Bartender Serves Up Compensable Claim for Injury Due to Hugging Incident

LaFave v. Blue Lounge, 30 MIWCLR 39 (Mich. W.C.B.M. 2016)

Ruling: The Michigan workers’ compensation magistrate awarded benefits to a bartender, who injured her back while hugging an overly enthusiastic bar patron.

What it means: In Michigan, a worker’s injuries are compensable when the accident occurred while she was acting within the scope of her duties.

Summary: The magistrate awarded benefits to a bartender, who injured her back while hugging an overly enthusiastic bar patron. A video showed the two hugging and each woman lifting the other off the ground.

Finding the incident did not fall within the social and recreational exclusion, the magistrate explained that the bartender was performing her duties when the incident occurred. She was approached by a patron, whom she happened to know, and was hugged. As part of the hug each woman lifted the other off the ground. A bartender is expected to be pleasant and polite to the customers.

Also, immediately before the patron greeted and hugged the bartender and immediately after the incident she was engaged in her regular bartending duties. Being polite to an overly enthusiastic patron would arguably fall within the bartender’s duties.

The magistrate accepted the bartender’s uncontroverted medical evidence of disability and awarded benefits for a closed period. The magistrate denied benefits for her concurrent employment since she continued working there throughout the closed period. The magistrate also found that the bartender was entitled to reasonable and necessary medical expenses related to her treatment for her post-traumatic myofascial pain and low back strain.

Worker Wins Benefits for Accident During Personal Errand

Colquitt v. Starr Aviation, 31 PAWCLR 93 (Pa. W.C.A.B. 2016)

Ruling: The Pennsylvania Workers’ Compensation Appeal Board affirmed the workers’ compensation judge’s finding that an agent’s injury arose out of and in the course of her employment.

What it means: In Pennsylvania, a worker’s temporary departure from performing her work to administer to her personal needs does not take her out of the course and scope of her employment.

Summary: The board affirmed the workers’ compensation judge’s finding that an airport ramp agent, who injured her left leg when the tug she was driving flipped over, was entitled to benefits. Her injuries arose out of and in the course of her employment.

The agent was given permission between flight arrivals to drive the tug to the other side of the terminal to meet her mother, who was bringing her money and feminine hygiene products. The board explained that because the agent was simply going to meet her mother, her injury occurred during a temporary departure from work during regular business hours, and therefore, her work injury fell under the personal comfort doctrine.

The board said that the employer’s arguments would have it consider whether the trip to meet her mother was necessary. The board explained that workers’ compensation is “no-fault” and there was no such precedent, so it rejected the argument.

The board also found that the employer’s argument of whether the agent was on the employer’s premises when she was injured was moot. There was no requirement that the agent be on the employer’s premises at the time of her injury because she was engaged in the furtherance of the employer’s affairs.

Employee Can’t Be Disqualified From Benefits Due to Violent Thoughts

Cory Fairbanks Mazda/The PMA Insurance Group v. Minor, No. 1D15-1600 (Fla. Dist. Ct. App. 05/25/16)

Ruling: The Florida District Court of Appeal held that a worker was entitled to temporary partial disability benefits.

What it means: In Florida, malevolent thoughts alone, without evidence establishing an intent to harm, do not establish misconduct.

Summary: An office worker for Cory Fairbanks Mazda sustained compensable workplace injuries to her head, neck, low back, and left knee as a result of two incidents of being struck by a door opened by a coworker. The worker thought that the coworker intentionally injured her. The worker received medical care for her injuries and returned to work with accommodations.

Later, the worker’s attorney informed the judge of compensation claims and the employer that the worker “expressed suicidal and homicidal ideation,” but not to the degree of imminent threat. The employer terminated the worker based on the attorney’s representation.

The employer and its insurer argued that the worker was ineligible for temporary partial disability benefits because she was terminated for misconduct. The Florida District Court of Appeal held that the worker was entitled to temporary partial disability benefits from the date of her termination.

After an examination, a psychiatrist described the worker’s expressions of anger as “blowing off steam” rather than declaring an intent to inflict physical harm. The worker said that she told her attorney that she wanted to punch the coworker.

The employer’s allegation of misconduct was based solely on the attorney’s statement that the worker shared that she had suicidal and homicidal thoughts arising from her injuries. The employer argued that the worker intended to harm or kill the coworker.

The court rejected the employer’s argument, stating that malevolent thoughts alone, without the requisite evidence establishing an intent to harm, do not meet the definition of misconduct.

Driver Allowed to Pursue Texas, Oklahoma Benefits Simultaneously

Maxwell v. Faith Transport, LLC, No. 113832 (Okla. Civ. App. 05/25/16)

Ruling: The Oklahoma Court of Civil Appeals held that it had jurisdiction over a claim brought by a driver.

What it means: Oklahoma may hold concurrent jurisdiction over a claim with another state.

Summary: A truck driver, who lived in Oklahoma, worked for Faith Transport, a Texas entity. He was severely injured in an accident while driving on duty in Texas. Faith’s workers’ compensation carrier, Texas Mutual Insurance Co., initiated payments of workers’ compensation benefits to the driver pursuant to Texas law.

