View From the Bench

Workers’ Comp Docket

Significant workers' compensation legal decisions from around the country.
By: | April 20, 2017 • 10 min read

Alcohol in Worker’s System Isn’t Enough to Prevent Award

Andersen Interior Contracting, et al. v. Nimmo, No. 1286-16-2 (Va. Ct. App. 02/21/17, unpublished)

Ruling: In an unpublished decision, the Virginia Court of Appeals held that a worker was entitled to benefits.

What it means: In Virginia, to prevent recovery based on a worker’s intoxication, the employer must establish that the worker’s intoxication was the cause of his injuries.

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Summary: A worker for a subcontractor on a construction project was climbing a ladder when the ladder wobbled and then fell sideways. The worker sustained injures to his right wrist and elbow, two fractured ribs, and a punctured lung. He admitted to consuming alcohol the night before the incident. He denied drinking that morning before work. Tests after the accident indicated that he had alcohol in his system. The worker filed a claim for workers’ compensation benefits. The employer denied the claim, asserting that he was barred from receiving benefits because of his intoxication. The Virginia Court of Appeals held that the worker was entitled to benefits.

The Workers’ Compensation Commission concluded that the worker suffered an accident arising out of and in the course of his employment. The commission also found that the employer proved that the worker was intoxicated at work, that it had a safety rule prohibiting employees from being at work while under the influence of alcohol, and that the worker willfully violated that safety rule. However, the employer had to establish that the worker’s intoxication and willful violation of the safety rule caused his injuries. The court found that the employer failed to meet this burden.

The commission found that the worker’s fall was caused by the inherent dangers posed by working on ladders. The employer reasoned that a toxicologist’s opinion that the worker’s fall was caused by his intoxication satisfied its burden of proof. However, the commission remained unconvinced that the worker’s intoxication caused the fall.

Pain Treatment May Still Be Reasonable, Compensable After MMI

Rish v. The Home Depot, Inc., et al., No. 43677, 2017 Opinion No. 22 (Idaho 02/28/17)

Ruling: The Idaho Supreme Court held that the Industrial Commission improperly denied a cashier medical care benefits.

What it means: In Idaho, palliative, painkilling treatments can be compensable even though they will not necessarily cure the worker’s condition.

Summary: A cashier for Home Depot slipped on the floor and injured her right knee. She underwent three surgeries. Three months after her third surgery, her physician concluded that she reached maximum medical improvement but that she needed continued pain management. An independent medical examination recommended that she stop taking pain medication. Home Depot stopped paying for her medical care. The cashier sought continued medical care benefits. The Industrial Commission denied the claim, finding that the medical care she received after she reached MMI was unreasonable. The Idaho Supreme Court held that the commission improperly denied the claim.

The court explained that MMI was not relevant to the reasonableness of continuing medical care. The court also found that the commission erred in retrospectively analyzing the efficiency of the cashier’s continued medical care to determine reasonableness.

The court said that palliative, painkilling treatments can be compensable even though they will not necessarily cure a worker’s condition. The court declined to deviate from this principle even if the pain management treatment consists of prescribed pain medication that results in addiction or dependency, which in turn requires additional treatment. The court explained that requiring an injured worker to endure pain without medications is inconsistent with the humane purposes of the workers’ compensation law.

A concurring judge opined that palliative treatment can be reasonable even when it is ineffective in retrospect. The judge said that it is proper for the commission to consider whether a worker was suffering from opioid addiction at the time opioids were prescribed in determining whether the prescription was reasonable. In this case, the judge noted “red flags” that should be considered.

Disobedience Doesn’t Bar Claim

Chandler Telecom LLC, et al. v. Burdette, No. S16G0595 (Ga. 02/27/17)

Ruling: The Georgia Supreme Court reversed a decision awarding benefits to a technician and sent the case back to the Board of Workers’ Compensation to determine whether he intentionally violated instructions with the knowledge that it was likely to result in a serious injury or with a wanton and reckless disregard of its probable consequences.

