View From the Bench

Workers’ Comp Docket

Key workers' comp legal decisions from around the country.
By: | April 24, 2014 • 8 min read
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Fall on Metal Plate Not Proof of Safety Violation

Howeth-England v. Department of Corrections, No. 2013-CA-000933-WC (Ky. Ct. App. 02/28/14, unpublished)

Ruling: In an unpublished decision, the Kentucky Court of Appeals held that an officer was not entitled to increased benefits because she did not establish that an employer committed a safety violation.

What it means: In Kentucky, a worker’s benefits can be increased if her accident was caused by the employer’s intentional failure to comply with a safety statute or regulation.

Summary: A corrections officer was walking through a prison dormitory when she stubbed her toe on a metal plate on the floor, causing her to fall. She sustained a back injury. The officer received temporary total disability benefits. She had two surgeries and did not return to work. She requested an increase in her TTD benefits for the Department of Correction’s safety violation. The Kentucky Court of Appeals held that she was not entitled to increased benefits.

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In order for a violation to warrant enhanced benefits, the employer must be found to have intentionally disregarded a safety hazard that even a lay person would obviously recognize as likely to cause death or serious physical harm. The court found no substantial evidence to support a finding that the failure to remove, mitigate, or mark the metal plate in the floor presented a safety hazard that the department intentionally disregarded. There was no evidence that the department was aware of the hazard posed by the metal plate where no one had previously been injured or complained of the plate. The court found it was not the type of hazard that by its nature was obvious.

The court said the plate was unlikely to cause death or serious injury. Although the officer suffered a serious injury from tripping on the plate and falling, in general, falling onto a level surface was unlikely to cause this result. The court said it was a similar hazard to those commonly encountered in daily life and unlike the type of risks that resulted in the imposition of the safety penalty.

Exclusive Remedy Doesn’t Apply to Injury During Enforced Leave

Wabash County Hospital Foundation, Inc. d/b/a Wabash County Hospital v. Lee, No. 85A04-1306-CT-291 (Ind. Ct. App. 02/13/14, unpublished)

Ruling: In an unpublished decision, the Indiana Court of Appeals held that an anesthesiologist’s suit against a hospital could move forward.

What it means: In Indiana, a worker’s suit against her employer is not barred by the exclusive remedy provision if her injury did not arise during the course of her employment.

Summary: An 89-year-old anesthesiologist had surgery privileges at Wabash County Hospital. During an investigation regarding her fitness to practice medicine, she was offered a leave of absence by the hospital. A nurse received a phone call from human resources advising her that the anesthesiologist was in the recovery room area. As the anesthesiologist was checking her blood pressure, the nurse “accosted” her, inquiring why she was there and asking her to leave. The nurse reached out and touched the anesthesiologist’s arm to remove her from the area. As a result, the anesthesiologist’s arm required arthroscopic repair. The anesthesiologist sued the hospital. The hospital asserted that the matter fell within workers’ compensation. The Indiana Court of Appeals held that the exclusive remedy of workers’ compensation did not bar the suit.

The court rejected the hospital’s argument that the anesthesiologist’s injury arose during the course of her employment. Although she was still employed with the hospital at the time of her injury, she was on a leave of absence with her surgery privileges suspended. The court said it was clear that she was not fulfilling her employment duties. At the time of the injury, she was not performing services for the hospital or caring for patients, but was tending to her own health. The court found the injury was not incidental to her employment but rather a risk personal to her for which there was no recourse under the workers’ compensation law.

Injury Only One Factor in Worker’s Disability

Hoerst v. Janelia Farm Research Campus, No. 1265-13-4 (Va. Ct. App. 02/25/14, unpublished)

Ruling: In an unpublished decision, the Virginia Court of Appeals held that a server was not entitled to temporary total disability benefits.

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What it means: In Virginia, a worker is not entitled to TTD when her nonwork-related preexisting conditions could have contributed to her inability to keep a job.

