View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | November 28, 2016 • 12 min read

Benefit Limit for Undocumented Workers Unconstitutional

Martinez v. Lawhon, et al., No. M2015-00635-SC-R3-WC (Tenn. 11/21/16, unpublished)

Ruling: In an unpublished decision, the Tennessee Supreme Court held that a law limiting the maximum permanent partial disability benefits an injured undocumented worker can receive is unconstitutional.

What it means: In Tennessee, the law limiting the maximum permanent partial disability benefits an injured undocumented worker can receive is unconstitutional.

Summary: An undocumented worker was operating a lawn mower on a hillside in the course of his employment when he slipped on wet grass and fell, losing control of the mower. The mower ran over his left arm, causing severe injuries.

Because of the worker’s undocumented status, the employer did not return him to work after the injury. The worker sought workers’ compensation benefits and challenged the constitutionality of a law limiting his award to one and one-half times the medical impairment rating. The Tennessee Supreme Court held that the provision is unconstitutional.

According to the law, the permanent partial disability benefits that a worker who is not legally allowed to return to work because of federal immigration law can receive are limited to a cap of one and one-half times the medical impairments rating. The court pointed out that other workers who do not fall within this exception are entitled to a multiplier of up to six times.

The court found that the provision was preempted by federal immigration law. The legislative history of the provision showed that the legislature intended for an additional sum to be paid by employers as a penalty. The court explained that the provision was preempted by federal law because the legislature intended and attempted to establish what amounted to a state immigration policy.

The court also explained that by reducing the liability of employers of undocumented workers to one and one-half times the medical impairment rating, the law made it less costly to hire those workers and potentially created an incentive for employers to hire undocumented workers, especially in high-risk jobs that often result in workers’ compensation claims.

In this case, the court found that the worker sustained an 84 percent permanent partial impairment to the left arm as a result of his work injury.

Attorney Fees Warranted When Employer’s Actions Delayed Surgery

Bockus v. First Student Services, et al., No. S-15784, 7137 (Alaska 12/02/16)

Ruling: The Alaska Supreme Court held that a driver was entitled to attorney’s fees because the employer resisted furnishing medical care by unreasonably delaying his third surgery.

What it means: In Alaska, an employer’s acquiescence to a claim before a hearing does not prevent a finding that the employer resisted providing the benefit.

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Summary: A school bus driver injured his back while pulling open a chain-link gate. He felt a pop in his back and severe pain radiating into his legs. He had two spinal surgeries, and his surgeon recommended a third. At about the same time, the employer scheduled an independent medical examination. This delayed the surgery because the surgeon would not schedule the surgery while the IME was pending.

The driver filed a workers’ compensation claim for the third surgery, and the employer’s doctor ultimately agreed that a third surgery was appropriate. The Alaska Supreme Court held that the driver was entitled to attorney’s fees because the employer resisted furnishing medical care by unreasonably delaying the third surgery.

The driver asserted that the employer delayed his surgery because it “had ample information” about the compensability of the surgery before the IME. The employer argued that it was merely exercising a statutory right to an IME and it rescheduled the IME at the driver’s request.

The court pointed out that the employer authorized the third surgery when it was required to answer the driver’s claim. The court pointed out that an employer’s acquiescence to a claim before a hearing does not prevent a finding that the employer resisted providing the benefit.

The court explained that the IME was not directed at an opinion about the surgery itself. Instead, the adjustor listed nine treatment options and asked for an opinion about the reasonable necessity of all treatments.

The court found that this broad request was not reasonable because the driver and his surgeon, after trying conservative care, had decided that surgical treatment was the best option for addressing his condition.

The court pointed out that the employer had adequate information about the reasonable necessity of the surgery well before the surgery was authorized. The information the employer sought from the IME was not reasonably related to the narrow question of the compensability of and the need for the requested surgery.