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What it means: In Georgia, an intentional violation bars compensation only when done either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable injurious consequences.

Summary: A cell tower technician for Chandler Telecom was supposed to climb down a cell tower. The lead tower hand on the crew instructed the technician to climb down, but he stated that he wanted to use controlled descent instead. As the technician was descending, he fell and landed on an “ice bridge,” causing serious injuries to his ankle, leg, and hip. He sought workers’ compensation benefits. The Board of Workers’ Compensation denied benefits, finding that the technician was engage in willful misconduct. The Court of Appeals reversed, concluding that the technician’s conduct did not constitute willful misconduct. The Georgia Supreme Court reversed and sent the case back for the board to consider whether the technician intentionally violated instructions with the knowledge that it was likely to result in a serious injury or with a wanton and reckless disregard of its probable consequences.

The court explained that the mere violation of instructions or the mere doing of a hazardous act in which the danger is obvious cannot constitute willful misconduct. The court pointed out that the board did not make any findings as to whether the technician intentionally violated the lead’s instructions either with the knowledge that it was likely to result in serious injury or with a wanton and reckless disregard of its probable consequences.

Physician’s Failure to View Video of Accident Doesn’t Discredit Opinion

Gianotti v. Independent School District 152, et al., No. A16-0629 (Minn. 02/08/17)

Ruling: The Minnesota Supreme Court reversed the Workers’ Compensation Court of Appeals and held that the compensation judge properly determined that a school bus monitor did not suffer from a concussion and post-concussive syndrome.

What it means: In Minnesota, a medical expert need not be provided with every possible fact but must have enough facts to form a reasonable opinion that is not based on speculation.

Summary: A school bus monitor for the Independent School District 152 was riding in a bus traveling at 15 miles per hour when the bus suddenly braked. The sudden stop caused the monitor to fall, strike the left side of her head on the bus’s front console, and land on her left arm. She sought workers’ compensation benefits for the treatment of her injuries, including emotional and psychological conditions. The compensation judge denied coverage of emotional and psychological injuries, finding that the monitor did not suffer a concussion and post-concussive syndrome. The Workers’ Compensation Court of Appeals reversed, reasoning that a physician who conducted an independent psychological examination lacked factual foundation for his opinion. The Minnesota Supreme Court reversed the WCCA’s decision.

The WCCA stated that the physician who conducted the independent psychological examination lacked an adequate factual foundation for his opinion because he did not review the video of the accident. The court pointed out that the WCCA did not explain why the video was probative on the medical consequences of a blow to the head. The court also noted that none of the monitor’s treating physicians viewed it. The physician reviewed the monitor’s preinjury medical history, reviewed the majority of her postinjury medical records, conducted tests, and personally interviewed the monitor.

The WCCA also took issue with the physician’s contention that the employee denied altered consciousness until two weeks after the injury. The court found that the WCCA took this comment by the physician out of context. The physician found that the monitor did not report memory loss on the day of the accident and mentioned this symptom two weeks later. The physician found the monitor’s self-reported symptoms were not credible.

The court concluded that the compensation judge properly relied on the physician’s opinion that the monitor did not suffer from a concussion and post-concussion syndrome.

Post-Injury Car Accident Doesn’t End Original Claim

Appeal of Morin, No. 2016-0078 (N.H. 02/01/17)

Ruling: The New Hampshire Supreme Court held that a nurse established a causal relationship between her continuing medical treatment and her work-related injury.

What it means: In New Hampshire, the progression of a work-related condition remains compensable as long as the worsening is not shown to have been produced by an independent, intervening cause.

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Summary: A registered nurse for Androscoggin Valley Hospital injured her neck while assisting a patient. She underwent surgery. After surgery, she continued to experience neck pain, shoulder discomfort, occipital headaches, arm aches, and numbness in her fingers. Her neurosurgeon referred her for pain management treatment. The pain management doctor recommended that the nurse use a TENS unit. During this time, the nurse was involved in a motor vehicle accident. The neurosurgeon opined that the motor vehicle accident temporarily increased her symptoms but that “subsequently settled down.” The hospital’s workers’ compensation insurance carrier denied three claims for pain management treatment and a claim for the TENS unit. The New Hampshire Supreme Court held that the nurse established a causal relationship between her continuing medical treatment and her work-related injury.

