Travel Pay Makes Car Accident During Drive Home Compensable

Holliman v. Twister Drilling Co., No. 113305 (Okla. 06/28/16).

Ruling: The Oklahoma Supreme Court held that a worker’s injuries were compensable under the travel exception to the going and coming rule.

What it means: In Oklahoma, an exception to the going and coming rule applies when the employer provides transportation to the job site.

Summary: A worker worked as a floor hand on a four-man crew on a drilling rig for Twister Drilling Co. Workers were required to find transportation to and from the drilling site. Twister Drilling paid travel pay to the crew.

The worker explained that the driller in charge actually received the travel pay, but he elected to rotate the travel pay equally among everyone on the crew. The worker and his supervisor were traveling home from the drill site after completing their shift when they were involved in a crash.

The supervisor and the driver of the other vehicle were killed. The car belonged to the worker, but his supervisor was driving. The worker was a passenger and was sleeping at the time of the accident.

The worker filed a workers’ compensation claim alleging injuries to his neck, back, arm, and a psychological injury. The Oklahoma Supreme Court held that the worker’s injuries were compensable.

Twister Drilling argued that the injuries were not compensable because the accident happened while the worker was going home. The court found that the travel exception to the going and coming rule applied because Twister Drilling compensated the workers for travel expenses.

It did not matter that the worker was not the one who received the travel pay on the day of the accident. The court concluded that the worker’s injuries occurred in the course of, and arose out of, his employment.

Survival Benefits After Worker’s Death Capped at $45,000

Hollingsworth, et al. v. Severstal Sparrows Point, LLC, et al., No. 95, September Term, 2015 (Md. Ct. App. 07/11/16).

Ruling: The Maryland Court of Appeals held that a deceased worker’s daughter was not entitled to benefits as the survival of benefits was capped at $45,000 and the worker had already received more than that amount before his death.

What it means: In Maryland, where a worker is permanently totally disabled, his award of benefits survives his death only up to $45,000.

Summary: A worker for Severstal Sparrows Point sustained an accidental injury in the course of his employment. The Workers’ Compensation Commission found that as a result of the combined effects of the accidental injury and the worker’s pre-existing conditions, he was permanently totally disabled.

The worker received compensation. The next year, the worker died from causes unrelated to the accidental injury. The worker’s daughter sought survivor benefits.

The statute states that an award of benefits survives the death of a worker who is permanently partially disabled. Also, an award of benefits survives the death of a worker who is permanently totally disabled only up to $45,000.

The Maryland Court of Appeals held that the daughter was not entitled to benefits because the survival of benefits was capped at $45,000 and the worker had already received more than that amount before his death.

The court explained that the commission explicitly found that the worker was permanently totally disabled. Therefore, the statute governing the payment of benefits when a worker is permanently totally disabled applied.

The court said the fact that the commission apportioned the worker’s permanent total disability between the accidental injury and his pre-existing condition did not covert the PTD finding into a PPD determination.

The court explained that there were separate statutory schemes for permanent total disability claims and permanent partial disability claims.

The court also found that the statutory language reflected that the legislature did not consider there to be a distinction between permanent total disability from a single injury and permanent total disability from an accidental injury combined with pre-existing conditions.

Fall Due to Unknown Cause is not Idiopathic

Graber v. Dillon Co., No. 113,412 (Kan. Ct. App. 06/24/16).

Ruling: The Kansas Court of Appeals held that the Workers’ Compensation Board incorrectly determined that a worker’s injuries did not arise out of his employment due to idiopathic causes. The court sent the case back to determine whether his injury arose out of and in the course of his employment.

What it means: In Kansas, “idiopathic” is defined as personal or innate to the worker.

Summary: A worker for Jackson’s Dairy had diabetes. He attended a mandatory safety meeting that began at 9 a.m. and lasted until 2:30 p.m. The meeting took place on the second floor of an office building.

The worker had not tested his blood sugar in the morning because he was running late. He also did not test his blood sugar during the meeting’s breaks. When the meeting ended, the worker used the restroom. The next thing he recalled was being loaded onto an emergency helicopter.

