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 App. 02/21/17, unpublished)

Ruling: In an unpublished decision, the Virginia Court of Appeals held that a worker was entitled to benefits.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

More from Risk & Insurance

Lead Story

Improving the Claims Experience

Insureds and carriers agree that more communication can address common claims complaints.
By: | January 10, 2018 • 7 min read

Carriers today often argue that buying their insurance product is about much more than financial indemnity and peace of mind.

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Many insurers include a variety of risk management services and resources in their packages to position themselves as true risk partners who help clients build resiliency and prevent losses in the first place.

That’s all well and good. No company wants to experience a loss, after all. But even with the added value of all those services, the core purpose of insurance is to reimburse loss, and policyholders pay premiums because they expect delivery on that promise.

At the end of the day, nothing else matters if your insurer can’t or won’t pay your claim, and the quality of the claims experience is ultimately the barometer by which insureds will judge their insurer.

Why, then, is the process not smoother? Insureds want more transparency and faster claims payment, but claims examiners are often overburdened and disconnected from the original policy. Where does the disconnect come from, and how can it be bridged?

Both sides of the insurer-insured equation may be responsible.

Susan Hiteshew, senior manager of global insurance and risk management, Under Armor Inc.

“One of the difficult things in our industry is that oftentimes insureds don’t call their insurer until they have a claim,” said Susan Hiteshew, senior manager of global insurance and risk management for Under Armour Inc.

“It’s important to leverage all of the other value that insurers offer through mid-term touchpoints and open communication. This can help build the insurer-insured partnership so that when a claim materializes, the relationships are already established and the claim can be resolved quickly and fairly.”

“My experience has been that claims executives are often in the background until there is an issue that needs addressing with the policyholder,” said Dan Holden, manager of corporate risk and insurance for Daimler Trucks North America.

“This is unfortunate because the claims department essentially writes the checks and they should certainly be involved in the day to day operations of the policyholders in designing polices that mitigate claims.

“By being in the shadows they often miss the opportunity to strengthen the relationship with policyholders.”

Communication Breakdown

Communication barriers may stem from internal separation between claims and underwriting teams. Prior to signing a contract and throughout a policy cycle, underwriters are often in contact with insureds to keep tabs on any changes in their risk profile and to help connect clients with risk engineering resources. Claims professionals are often left out of the loop, as if they have no proactive role to play in the insured-insurer relationship.

“Claims operates on their side of the house, ready to jump in, assist and manage when the loss occurs, and underwriting operates in their silo assessing the risk story,” Hiteshew said.
“Claims and underwriting need to be in lock-step to collectively provide maximum value to insureds, whether or not losses occur.”

Both insureds and claims professionals agree that most disputes could be solved faster or avoided completely if claims decision-makers interacted with policyholders early and often — not just when a loss occurs.

“Claims and underwriting need to be in lock-step to collectively provide maximum value to insureds, whether or not losses occur.” – Susan Hiteshew, senior manager of global insurance and risk management for Under Armour Inc.

“Communication is critically important and in my opinion, should take place prior to binding business and well before a claim comes in the door,” said David Crowe, senior vice president, claims, Berkshire Hathaway Specialty Insurance.

“In my experience, the vast majority of disputes boil down to lack of communication and most disputes ultimately are resolved when the claim decision-maker gets involved directly.”

Talent and Resource Shortage

Another contributing factor to fractured communication could be claims adjuster workload and turnover. Claims adjusting is stressful work to begin with.

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Adjusters normally deal with a high volume of cases, and each case can be emotionally draining. The customer on the other side is, after all, dealing with a loss and struggling to return to business as usual. At some TPAs, adjuster turnover can exceed 25 percent.

“This is a difficult time for claims organizations to find talent who want to be in this business long-term, and claims organizations need to invest in their employees if they’re going to have any success in retaining them,” said Patrick Walsh, executive vice president of York Risk Services Group.

The claims field — like the insurance industry as a whole — is also strained by a talent crunch. There may not be enough qualified candidates to take the place of examiners looking to retire in the next ten years.

