View From the Bench

Workers’ Comp Docket

Workers comp legal developments from around the country.
By: | April 7, 2014
Example Image

Employer Must Pay for Injury Sustained While Tying Shoes

Vawter v. United Parcel Service, Inc., No. 40660, 2014 Opinion No. 6 (Idaho 02/07/14)

Ruling: The Idaho Supreme Court held that a driver’s back injury while tying his shoes was compensable.

What it means: In Idaho, a worker’s injury that occurred while performing an act required for his employment arises out of his employment.

Advertisement




Summary: A delivery driver for United Parcel Service clocked in, sat down, and bent over to tie his boot laces. UPS had a “no loose or dangling parts” shoe policy. He felt a pop and pain in his lower back. Subsequently, he underwent surgery. The driver sought workers’ compensation benefits. The Idaho Supreme Court held that he was entitled to benefits.

UPS did not dispute that the accident causing the driver’s injury occurred in the course of his employment but argued that the accident did not arise out of his employment. UPS asserted that the driver’s employment did not expose him to any greater risk of injury than he was exposed to outside of his employment and that the risk of injury from tying his shoes was personal to him. The court pointed out that the driver was required to have his shoes tied or secured according to UPS policy. Therefore, the injury he suffered was connected to his employment and arose out of his employment.

UPS argued that the Industrial Special Indemnity Fund was liable for some of the driver’s benefits because he had a preexisting impairment. The court pointed out that at the time of the previous injury, UPS avoided paying benefits because it successfully argued that he was not impaired. His current position was inconsistent. The court concluded that UPS was solely liable for the driver’s benefits.

The court found that the driver was entitled to recover his medical expenses and attorney’s fees.

Brain Damage Doesn’t Trigger Awards for Loss of Vision, Hearing

State ex rel. Smith v. Industrial Commission of Ohio, No. 2014-Ohio-513 (Ohio 02/18/14)

Ruling: The Ohio Supreme Court held that a worker was not entitled to compensation for the loss of vision and hearing.

What it means: In Ohio, a worker is not permitted an award of compensation for the scheduled loss of vision or hearing when the inability to comprehend sights or sounds results from a lack of brain stem function.

Summary: A worker for Ohio State University suffered a hernia. The Industrial Commission allowed his claim. Postoperative complications from surgery to repair the hernia resulted in brain damage, leaving the worker in a persistent vegetative state. He amended the claim to add the conditions of anoxic brain damage and seizure disorder. The commission awarded him benefits for permanent total disability and later granted additional benefits for the scheduled loss of use of both of his arms and legs. The worker sought additional schedule awards for the loss of vision in both eyes and the loss of hearing in both ears. The Ohio Supreme Court held that he was not entitled to additional compensation for the loss of vision and hearing.

Ohio State University asserted that an award of loss of vision is allowed when a worker presents evidence showing the percentage of vision actually lost and an award of loss of hearing is authorized when the loss is shown to be permanent and total. It contended that the worker failed to present medical evidence showing any actual loss of vision or hearing. The court agreed, finding that the evidence indicated that the worker suffered a loss of vision and hearing because of damage to his brain. The worker had already been awarded benefits for his anoxic brain damage. There was no test that could be performed to establish definitively whether the worker had an actual loss of sight or hearing.

Three dissenting judges opined that the medial evidence established that the worker was unable to see or hear and the medical evidence should have been used in determining whether he was entitled to additional compensation.

Mileage Reimbursement Doesn’t Nullify Coming and Going Rule

Potier v. Acadian Ambulance Service, Inc., No. 13-914 (La. Ct. App. 02/12/14)

Ruling: The Louisiana Court of Appeal held that a medic was not in the course and scope of his employment when he was injured in an automobile accident.

Advertisement




What it means: In Louisiana, an employer’s payment of a worker’s travel expenses does not bring the worker within the course and scope of his employment while traveling to and from work if the payments were not based on actual travel expenses and were intended only as an inducement to attract qualified personnel to a particular job site.

Summary: A swing medic for Acadian Ambulance Services was injured in a one-vehicle automobile accident while he was returning home after working a shift. He sought indemnity and medical benefits. Acadian asserted that the medic was not in the course and scope of his employment when the accident occurred. The Louisiana Court of Appeal held that he was not entitled to benefits.

The medic argued that because Acadian reimbursed him for his mileage on trips to and from his assignments, it interested itself in his transportation, bringing his claim within an exception of the going and coming rule. Acadian explained that it did not provide the medic with transportation, its mileage payments were not based on his actual travel expenses, and he was not paid for his travel time. Acadian argued that the mileage it paid was for the purpose of attracting qualified personnel to work in areas where there were an insufficient number of paramedics to staff its ambulances.

The court rejected the medic’s argument that Acadian involved itself in his transportation to work and concluded that he was not in the course and scope of his employment when the accident occurred.

Multiple Preexisting Conditions Don’t Bar Award of PTD

Stewart v. Zwiefel, No. SD32927 (Mo. Ct. App. 02/10/14)

Ruling: The Missouri Court of Appeals held that a worker was permanently totally disabled only after her work injury, and the Second Injury Fund was liable for benefits.