He later learned that he had fallen down the stairs. He was diagnosed with a traumatic brain injury, as well as head and neck injuries. He sought workers’ compensation benefits.

A doctor did not believe the worker’s diabetes caused his fall. The Workers’ Compensation Board concluded that the worker’s fall was due to an unknown cause, so it was idiopathic and not compensable.

The Kansas Court of Appeals reversed the board’s decision and sent the case back to determine whether the worker’s injury arose out of and in the course of his employment.

The court examined prior decisions by the court and the board, decisions from other states, and treatises and found the “overwhelming weight of authority” showed that idiopathic, within the context of workers’ compensation law, is defined as personal or innate to the worker. The board incorrectly defined idiopathic as of unknown cause.

The court found that the worker’s injury likely arose from a neutral risk. The court found that the increased danger rule could establish a causal connection.

The court explained that under the increased danger rule an unexplained fall combined with a work-related risk would result in an accident or injury with a particular employment character.

Permanent Inability to Work Makes PTD Award Appropriate

Somerset-Burnside Garage Door and Glass Co., Inc. v. Cook, et al., No. 2015-CA-001258 (Ky. Ct. App. 07/08/16, unpublished).

Ruling: In an unpublished decision, the Kentucky Court of Appeals held that a worker was entitled to permanent total disability benefits.

What it means: In Kentucky, the possibility that additional education or vocational training could expand the opportunities available to a worker, or that an unanticipated change in his physical condition could modify his physical restrictions do not make an award of permanent total disability inappropriate.

Summary: A worker for Somerset-Burnside Garage Door and Glass suffered a low back injury when removing a large wood panel in the process of installing a garage door.

An administrative law judge found that the worker’s lack of education and vocational skills in addition to his work injuries made it unlikely that he retained the capacity to work. The ALJ found he was permanently totally disabled.

The Kentucky Court of Appeals held that the worker was entitled to PTD benefits.

The court explained that to determine whether a worker’s occupational disability is a permanent total disability it considers the worker’s age, education level, vocational skills, post-injury medical restrictions, and the likelihood that the worker can resume some type of work under normal employment conditions.

Here, the worker was 27 years old, had a 10th-grade education, an IQ of 70, and a learning disability. He had no vocational training or transferrable skills beyond those required at his job at Somerset-Burnside.

Also, his physician opined that his condition rendered him unable to work even in a sedentary position.

The court said that additional education or vocational training could expand the opportunities available to the worker and an unanticipated change in his physical condition could cause his physical restrictions to be modified.

However, both of these possibilities were not expected. Therefore, a finding of permanent total disability was appropriate.

Louisiana Lacks Jurisdiction When Driver was Hired, Injured in Texas

Jackson v. Royal T Energy, LLC, No. 50,645-WCW (La. Ct. App. 06/22/16).

Ruling: The Louisiana Court of Appeal held that it did not have jurisdiction over a workers’ compensation claim brought by a driver who lived in Louisiana and was injured while working in Texas for a Texas-based company.

What it means: In Louisiana, a worker who resides in the state who is injured while working outside the state is entitled to Louisiana workers’ compensation benefits if he was working under a contract of hire made in Louisiana.

Summary: A truck driver who lived in Louisiana was injured while working in Texas for Royal T Energy, an oil field service company based in Texas.

The driver received workers’ compensation benefits in Texas, but they were allegedly terminated and he was denied treatment for his neck injury. The driver filed a workers’ compensation claim in Louisiana, asserting that he was hired over the phone while in Louisiana.

The Louisiana Court of Appeal held that it did not have jurisdiction over the claim.

A worker who resides in Louisiana who is injured while working outside the state is entitled to Louisiana workers’ compensation benefits if he was working under a contract of hire made in Louisiana.

The court concluded that the driver was not hired in Louisiana. The court found that Royal’s director of operations did not have the authority to hire drivers over the telephone without completing mandated testing and paperwork.

