers' compensation costs are likely to increase:

Projected increased costs in workers' compensation are based on several factors: 1) a depletion in reserving levels; 2) a potential downturn in the economy; 3) legislated liberalization of benefit levels for those workers who believe that their benefit levels were reduced too severely; 4) an increase in overall medical costs due to forecasts of increased overall medical inflation (possibly the greatest risk factor); 5) aging of the workforce; and 6) back-sliding in the initiatives that helped to improve the system (such as managed care, safety and return to work programs).

For additional information contact HJH Group, Inc. in Tampa, Florida.

Shiftwork and Workers' Compensation

An interesting booklet entitled "Plain Language About Shiftwork" was recently put out by NIOSH and the CDC. The 38-page booklet explains the health and safety effects of shiftwork and provides a recommended reading list.

The booklet DHHS (NIOSH) Pub. No. 97-145 is available free of charge from NIOSH by calling 800-356-4674.

Supreme Court on Due Process

Eleven insurer and employer organizations have sought U.S. Supreme Court review of the decision which found portions of the Pennsylvania workers' compensation unconstitutional. The case Sullivan v. Barnett has national significance due to the fact that termination of benefits without a hearing were found violative of due process protection and was found to be unconstitutional. Many state workers' compensation statutes could be directly impacted if the decision is upheld by the U.S. Supreme Court.

Employers Suing Workers' Compensation Insurers

Employers are starting to sue their workers' compensation carriers for bad faith claims handling. In California the state compensation insurance fund and other workers' compensation carriers are filing class action lawsuits by employers who allege that their insurers' failure to report med-legal evaluations as defense expenses inflated their workers' compensation experience rating and led to higher premiums.

In May 1996, the judge rejected SCIF's argument that med-legal exams constitute treatment, ruling that "defense expenses" include expenses insurers incur in defending claims as well as in litigating them. The judge's ruling also yielded a very narrow definition of an "uncontroverted" claim, noting that a "controverted" claim is not synonymous with a litigated claim, and that a claim is not "uncontroverted" until the insurer accepts it and is 100 percent satisfied with the treating physician's conclusions. Thus, the court said, when a dispute arises, med-legal reports are obtained to defend the insurer's interest, so the costs must be reported as "defense expenses" rather than medical expenses. That interpretation meant that insurers should have reported any medical report used to resolve any medical question as a defense expense, not as incurred loss, regardless of whether there was a dispute or whether the claimant was represented by an attorney. Ironically, the Bureau clarified the issue in 1993, instructing insurers to classify medical-legal report costs as medical expenses, just as State Fund had been doing.

For additional information contact Mr. Bob Young at 415-981-2107.

Workers' Compensation and Occupational Medicine Handbook

The handbook for the 18th annual Workers' Compensation and Occupational Medicine Seminar is available from SEAK, Inc. The 500-page handbook contains speaker handouts for the following presentations:

- ADA: Mediation, Direct Threat and Reasonable Accommodation, by Gary Phelan, Esq.

- Disability Management: Components of an Effective Return to Work Program, by Patricia B. Strasser,           PhD, RN, COHN-S

- Post-Traumatic Headache: A Pain in the Brain? by Nathan D. Zasler, MD, FAAPM&R, FAADEP, CIME

- Rehabilitation of the Injured Worker with Delayed Recovery, by Robert D. Rondinelli, MD, PhD

- In the Course of Employment: Unusual Workers' Compensation Claims, by Andrew E. Greenberg, Esq.

- Managing Threats of Violence in the Workplace: A Team Approach, by Cherryl E. McDougall, RN, BSN,     COHN-S

- Sexual Harassment in the Workplace: What You Don't Know Can Hurt You, by Adam P. Forman, Esq.

- Cumulative Trauma Disorders: A Review of the Research, by Patricia B. Strasser, PhD, RN, COHN-S

- EEOC Guidelines and Psychiatric Guidelines, by Gary Phelan Esq.

- Defending and Winning the Cumulative Trauma Claim, by Andrew E. Greenberg, Esq.

- Practical Aspects of Impairment Rating and Disability Evaluation, by Robert D. Rondinelli, MD, PhD

- Integrating Computer Technology into Occupational Health and Safety Practice, by Cherryl E. McDougall,     RN, BSN, COHN-S

- Latex Allergy: Overview of Clinical and Occupational Issues, by James S. Taylor, MD

- Deception, Symptom Magnification, Exaggeration, Malingering, and Fraud in Workers' Compensation         Cases, by Patricia A. Costigan, Esq.

- Health Risk Appraisals in the Workplace, by Elizabeth Lawhorn, MSN, RN, COHN-S, CCM

- Differential Diagnosis in Post-Concussive Disorders: Taking Off the Blinders, by Nathan D. Zasler, MD,     FAAPM&R, FAADEP, CIME

- Disability Management and Functional Capacity Evaluation: Should It Be Pain Based or Functional Based?     by Susan J. Isernhagen, PT

- How to Evaluate Workers' Compensation Managed Care Programs: Cost and Quality, by David Michaels,     PhD, MPH

- How to Win the Workers' Compensation Case for the Defense, by Patricia A. Costigan, Esq.

- Skin Disease in the Workplace: Is It Occupational? James S. Taylor

- Ethical Challenges in Occupational Medicine and Workers' Compensation, by Catherine M. Mullahy, RN,     BS, CRRN, CCM

- Confidentiality in Occupational Medicine and Workers' Compensation, by Ronald S. Leopold, MD, MBA,     MPH

- Developing an ADA Complaint Prework Screening Program, by Susan J. Isernhagen, PT

- Travel Medicine and Health in the
    Workplace, by Elizabeth Lawhorn, MSN, RN, COHN-S, CCM

- Choices: Performance vs. Disability and Delayed Recovery: Recognition and Management of the                  Individual at Risk, by Christopher R. Brigham, MD, FACOEM, FAADEP, CIME

- Evaluation and Management of Back Pain: Preventing Disability, by Gerald M. Aronoff, MD

- David and Goliath, 110 Plaintiffs Against Levi Strauss & Co., by Sam J. Legate, Esq.

- Integrated Disability Management: Key Components, by Lori Rieth, MS, RN, COHN, CCM

- Reducing Defense Costs in Workers' Compensation Cases: Flat Fee and Other Alternative Billing                  Techniques, by Charles F. Carr, Esq.

- Willful Misconduct: Voluntary Intoxication and Other Misconduct, by Bradford B. Ingram, Esq.

- Prevention of Disability from Chronic Pain, by Gerald M. Aronoff, MD

- Managed Care for Workers' Compensation/Occupational Medicine: 5 Years Experience, by John Schaefer,     MFS, CIH

- Post Traumatic Stress Disorder in Workers' Compensation Cases, by Melvyn Lurie, MD

- The Occupational Health Nurse's Role in Disability Case Management, by Lori Rieth, MS, RN, COHN,         CCM

- Defense of Retaliatory Discharge Claims, by Bradford B. Ingram, Esq.

- How to Win the Workers' Compensation Case Using Computer Technology, by Charles F. Carr, Esq.

The price of the handbook is $55 plus $8 shipping and handling. To order call SEAK, Inc. at 508-548-7023.

Motor Vehicle Crashes and Workers' Compensation

Motor vehicle crashes are the leading cause of fatal work-related injuries. The toll from crashes was about 1,300 worker deaths in 1996. This amounts to one-fifth of the 6,112 job-related fatalities during that year, a 1997 U.S. Department of Labor report indicates.