Summary: A server was injured when she struck the back of her head on the corner of a metal kitchen sink. She “blacked out” or “nearly blacked out” and was treated at an urgent care center the next day. The server claimed that, after the work-related incident, she began to experience severe migraine headaches. The server initially received wage-loss benefits for a one-month period when she was off work. She sought temporary total disability benefits beginning with the date of the accident. The Virginia Court of Appeals held that she was not entitled to TTD benefits.

The court rejected the server’s argument that the medical evidence established that the severity and frequency of her headaches rendered her unable to work. A physician wrote that she was “unable to work due to the frequency and intensity of her headaches” but did not take her out of work or mention her work status. The court said the medical evidence established that headache symptoms were subjective. The doctor attributed the server’s difficulty in finding a job to her “conditions.”

The medical evidence established that the server suffered from a number of serious medical conditions. She had been diagnosed with bipolar disorder, depression, chronic insomnia, and post-traumatic stress disorder. A staff psychologist from a residential drug treatment program diagnosed her with opioid and cannabis dependence. The server’s nonwork-related conditions could have contributed to her inability to keep a job.

Worker Can’t Collect Benefits While on House Arrest

Snowberger v. Forever Broadcasting, 29 PAWCLR 8 (Pa. W.C.A.B. 2013)

Ruling: The Pennsylvania Workers’ Compensation Appeal Board affirmed the workers’ compensation judge’s decision allowing the employer to recover the benefits paid during a worker’s incarceration through a future credit.

What it means: In Pennsylvania, a worker who is incarcerated even though she is eligible for work release is nevertheless disqualified from receiving workers’ compensation benefits.

Summary: A worker sustained cervical and low back strains and a left ring finger contusion during the course and scope of her employment. Later, the employer filed a modification/suspension petition alleging that the worker was improperly paid benefits while she was incarcerated and under electronic monitoring. The worker was arrested three times for driving under the influence. She was not drinking alcohol but was taking medication for pain as a result of her work-related injury. She pleaded guilty and was in jail for 90 days.

When she was released, she was under house arrest with electronic monitoring for nine months. She was on work release during the time she was incarcerated and when she was under house arrest. The claimant was not entitled to receive benefits during the period when she was incarcerated and on house arrest even though she was eligible for work release.

The board found that the WCJ did not err in allowing the employer to recover the benefits paid during the worker’s incarceration through a future credit.

Employer Can Recoup TTD Payments Made After Settlement Date

Bonanno v. Verizon Business Network Systems, No. 12-261 (Vt. 02/28/14)

Ruling: The Vermont Supreme Court held that Verizon was entitled to a credit for the temporary total disability payments it made to a worker after the agreed-upon date in a settlement agreement.

What it means: In Vermont, an employer’s payment of benefits is considered voluntary if made while under no obligation to pay or when no interest of the employer was protected by payment.

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Summary: A worker for Verizon suffered spinal cord injuries during a series of car accidents. Verizon contested the necessity of surgery, and the Department of Labor ruled in the worker’s favor. The worker experienced complications from surgery that necessitated lifetime care. The parties reached a settlement in which Verizon agreed to pay a lump-sum payment and continued temporary total disability payments through May 1, 2010. The department approved the settlement on July 13, 2010. Verizon issued the worker a check for the lump sum but took a credit for TTD payments made after May 1, 2010. The worker disputed the amount of the credit and sued Verizon to enforce the terms of the settlement. The Vermont Supreme Court held that Verizon was entitled to a credit for the TTD it paid after May 1.

The worker argued that Verizon’s continued TTD payments were voluntary. The court rejected the argument, explaining that Verizon’s obligation to pay was terminated upon the department’s approval of the settlement on July 13. Verizon was not entitled to terminate the TTD any sooner. The court explained that the approved settlement retroactively discharged Verizon’s TTD obligation.

The agreement called for a lump-sum payment and TTD benefits until May 1. The court found that the worker “received exactly that.” Instead of a single payment after the department’s approval, the worker received some of his settlement early. The court emphasized that its holding turned on the specific terms of the approved settlement in the case and the timing of the settlement approval process.

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]

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]