Although the drug test was performed in Louisiana, the required paperwork and driving test were completed at Royal’s facility in Texas. Royal did not pay the driver’s travel expenses to go to Texas for the driving test and paperwork.

The court also concluded that Louisiana’s policy was not impaired by the application of Texas law. The court noted that the driver had already received benefits under Texas law.

The court found that he was forum shopping, which was a violation of policy.

Apportionment Appropriate Given Worker’s Prior Treatment in VA Clinic

Special Fund Division v. Industrial Commission of Arizona, No. 1 CA-IC 15-0023 (Ariz. Ct. App. 06/21/16).

Ruling: The Arizona Court of Appeals found that apportionment of a worker’s permanent disability benefits was appropriate based on her pre-existing psychiatric disabilities from her military service prior to her employment.

What it means: In Arizona, apportionment is appropriate when a worker’s pre-existing impairment is due to psycho-neurotic disability following treatment in a recognized medical or mental institution.

Summary: A worker for La Palma Correctional Center injured her low back while working in the warehouse. She filed a workers’ compensation claim, which was accepted.

The Industrial Commission of Arizona found she was entitled to permanent disability benefits. The employer’s carrier, New Hampshire Insurance, protested the award and sought apportionment of the worker’s benefits based on her pre-existing psychiatric disabilities from her military service prior to her employment.

The Arizona Court of Appeals found that apportionment was appropriate.

In Arizona, apportionment is appropriate when a worker’s pre-existing impairment is due to psycho-neurotic disability following treatment in a recognized medical or mental institution.

The carrier and the Special Fund disagreed about whether the worker’s VA clinic outpatient treatment for her pre-existing psycho-neurotic condition constituted “treatment in a recognized medical or mental institution.”

The court agreed with the carrier and found that apportionment applied. The carrier pointed out that its interpretation would more effectively promote the law’s purpose of encouraging employers to hire workers with pre-existing psychiatric conditions.

The carrier noted that the vast majority of psychiatric and mental health patients are treated on an outpatient basis. The carrier also explained that limiting apportionment to disabilities following inpatient psychiatric treatment would have the “perverse effect” of discouraging employers from hiring people who were more likely to be productive employees because their conditions allowed for outpatient care.

Inconsistencies in Worker’s Claim Block Award of Benefits

Trudel v. TCI Architects/Engineers/Contractor, No. COA15-1297 (N.C. Ct. App. 07/05/16, unpublished).

Ruling: In an unpublished decision, the North Carolina Court of Appeals held that a worker was not entitled to benefits for his claimed right-shoulder injury.

What it means: In North Carolina, a worker’s inconsistent testimony about his alleged workplace injury will undermine his claim.

Summary: A worker for TCI alleged that he suffered a right-shoulder injury when he slipped while working on a roof.

He did not report the injury to TCI immediately. Rather, he reported the injury the following week after he quit his job. The worker filed a claim for workers’ compensation benefits.

An MRI eventually revealed a rotator cuff tear. A coworker who allegedly witnessed the incident corroborated the worker’s claim. Later, TCI provided business records indicating that it had not performed any roof work on the alleged date of injury.

The worker then claimed that he was injured on the previous day, and the coworker again corroborated this claim. A physician also noted that the mechanism of injury documented in a physician assistant’s notes was different than what he documented in his notes.

The North Carolina Court of Appeals held that the worker was not entitled to benefits. The court found that the conflicting evidence supported the Industrial Commission’s decision that the worker did not suffer a compensable injury.

Also, there was competent evidence to support the commission’s determination that the worker and coworker’s testimony was not credible. For example, there were no witnesses except the coworker, although the worker’s supervisor and two other coworkers were also working on the roof at the same time.

Also, the supervisor’s reports indicated that the worker was not working on the date of the alleged injury. The worker repeatedly told medical staff and others the date of his injury but later changed his story after TCI’s records showed that no roof work was performed that day.

The court also pointed out that a physician’s testimony was based solely on the medical history and version of events provided by the worker.

