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View From the Bench

Workers’ Comp Docket

Significant workers' compensation legal decisions from around the country.
By: | November 3, 2017 • 10 min read

Forfeiture Provision of Workers’ Comp Law Ruled Unconstitutional

Gibby v. Hobby Lobby Stores, et al., No. 114065 (Okla. 10/03/17)

Ruling: The Oklahoma Supreme Court held that the forfeiture provision based on a worker’s failure to attend medical appointments is unconstitutional.

What it means: In Oklahoma, the forfeiture provision based on a worker’s failure to attend medical appointments is unconstitutional.

Summary: A worker for Hobby Lobby injured his right wrist and left knee when he fell three to four feet from a pallet jack while in the course and scope of his employment. Hobby Lobby provided temporary total disability and medical benefits. The worker sought permanent partial disability benefits.

Hobby Lobby asserted that the forfeiture provision prohibited the worker from receiving further workers’ compensation benefits because he missed three scheduled medical appointments without a valid excuse or notice to Hobby Lobby. An administrative law judge found no extraordinary circumstances existed for the worker’s missed medical appointments.

The worker challenged the constitutionality of the forfeiture provision. The Oklahoma Supreme Court held that the forfeiture provision is unconstitutional.

The forfeiture provision stated that if a worker missed two or more scheduled appointments for treatment, he is no longer entitled to receive benefits unless his absence was caused by extraordinary circumstances or he gave the employer at least two hours of notice and had a valid excuse.

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The court explained that the provision operates to forfeit existing vested rights to workers’ compensation benefits. The court said that “rights that vest on injury may not be destroyed except by due process of law.”

The court also found that the forfeiture provision “tips the delicate balance achieved in the Greta Bargain too far in favor of employers and therefore fails to provide an adequate substitute remedy to injured workers.” The provision also reinstated the concept of fault into a no-fault system.

A dissenting judge opined that the worker did not show that the provision was “repugnant to the constitution” and noted Hobby Lobby could have sought reimbursement for the cost of the missed appointments.

Compensation Judge Must Apply Good Cause Standard to Rehab Benefits

Halvorson v. B&F Fastener Supply, et al., No. A16-0920 (Minn. 09/20/17)

Ruling: The Minnesota Supreme Court held that the compensation judge improperly terminated a worker’s rehabilitation benefits on the basis that she had obtained “suitable gainful employment.”

What it means: In Minnesota, an employer must show “good cause” before terminating a worker’s rehabilitation benefits.

Summary: A worker for B&F Fastener Supply sustained an injury to her right elbow and both knees at work. A compensation judge found that she was entitled to benefits, including rehabilitation services.

The worker eventually obtained part-time employment with another employer, which prompted B&F to seek the discontinuation of her rehabilitation services. The compensation judge concluded that the worker was no longer a “qualified employee” in light of her part-time job, which eliminated the need for further rehabilitation services.

The Workers’ Compensation Court of Appeals reversed, finding that the compensation judge failed to apply the “good cause” standard. The Minnesota Supreme Court agreed with the WCCA that the compensation judge improperly terminated the worker’s rehabilitation benefits.

The court rejected B&F’s argument that when a worker receiving rehabilitation benefits finds suitable gainful employment and no longer meets the definition of a qualified employee, a compensation judge can terminate benefits without applying the good cause standard.

B&F asserted that if a recipient of rehabilitation services is no longer a “qualified employee,” it would be absurd to delay or prevent the termination of rehabilitation services. The court explained that the law contains procedural requirements that must be satisfied before enforcing legal rights and obligations.

Here, the plan modification provisions required an employer to file a request and make a showing of good cause before terminating a worker’s rehabilitation services.

The court also found that B&F erroneously assumed that requiring a showing of good cause was equivalent to saying that the definitional provisions played no role in a decision to terminate benefits.

The court explained that a worker who could not reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services would also tend to be unlikely to benefit from further rehabilitation services.

Dependency Benefits Denied When There Was No Marriage

Sanchez v. Carter, et al., No. A17A1135 (Ga. Ct. App. 10/17/17)

Ruling: The Georgia Court of Appeals held that a deceased worker’s partner was not entitled to dependency benefits.

What it means: In Georgia, one cannot recover dependency benefits arising from a living arrangement that did not include ceremonial or common-law marriage.

Summary: A worker for Carter suffered a fatal head injury when he fell from a roof during the course of his employment. Carter and its insurer agreed that the injury was compensable and paid the worker’s medical expenses.

The worker’s romantic partner lived with him from 2002 until his death in 2015. The worker and the partner were never ceremonially married, although they had discussed getting married and planned to be married in a church in 2015.

The partner became disabled in 2011, and the worker paid all of her living expenses, including the rent and utilities for their home. The partner filed a claim for dependency benefits. The Georgia Court of Appeals held that she was not entitled to benefits.