“One of the biggest challenges facing the claims industry is a growing shortage of talent,” said Scott Rogers, president, National Accounts, Sedgwick. “This shortage is due to a combination of the number of claims professionals expected to retire in the coming years and an underdeveloped pipeline of talent in our marketplace.

“The lack of investment in ensuring a positive work environment, training, and technology for claims professionals is finally catching up to the industry.”

The pool of adjusters gets stretched even thinner in the aftermath of catastrophes — especially when a string of catastrophes occurs, as they did in the U.S in the third quarter of 2017.

“From an industry perspective, Harvey, Irma and Maria reminded us of the limitations on resources available when multiple catastrophes occur in close succession,” said Crowe.

“From independent and/or CAT adjusters to building consultants, restoration companies and contractors, resources became thin once Irma made landfall.”

Is Tech the Solution?

This is where Insurtech may help things. Automation of some processes could free up time for claims professionals, resulting in faster deployment of adjusters where they’re needed most and, ultimately, speedier claims payment.

“There is some really exciting work being done with artificial intelligence and blockchain technologies that could yield a meaningful ROI to both insureds and insurers,” Hiteshew said.

“The claim set-up process and coverage validation on some claims could be automated, which could allow adjusters to focus their work on more complex losses, expedite claim resolution and payment as well.”

Dan Holden, manager, Corporate Risk & Insurance, Daimler Trucks North America

Predictive modeling and analytics can also help claims examiners prioritize tasks and maximize productivity by flagging high-risk claims.

“We use our data to identify claims with the possibility of exceeding a specified high dollar amount in total incurred costs,” Rogers said. “If the model predicts that a claim will become a large loss, the claim is redirected to our complex claims unit. This allows us to focus appropriate resources that impact key areas like return to work.”

“York has implemented a number of models that are focused on helping the claims professional take action when it’s really required and that will have a positive impact on the claim experience,” Walsh said.

“We’ve implemented centers of excellence where our experts provide additional support and direction so claim professionals aren’t getting deluged with a bunch of predictive model alerts that they don’t understand.”

“Technology can certainly expedite the claims process, but that could also lead to even more cases being heaped on examiners.” — Dan Holden, manager, Corporate Risk & Insurance, Daimler Trucks North America

Many technology platforms focused on claims management include client portals meant to improve the customer experience by facilitating claim submission and communication with examiners.

“With convenient, easy-to-use applications, claimants can send important documents and photos to their claims professionals, thereby accelerating the claims process. They can designate their communication preferences, whether it’s email, text message, etc.,” Sedgwick’s Rogers said. “Additionally, rules can be established that direct workflow and send real time notifications when triggered by specific claim events.”

However, many in the industry don’t expect technology to revolutionize claims management any time soon, and are quick to point out its downsides. Those include even less personal interaction and deteriorating customer service.

While they acknowledge that Insurtech has the potential to simplify and speed up the claims workflow, they emphasize that insurance is a “people business” and the key to improving the claims process lies in better, more proactive communication and strengthening of the insurer-insured relationship.

Additionally, automation is often a double-edged sword in terms of making work easier for the claims examiner.

“Technology can certainly expedite the claims process, but that could also lead to even more cases being heaped on examiners,” Holden said.

“So while the intent is to make things more streamlined for claims staff, the byproduct is that management assumes that examiners can now handle more files. If management carries that assumption too far, you risk diminishing returns and examiner burnout.”

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By further taking real people out of the equation and reducing personal interaction, Holden says technology also contributes to deteriorating customer service.

“When I started more than 30 years ago as a claims examiner, I asked a few of the seasoned examiners what they felt had changed since they began their own careers 30 year earlier. Their answer was unanimous: a decline in customer service,” Holden said.

“It fell to the wayside to be replaced by faster, more impersonal methodologies.”

Insurtech may improve customer satisfaction for simpler claims, allowing policyholders to upload images with the click of a button, automating claim valuation and fast-tracking payment. But for complex claims, where the value of an insurance policy really comes into play, tech may do more harm than good.

“Technology is an important tool and allows for more timely payment and processing of claims, but it is not THE answer,” BHSI’s Crowe said. “Behind all of the technology is people.” &

Katie Dwyer is an associate editor at Risk & Insurance®. She can be reached at [email protected]