The court found that the nurse proved medical causation. The neurosurgeon opined that it was clear that her continuing medical treatment was causally related to her work injury and not to her motor vehicle accident. The neurosurgeon said it was highly unlikely that the motor vehicle accident would have resulted in any chronic injury. Nothing in the workers’ compensation law required a worker’s physician to state his opinion expressly in terms of “reasonable medical probability.”

The court noted that the hospital’s workers’ compensation carrier did not challenge the reasonableness and necessity of the treatment.

Fall Down Stairs at Home Sinks Claim for Benefits for Prior Injury

Lovejoy v. Ken’s Signs, et al., No. CV-16-523 (Ark. Ct. App. 03/01/17)

Ruling: The Arkansas Court of Appeals held that a worker was not entitled to additional treatment and benefits.

What it means: In Arkansas, benefits are not payable for a condition that results from a nonwork-related independent intervening cause following a compensable injury.

Summary: A worker for Ken’s Signs suffered a compensable shoulder injury. After surgery, he reported to his physician that he had no inflammation or pain and a full range of motion. The physician found he was at maximum medical improvement. The worker subsequently ended his employment with Ken’s Signs and took a higher-paying job with another employer, where he performed maintenance work on machines. After eight months, he was terminated. The worker fell down the stairs in his home and sought emergency medical treatment. Later, he returned to the physician and complained of pain in his shoulder. The worker did not report that he had fallen at home. The physician recommended surgery. The worker argued that he was entitled to additional medical treatment and benefits. The Arkansas Court of Appeals held that he was not entitled to additional treatment and benefits.

The court found that the worker failed to link his subsequent shoulder pain to his compensable injury. The court pointed out that he sought emergency treatment for his fall down the stairs at home but did not mention this incident to the physician.

The court also found that the worker failed to prove that he was entitled to temporary total disability benefits or permanent partial disability benefits. His physician found that he reached MMI. Also, following his surgery, he worked for eight months performing manual labor at a wage greater than what he earned before the injury, indicating that he did not have a partial or total incapacity to earn wages.

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]

More from Risk & Insurance

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Robotics Risk

Rise of the Cobots

Collaborative robots, known as cobots, are rapidly expanding in the workforce due to their versatility. But they bring with them liability concerns.
By: | May 2, 2017 • 5 min read

When the Stanford Shopping Center in Palo Alto hired mobile collaborative robots to bolster security patrols, the goal was to improve costs and safety.

Once the autonomous robotic guards took up their beats — bedecked with alarms, motion sensors, live video streaming and forensics capabilities — no one imagined what would happen next.

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For some reason,  a cobots’ sensors didn’t pick up the movement of a toddler on the sidewalk who was trying to play with the 5-foot-tall, egg-shaped figure.

The 300-pound robot was programmed to stop for shoppers, but it knocked down the child and then ran over his feet while his parents helplessly watched.

Engaged to help, this cobot instead did harm, yet the use of cobots is growing rapidly.

Cobots are the fastest growing segment of the robotics industry, which is projected to hit $135.4 billion in 2019, according to tech research firm IDC.

“Robots are embedding themselves more and more into our lives every day,” said Morgan Kyte, a senior vice president at Marsh.

“Collaborative robots have taken the robotics industry by storm over the past several years,” said Bob Doyle, director of communications at the Robotic Industries Association (RIA).

When traditional robots joined the U.S. workforce in the 1960s, they were often assigned one specific task and put to work safely away from humans in a fenced area.

Today, they are rapidly being deployed in the automotive, plastics, electronics assembly, machine tooling and health care industries due to their ability to function in tandem with human co-workers.

