Workers’ Comp Docket
Surveillance Video Doesn’t Establish That Nurse Committed Fraud
Our Lady of the Lake Hospital, Inc. v. Johnson,No. 2013CA1314 (La. Ct. App. 06/06/14)
Ruling: The Louisiana Court of Appeal held that a nurse did not commit fraud in obtaining workers’ compensation benefits.
What it means: In Louisiana, a worker’s benefits are forfeited if she willfully made a false statement or representation for the purpose of obtaining benefits.
Summary: A licensed practical nurse was injured in the course and scope of her employment for a hospital when she received an electric shock while plugging in a laptop computer. As a result of the accident, she developed complex regional pain syndrome. She was also diagnosed with post-traumatic stress disorder. The hospital paid benefits. The hospital reduced her supplemental earnings benefits. Later, the hospital alleged that the nurse made false statements or representations for the purpose of obtaining workers’ compensation benefits. The nurse sought penalties and attorney’s fees. The Louisiana Court of Appeal held that the nurse did not commit fraud.
The hospital asserted that the nurse exaggerated her symptoms once she started recovering in order to continue receiving benefits. Surveillance footage showed the nurse going about her daily life without her hand brace and using her right hand. The court found that the nurse did not commit fraud. She and her husband testified that she had good days and bad days, she did not always wear her brace, and she attempted to use her right hand as a “helper” hand. The court found the surveillance video did not conflict this testimony.
A vocational counselor learned of a potential job as a medical transcriptionist with the hospital. The hospital offered the job with accommodations, but the nurse declined because the hospital would not hold the job for her until after she had a baby. The hospital asserted that it was justified in reducing the nurse’s benefits. The court disagreed, finding that the job was not suitable regarding the nurse’s limitations and the amount of travel required for the job.
The court also rejected the nurse’s request for penalties and attorney’s fees.
Player Can’t Score Benefits for Injury During Minicamp Tryout
Robinson v. Department of Labor and Industries, et al.,No. 69739-1-I (Wash. Ct. App. 05/27/14)
Ruling: The Washington Court of Appeals held that a free agent football player was not entitled to benefits because he was not an employee of the team.
What it means: In Washington, an employment relationship exists when the employer has the right to control the worker’s physical conduct in the performance of his duties and there is consent by the worker to the relationship.
Summary: A football player, who was a free agent, was invited to attend a three-day minicamp tryout for the Seattle Seahawks. The team paid his travel expenses. The player signed a waiver and release of liability that stated he was not an employee of the team and released the team from liability for injury.
During an on-field drill, the player injured his knee as he dove for the ball. The team trainer diagnosed a torn meniscus. The player sought workers’ compensation benefits. The Washington Court of Appeals held that he was not entitled to benefits because he was not an employee of the team.
The court found there was not an implied contract of employment between the player and the team. The team did not have the right to control the player’s physical conduct in the performance of his duties. Participation in the minicamp was voluntary and the on-field drills were different from preseason training or a game.
The player attended the minicamp in the hopes that the team would offer him a contract. Successful completion of the minicamp tryout did not guarantee employment with the team. The court also found there was no mutual agreement to an employment relationship between the player and the team, and no evidence supported a reasonable belief that he was an employee. The player had previously tried out for two other teams but had not been offered employment.
Although the player asserted that the team paid his travel expenses, the court said the statute defining wages was not applicable.
Attendant Care Required to Prevent Deterioration of Worker’s Condition
Alabama Forest Products Industry Workmen’s Compensation Self Insurer’s Fund v. Harris,No. 2121008 (Ala. Civ. App. 06/13/14)
Ruling: The Alabama Court of Civil Appeals held that an employer was required to pay attendant care expenses for a worker.
What it means: In Alabama, an injured worker is entitled to attendant care if because of his injury, attendant care is reasonably necessary to improve his condition, to prevent the deterioration of his condition, or to relieve him of the adverse effects of his injury on his ability to function.
Summary: A worker suffered severe injuries to his pelvis and right lower extremity in a work-related accident. His employer’s insurer, Alabama Forest Products, paid various members of his family a monthly stipend to assist him, as instructed by his treating physician. The worker settled his workers’ compensation claim against his employer, and Alabama Forest Products continues to pay a monthly sum to various members of his family for attending to him for the next 20 years. Later, the worker sent notice to the third-party administrator that he wanted his future son-in-law to replace his daughter as his designated caregiver. When the TPA discovered that the son-in-law was employed full time out of the town where the worker lived, it terminated payments for attendant care. The Alabama Court of Civil Appeals held that Alabama Forest Products was required to pay attendant care expenses.
Due to the severity of his injuries, the worker regularly required assistance with the ordinary activities of daily living. He needed help performing his leg exercises, taking his medication, applying medicine to his injured areas, and preventing bedsores. The worker’s physician said that attendant care services would prevent the deterioration of his physical condition and that he considered attendant care reasonably necessary medical attention and physical rehabilitation. The court explained that the worker did not have to further prove that the attendant care would actually improve his physical condition.
The court also said that the fact that the worker retained some limited mobility and function such that he did not require constant monitoring and attendance did not change its decision. The worker ordinarily received attendant care throughout the day and always kept his telephone nearby in case he needed help from a family member who lived moments away.