The court explained that the partner was not entitled to dependency benefits arising from her living arrangement with the worker because she was not married to him, either by ceremony or under the common law.

The partner pointed out that the legislature adopted a law stating that no common-law marriage can be entered into in the state after Jan. 1, 1997. The partner asserted that her relationship with the worker would have fallen within the definition of common-law marriage before it was abolished.

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The court explained that even if her relationship with the worker may have been considered a common-law marriage before 1997, she could not be deemed married by common law to the worker based on a relationship that began in 2002.

The court also explained that the Georgia Supreme Court previously held that one cannot recover dependency benefits arising from a living arrangement that did not include ceremonial or common-law marriage. This precedent prevented the partner from being awarded benefits.

Witnessing Coworker Being Shot Leads to PTD Benefits for Driver

Evans v. Alliance Healthcare Services, No. W2016-00653-SC-WCM-WC (Tenn. 09/26/17, unpublished)

Ruling: In an unpublished decision, the Tennessee Supreme Court held that a driver was permanently and totally disabled by post-traumatic stress disorder caused by witnessing the shooting of a coworker. She was entitled to medical expenses for hospitalizations related to the traumatic event.

What it means: In Tennessee, a worker’s mental injury is compensable when it resulted from a specific, acute, sudden, unexpected, and stressful event such as witnessing a coworker being injured in a shooting.

Summary: A bus driver for Alliance Healthcare Services was transporting a coworker, a counselor, to a patient’s home. When they reached the residence, the patient ran to the door carrying a gun.

As the driver and coworker entered the house, the patient shot the coworker. The driver subsequently witnessed two other shootings.

The driver was subsequently diagnosed with acute stress disorder and post-traumatic stress disorder. She sought workers’ compensation benefits.

The Tennessee Supreme Court held that she was permanently and totally disabled and that she was entitled to medical expenses for hospitalizations related to the traumatic event.

The court found that the shooting was a specific, acute, sudden, unexpected, and stressful event that caused the driver to develop PTSD. Therefore, her mental injury was compensable.

Alliance asserted that as the years went by, the major causes of the driver’s mental difficulties were preexisting conditions and stressful events in her personal life.

The court agreed with the trial court’s decision to give greater weight of the testimony to the driver’s treating physician.

It followed that the driver’s continuing symptoms were caused by the shooting and subsequent shootings witnessed by the driver and her ongoing difficulties with family did not constitute an independent intervening cause of her symptoms.

The court also found that the driver was permanently and totally disabled as a result of her compensable mental injury.

Both the driver’s physician and a physician who conducted an independent evaluation testified that she was unable to work. The driver also said that she did not believe she could hold a job because she was afraid to leave her residence alone.

The driver sought $196,461 in medical expenses for various hospitalizations. Alliance asserted that the hospitalizations were due to the driver’s suicide attempts, issues arising from her long-term drug use, and issues after the driver’s weight loss surgery.

The driver’s physician opined that all of the episodes and treatment were causally related to the original traumatic event. Therefore, the court ordered Alliance to pay the medical expenses.

Tuition Benefits Included in Calculation of Director’s AWW

Haller v. Champlain College, No. 16-332 (Vt. 09/29/17)

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Ruling: In a case of first impression, the Vermont Supreme Court held that tuition benefits should be included in the calculation of a director’s average weekly wage.

What it means: In Vermont, tuition benefits should be included in the calculation of a college employee’s average weekly wage.

Summary: A recruitment director for Champlain College suffered a work-related injury, which the college accepted as compensable.

During the time of her employment, the director took numerous classes at the college pursuant to its “tuition benefits” policy.

Under the policy, college employees, spouses, and eligible dependents can take undergraduate and graduate courses on a space-available basis, tuition free. Tuition benefits valued at more than $5,250 per calendar year were reported as taxable wages on employees’ tax forms.

During the 26 weeks before the injury, the director took 10.5 credits of coursework at the college. The parties disputed whether the tuition benefits were part of the director’s wages.

The Vermont Supreme Court held that tuition benefits should be included in the calculation of the director’s average weekly wage.

The court explained that “wages” are defined to include “bonuses and the market value of board, lodging, fuel, and other advantages which can be estimated in money and which the employee receives from the employer as part of his or her remuneration.”

Here, the court found that tuition benefits were “other advantages.” The director received the free tuition benefit, and the value was readily ascertainable. The benefit was provided directly to her, and it benefited her directly and quantifiably.

The court found that it was part of her compensation paid in consideration of her work for the college. The free tuition was also one of the reasons the director chose to work for the college.

Dissenting judges opined that the fringe benefits of free tuition could not be considered remuneration. One judge also opined that consideration of such fringe benefits in determining wages violated the premise and construction of the workers’ compensation law.