Inability to Obtain Job Doesn’t Warrant Benefits for 100 Percent Loss

Hathorn v. ESCO Corp., No. 2015-WC-01528-COA (Miss. Ct. App. 11/15/16)

Ruling: The Mississippi Court of Appeals held that a grinder was entitled to benefits for a 50 percent industrial loss.

What it means: In Mississippi, the fact that an injured worker is unable to obtain employment is not conclusive proof that he is unemployable.

Summary: A grinder for ESCO suffered a compensable injury to his right hand while operating his grinder. He returned to work with medical restrictions, including not using a grinder and to not lift more than 50 pounds. At work, he performed various janitorial and maintenance duties and ran errands.

After he claimed that his hand swelled from driving a forklift, the grinder was terminated for insubordination when he did not provide a written work restriction stating that he could not operate a forklift. The Workers’ Compensation Commission awarded him benefits for a 50 percent industrial loss. The Mississippi Court of Appeals affirmed the commission’s decision.

The grinder claimed that because of his injury he was unable to find work and could no longer perform the substantial acts of his usual employment. However, the court found that the grinder’s post-injury employment at ESCO demonstrated that he could perform some of the substantial acts of his usual employment.

He worked for more than a year after he reached maximum medical improvement. The court also pointed out that the grinder’s post-injury employment was consistent with a number of previous jobs he had. Also, many of the grinder’s previous job duties were within his medical restrictions.

The court found that even though the grinder’s job search was not successful, this was not conclusive proof that he was unemployable. The grinder admitted that he did not seek employment in the security, maintenance, or housekeeping fields.

Assault By Student Doesn’t Fall Under Intentional Act Exception

Field, et al. v. Lafayette Parish School Board, No. 16-495 (La. Ct. App. 11/09/16)

Ruling: The Louisiana Court of Appeal held that a teacher’s suit was barred by the exclusive remedy provision of the workers’ compensation law. The teacher failed to establish that the intentional act exception applied.

What it means: In Louisiana, for the intentional act exception of the workers’ compensation law to apply, the worker must prove an employer’s intent, which is defined as consciously desiring the physical results of the conduct or knowledge that the physical results were substantially certain to follow such conduct.

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Summary: A student of a high school English teacher had a dispute with another student and attempted to leave the classroom to fight with him in the hallway. The teacher tried to keep the student inside the classroom by holding the door closed, but the student hit her repeatedly in the stomach.

The teacher was six weeks pregnant. Later, the teacher’s child was born with a congenital kidney condition. The teacher received workers’ compensation benefits but also sued the Lafayette Parish School Board, the principal of her school, and the student.

The teacher asserted that the intentional act exception of the workers’ compensation law applied. The Louisiana Court of Appeal held that the teacher’s suit was barred by the exclusive remedy provision of the workers’ compensation law.

The court concluded that the intentional act exception did not apply. For the intentional act exception to apply, the worker must prove an employer’s intent, which is defined as consciously desiring the physical results of the conduct or knowledge that the physical results were substantially certain to follow such conduct.

In this case, the court found that the teacher failed to prove the school board’s intent for the harm that occurred in her classroom. While the student had an extensive history of disciplinary issues, the school board’s knowledge of his issues and readmittance into the high school did not amount to an intentional act.

The court pointed out that no evidence showed that the student had previously attacked a teacher.

Director Who Tripped on Stairs Not Entitled to Compensation

Mojares v. RK Chevrolet, Inc., No. 1016-16-2 (Va. Ct. App. 11/22/16, unpublished)

Ruling: In an unpublished decision, the Virginia Court of Appeals held that a director’s fall on stairs did not arise out of his employment.

What it means: In Virginia, a worker who trips while walking up a staircase at work cannot recover compensation unless something about the steps presented a hazard or danger peculiar to the work site.

Summary: A finance director for a car dealership was in a hurry to deliver paperwork for a sale when he fell while walking up stairs. The director had preexisting injuries that left him permanently partially disabled. His gait was affected, he had limited use of his right hand, and he walked with a cane.