The next most common cause of fatal job-related injuries were homicides, which accounted for about 900 fatalities, and workers falling or being struck by objects.

Large trucks were a major factor in 1996 work-related motor vehicle deaths. About 30 percent of the people killed in job-related crashes were occupants of large trucks, primarily tractor-trailers. Another 15 percent of motor vehicle deaths were occupants of vehicles that collided with large trucks.

Bureau of Labor Statistics reports also indicate that motor vehicle crashes caused about 45,439 nonfatal injuries involving lost work time in 1995. Forty-three percent of these injuries resulted in employees losing more than ten work days.

For a copy of "National Census of Fatal Occupational Injuries" and "Occupational Injuries and Illnesses and Work-Related Fatalities Technical Note" write: Bureau of Labor Statistics, Office of Safety, Health and Working Conditions, Room 3180, 2 Massachusetts Avenue, NE, Washington, DC 20212. These reports are also available on the Internet at http://www.bls.gov/oshhome/htm.

For additional information see the July 11, 1998 Insurance Institute for Highway Safety Status Report, or call 703-247-1500, or fax 703-247-1588.

State Workers' Compensation Laws

The U.S. Department of Labor puts out a book entitled "State Workers' Compensation Laws" which provides a comparison of state workers' compensation benefits, including percentage of workers, wages, maximums, duration of benefits, and offsets.

A complementary copy of the book is available from the Department of Labor - call Glenn Whittington at 202-219-6808.

California Workers' Compensation Audits Under Attack

A recent report by the Commission on Health and Safety and Workers' Compensation found a complex and cumbersome structure to the California state workers' compensation system. The notices sent to injured workers were found to be "not readily comprehensible and confusing for injured workers and other parties to the system."

The system to measure the effectiveness of workers' compensation claims handling in California is itself ineffective and needs to be fixed according to the results of the recent study.

For additional information see the July 6, 198 article entitled "Report Blasts Audits of California Comp" in Business Insurance.

Workers' Compensation Specialist

The state of Florida is now requiring "peer review" before a lawyer can become a board certified workers' compensation lawyer.

The provision provides in Rule 6-11.3 minimum standards the following:

(b) Peer Review. The applicant shall select and submit names and addresses of five lawyers, not associates or partners, as references to attest to the applicant's special competence and substantial involvement in workers' compensation practice, as well as the applicant's character, ethics, and reputation for professionalism. Such lawyers themselves shall be involved in workers' compensation law and shall be familiar with the applicant's practice. No less than one shall be a judge of compensation claims before whom the applicant has appeared as an advocate in the trial of a workers' compensation case in the two years immediately preceding the application. In addition, the workers' compensation certification committee may, at its option, send reference forms to other attorneys and judges of compensation claims.

(c) Education. The applicant shall make a satisfactory showing that, within the three years immediately preceding application, the applicant has accumulated at least 45 hours of approved continuing legal education in the field of workers' compensation law.

(d) Examination. The applicant must pass an examination applied uniformly to all applicants to demonstrate sufficient knowledge, proficiency, and experience in workers' compensation law to justify the representation of special competence to the legal profession and the public.

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Workers' Compensation Injuries and Conditions

at a Glance

ALLERGIES

Gourley v. Crossett Public Schools, 968 S.W.2d 56 (Ark. 1998)

AMPUTATION: FINGER

Coble v. Joseph Motors, Inc., 695 N.E.2d 129 (Ind.App. 1998)

ANKLE

State Ex Rel. Gibson v. Indus. Comm., 695 N.E.2d 740 (Ohio 1998)

ARM: AMPUTATION

Williams v. Delta Steel Corp., 695 N.E.2d 633 (Ind.App. 1998)

ARM: LACERATION

Big Star of Many v. Thompson, 710 So.2d 313 (La.App. 3 Cir. 1998)

ASBESTOSIS

Collins v. Arctic Builders, 957 P.2d 980 (Alaska 1998)

BACK

Adams v. North-Star Const. Co., Inc., 672 N.Y.S.2d 166 (A.D. 4 Dept. 1998)

Brannon v. Tampa Tribune, 711 So.2d 97 (Fla.App. 1 Dist. 1998)

Bruno's, Inc. v. Lawson, 709 So.2d 1296 (Ala.Civ.App. 1998)

Christensen v. NCH Corp., 956 P.2d 468 (Alaska 1998)

Fairfax County School Bd. v. Rose, 500 S.E.2d 273 (Va.App. 1998)

Gilley v. Reeves Deli Mart, 711 So.2d 328 (La.App. 2 Cir. 1998)

Hebert v. RWA, Inc., 709 A.2d 1149 (Conn.App. 1998)

Hoyem v. North Dakota Workers Comp., 578 N.W.2d 117 (N.D. 1998)

Johnson v. W.C.A.B., 76 Cal.Rptr.2d 422 (Cal.App. 2 Dist. 1998)

K-Mart v. Whitney, 710 A.2d 667 (R.I. 1998)

Osburn v. Special Indem. Fund, 957 P.2d 133 (Okla.Civ.App. Div. 3 1998)

Ozzimo v. H.E.S., Inc., 672 N.Y.S.2d 197 (A.D. 4 Dept. 1998)

Rent a Center v. Industrial Com'n, 956 P.2d 533 (Ariz.App. Div. 2 1998)

Roman v. Eyelets for Industry, Inc., 709 A.2d 1147 (Conn.App. 1998)

Snead v. Carolina Pre-Cast Concrete, 499 S.E.2d 470 (N.C.App. 1998)

Sun Choi v. Industrial Com'n, 695 N.E.2d 862 (Ill. 1998)

Thibodeaux v. Stamm-Scheele, Inc., 711 So.2d 426 (La.App. 3 Cir. 1998)

BACK: DISC

Freeman v. Best Western Richmond Suites, 711 So.2d 438 (La.App. 3 Cir. 1998)

Hodges v. Alaska Constructors, Inc., 957 P.2d 957 (Alaska 1998)

BACK: DISPLACEMENT OF THE DISTAL COCCYGEAL SEGMENTS

Brasseaux v. Abbeville General Hosp., 710 So.2d 340 (La.App. 3 Cir. 1998)

BURNS

Agee v. Central Soya Co., Inc., 695 N.E.2d 624 (Ind.App. 1998)

CARPAL TUNNEL SYNDROME

Bongiorno v. City of New York, 673 N.Y.S.2d 250 (A.D. 3 Dept. 1998)

Brose v. W.C.A.B., 710 A.2d 637 (Pa.Cmwlth. 1998)

Cooper v. Mid-America Dairymen, 957 P.2d 1120 (Kan.App. 1998)

Franklin v. Dept. of Employment Services, 709 A.2d 1175 (D.C. 1998)

Guarantee Mut. Ins. v. Wade Investments, 499 S.E.2d 925 (Ga.App. 1998)

Libby v. Boise Cascade Corp., 709 A.2d 737 (Me. 1998)

McCoy v. Wrangler, Inc., 710 So.2d 1251 (Ala.Civ.App. 1997)

E-COLI INFECTION

Dongarra v. Village of Ossining, 673 N.Y.S.2d 255 (A.D. 3 Dept. 1998)

FOOT

Page v. Insuplane Inc., 672 N.Y.S.2d 969 (A.D. 3 Dept. 1998)

HANDS

Owen v. American Hydraulics, Inc., 578 N.W.2d 57 (Neb. 1998)

