View From the Bench

Workers’ Comp Docket

Here’s a round-up of significant recent workers’ comp legal decisions from around the country.

Trooper’s lack of physical injury during shooting sinks comp for PTSD.

Kentucky State Police v. McCray, No. 2013-CA-000857-WC (Ky. Ct. App. 11/01/13)

Ruling: The Kentucky Court of Appeals held that a trooper’s post-traumatic stress disorder was not compensable.

What it means: In Kentucky, post-traumatic stress disorder is compensable under workers’ compensation only if it results from a physically traumatic event to the worker.

Summary: A trooper responded to a domestic disturbance and was confronted by a man who he believed was armed with a gun. The trooper shot and killed the man. The trooper was not physically injured in the incident. Shortly after the incident, the trooper began experiencing paranoia, lack of sleep, and episodes of rage and anger. He was diagnosed with major depression, panic disorder, and post-traumatic stress disorder. He sought workers’ compensation benefits. The Kentucky Court of Appeals held that the trooper’s PTSD was not compensable.

The court found the statutory language was clear that an “injury” under workers’ compensation does not include a psychological, psychiatric, or stress-related change in the human organism unless it is the direct result of a physical injury. The trooper’s PTSD was a psychological, psychiatric, or stress-related change in the human organism. However, he admitted that he did not suffer any physical injuries during the incident.

The court found that the shooting was not a traumatic event sufficient to support a claim of PTSD. Also, the court pointed out that the resultant physical manifestations of the stressful event such as high blood pressure or a racing heartbeat did not constitute a causal, physically traumatic event sufficient to support a claim for benefits.

A concurring judge stated that the outcome of the case was “compelled” by the law but was “fundamentally and profoundly unjust, inhumane, and illogical.” The judge suggested that the legislature revise the statute.

Carpenter’s dehydration on hot day isn’t compensable injury.

Machado v. Baker Concrete Construction, No. 13-CA-273 (La. Ct. App. 10/30/13)

Ruling: The Louisiana Court of Appeal held that a carpenter was not entitled to benefits for his dehydration.

What it means: According to this court, dizziness caused by dehydration on a hot day is not an “accident” under Louisiana workers’ compensation law.

Summary: A carpenter for a construction company began to feel dizzy while working on a hot day at a job site. His supervisor took him to a hospital where he was diagnosed with dehydration. His hospital discharge records indicated that he was released to return to work the next day without restrictions. The carpenter said the company would not allow him to return to work until he was examined by one of the company’s doctors at his own expense. The carpenter sought compensation, seeking payment for prescription medications and wage benefits for two weeks of missed work. The Louisiana Court of Appeal held that he was not entitled to benefits.

The court found that the carpenter’s testimony about the onset of dizziness while working was insufficient to establish an accident. He did not identify a compensable injury-causing event.

The court also found that the carpenter failed to establish a heart-related or perivascular injury. Even assuming dehydration was a heart-related or perivascular injury, he did not meet his burden of proof. The court explained that such injuries are not compensable unless the physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average worker in the occupation and the physical work stress or exertion was the predominant and major cause of the heart-related or perivascular injury. Because the carpenter did not offer evidence of the specific work he was performing at the time of the incident, he failed to show he was engaged in an extraordinary or unusual work stress at the time of his injury.

Treating physician’s opinion supports hyperbaric treatment for Lyme disease.

Raimondi v. Morris County Park Police and Commission, No. A-0106-12T1 (N.J. Super. Ct. App. Div. 11/12/13, unpublished)

Ruling: In an unpublished decision, the New Jersey Superior Court, Appellate Division held that an officer was entitled to temporary disability benefits and medical benefits, including hyperbaric oxygen treatment.

What it means: In New Jersey, a treating physician is in a better position to express an opinion as to cause and effect than one making an examination to give expert medical testimony.