Comp Covers Worker’s Punctured Breast Implant

Bellanco v. Wood Co., 32 PAWCLR 148 (Pa. W.C.A.B. 2017)

Ruling: The Pennsylvania Workers’ Compensation Appeals Board affirmed the workers’ compensation judge’s ruling that a worker sustained a work-related rupture of her right breast implant. However, the WCJ erred in granting the worker unreasonable contest attorney’s fees.

What it means: In Pennsylvania, medical testimony that the worker had no problems with her right breast implant before the work accident, along with credible medical opinion that the worker’s right breast implant leak was directly related to a work incident while lifting a heavy item at work, constitutes sufficient evidence that the worker sustained a work-related compensable accident at work.

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Summary: The board affirmed the WCJ’s ruling that a worker, who felt a pop in the right side of her chest while lifting a heavy rack of glasses at work, sustained a work-related rupture of her right breast implant.

The worker presented the report of her doctor, who established that before the work incident, the worker had no problems with her right breast implant.

Another doctor explained that the worker’s right breast implant leak was directly related to the work incident. This evidence, which was found credible by the WCJ, was sufficient to sustain the worker’s burden on her claim petition.

The board also found that the WCJ erred in finding the employer’s contest was unreasonable. While the employer did not present its doctor’s medical report, in which he opined that the rupture was not work-related, until about a year after the work injury, the employer had information in its possession sufficient to justify its continued contest.

It was not until after the worker’s surgery that her doctor opined there was a link between the work injury and the puncture discovered in the worker’s breast implant.

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: Curt Gross

This director of risk management sees cyber, IP and reputation risks as evolving threats, but more formal education may make emerging risk professionals better prepared.
By: | June 1, 2018 • 4 min read

R&I: What was your first job?

My first non-professional job was working at Burger King in high school. I learned some valuable life lessons there.

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

After taking some accounting classes in high school, I originally thought I wanted to be an accountant. After working on a few Widgets Inc. projects in college, I figured out that wasn’t what I really wanted to do. Risk management found me. The rest is history. Looking back, I am pleased with how things worked out.

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

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I think we do a nice job on post graduate education. I think the ARM and CPCU designations give credibility to the profession. Plus, formal college risk management degrees are becoming more popular these days. I know The University of Akron just launched a new risk management bachelor’s program in the fall of 2017 within the business school.

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

I think we could do a better job with streamlining certificates of insurance or, better yet, evaluating if they are even necessary. It just seems to me that there is a significant amount of time and expense around generating certificates. There has to be a more efficient way.

R&I: What was the best location and year for the RIMS conference and why?

Selfishly, I prefer a destination with a direct flight when possible. RIMS does a nice job of selecting various locations throughout the country. It is a big job to successfully pull off a conference of that size.

Curt Gross, Director of Risk Management, Parker Hannifin Corp.

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

Definitely the change in nontraditional property & casualty exposures such as intellectual property and reputational risk. Those exposures existed way back when but in different ways. As computer networks become more and more connected and news travels at a more rapid pace, it just amplifies these types of exposures. Sometimes we have to think like the perpetrator, which can be difficult to do.

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

I hate to sound cliché — it’s quite the buzz these days — but I would have to say cyber. It’s such a complex risk involving nontraditional players and motives. Definitely a challenging exposure to get your arms around. Unfortunately, I don’t think we’ll really know the true exposure until there is more claim development.

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

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Our captive insurance company. I’ve been fortunate to work for several companies with a captive, each one with a different operating objective. I view a captive as an essential tool for a successful risk management program.

R&I: Who is your mentor and why?

I can’t point to just one. I have and continue to be lucky to work for really good managers throughout my career. Each one has taken the time and interest to develop me as a professional. I certainly haven’t arrived yet and welcome feedback to continue to try to be the best I can be every day.

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

I would like to think I have and continue to bring meaningful value to my company. However, I would have to say my family is my proudest accomplishment.

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

Favorite movie is definitely “Good Will Hunting.”

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

Tough question to narrow down. If my wife ran a restaurant, it would be hers. We try to have dinner as a family as much as possible. If I had to pick one restaurant though, I would say Fire Food & Drink in Cleveland, Ohio. Chef Katz is a culinary genius.

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

The Grand Canyon. It is just so vast. A close second is Stonehenge.

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

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A few, actually. Up until a few years ago, I owned a sport bike (motorcycle). Of course, I wore the proper gear, took a safety course and read a motorcycle safety book. Also, I have taken a few laps in a NASCAR [race car] around Daytona International Speedway at 180 mph. Most recently, trying to ride my daughter’s skateboard.

R&I: If the world has a modern hero, who is it and why?

The Dalai Lama. A world full of compassion, tolerance and patience and free of discrimination, racism and violence, while perhaps idealistic, sounds like a wonderful place to me.

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

I really enjoy the company I work for and my role, because I get the opportunity to work with various functions. For example, while mostly finance, I get to interact with legal, human resources, employee health and safety, to name a few.

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

I asked my son. He said, “Risk management and insurance.” (He’s had the benefit of bring-your-kid-to-work day.)

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