HANDS: BILATERAL ENTRAPMENT NEUROPATHY

The New Portland Meadows v. Dieringer, 957 P.2d 190 (Or.App. 1998)

HAND: HYPEREXTENDED

Nichols v. Mama Stuffeati's, 965 S.W.2d 171 (Mo.App. W.D. 1997)

HEAD

Meyer v. Piggly Wiggly No. 24, Inc., 500 S.E.2d 190 (S.C.App. 1998)

HEART ATTACK

Dorosz v. Green & Seifter, 672 N.Y.S.2d 948 (A.D. 3 Dept. 1998)

Masko v. Board of Educ. of Wallingford, 710 A.2d 825 (Conn.App. 1998)

HIP

Smetak v. LA Workers' Compensation Corp., 711 So.2d 417 (La.App. 3 Cir. 1998)

KIDNEYS

Johnson v. Traynor, 579 N.W.2d 184 (N.D. 1998)

KNEE

Gaines v. Orange County Public Utilities, 710 So.2d 139 (Fla.App. 1 Dist. 1998)

Kinder v. Murray & Sons Const. Co., Inc., 957 P.2d 488 (Kan. 1998)

State Ex Rel. Kroger Co. v. Indus. Comm., 694 N.E.2d 1353 (Ohio 1998)

KNEE: ANTERIOR CRUCIATE INSUFFICIENCY

Conner v. B & S Logging, 957 P.2d 159 (Or.App. 1998)

KNEE: REPLACEMENT

Avery v. City of Columbia, 966 S.W.2d 315 (Mo.App. W.D. 1998)

LEG

Porter v. Bayliner, 709 A.2d 1205 (Md. 1998)

LEG: BROKEN

Ester v. National Home Centers, Inc., 967 S.W.2d 565 (Ark.App. 1998)

NECK

Johnson v. Weyerhaeuser Co., 499 S.E.2d 916 (Ga.App. 1998)

NECK SPRAIN

State Ex Rel. Frederick v. LCDHS, 694 N.E.2d 1350 (Ohio 1998)

PNEUMOCONIOSIS

Begley v. Mountain Top Inc., Ky., 968 S.W.2d 91

PSORIATIC ARTHRITIS

Sweat v. Superior Industries, Inc., 966 S.W.2d 31 (Tenn. 1998)

PSYCHOLOGICAL

EBI/Orion Group v. Blythe, 957 P.2d 1134 (Mont. 1998)

Leon County School Bd. v. Green, 711 So.2d 86 (Fla.App. 1 Dist. 1998)

Trujillo v. Icao, 957 P.2d 1052 (Colo.App. 1998)

PSYCHOLOGICAL: PANIC ATTACK

Roberts v. SIIS, 956 P.2d 790 (Nev. 1998)

RHEUMATOID ARTHRITIS

Compton v. 7-Up Bottling Co./Brooks, 695 N.E.2d 818 (Ohio App. 10 Dist. 1997)

SHOULDER

Synder v. State, 957 P.2d 289 (Wyo. 1998)

TORTICOLLIS

Johnson v. Aladan Corp., 710 So.2d 1262 (Ala.Civ.App. 1997)

VENTRICULAR TACHYCARDIA

Oxley v. Sattler, 710 So.2d 261 (La.App. 3 Cir. 1998)

WRIST

Currier v. State Indus. Ins. System, 956 P.2d 810 (Nev. 1998)

WRIST: OVERUSE SYNDROME

SAIF v. Batey, 957 P.2d 195 (Or.App. 1998)

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Selected Workers' Compensation Cases of Interest

Aggravation: Psoriatic Arthritis

SWEAT V. SUPERIOR INDUSTRIES, INC.

966 S.W.2d 31 (Tenn. 1998)

The Tennessee Supreme Court dealt with the claimant, Sweat, who was 28 years old, with a high school education. He held a variety of jobs before he was employed by the defendant in 1993. He worked in the foundry transporting liquid aluminum by a monorail system. This kind of job required safety clothing and paraphernalia. In 1994 he had a shoulder injury which apparently required no treatment. Pain and swelling developed in his ankles, hip and shoulder, which eventually disabled him.

He was employed by the defendant 18 months. Before working there, he never experienced any of the symptoms of psoriatic arthritis. Within a few months, his feet became sore; the condition worsened, until most of his body was affected. Psoriatic arthritis was eventually diagnosed by a rheumatologist.

The court affirmed the award of benefits for the psoriatic arthritis (connective, not curable arthritis) based upon an aggravation theory.

The court stated:

The Court FINDS and HOLDS that plaintiff did suffer a compensable injury in the course and scope of his employment with defendant. Specifically, the prolonged standing on a concrete floor and at times strenuous nature of his work caused a progression or actual worsening of his underlying disease of psoriatic arthritis. As a result thereof, plaintiff has sustained a permanent partial disability of seventy (70) percent to his whole body.

Average Weekly Wage: Daily Rate

THIBODEAUX V. STAMM-SCHEELE, INC.

711 So.2d 426 (La.App. 3 Cir. 1998)

The Louisiana Court dealt with the claimant, Thibodeaux, who injured his back at work on June 7, 1994, and underwent a surgical repair. On June 6, 1996, Thibodeaux began working on a job under federal contract, which provided Stamm-Scheele employees would be paid ten dollars and fifty-four cents ($10.54) per hour. Stamm-Scheele employed Thibodeaux for "a couple of years before the accident", paying him six dollars and fifty cents ($6.50) an hour, with time and a half for those hours over forty. Because Thibodeaux had only been working under the federal contract, which mandated a higher hourly wage, for only one day prior to being injured, the employer argues the hearing officer's decision "results in absurd consequences since the result does not remotely approximate the earnings of the claimant, but rather yields in a windfall in his favor."

The court found that the claimant was entitled to workers' compensation based on his daily rate and not on the employer's assertion that it was "too much".

The court stated:

This court will not apply the workers' compensation laws in a manner which will require us to speculate as to what wages the employer would have paid the employee post-accident by considering totally irrelevant pre-accident wage figures. The legislature has provided a simple calculative method. Our decision is supported by case law and the aim of the Act itself, which "is to compensate an injured worker not only for lost wages, but also for reduced or lost earning capacity."

Because Thibodeaux was injured on the second day of the federal job, he suffered "reduced or lost earning capacity", at the rate of ten dollars and fifty-four cents ($10.54) each hour. He is now entitled to compensation benefits based on that rate of pay.

Compensable Consequences: Panic Attacks

ROBERTS V. SIIS

956 P.2d 790 (Nev. 1998)

The Nevada Supreme Court dealt with a claimant, Roberts, a chiropractic assistant, who was severely injured while attempting to move a 300 pound table at his place of employment. On March 1, 1994, J. Dennis Richey, M.D. confirmed that Roberts had sustained bilateral inguinal hernias, sprain/strain, complex lumbar sprain, facet syndrome, intercostal strain, thoracic strain, and cervical strain. Later that month, Malcolm Poon, M.D. recommended surgical reduction of the hernias. Roberts filed a claim for workers' compensation benefits with respondent, State Industrial Insurance System ("SIIS").

Shortly thereafter, Roberts began experiencing panic attacks arising from his concerns regarding surgery. These attacks took the form of sudden acute symptoms of shortness of breath, inability to swallow, profuse sweating, and disorientation. Dr. Poon advised the SIIS that he would not perform the requisite surgery until Roberts could be cleared by a psychologist or psychiatrist.