Injury Resulting from Chair Collapse Falls Under Workers’ Compensation

Friend v. Kang, et al., No. E063643 (Cal. Ct. App. 06/30/16, unpublished).

Ruling: In an unpublished decision, the California Court of Appeal held that the exclusive remedy provision of the workers’ compensation law barred a driver’s suit.

What it means: In California, the workers’ compensation law applies to any workplace injury caused by an employer’s negligence.

Summary: A tow truck driver sued his employer, GBWY Investment Group, and the owner of GBWY alleging that he was injured at work when a metal folding chair he was sitting on collapsed.

The driver argued that the chair had been repaired and that the owner should have known it was not properly repaired and not safe for use in the workplace.

GBWY and the owner argued that workers’ compensation was the driver’s exclusive remedy. The California Court of Appeal held that the exclusive remedy provision barred the driver’s suit.

The court found that the driver’s allegations demonstrated that his injury was compensable under workers’ compensation. He stated that his workplace injury was caused by his employer’s negligence.

While the driver argued that he was employed by Stateline Service and not GBWY, the court found that Stateline Service was GBWY’s “dba” or fictitious business name. The driver’s paychecks came from GBWY.

The driver also made arguments about who owned the chair that injured him. He asserted that the chair belonged to the owner of GBWY.

The court explained that because the owner was the driver’s employer it did not matter whether he personally owned the chair or if the chair was a GBWY asset.

The material facts were that the owner provided the chair at the workplace and the chair allegedly injured a worker. The owner’s degree of fault regarding the chair was also immaterial.

Worker Failed to Establish Valid Excuse for Violating Safety Rule

Hawks v. Christian, et al., No. M2015-02200-SC-R3-WC (Tenn. 06/20/16, unpublished).

Ruling: In an unpublished decision, the Tennessee Supreme Court held that a worker was not entitled to benefits.

What it means: In Tennessee, a worker will not be entitled to benefits for an injury that arose when he violated the employer’s safety rule when he had actual notice of the rule, he understood the danger involved in violating the rule, the employer enforced the rule, and the worker lacked a valid excuse for violating the rule.

Summary: A worker was wearing the required safety harness while performing roofing work for Christian Construction. He said he was working about six to eight inches from the edge of the roof when the cable became wrapped around his leg.

He continued working for a few minutes with the cable around his leg but then unhooked the cable to unwrap it. The worker accidentally stepped off the edge of the roof, falling to the ground. The worker suffered injuries to his hip and arm.

He sought benefits. The Tennessee Supreme Court held that the worker was not entitled to benefits.

Christian Construction had a rule requiring employees to use a safety harness at all times when working on a roof. The worker admitted that the rule was enforced, he was aware of the rule, and he understood the danger associated with not following the rule.

The court also found that the worker did not have a valid excuse for violating the rule. He testified that he unhooked the cable because he felt it was safer rather than continue to be tangled and to complete the job quickly.

He also said that he felt it was safe to unhook his harness due to his experience as a roofer even though it would have been dangerous for a layman. The worker admitted that he could have removed the cable from his legs without unhooking his harness.

The court found that the worker’s explanations did not amount to a valid excuse for violating a known safety rule when safer alternatives were available.

Additional Benefits Denied When Physicians Opined Condition not Work-related

Goodman v. Haan Crafts, LLC, No. 93A02-1511-EX-2065 (Ind. Ct. App. 06/15/16, unpublished).

Ruling: In an unpublished decision, the Indiana Court of Appeals held that an operator was not entitled to additional benefits for her spondylolisthesis.

What it means: In Indiana, a causal relationship exists when the injury would not have occurred in the absence of the work accident.

Summary: A machine and silk screen operator for Haan Crafts sustained a work-related injury to her low back while attempting to move a large screen from a print table.

Haan accepted her lumbar strain as compensable and authorized medical care. While the operator was being treated for the lumbar strain, she was diagnosed with spondylolisthesis.

She claimed that the spondylolisthesis also resulted from the work-related injury and sought additional benefits. Haan argued that the spondylolisthesis was degenerative and not work-related.