Summary: A mounted patrol officer regularly patrolled wooded areas and was exposed to ticks in her work. She said she experienced tick bites “many times.” She experienced chronic fatigue, pain in her muscles, and was diagnosed with Lyme disease. Her condition worsened, and she left work. Eventually, she returned to work but continued to experience fatigue, joint pain, and muscle aches. Later, she fell on a patch of black ice while clearing snow off a patrol car. After the fall, her condition worsened, and she was unable to work. The officer sought workers’ compensation benefits, including hyperbaric oxygen treatment recommended by her treating physician. The New Jersey Superior Court, Appellate Division held that she was entitled to temporary disability benefits and medical benefits, including the hyperbaric oxygen treatment.

The court found that the officer had active Lyme disease related to her employment and that her symptoms were not related to orthopedic injuries. The treating physician opined that the officer’s fall “reactivated” her Lyme symptoms. The court explained that a treating physician is in a better position to express an opinion as to cause and effect than one making an examination to give expert medical testimony.

The court also found that the employer was required to pay for hyperbaric oxygen treatment, as prescribed by the treating physician. The physician attempted to treat the officer with traditional methods for Lyme disease, but she had little improvement. The physician successfully treated Lyme disease patients with the hyperbaric oxygen treatment in the past. Although the treatment was experimental, the employer failed to offer an alternative treatment.

Server not entitled to comp for injury while climbing stairs.

Dianna v. Colonial Williamsburg Co., No. 0442-13-1 (Va. Ct. App. 11/05/13, unpublished)

Ruling: In an unpublished decision, the Virginia Court of Appeals held that a server’s ankle injury was not compensable.

What it means: In Virginia, an unexplained injury that occurs while a worker is climbing an ordinary flight of stairs does not arise out of employment.

Summary: A server for a restaurant experienced pain in her foot. Approximately one week later, she walked up a flight of stairs carrying a tray weighing about 40 pounds. She suddenly felt “excruciating pain” when she reached the 10th step. She said that she felt something jerk and snap and her foot rolled in. The server explained that she did not step on a foreign object or slip on anything. She was diagnosed with an ankle sprain, tendon rupture, and ligament tear. She underwent physical therapy and surgery. The server sought temporary total disability benefits. The Virginia Court of Appeals held that she was not entitled to benefits.

The employer did not dispute that the server’s injury occurred in the course of her employment. The court concluded that the injury did not arise out of her employment. The server acknowledged that she did not stumble due to a defect in the stairs or slip on a foreign substance. The court said that without more an injury sustained while climbing an ordinary flight of stairs does not arise out of employment. The court found no medical evidence directly establishing a causal connection between the server’s injury and the conditions of her employment.

The court rejected the server’s arguments that the weight of the tray and the way it was held contributed to the accident. The court found no clear explanation for the cause of the accident.

Worker wins benefits despite positive drug test.

Peoples v. Labor Force Inc./Kaye Personnel Inc., 28 PAWCLR 173 (Pa. W.C.A.B. 2013)

Ruling: The Pennsylvania Workers’ Compensation Appeal Board affirmed the workers’ compensation judge’s decision awarding temporary total disability benefits to the worker despite the employer’s contention that the worker’s loss in wages was due to his positive drug test and not the work injury.

What it means: In Pennsylvania, where the employer gave the worker modified-duty work after his positive drug test results were known, and the worker was never discharged from employment, he can establish that he was disabled as a result of the work injury despite the positive drug test results.

Summary: The board affirmed the WCJ’s decision awarding temporary total disability benefits to the worker despite the employer’s contention that the worker’s loss in wages was due to his positive drug test and not the work injury. A representative of the employer testified that the worker failed the drug test, and as a result, he could not send him out for employment. However, the employer acknowledged that it offered the worker a modified job after receiving the drug test results. The employer acknowledged that its policy did not require that an employee be discharged after a failed drug test or that the employee could not be sent out to work for clients.

Because the employer gave the worker modified-duty work after the positive drug test results were known and had never actually discharged him from employment, the WCJ did not err in finding that the worker established that he was disabled as a result of the work injury despite the positive drug test results.