The court reversed the denial of benefits finding that the "stress statute" was inapplicable and that the attacks were covered under the doctrine of compensable consequences.

The court stated:

We conclude that substantial medical evidence exists to support the conclusion of the appeals officer that Roberts's panic disorder was a genuine sequelae of his physical injuries and that the disorder created a reasonable medical obstacle to the surgery recommended by his physicians. We also conclude that the appeals officer was correct in his application of NRS 616.5019 and the doctrine of "compensable consequences".

Concurrent Employment: Multiple Employers

KINDER V. MURRAY & SONS CONST. CO., INC.

957 P.2d 488 (Kan. 1998)

The Kansas Supreme Court dealt with the claimant, Kinder, who had worked as a concrete finisher on several different jobs for different employers at different times during 1992 in the months preceding his injury. When a particular company needed someone to lay cement, it might contact Kinder to do the work. Kinder testified he had been a cement mason for 24 years and used his own tools. Different construction companies would contact him and tell him they had a job, and, upon accepting a job and showing up for work, he would just work until the job was finished; jobs typically lasted one or two days. These companies always paid Kinder by the hour, although the rates in 1992 varied from $14.25 to $13.30 to $13.10 per hour, depending on the employer. The Washburn University job that Kinder was hired by Murray & Sons to complete lasted eight hours and Kinder was paid $13.10 per hour. On the date of his injury, Kinder was not employed by any company other than Murray & Sons.

The court found multiple/concurrent employment despite the fact that the claimant was only "under contract" with one employer when injured.

The court stated:

We find no reason to go beyond a plain reading of the above provision to determine its meaning. With respect to who is eligible for wage aggregation, the statute identifies a part-time employee who performs the same or similar work for more than one employer. Kinder fits that category. With respect to eligibility for benefits, the statute provides that the employee's injury be the result of accident arising out of and in the course of multiple employment. The statute reasonably can be read to define multiple employment as employment for one or more employers in which the employee performs the same or similar work on a part-time basis for each.

Constitutionality: Termination of Disability Benefits After Age 65

GREGORY V. NORTH DAKOTA WORKERS COMP.

578 N.W.2d 101 (N.D. 1998)

The North Dakota Supreme Court dealt with the claimant, Gregory, who was originally injured at work in 1958, went out of work in 1981, and was awarded permanent and total disability in 1985. In July 1996, the Bureau notified Gregory of its intention to discontinue disability benefits under a 1995 enactment of N.D.C.C. Sec. 65-05-09.3 creating a rebuttable presumption that a disability recipient who begins receiving social security retirement benefits is considered retired and ineligible for disability benefits. On August 2, 1996, the Bureau ordered cancellation of Gregory's disability benefits effective August 13, 1996, when he turned 65.

The court found that the underlying statute cutting off claimants who reach age 65 was constitutional but it did not apply to those who were on permanent and total when the statute became effective.

The court stated:

We conclude, in this case, there was a valid obligation to pay continued disability benefits in existence when the 1995 amendment took effect. The Bureau's attempt to wholly cancel Gregory's receipt of disability benefits past age 65 impaired that valid obligation. Thus, as directed by N.D.C.C. Sec. 1-02-30, we construe the statute in a way that does not impair that valid obligation. We therefore hold N.D.C.C. Sec. 65-05-09.3(2) does not apply to terminate the disability benefits of Gregory or other workers who were already receiving permanent total disability benefits before the 1995 statute took effect, and he is entitled to reinstatement of full disability since August 13, 1996.

In Course of Employment: Heart Attack at Arbitration Hearing

MASKO V. BOARD OF EDUC. OF WALLINGFORD

710 A.2d 825 (Conn.App. 1998)

The Connecticut Court dealt with the decedent, Masko, who was employed by the school board as its business manager. At the time of his death, the decedent was anxious and frustrated with the ongoing negotiations over the collective bargaining agreement that covered his position. The negotiations had failed, and the parties were forced to resort to binding arbitration.

On May 10, 1993, during regular business hours in accordance with the town's custom, an arbitration hearing between the union and the school board was conducted at Sheehan High School in Wallingford. The decedent voluntarily attended the hearing with his employer's permission, for which time he received compensation. At the hearing, the decedent delivered a lengthy speech, after which he collapsed and later died. Cardiologists concluded that the decedent's death was caused by the emotional stress of the hearing, in addition to a preexisting heart condition. No contrary medical opinion was offered.

The court affirmed the award of benefits finding that the death occurred in the course of employment.

The court stated:

First, the trial commissioner found that the decedent attended the arbitration hearing as a union member with his employer's permission, and he was paid for that time. Second, the trial commissioner found that the decedent collapsed during this hearing, which was being conducted during the regular business hours of his employment. Third, it is undisputed that the hearing took place on the school board's premises, a place where the decedent reasonably could have been found as a union participant during the arbitration proceedings.

Finally, the decedent was, at the very least, doing something incidental to his employment.

In Course of Employment: Shooting by Co-Employee

WOODS V. HARRY B. WOODS PLUMBING CO.

967 S.W.2d 768 (Tenn. 1998)

The Tennessee Supreme Court dealt with the decedent, Woods, his nephew, and his son who arrived at a house to perform a plumbing job. Charles Langley, Jr. was doing renovations on the house and had put signs and tape indicating the entryway should not be used. The decedent ducked under the tape. His son was threatened by Langley.

The decedent, his nephew, and his son left the house and walked toward their vehicles. The decedent spoke briefly with his son and then began walking toward Langley's van. The decedent apparently charged Langley and was intercepted by the project supervisor who again attempted to intervene. Langley, however, drew an automatic pistol and shot the decedent five times. The decedent died as a result of the gunshot wounds.

The Supreme Court reversed the denial of benefits finding that the dispute had an inherent connection to the employment. The court also rejected the "initial aggressor defense".

The court stated:

The next issue with which we are confronted is: (1) whether the decedent was an initial aggressor; and, if so, (2) whether the decedent's death was rendered non-compensable by an initial aggressor defense. Both the trial court and the workers' compensation panel concluded the decedent's death was non-compensable because "[t]he decedent was the aggressor since the altercation between the parties had terminated before [the decedent] charged Langley." ...

In the absence of an express statutory authorization, we hold the common law aggressor defense as it relates to workers' compensation claims under the Act is abolished in Tennessee and does not bar the decedent's recovery.

In Course of Employment: Traveling to Pick Up Check

EVANS V. HANDI-MAN TEMP. SERVICES & RISCORP

710 So.2d 132 (Fla.App. 1 Dist. 1998)

The Florida Court dealt with the claimant, Evans, who was employed as an irregular employee of Handi-Man Temporary Agency. He was injured after working ten hours while traveling to another location designated by his employer in order to turn in a time card and pick up his paycheck.

The court reversed the denial of benefits finding that the claimant was engaged in travel necessarily incidental to performance of his job responsibilities and thus was in the course of his employment when injured.

The court stated:

We therefore reverse the order dismissing Mr. Evans's petition for benefits and remand for further proceedings consistent with this decision. A day laborer who picks up a paycheck at the end of the day is acting within the course and scope of his or her employment. In the order under review, the judge of compensation claims found that, in order to be paid for the day's work, Mr. Evans was on his way from the job site to the Alamo as the place for its employees to turn in time cards and collect their pay after hours. An employee traveling from the job site to another location designated by his employer to pick up a paycheck is engaged in "travel necessarily incident to performance of the employee's job responsibility."