The Indiana Court of Appeals held that the operator was not entitled to additional benefits for her spondylolisthesis.

The court pointed out that all three of the operator’s authorized physicians found she was at maximum medical improvement with no impairment and that she could return to work without restrictions.

The physicians saw the disk bulge and concluded that it was an incidental finding, degenerative, not acute, or not related to the work injury. The record showed that the physicians indicated that they did not believe the disk bulge was work-related.

The operator also argued that if her spondylolisthesis was a pre-existing condition, then it was aggravated by the work incident and Haan should be liable.

The court rejected the argument, pointing out that the operator did not prove that her work-related injury aggravated her spondylolisthesis.

Evidence that Driver Wasn’t Working Curbs Claim for Benefits

Tatman v. Industrial Commission of Arizona, No. 1 CA-IC 15-0043 (Ariz. Ct. App. 06/14/16, unpublished).

Ruling: In an unpublished decision, the Arizona Court of Appeals held that a driver was not entitled to benefits for his claimed hand and shoulder injuries.

What it means: In Arizona, evidence that a worker was not at work on the day of the claimed accident can undermine a claim for benefits.

Summary: A forklift driver for Pavestone filed a claim for workers’ compensation benefits, alleging that he sustained cuts and a bruise to his right hand and an injury to his right shoulder as a result of his work activities.

Pavestone’s records showed that the driver was on vacation on the date of his alleged injuries. The driver claimed that several of his coworkers witnessed the incidents and that he immediately reported the injury to his supervisor, but the supervisor refused to fill out a report of injury.

The coworkers, supervisor, and plant manager denied having knowledge of the driver’s injury. The Arizona Court of Appeals held that the driver was not entitled to benefits.

The court pointed out that an independent medical examiner opined that it was unlikely that the driver could have worked for several months without seeking medical treatment if the type and severity of the injury claimed by the driver actually occurred. The examiner also concluded that the medical record as reported by the driver didn’t support that an injury occurred.

The court pointed out that if the driver wanted to address the fact that Pavestone did not give him an accident report as he requested he could have cross-examined one of Pavestone’s witnesses. However, he did not.

The driver’s former supervisor testified that he never received a report of an injury from the driver and he had not refused to fill out an accident report.

Lineman Proves Work-related Medical Boot Contributed to Subsequent Accident

Shaughnessy v. City of Chicago, 24 ILWCLB 71 (Ill. W.C. Comm. 2016).

Ruling: The Illinois Workers’ Compensation Commission awarded medical and permanent disability benefits for a lineman’s head injury sustained when he fell in a parking lot while leaving a doctor’s appointment.

What it means: In Illinois, where the worker’s use of a walking boot due to a work injury made it more likely that he could slip and fall in a slippery parking lot while leaving his doctor’s appointment, the worker can establish a compensable causal connection between the work injury to the foot and his injury caused by the fall in the parking lot.

Summary: A lineman injured his right foot in a work-related accident. As a result of the injury, he was given a CAM Walker boot and placed on limited duty.

Two months later, while leaving a doctor’s appointment for his foot injury and wearing his walking boot, the lineman slipped on snow or ice and fell, hitting his head.

The parties disputed whether the lineman’s slip-and-fall accident in the public parking lot after leaving his doctor’s office was related to the work incident. In finding no causal connection, the arbitrator reasoned that there was no evidence the fall in the parking lot was caused by the prescribed boot.

The commission reversed and awarded benefits, finding that the evidence supported a determination that the lineman’s prior right foot injury and use of a walking boot contributed to his slip-and-fall accident.

The commission explained that the lineman needed to prove that the prior injury was at least a part of the reason he fell. The lineman testified that it was his right foot that slipped, which is the foot he injured and had a boot on, and that both the boot and the ground were what caused him to slip.

He also testified that he was careful while traversing the area due to the ground conditions, but the boot still slipped.

This evidence supported the inference that the lineman’s use of the walking boot made it more likely that he could slip and fall on the icy conditions he encountered in the doctor’s parking lot.

