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 App. 02/21/17, unpublished)

Ruling: In an unpublished decision, the Virginia Court of Appeals held that a worker was entitled to benefits.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

Risk Management

The Profession

After 20 years in the business, Navy Pier’s Director of Risk Management values her relationships in the industry more than ever.
By: | June 1, 2017 • 4 min read

R&I: What was your first job?

Working at Dominick’s Finer Foods bagging groceries. Shortly after I was hired, I was promoted to [cashier] and then to a management position. It taught me great responsibility and it helped me develop the leadership skills I still carry today.

R&I: How did you come to work in risk management?

While working for Hyatt Regency McCormick Place Hotel, one of my responsibilities was to oversee the administration of claims. This led to a business relationship with the director of risk management of the organization who actually owned the property. Ultimately, a position became available in her department and the rest is history.

R&I: What is the risk management community doing right?

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The risk management community is doing a phenomenal job in professional development and creating great opportunities for risk managers to network. The development of relationships in this industry is vitally important and by providing opportunities for risk managers to come together and speak about their experiences and challenges is what enables many of us to be able to do our jobs even more effectively.

R&I: What could the risk management community be doing a better job of?

Attracting, educating and retaining young talent. There is this preconceived notion that the insurance industry and risk management are boring and there could be nothing further from the truth.

R&I: What’s been the biggest change in the risk management and insurance industry since you’ve been in it?

In my 20 years in the industry, the biggest change in risk management and the insurance industry are the various types of risk we look to insure against. Many risks that exist today were not even on our radar 20 years ago.

Gina Kirchner, director of risk management, Navy Pier Inc.

R&I: What insurance carrier do you have the highest opinion of?

FM Global. They have been our property carrier for a great number of years and in my opinion are the best in the business.

R&I: Are you optimistic about the US economy or pessimistic and why?

I am optimistic that policies will be put in place with the new administration that will be good for the economy and business.

R&I: What emerging commercial risk most concerns you?

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The commercial risks that are of most concern to me are cyber risks, business interruption, and any form of a health epidemic on a global scale. We are dealing with new exposures and new risks that we are truly not ready for.

R&I: Who is your mentor and why?

My mother has played a significant role in shaping my ideals and values. She truly instilled a very strong work ethic in me. However, there are many men and women in business who have mentored me and have had a significant impact on me and my career as well.

R&I: What have you accomplished that you are proudest of?

I am most proud of making the decision a couple of years ago to return to school and obtain my [MBA]. It took a lot of prayer, dedication and determination to accomplish this while still working a full time job, being involved in my church, studying abroad and maintaining a household.

R&I: What is your favorite book or movie?

“Heaven Is For Real” by Todd Burpo and Lynn Vincent. I loved the book and the movie.

R&I: What’s the best restaurant you’ve ever eaten at?

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A French restaurant in Paris, France named Les Noces de Jeannette Restaurant à Paris. It was the most amazing food and brings back such great memories.

R&I: What is the most unusual/interesting place you have ever visited?

Israel. My husband and I just returned a few days ago and spent time in Jerusalem, Nazareth, Jericho and Jordan. It was an absolutely amazing experience. We did everything from riding camels to taking boat rides on the Sea of Galilee to attending concerts sitting on the Temple steps. The trip was absolutely life changing.

R&I: What is the riskiest activity you ever engaged in?

Many, many years ago … I went parasailing in the Caribbean. I had a great experience and didn’t think about the risk at the time because I was young, single and free. Looking back, I don’t know that I would make the same decision today.

R&I: What about this work do you find the most fulfilling or rewarding?

I would have to say the relationships and partnerships I have developed with insurance carriers, brokers and other professionals in the industry. To have wonderful working relationships with such a vast array of talented individuals who are so knowledgeable and to have some of those relationships develop into true friendships is very rewarding.

R&I: What do your friends and family think you do?

My friends and family have a general idea that my position involves claims and insurance. However, I don’t think they fully understand the magnitude of my responsibilities and the direct impact it has on my organization, which experiences more than 9 million visitors a year.




Katie Siegel is a staff writer at Risk & Insurance®. She can be reached at [email protected]