Longshore: Situs Requirement

NELSON V. AMERICAN DREDGING CO.

143 F.3d 789 (3rd Cir. 1998)

The U.S. Court of Appeals (3rd Cir.) dealt with the claimant, Nelson, who on September 1, 1992, was injured at work. At the time of the accident, he was working on a beach reclamation project ("project") which ADC had been performing for about two months on Fenwick Island, Delaware, under a contract with the state of Delaware. The project consisted essentially of widening the beach by adding sand to it. The sand was obtained from the ocean floor approximately ten miles from the beach by a hopper dredge, a self-propelled vessel named Atlantic American. The sand was deposited in the hole of the vessel which then transported it to a mooring buoy located several hundred yards from the beach where ADC had constructed an underwater pipeline to the beach. The sand in a slurry form was unloaded from the vessel and deposited on the beach by pumping it through this pipeline.

The court found that the claimant met the situs requirement of the Longshore Act under the "adjoining area" definition. The court stated:

ADC is a maritime employer within the meaning of the Act. It is in the business of dredging channels and reclaiming beaches. A fair reading of the uncontradicted testimony of Nelson and of ADC's chief financial officer at the April 27, 1995, hearing, the only witness who testified, supports the following: ADC performed a number of these beach reclamation projects, and thus was in the beach reclamation business. The Fenwick Island project was typical in that the sand used to rebuild the beach had to be obtained from a "borrow" area from the floor of the ocean at a point which was beyond the reach of the pipeline which ADC used to pump this sand onto the beach being reclaimed. Therefore, ADC employed a hopper dredge to dredge the sand from the borrow area and to load it into the hopper of the dredge vessel which then transported the sand to the pipeline. The sand then was pumped from the hopper dredge through the pipeline and unloaded onto the beach. The Fenwick Island beach was an area contiguous to navigable waters. And it and similar beaches customarily were used by ADC, an employer, to unload its hopper dredge vessel. In fact, this had been done on this job for approximately two months prior to the time when Nelson was injured.

Medical Care: Hot Tub

HODGES V. ALASKA CONSTRUCTORS, INC.

957 P.2d 957 (Alaska 1998)

The Alaska Supreme Court dealt with the claimant, Hodges, who injured his back at work in 1997, underwent seven back surgeries, and was put on permanent and total disability benefits. In addition to numerous other requests for reimbursements, he sought payment for a therapeutic bed and hot tub prescribed by his physician. He then went out and spent $15,000 for the installation of the hot tub.

The court affirmed the finding of reimbursement for a more modest hot tub. The court stated:

Hodges submitted bills totaling approximately $15,000 for the purchase and installation of a gazebo-covered, outdoor hot tub. Alaska Constructors proffered evidence that an alternative bathtub whirlpool could have been installed in Hodges's home for a total cost of only $4,640. After examining the testimony of Joyce Heisler, a hot tub vendor, and Dr. D.L. Hill, the chiropractor who prescribed the hot tub, the Board ruled that reimbursement for the hot tub should be limited to $4,640. ...

Furthermore, the record supports the Board's finding that the experts' testimony was based upon the faulty assumption that Hodges's upper back treatment was compensable. Dr. Hill remarked that the requirements of a beneficial hot tub included that "he could immerse up to his neck in it." Heisler commented that the alternative proposed by Alaska Constructors might not be as comfortable because Hodges would not receive a benefit to all parts of his body, including the upper neck.

Medical Care: Spinal Cord Stimulator

BRASSEAUX V. ABBEVILLE GENERAL HOSP.

710 So.2d 340 (La.App. 3 Cir. 1998)

The Louisiana Court dealt with the claimant, Brasseaux, who injured her back at work on May 24, 1993, and was left with chronic pain. Her treating doctor recommended implantation of a spinal cord stimulator to block the pain. The workers' compensation insurer refused to pay for the proposed medical care. A claim was filed for the medical care.

The court found the treatment was reasonable and necessary and stated:

Based on the preceding testimony and the medical records in evidence, we find that the trial implantation of a spinal cord stimulator is a necessary medical procedure. The evidence has proven that Brasseaux has suffered severe chronic pain for four years since her work-related accident. She is entitled to treatment which is necessary to relieve the pain she suffers as a result of her disability. Drs. Hubbell and White both felt that Brasseaux was a candidate for a spinal cord stimulator. Even Dr. Lemoine stated that she would be a candidate if she were weaned off narcotic medications, and still had the same level of pain after undergoing further sacroiliac joint injections and aggressive physical therapy. Since she has already undergone numerous injections and physical therapy without success, we do not think she should be subjected to them again before the spinal cord stimulation can be authorized. Drs. Hubbell, White, and Lemoine were the only doctors who have actually used spinal cord stimulation in their practices. Thus, we find their opinions persuasive. Accordingly, we find that the trial implantation of a spinal cord stimulator is a necessary medical treatment for Brasseaux.

Misrepresentations: False Prior Statements

FREEMAN V. BEST WESTERN RICHMOND SUITES

711 So.2d 438 (La.App. 3 Cir. 1998)

The Louisiana Court dealt with the claimant, Freeman, who sustained a herniated disc in her back in an "unwitnessed accident" at work. Freeman claims to have felt a "pop" in her lower back and began to experience severe pain when she attempted to arise from her knees after cleaning a bathtub at work that morning.

The insurer defended the case based on false statements, i.e. denial of prior back injuries on her preemployment questionnaires.

The court took into consideration the claimant's "dull intellect" and her inability to communicate and found no willful misrepresentations.

The court stated:

In this case, there is no evidence in Freeman's medical records that indicate she was ever diagnosed with any type of back pain or injury before June 16, 1996. Furthermore, there has also been no showing in the record that a herniated disc was inevitable or very likely to occur based upon any prior medical condition. Therefore, Best Western failed to prove elements to justify forfeiture.

Offset: Social Security Disability

BIG STAR OF MANY V. THOMPSON

710 So.2d 313 (La.App. 3 Cir. 1998)

The Louisiana Court dealt with the claimant, Thompson, who cut her arm to the bone on a meat slicing machine. The insurer attempted to offset the $425.40 she received in Social Security benefits. The Social Security was paid only because she qualified as a spouse on her husband's record. She was not insured on her own record.

The court affirmed the denial of the offset finding that to allow it would create an unfair windfall for the employer.

The court stated:

In this case, Thompson is not "collecting duplicative wage-loss benefits under different parts of the overall system of employer-based protection against loss of wages." The Social Security benefits represent payment made on behalf of Thompson's spouse. They are not retirement benefits paid because of her own payment into Social Security nor do they represent Social Security benefits received because of her own disability. There is nothing of record to indicate that Thompson's work status has any effect on her entitlement to these benefits. If offsets are allowed in such circumstances, the result will not be to prevent receipt of duplicative benefits. Rather, in many cases, such an offset would give a windfall to the employer and reduce the claimant's income below sixty-six and two-third percent of their income prior to the accident. Therefore, we find that the workers' compensation judge did not err in finding that Big Star may not offset the Social Security benefits received by Thompson on her husband's account.

Payment Without Prejudice: Protective Order

LIBBY V. BOISE CASCADE CORP.