What it means: In Missouri, the test for permanent total disability is whether the worker can compete in the open labor market. The key question is whether any employer in the ordinary course of business would reasonably be expected to hire the worker in her current physical condition.

Summary: A part-time worker for Subway sustained an injury and was permanently totally disabled. The worker had preexisting arthritis, reflex sympathetic dystrophy, degenerative joint and bone disease, carpal tunnel syndrome, and other conditions. She had previously qualified for Social Security disability and had worked sporadically in part-time positions. She obtained all of her jobs by competing in the open labor market. The Second Injury Fund asserted that the worker was PTD before the accident at Subway, so it was not liable for her benefits. The Missouri Court of Appeals held that the SIF was liable for the worker’s benefits.

The SIF argued that “many prior cases” upheld PTD awards to workers who were “limited in how many hours per week they can work and what they can and cannot do during those limited working hours.” The court pointed out that the worker competed for and won all of her jobs in the open labor market and did not receive accommodations. A key question was whether any employer in the ordinary course of business reasonably might hire the worker in her physical condition. The court said that several employers did.

Advertisement




The court explained that it was within the Labor and Industrial Relations Commission’s “special province” to factually determine whether the worker was PTD before or only after her Subway accident. Substantial evidence supported a finding either way, so the commission’s decision bound the court.

No Shift Differential for Day-Shift Modified Duty

County of Nevada v. Workers’ Compensation Appeals Board, No. C074133 (Cal. Ct. App. 01/29/14)

Ruling: The California Court of Appeal held that a sheriff was not entitled to receive shift differential pay while working modified duty.

What it means: In California, a worker who returns to work in a modified position is not entitled to shift differential pay.

Summary: A deputy sheriff for Nevada County injured his shoulder while working. At the time of his injury, he was working a night-shift schedule that entitled him to a shift differential pay. He was off work and underwent surgery. He returned to work on modified duty and was assigned to the day shift. A state law guarantees certain public employees who are disabled from a work-related injury “a leave of absence while so disabled without loss of salary in lieu of temporary disability payments.” While the sheriff was off work, he received his regular full pay, including the shift differential. While he was working on the day shift, he was not paid the differential. The sheriff sought benefits and argued that he was entitled to the differential while working the day shift. The California Court of Appeal held that he was not entitled to the differential while working modified duty.

The sheriff argued that while he was working modified, light duty on the day shift he was on a “leave of absence” from his regular night shift and was entitled to no loss of salary as a result of his day shift work. The court rejected the argument, finding that a “leave of absence” is a temporary absence from employment with the intent to return. The sheriff could not have been on a leave of absence when he was back at work even if he was working light duty on a different shift.

The court found that the law did not guarantee a worker anything when he was no longer on a leave of absence and back at work. The court found nothing in the law that could be reasonably understood to mean that a leave of absence was anything less than being absent from work.

Exclusive Remedy Provision Doesn’t Apply to Providers

Hand & Wrist Center of Houston, P.A. v. Maintenance Supply Headquarters, L.P., No. 01-12-00216-CV (Tex. Ct. App. 02/04/14)

Ruling: The Texas Court of Appeals held that the exclusive remedy provision did not block a medical provider’s suit against an injured worker’s employer for payment of treatment it provided.

What it means: In Texas, the exclusive remedy provision does not apply to health care providers.

Summary: A worker for Maintenance Supply Headquarters injured his hand. Maintenance Supply directed him to Hand & Wrist Center of Houston for treatment. Maintenance Supply’s assistant operations manager signed a letter guaranteeing that it would pay for the worker’s treatment even if he tested positive for drugs or alcohol at the time of the injury. The worker was denied workers’ compensation benefits because he had a positive drug screen at the time of the injury. Maintenance Supply failed to pay for his treatment, and Hand & Wrist Center sued for breach of contract. Maintenance Supply asserted that workers’ compensation was the exclusive remedy because it had workers’ compensation coverage at the time of the worker’s injury. The Texas Court of Appeals held that the exclusive remedy provision did not block Hand & Wrist Center’s suit.

Advertisement




The court explained that recovery of workers’ compensation benefits is the exclusive remedy of a worker covered by workers’ compensation insurance or a legal beneficiary against the employer for a work-related injury. Examining the workers’ compensation law’s definition of “employee,” the court concluded that the legislature had clear intent that the recovery of workers’ compensation benefits is the exclusive remedy of an employee and does not apply to health care providers. Therefore, Hand & Wrist Center was not barred from suing Maintenance Supply to recover payment for the medical services it provided to the worker.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters[email protected]

More from Risk & Insurance

More from Risk & Insurance

Risk Matrix: Presented by Liberty Mutual Insurance

11 Crucial Trends That Are Impacting the Construction Industry Today

Increased hurricanes, opioids, women workers and more are just some of the latest trends driving construction risk.
By: | November 1, 2019




The R&I Editorial Team can be reached at [email protected]