But for the work injury involving the right lower extremity, he would not have been wearing the walking boot. Therefore, his subsequent injury was compensable.

Worker Secures Benefits for Injuries in Armed Robbery

Reynolds v. City of Philadelphia, 31 PAWCLR 105 (Pa. W.C.A.B. 2016).

Ruling: The Pennsylvania Workers’ Compensation Appeals Board held that a worker’s injuries, sustained during an armed robbery on her way home from a work-related special mission, occurred during the course and scope of her employment.

What it means: In Pennsylvania, where the worker credibly testifies that she did not know her assailant, the employer has failed to establish a pre-existing relationship or animosity between the assailant and the worker, or that the assailant had personal reasons for the attack. Therefore, the personal animus exception does not apply.

Summary: In affirming the workers’ compensation judge’s decision, the board held that a social worker’s injuries, sustained during an armed robbery on her way home from a work-related special mission, occurred during the course and scope of her employment.

The board rejected the employer’s argument that the worker’s accident was not compensable under the personal animus exception. The employer bore the burden of proving that there was some pre-existing relationship or animosity on the part of the worker’s assailant as well as intent to inflict injury on the worker for personal reasons.

Although the WCJ failed to render any findings on this issue, a remand was not required. The worker credibly testified that she saw her assailant’s face and did not know his identity. The employer did not present any evidence to dispute the worker’s credible testimony.

Because the worker did not know her assailant, the employer was not able to establish that a pre-existing relationship or animosity existed between the assailant and the worker or that the assailant had personal reasons for the attack.

As there was no particular personal animus behind the worker’s attack, she was presumed to be an innocent victim of an unexpected attack that arose in the course of employment.

Driver’s Intoxication Blocks Benefits for Work Injury

Pearce v. City of Chicago, 24 ILWCLB 87 (Ill. W.C. Comm. 2016).

Ruling: Based on evidence of a driver’s intoxication at the time of his injury, the Illinois Workers’ Compensation Commission held that the claimant’s accident was not covered by workers’ compensation.

What it means: In Illinois, where the worker’s testimony that he used an alcohol-based breath freshener just prior to taking a breath alcohol test is not sufficiently reliable or persuasive to rebut the objective evidence of intoxication, he has failed to establish that his injuries are compensable under workers’ compensation.

Summary: A truck driver alleged that he injured both shoulders while attempting to pull open the rear gate of his truck. The alleged injury occurred at approximately 10:45 a.m. and was witnessed by a coworker.

The driver reported the injury and sought treatment, where breath alcohol testing indicated alcohol concentrations greater than 0.08 in two tests conducted 15 minutes apart.

At the hearing, the driver denied that he consumed any alcoholic beverages on the date of accident. However, he contended that he used a peppermint breath freshener, unaware of its alcohol content, throughout the morning of the work accident.

He claimed that he swallowed a few sips of the mouthwash just prior to submitting to the alcohol screening tests. He testified that due to his constant cigar smoking habit, he always kept a bottle of mouthwash in his pocket and used it as needed on a daily basis.

The coworker who witnessed the accident testified that the driver did not show any sign of impairment. The arbitrator awarded benefits.

However, the commission reversed and denied benefits, reasoning that the preponderance of the credible evidence showed the driver was intoxicated and that his injuries arose out of the intoxication rather than his employment.

The commission found the driver offered no credible medical opinions or testimony to explain or interpret the objective evidence in light of his claimed use of alcohol mouthwash.

Instead, his argument relied only on his self-serving testimony. He strongly emphasized the ingrained nature of his daily habit of using breath freshener as circumstantial evidence that he was not intoxicated at the time of the accident.

Based on this testimony, it would be reasonable to expect that a coworker would be aware of the mouthwash habit. However, the coworker had never seen the driver use breath freshener.

Accordingly, the commission found the arbitrator’s decision not supported by the preponderance of the evidence. The driver’s testimony, alone, was not sufficiently reliable or persuasive to rebut the objective evidence.