709 A.2d 737 (Me. 1998)

The Maine Supreme Court dealt with the claimant, Libby, who notified her employer, Boise Cascade, that she had suffered a work-related carpal tunnel injury. Boise filed a first report of injury and a notice of controversy disputing the injury, and voluntarily paid incapacity benefits for all of Libby's lost time from work as a result of the injury. Boise filed a memorandum of payment with the board stating that benefits had been paid "pending investigation" and "without prejudice". Libby does not dispute that Boise has paid all compensation due her. Because Boise never accepted the compensability of her carpal tunnel condition, however, Libby filed a petition for award seeking protection of the Act. The Board granted Libby's petition, concluding that although she had been fully compensated, Libby was entitled to seek a determination of the compensability of her injury.

The court affirmed the finding that as the employer made the payments "without prejudice" the claimant was entitled to seek to establish liability.

The court recognized the problems incident to proving a workers' compensation case many years after the injury. The court stated:

Because an employee's work-related injury is rarely static, permitting petitions for protection arising from changes in an employee's medical condition, in the absence of a controversy over benefits or the liability of the employer for the underlying injury, could greatly increase the rate of filing of protective decrees. Moreover, establishing a connection between a work-injury and subsequent sequelae depends more on medical evidence and less on eyewitness accounts and other workplace specific evidence which are more easily lost with the passage of time. Accordingly, we decline to extend our holding in Burbank to cases where the employee seeks an initial adjudication of the responsibility for an allegedly work-related injury.

Permanent Partial: Incarceration

CONNICK V. COUNTY OF BERNALILLO

957 P.2d 1153 (N.M.App. 1998)

The New Mexico Court dealt with the claimant, Connick, who was injured in 1991 at work. Eventually, he was assigned an impairment rating of 22 percent, and he received additional benefits based on the statutory modifiers of Section 52-1-26, for a total compensation calculated at 46 percent of his pre-injury wage. Subsequently, he pleaded guilty to the second-degree murder of his wife, and on May 15, 1995, the claimant was sentenced to a six-year term in prison and was incarcerated. Prior to being imprisoned, he had received a favorable determination from the Social Security Administration which had awarded him total disability benefits. By operation of federal law, however, those benefits were suspended for the duration of claimant's incarceration.

Upon his incarceration, employer reduced his benefits to 22 percent, reflecting the physical impairment rating. The claimant filed a complaint with the Workers' Compensation Administration to increase the benefits back to 46 percent.

The court as a matter of first impression held that while the claimant was entitled to continue to receive permanent partial while incarcerated, he was not entitled to benefits based upon a statutory modification of the impairment rating.

The court stated:

We determine that during the period of his incarceration Claimant is not entitled to disability benefits based on the statutory modification of his impairment rating. Conversely, because the Act evinces a legislative intent to compensate workers for impairment independently of lost wages and this case does not fall within any provision that would reduce or eliminate impairment benefits, claimant is entitled to continue receiving benefits based on his impairment rating. We affirm in part, reverse in part, and remand this case for entry of an order awarding claimant benefits based solely on his impairment rating.

PPD Rating: After Death

CURRIER V. STATE INDUS. INS. SYSTEM

956 P.2d 810 (Nev. 1998)

The Nevada Supreme Court dealt with the decedent, Raike, who in December 1991 injured his wrist, elbow, and shoulder at work. On June 11, 1992, Dr. Brandner informed the State Industrial Insurance System (SIIS) that Raike's wrist problem was work-related, permanent and progressive, and would probably require surgical treatment. In August 1992, Raike suffered a fatal non-industrially related heart attack. Approximately two years after his death, Raike's widow, Teresa Currier, requested a PPD evaluation of her deceased husband. After a review of his medical records, SIIS medical advisor Mary Ann Shannon M.D. (Dr. Shannon) concluded that there was insufficient documentation upon which to provide a rating. Consequently, on September 2, 1994, SIIS denied Currier's request for the PPD evaluation. The hearing officer affirmed SIIS's decision.

The court held that the widow was entitled to a posthumous PPD rating despite the fact that her husband's condition had not stabilized before his heart attack.

The court stated:

Based on the important policies underlying workers' compensation laws, we hold that when a claimant suffers a non-industrially related death prior to stabilization of injury, a posthumous PPD evaluation may be conducted utilizing the deceased claimant's existing medical records. Any benefits resulting from such an evaluation may be paid to the dependents of the deceased claimant.

Here, the appeals officer determined that the records, as a factual matter, were sufficient to enable a qualified physician to posthumously rate Raike's condition. It was error for the district court not to defer to that determination.

Retaliatory Discharge: Filing Workers' Compensation Claim

CRABTREE V. BUGBY

967 S.W.2d 66 (Mo.banc 1998)

The Missouri Court dealt with the plaintiff, Crabtree, who worked as a dog groomer and injured herself at work on April 26, 1994. Prior to her injury, Crabtree had not received any written disciplinary reports. However, upon her return to work, she began to clash with the new supervisor and Clancy. In an eight-day period, Clancy wrote four disciplinary reports. These reports included 1) that Crabtree had left a dog in a restraining noose in a tub, 2) that Crabtree had taken an unauthorized break, 3) that she had called in sick less than an hour before her shift started, and 4) a claim that Crabtree copied confidential client information in her own journal. Crabtree denied at trial that any of the four events occurred.

On February 10, 1995, Clancy met with Crabtree in the employee break room. At this meeting, Clancy accused Crabtree of copying confidential client information. Crabtree denied the allegation, but Clancy stated that he believed his sources. He then informed Crabtree that Silver Maple Farm was terminating her employment based on the events in the written disciplinary reports.

The court found that there was substantial evidence of a retaliatory discharge and stated:

Crabtree presented evidence of repeated disciplinary actions within a short period of time, evidence that the violations were false, evidence of demotion and a pay cut, and evidence that she was put on probation but never notified. Viewed in the light most favorable to Crabtree, the factfinder could have concluded that Silver Maple Farm acted intentionally or maliciously by engaging in a pattern of harassment or by intentionally creating a false paper trail to cover its scheme to fire her.

Note: The case was remanded as the court held that a plaintiff must prove that the discharge was exclusively caused by the filing of the workers' compensation claim.

Settlement: Medicaid Lien

STATE, AGENCY FOR HEALTH CARE V. ESTABROOK

711 So.2d 161 (Fla.App. 4 Dist. 1998)

The Florida Court dealt with the claimant, Estabrook, who was severely injured in a car accident in 1992. He took nothing in the ensuing litigation against the other driver, who was found not negligent following a jury trial. Over the next two years, Florida Medicaid covered a total of $36,216.17 of Estabrook's medical expenses. In his application for Medicaid assistance, Estabrook assigned to the agency his "rights to third party insurance benefits." In late 1994, the Agency filed a Claim of Lien for $36,844.15.

Months later, Estabrook, Estabrook's employer, and the employer's insurer, Wausau Insurance Companies, reached a workers' compensation settlement. The settlement awards Estabrook $475,000, but expressly provides that most of this sum represents "attendant care benefits," and that none of it represents past or future medical benefits or expenses. The Agency was not informed of, nor did it participate in, the settlement negotiations.

The Agency filed this petition in the circuit court to enforce its Medicaid lien.

The court looked through the designations made in the workers' compensation settlement and held that the Medicaid lien was enforceable.