When the director fell, he was holding files and his cane in his left hand and using the railing for the stairs with his right hand. He could not explain what caused his fall and said that he tripped himself. The Virginia Court of Appeals held that he was not entitled to benefits.

The director argued that his preexisting condition combined with the configuration of the stairs increased his risk of falling. The court concluded that the director failed to establish that his injury arose out of his employment. The record established that the director simply and inexplicably fell.

The court also explained that under the idiopathic fall doctrine, if a fall results from a preexisting condition, any resulting injury is compensable only when the conditions of the workplace aggravate the worker’s injury.

Here, the director fell while simply walking up the non-defective steps. The record showed that the director’s fall was not caused by his preexisting conditions. The court found that his injury was not causally related to his employment.

Intoxication Doesn’t Block Benefits When Flat Tire May Have Caused Accident

Diaz v. National Retail Transportation, Inc., No. A-3927-14T2 (N.J. Super. Ct. App. Div. 11/09/16, unpublished)

Ruling: In an unpublished decision, the New Jersey Superior Court, Appellate Division held that a mechanic was entitled to benefits for his injury.

What it means: In New Jersey, when a worker’s intoxication is the “natural or proximate cause” of an injury, benefits will not be provided. Courts have interpreted the intoxication defense to mean that the worker’s intoxication must be the sole cause of the accident.

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Summary: A mechanic for National Retail Transportation was injured when he attempted to move a heavy metal lift that fell over on him. He said that the lift fell when it tilted to one side. The mechanic said that after the lift fell on him, he noticed that one of the tires on the lift was flat.

National conceded that a tire was deflated. The mechanic filed a claim for workers’ compensation benefits. National denied benefits and asserted the intoxication defense, arguing that the mechanic’s intoxication was the proximate cause of the accident.

The mechanic admitted that before going to work, he drank at least two eight-ounce glasses consisting of half whiskey and half ice water. National’s toxicologist opined that, based on the blood sample drawn from the mechanic after the accident, that he was intoxicated and impaired at the time of the accident.

The New Jersey Superior Court, Appellate Division held that the mechanic was entitled to benefits.

The court concluded that substantial credible evidence established that the flat tire may have caused the lift to fall, and therefore, intoxication was not established to be the sole cause of the accident.

The court found there was sufficient evidence that the flat tire may have also contributed to the accident. Without testimony eliminating the flat tire as a cause of the accident, the court found that National did not carry its burden to prove that the mechanic’s intoxication was the sole cause of the accident.

Comp Doesn’t Cover Officer’s Crossfit Injury

Maley v. Borough of Penbrook, 31 PAWCLR 191 (Pa. W.C.A.B. 2016)

Ruling: The Pennsylvania Workers’ Compensation Appeals Board reversed the workers’ compensation judge’s finding that a police officer was in the course and scope of his employment when he was injured while performing box jumps at a CrossFit gym.

What it means: In Pennsylvania, where a police officer is not required by either the employer or the SWAT team to join a CrossFit gym or perform box jumps as a part of any physical fitness test, his injuries sustained while performing this activity do not fall within the course of his employment.

Summary: The board reversed the WCJ’s finding that a police officer was in the course and scope of his employment when he was injured while performing box jumps at a CrossFit gym.

The employer had a wellness and fitness policy, which recommended that the officers stay physically fit so they can perform their duties in a safe and healthy manner. Because the employer did not have a workout room, the officer joined a CrossFit gym.

He also was a SWAT team member for the county. His participation in the SWAT team was not required by the employer. In denying benefits, the board noted that the officer’s participation in the employer’s physical fitness program was completely voluntary.

The employer did not mandate that the officer undergo any physical fitness tests, and choosing not to participate in the testing would not result in disciplinary action.

Also, although the officer’s involvement with the SWAT team required him to undergo periodic fitness testing, his participation in that program was not a mandatory part of his employment.

In addition, the officer was not required by either the employer or the SWAT team to join a CrossFit gym or perform box jumps as a part of any physical fitness test.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]