More than 24,000 robots valued at $1.3 billion were ordered from North American companies last year, according to the RIA.

Cobots Rapidly Gain Popularity

Cobots are cheaper, more versatile and lighter, and often have a faster return on investment compared to traditional robots. Some cobots even employ artificial intelligence (AI) so they can adapt to their environment, learn new tasks and improve on their skills.

Bob Doyle, director of communications, Robotic Industry Association

Their software is simple to program, so companies don’t need a computer programmer, called a robotic integrator, to come on site to tweak duties. Most employees can learn how to program them.

While the introduction of cobots into the workplace can bring great productivity gains, it also introduces risk mitigation challenges.

“Where does the problem lie when accidents happen and which insurance covers it?” asked attorney Garry Mathiason, co-chair of the robotics, AI and automation industry group at the law firm Littler Mendelson PC in San Francisco.

“Cobots are still machines and things can go awry in many ways,” Marsh’s Kyte said.

“The robot can fail. A subcomponent can fail. It can draw the wrong conclusions.”

If something goes amiss, exposure may fall to many different parties:  the manufacturer of the cobot, the software developer and/or the purchaser of the cobot, to name a few.

Is it a product defect? Was it an issue in the base code or in the design? Was something done in the cobot’s training? Was it user error?

“Cobots are still machines and things can go awry in many ways.” — Morgan Kyte, senior vice president, Marsh

Is it a workers’ compensation case or a liability issue?

“If you get injured in the workplace, there’s no debate as to liability,” Mathiason said.

But if the employee attributes the injury to a poorly designed or programmed machine and sues the manufacturer of the equipment, that’s not limited by workers’ comp, he added.

Garry Mathiason, co-chair, robotics, AI and automation industry group, Littler Mendelson PC

In the case of a worker killed by a cobot in Grand Rapids, Mich., in 2015, the worker’s spouse filed suit against five of the companies responsible for manufacturing the machine.

“It’s going to be unique each time,” Kyte said.

“The issue that keeps me awake at night is that people are so impressed with what a cobot can do, and so they ask it to do a task that it wasn’t meant to perform,” Mathiason said.

Privacy is another consideration.

If the cobot records what is happening around it, takes pictures of its environment and the people in it, an employee or customer might claim a privacy violation.

A public sign disclosing the cobot’s ability to record video or take pictures may be a simple solution. And yet, it is often overlooked, Mathiason said.

Growing Pains in the Industry

There are going to be growing pains as the industry blossoms in advance of any legal and regulatory systems, Mathiason said.

He suggests companies take several mitigation steps before introducing cobots to the workplace.

First, conduct a safety audit that specifically covers robotics. Make sure to properly investigate the use of the technology and consider all options. Run a pilot program to test it out.

Most importantly, he said, assign someone in the organization to get up to speed on the technology and then continuously follow it for updates and new uses.

The Robotics Industry Association has been working with the government to set up safety standards. One employee can join a cobot member association to receive the latest information on regulations.

“I think there’s a lot of confusion about this technology and people see so many things that could go wrong,” Mathiason said.

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“But if you handle it properly with the safety audit, the robotics audit, and pay attention to what the standards are, it’s going to be the opposite; there will be fewer problems.

“And you might even see in your experience rating that you are going to [get] a better price to the policy,” he added.

Without forethought, coverage may slip through the cracks. General liability, E&O, business interruption, personal injury, cyber and privacy claims can all be involved.

AIG’s Lexington Insurance introduced an insurance product in 2015 to address the gray areas cobots and robots create. The coverage brings together general and products liability, robotics errors and omissions, and risk management services, all three of which are tailored for the robotics industry. Minimum premium is $25,000.

Insurers are using lessons learned from the creation of cyber liability policies and are applying it to robotics coverage, Kyte said.

“The robotics industry has been very safe for the last 30 years,” RIA’s Doyle said. “It really does have a good track record and we want that to continue.” &

Juliann Walsh is a staff writer at Risk & Insurance. She can be reached at [email protected]