The court stated:

In order to further explain our disagreement with Estabrook's reliance on Griepentrog, we must first articulate what we understand to be the proper methodology for assessing a state's entitlement to funds under the Third-Party Liability framework: (1) the initial inquiry is whether the paying entity is in fact a "third party"; that is, whether the entity is or may be liable for any part--even a negligible portion--of the Medicaid-provided services, see 42 C.F.R. Sec. 433.136(3); and (2) once it is determined that the entity qualifies as a "third party", then the Agency may satisfy its lien out of the entirety of the third party's liability for the covered injury, even if such liability includes components not financed by Medicaid, such as attendant care, pain and suffering, or punitive damages, see 42 U.S.C. Sec. 1396k(b). Griepentrog dealt exclusively with the threshold issue of whether the source of funds in that case was a "third party"--the court did not hold that the funds collected from an entity qualifying as a "third party" must be allocated.

Settlement: Relief from Judgment

JOHNSON V. ALADAN CORP.

710 So.2d 1262 (Ala.Civ.App. 1997)

The Alabama Court dealt with the claimant, Johnson, who sustained a crushing injury to her hand and forearm on April 25, 1994. She settled her workers' compensation claim on November 4, 1996, and on November 25, 1996 obtained new counsel and sought to vacate the settlement. The trial court ordered a new neurological exam. The neurologist found RSD at stage 2 or 3 and a condition known as torticollis, i.e. movement due to reorganization of the spinal cord as a result of chronic pain in the hand.

The court set aside the settlement as her attorney did not know of the torticollis when he settled. The court set aside the settlement based on the fact that the "workers' compensation settlement failed to do justice."

The court stated:

Dr. Allen also testified at the hearing on Johnson's motion. He testified that he had continued treating Johnson after giving his deposition in December 1995, and that she had since developed torticollis as a result of her hand and forearm injury. He described her condition as so severe that her neck was "about as stiff as I'd ever seen", and that it was twisted so much that her left ear lobe almost touched her shoulder. According to Dr. Allen, there is no cure for torticollis but the condition can often be improved with repeated injections. He also testified that he believed Johnson had no chance of being able to return to work in the next three years and that she had only a 25% chance of returning to work after that. Johnson's former attorney testified that, at the time of the hearing, he had not discussed Johnson's condition with anyone from Dr. Allen's office since taking Dr. Allen's deposition in December 1995.

Third Party Action: Attorney Fees

EAKIN V. UNITED TECHNOLOGY CORP.

998 F.Supp. 1422 (S.D.Fla. 1998)

The U.S. District Court (S.D. Florida) dealt with the plaintiff, Eakin, who was injured in an industrial helicopter crash. He settled his third party case for $600,000 and had a $226,197 workers' compensation lien. The plaintiff then discharged his attorney and attempted to get out of his 30 percent contingency fee agreement.

The court found that counsel was entitled to his 30 percent of the gross or total recovery and not on only the net recovery.

The court recognized counsel's effort and stated:

Since Acosta's contingency rate is 30%, and Eakin is recovering $600,000, Acosta's attorney's fees are not clearly excessive. With Eakin offering nothing more than conclusory statements that the fee is excessive, this Court cannot say that Acosta's fees are excessive or unconscionable. As Acosta pointed out in his brief, he and Papadakis secured the $600,000 settlement offer after eleven years of prior litigation and the efforts of five or six previous law firms failed to produce anything of value for Eakin.

Based on the communications Eakin himself has had with this Court, it appears that he is an intelligent man with an intense interest in his case. In this case alone, Eakin has, no doubt, acquired a substantial knowledge on how to retain and terminate counsel. Eakin was free to accept or reject the use of a contingency fee contract and the terms of the executed contingency fee contract. Eakin must have known that Acosta was going to represent him in settlement negotiations. Eakin must have expected, or at least hoped, that Acosta would obtain a favorable recovery for him. Having represented Eakin and obtained a favorable recovery for him, Acosta is now entitled to his fee in accordance with the contingency fee contract.

Top

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Exclusivity: Barred Claim for Sexual Harassment

COLBERT V. GEORGIA-PACIFIC CORP.

995 F.Supp. 697 (N.D.Tex. 1998)

Exclusivity: Does Not Bar Action for Assault and Battery

STAPP V. OVERNITE TRANSP. CO.

995 F.Supp. 1207 (D.Kan. 1998)

Exclusivity: No Issue of Employer Intentionally Interfering with Employee's Medical Treatment

CHRISTENSEN V. NCH CORP.

956 P.2d 468 (Alaska 1998)

Exclusivity: Of Workers' Compensation Act Barred Claim for Intentional Infliction of Emotional Distress

DUNLAP V. ASSOCIATION OF BAY AREA GOVERNMENTS

996 F.Supp. 962 (N.D.Cal. 1998)

Exclusivity: Special Employer Stands in the Shoes of Employer in Defense of Immunity Suit

CARMEN V. LINK

695 N.E.2d 28 (Ohio App. 3 Dist. 1997)

Exclusivity: Subcontractor Was Statutory Employer of Worker

VATTEROTT V. HAMMERTS IRON WORKS, INC.

968 S.W.2d 120 (Mo.banc 1998)

Impairment Benefits: Not Available While Claimant Receiving Permanent and Total Disability

BRANNON V. TAMPA TRIBUNE

711 So.2d 97 (Fla.App. 1 Dist. 1998)

In Course of Employment: Fall in Public Street on Lunch Hour Not Compensable

REGGERO V. FRONTIER INS. GROUP

673 N.Y.S.2d 260 (A.D. 3 Dept. 1998)

In Course of Employment: Heart Attack While Bowling for Company Sponsored Team Not Compensable

DOROSZ V. GREEN & SEIFTER

672 N.Y.S.2d 948 (A.D. 3 Dept. 1998)

In Course of Employment: Claimant Not Entitled to Workers' Compensation for Injuries Riding Amusement Ride of Employer on Day Off

MADDEN V. WALT DISNEY WORLD CO.

711 So.2d 150 (Fla.App. 1 Dist. 1998)

Intentional Tort: Actual Knowledge Requirement Not Met in Explosion Case

AGEE V. CENTRAL SOYA CO., INC.

695 N.E.2d 624 (Ind.App. 1998)

Interest: Award Draws Interest for the Date Ordered Paid Until Date of Satisfaction

DEAN V. SPECIAL INDEM. FUND

956 P.2d 945 (Okla.Civ.App. Div. 3 1998)

Irritation: Of Carpal Tunnel Syndrome Compensable

McCOY V. WRANGLER, INC.

710 So.2d 1251 (Ala.Civ.App. 1997)

Last Injurious Exposure Rule: Most Recent Employer Responsible

THE NEW PORTLAND MEADOWS V. DIERINGER

957 P.2d 190 (Or.App. 1998)

Light Duty: Claimant Not Fit to Return to Light Job Offered

TUNNE V. ERIC COUNTY MEDICAL CENTER

673 N.Y.S.2d 268 (A.D. 3 Dept. 1998)

Longshore: Welder Not on Longshore Situs When Injured in Steel Fabrication Plant Near Navigable Water

JONATHAN CORP. V. BRICKHOUSE

142 F.3d 217 (4th Cir. 1998)

Lump Sum: In Reopening Effort Last Compensation Refers Only to Those Payments Authorized by Commission

PORTER V. BAYLINER

709 A.2d 1205 (Md. 1998)

Major Contributing Cause: 1991 Accident Major Cause of All Instability

CONNER V. B & S LOGGING

957 P.2d 159 (Or.App. 1998)

Medical Care: Attorney Fees for Failure to Consent to Change of Physicians

SMETAK V. LA WORKERS' COMPENSATION CORP.