Later, Texas Mutual Insurance Co. sent the driver a letter notifying him of the suspension of his benefits. The driver filed a workers’ compensation claim in Oklahoma. Faith rejected the claim, asserting that Oklahoma did not have jurisdiction over the claim. The Oklahoma Court of Civil Appeals held that it had concurrent jurisdiction with Texas.

The court explained that an Oklahoma worker injured while on the job in another state can pursue benefits from both jurisdictions simultaneously. The court rejected Faith’s argument that the driver’s acceptance of the Texas Mutual Insurance Co. checks amounted to an election of Texas law.

The court found that by filing a claim in Oklahoma the driver elected to initiate an Oklahoma claim. He performed no similar act in Texas. The payments the driver received pursuant to Texas law were voluntarily initiated by Texas Mutual Insurance Co.

The receipt of those benefits was not an election to proceed in Texas. The court explained that the right of election for a claim of benefits belongs to the worker, not an out-of-state insurance carrier.

The court explained that logic and statutory construction led to a conclusion that if the election to file a claim in Oklahoma did not prevent Texas benefits, then the receipt of Texas benefits does not prevent the election of a claim in Oklahoma. The court concluded that the driver was not precluded from electing to file a claim in Oklahoma, assuming that no final decision was reached in Texas.

The court found that the suspension of the driver’s Texas benefits was not the equivalent of a “final determination” because the suspension was subject to review or appeal.

Witnessing Aftermath of Car Accidents Created Compensable Mental Injury

Mantia v. Missouri Department of Transportation, No. ED103016 (Mo. Ct. App. 06/14/16)

Ruling: The Missouri Court of Appeals held that a worker’s mental injury was compensable and that she was entitled to benefits for a 50 percent permanent partial disability of the whole body and future medical benefits.

What it means: In Missouri, under the 2005 amendments to the law, evidence of the work stress encountered by similarly situated workers is not required to establish a claim for a mental injury. A worker must show that she suffered a mental injury resulting from stress that was work-related and “extraordinary and unusual” as measured by objective standards and actual events.

Summary: A worker for the state Department of Transportation provided traffic control and assistance at motor vehicle accident scenes. Over her 20-year career, she witnessed the aftermath of a multitude of serious accidents that involved catastrophic injury, dismemberment, and death. She began to suffer significant emotional and psychological symptoms.

The worker filed a claim for workers’ compensation benefits. The Missouri Court of Appeals held that she was entitled to benefits.

The court found that under the 2005 amendments to the law, evidence of the work stress encountered by similarly situated workers was not required to establish a claim for a mental injury. The worker had to show that she suffered a mental injury resulting from stress that was work-related and “extraordinary and unusual” as measured by objective standards and actual events.

The court found that the worker met this burden. Both parties’ medical experts agreed that the worker’s work-

related stress was the cause of her disability. The court found that witnessing the aftermath of serious accidents placed stresses on the worker more extreme than most workers would ever experience. The court found that the experiences were “extraordinary and unusual” and also “unmistakably exceptional and remarkable.”

The court found sufficient evidence supporting an award for 50 percent permanent partial disability of the whole body. The court also ordered the department to pay for the worker’s future medical care to treat her mental injuries. The court noted that continued antidepressant medication would likely require ongoing medical management by the prescribing physician.

Medical Evidence Shows Preexisting Conditions Caused Manager’s Disability

Buchinsky v. The Arc of Anchorage, No. S-15547, No. 1585 (Alaska 05/25/16)

Ruling: The Alaska Supreme Court held that a manager was not entitled to benefits because the work-related injuries were not the cause of her disability or need for treatment.

What it means: In Alaska, medical evidence that a worker’s preexisting conditions, rather than her work-related injuries, were the cause of her need for treatment will support the denial of a claim.

Summary: A case manager for The Arc of Anchorage sustained injuries when a filing cabinet fell on her twice in one week. The manager sought benefits. The Arc disputed the claim after its doctor said that the work-related injury was not the substantial cause of the manager’s later need for medical treatment.

The Alaska Supreme Court held that the manager was not entitled to benefits because she did not show that the work-related injuries were the cause of her disability or need for treatment.

The court found that substantial evidence supported a conclusion that the manager’s preexisting orthopedic problems, rather than her work-related injury, were the substantial cause of her disability and need for medical treatment of her knees, back, and neck.

One doctor compared MRIs of the manager’s neck both before and after the work injury and determined that the MRIs were almost identical. Imaging studies of her knees showed considerable arthritis before the work injury. A doctor told the manager after the work injury that she did not need knee surgery because her knee problems were due to her arthritis.

Also, a month before the work injury, the manager and a neurosurgeon discussed neck surgery to resolve her complaints related to pain and numbness.

The court pointed out that continuing pain after a work-related injury does not mean that the work-related incident caused the pain.

The court also noted that in this case the medical records did not show an immediate increase in pain in the period after the injury. The manager’s chiropractor released her to return to work without restrictions less than a week after the second incident. Her pain complaints increased a month later.