711 So.2d 417 (La.App. 3 Cir. 1998)

Medical Treatment: Unjustified Refusal Not Cured by Letter to Employer's Counsel

FAIRFAX COUNTY SCHOOL BD. V. ROSE

500 S.E.2d 273 (Va.App. 1998)

New Accident Rule: Carrier Which Provided Coverage When Claimant with CTS Stopped Working Liable

GUARANTEE MUT. INS. V. WADE INVESTMENTS

499 S.E.2d 925 (Ga.App. 1998)

Occupational Disease: Back Condition from Standing 8-9 Hours Per Day as Bookkeeper Not Occupational Disease

BRUNO'S, INC. V. LAWSON

709 So.2d 1296 (Ala.Civ.App. 1998)

Offset: Waiver of Right to Offset Future Workers' Compensation Did Not Stop Insurer for Taking Credit for Scheduled Award Already Paid

PAGE V. INSUPLANE INC.

672 N.Y.S.2d 969 (A.D. 3 Dept. 1998)

Outrageous Conduct: Displaying Piece of Amputated Finger Was Outrageous But Could Not Be Imputed to Employer

COBLE V. JOSEPH MOTORS, INC.

695 N.E.2d 129 (Ind.App. 1998)

Peer Review System: Claimant Lacked Standing to Challenge Bureau's Lack of System

SHERMAN V. N. DAKOTA WORKERS COMP. BUREAU

578 N.W.2d 517 (N.D. 1998)

Permanent Partial: None for Chronic Pain Under AMA Guides

HOYEM V. NORTH DAKOTA WORKERS COMP.

578 N.W.2d 117 (N.D. 1998)

Permanent Partial: Wage Earning Capacity Is a Factor in Determining PPD

COOPER V. MID-AMERICA DAIRYMEN

957 P.2d 1120 (Kan.App. 1998)

Permanent and Total: Claimant Failed to Present Proof or Permanency of Disability

CITY OF PENSACOLA FIREFIGHTERS V. OSWALD

710 So.2d 95 (Fla.App. 1 Dist. 1998)

Premiums: Policyholder Had a Duty to Examine the Policy and Determine If Correct Coverage Received

LIBERTY MUTUAL V. BEN LEWIS

710 A.2d 338 (Md.App. 1998)

Presumption: Employer Offered Sufficient Evidence to Rebut Presumption of Continued Disability

SNEAD V. CAROLINA PRE-CAST CONCRETE

499 S.E.2d 470 (N.C.App. 1998)

Principal Employer: General Contractor Was Principal Employer of Subcontractor's Employee

HEBERT V. RWA, INC.

709 A.2d 1149 (Conn.App. 1998)

Psychological Condition: Linkage to Traumatic Injury Insufficient - Must Prove Direct Causal Relationship

LEON COUNTY SCHOOL BD. V. GREEN

711 So.2d 86 (Fla.App. 1 Dist. 1998)

Retraining Incentive Benefits: Last Employer Was Responsible for Payment Despite No Exposure to Coal Dust

BEGLEY V. MOUNTAIN TOP INC.

Ky., 968 S.W.2d 91

Safety Violation: Scaffolding Law Did Not Apply to Workers' Compensation Injury

OZZIMO V. H.E.S., INC.

672 N.Y.S.2d 197 (A.D. 4 Dept. 1998)

Second Injury Fund: PTSD Did Not Qualify Claimant as Physically Impaired Person

OSBURN V. SPECIAL INDEM. FUND

957 P.2d 133 (Okla.Civ.App. Div. 3 1998)

Sheltered Employment: Offer to Reemploy Workers' Compensation Claimant with Accommodations Was Sheltered Employment

RENT A CENTER V. INDUSTRIAL COM'N

956 P.2d 533 (Ariz.App. Div. 2 1998)

Special Employee: Construction Worker Was Special Employee of General Contractor

ADAMS V. NORTH-STAR CONST. CO., INC.

672 N.Y.S.2d 166 (A.D. 4 Dept. 1998)

Statutory Construction: Choice of Law Provision of Maryland Wrongful Death Act Not Dispositive

POWELL V. ERB

709 A.2d 1294 (Md. 1998)

Statutory Construction: Claimant Should Have Benefit of Amended Statute of Limitations

GAINES V. ORANGE COUNTY PUBLIC UTILITIES

710 So.2d 139 (Fla.App. 1 Dist. 1998)

Statutory Construction: Statute on Presumption of Retirement Not Retroactive

ASH V. TRAYNOR

579 N.W.2d 180 (N.D. 1998)

Statutory Employee: Route Salesman for Wholesale Bakery Not Statutory Employer

MEYER V. PIGGLY WIGGLY NO. 24, INC.

500 S.E.2d 190 (S.C.App. 1998)

Statutory Employer: Contractor Was Statutory Employer of Subcontractor's Employee

PULLAM V. HERCULES INC.

711 So.2d 72 (Fla.App. 1 Dist. 1998)

Statutory Employer: U.S. Not Entitled to Statutory Employer Immunity Under Puerto Rico Workers' Compensation Act

CINTRON RODRIGUEZ V. U.S.

995 F.Supp. 238 (D.Puerto Rico 1998)

Stress: Incidents Were Common to All Fields and Thus Claim Was Not Compensable

TRUJILLO V. ICAO

957 P.2d 1052 (Colo.App. 1998)

Supplemental Earnings Benefits: Inability to Work Due to Personal Belief Not Compensable

GILLEY V. REEVES DELI MART

711 So.2d 328 (La.App. 2 Cir. 1998)

Temporary Total: Denied as Claimant Was Released to Return to Work

WILEY V. KENNETH PARKER LOGGING

711 So.2d 297 (La.App. 3 Cir. 1998)

Third Party Action: Release Signed as Part of Employment Agreement Is Binding

HORNER V. BOSTON EDISON CO.

695 N.E.2d 1093 (Mass.App.Ct. 1998)

Total Disability: Does Not Mean Total and Physical Incapacity

SUN CHOI V. INDUSTRIAL COM'N

695 N.E.2d 862 (Ill. 1998)

Vocational Rehabilitation: Employer Had a Duty to Provide Vocational Rehabilitation from Time the Employee Chooses Vocational Rehabilitation

JOHNSON V. W.C.A.B.

76 Cal.Rptr.2d 422 (Cal.App. 2 Dist. 1998)

Vocational Retraining: Claimant Entitled to Additional Training Due to His Inability to Complete Prior Program

SMITH V. FLEMING FOOD CO.

957 P.2d 142 (Okla.Civ.App. Div. 3 1998)

Voluntary Intoxication: Claimant with Cocaine in System Not Entitled to Workers' Compensation

PORCHE V. S & M CONST.

711 So.2d 429 (La.App. 5 Cir. 1998)

Wage Loss Benefits: Employee Who Suffers Workers' Compensation Injury and Resigns to Take Higher Paying Job Not Entitled to Wage Loss Benefits

FRANKLIN V. DEPT. OF EMPLOYMENT SERVICES

709 A.2d 1175 (D.C. 1998)

Wage Loss: Denied as Loss Resulted from Economic Cutbacks

STATE EX REL. FREDERICK V. LCDHS

694 N.E.2d 1350 (Ohio 1998)

Wear and Tear: Aggravation of Rheumatoid Arthritis Not Compensable

COMPTON V. 7-UP BOTTLING CO./BROOKS

695 N.E.2d 818 (Ohio App. 10 Dist. 1997)