Employer Must Provide Wheelchair-Accessible Van to Worker
Simmons v. Precast Haulers, Inc.,No. S-13-848 (Neb. 07/03/14)
Ruling: The Nebraska Supreme Court held that a worker was entitled to a wheelchair-accessible van and payment for the in-home care provided by his wife.
What it means: In Nebraska, a wheelchair-accessible van can be a medical “appliance” that will help restore the worker’s health.
Summary: A worker for Precast Haulers sustained extensive injuries when he was run over by a fully loaded tractor-trailer. Precast conceded that the worker’s injuries and his medical bills were compensable but asserted that he was not entitled to a wheelchair-accessible van and payment for the in-home care provided by his wife. The worker’s doctors recommended that he receive custom wheelchairs and a wheelchair accessible van. The worker required 24-hour in-home nursing care. His wife took over his care for 108 hours per week. The Nebraska Supreme Court held that the worker was entitled to the van and payment for the in-home care provided by his wife.
In a case of first impression, the court found that a wheelchair-accessible van was an “appliance” that would help restore the worker’s health. His treating physicians opined that a van would assist in his outpatient recovery and rehabilitation. No evidence from the physicians showed that the worker could not or should not drive. The court found that the van was necessary to allow the worker and his family to transport his new powered wheelchair.
Precast asserted that many of the hours spent by the worker’s wife “on call” were spent sleeping, completing ordinary household duties, and caring for herself. The court pointed out that a paid third-party nurse might read, nap, or perform household tasks and would be compensated for that time. The court found Precast knew the worker needed assistance and there was a means of determining the reasonable value of services rendered by the wife. The wife completely replaced the care of the night and weekend nurses.
Taxi Driver Picks up Benefits for Injury While Traveling Home in Cab
Fahmi, 114 NYWCLR 68 (N.Y.W.C.B., Panel 2014)
Ruling: The New York Workers’ Compensation Board held that a taxi driver, who was driving the employer’s taxi home upon the employer’s instruction due to a post-hurricane gas shortage, sustained injuries arising out of his employment when he was assaulted and robbed after exiting the vehicle.
What it means: In New York, where a worker is injured while performing a special errand for the benefit of the employer, and the employer encouraged the errand, the worker is entitled to portal-to-portal workers’ compensation coverage.
Summary: A taxi driver, who was driving the employer’s taxi home upon the instruction of the employer due to a post-hurricane gas shortage, sustained injuries when he was assaulted and robbed after exiting the vehicle. The board held that the driver’s injuries arose out of and in the course of his employment. The board explained that a worker is entitled to workers’ compensation while performing a special errand for his employer, provided the employer encouraged the errand and obtained a benefit from the worker’s performance of the errand. The evidence established that the driver was performing an errand for the benefit of the employer at the time of the injury and therefore was entitled to portal-to-portal coverage.
Treating Physicians’ Opinions Not Assigned Greater Weight Than Other Physicians
Estate of Cleveland v. Heritage Properties, Inc.,No. 2013-WC-00451-COA (Miss. Ct. App. 06/10/14)
Ruling: The Mississippi Court of Appeals held that a manager’s mental injury and death were not compensable.
What it means: In Mississippi, the testimony of a worker’s treating physicians’ opinions is not required to be given more weight than the employer’s examining physicians.
Summary: An apartment manager for Heritage Properties was injured when a filing cabinet allegedly fell on her. She filed for disability benefits for a closed head injury and a mental injury. While her claim was pending, she died of a drug overdose. Her mother sought death benefits. Heritage and its carrier admitted a physical injury but contested a physical impairment after the neurosurgeon found the manager reached maximum medical improvement. Heritage and its carrier also disputed liability for the manager’s mental injury and death. The Mississippi Court of Appeals held that the manager’s mental injury and death were not compensable.
The court rejected the mother’s argument that the manager’s treating physicians’ opinions should be given greater weight than Heritage’s examining physicians. The court also pointed out that the treating physicians lacked complete medical records and proper medical histories of the manager’s lengthy drug, alcohol, sexual, psychological, and physical abuse. The court also said the fact that a doctor examines a patient once does not render his examination inadequate or incomplete. The court pointed out that a doctor who examined the manager once was one of four doctors who found no causal relationship between the work incident and the claimed injuries.
The court found that the manager’s preexisting psychological issues rather than the alleged work injury led to her increased dependence on a destructive relationship and substance abuse.
No Coverage for Depression Caused by Reaction to Perceived Events
White v. Valley Youth House Committee Inc.,29 PAWCLR 69 (Pa. W.C.A.B. 2014)
Ruling: The Pennsylvania Workers’ Compensation Appeal Board reversed the workers’ compensation judge’s decision granting the claim petition of a counselor who alleged that he sustained depression during the course and scope of his employment.
What it means: In Pennsylvania, a worker’s depression that is a result of a subjective reaction to perceived events is not sufficient to establish that he was subjected to abnormal working conditions.
Summary: The board reversed the WCJ’s decision granting the claim petition of a counselor for troubled youth who alleged that he became depressed and stopped working after receiving letters which appeared to confirm that another counselor was acting inappropriately with a female client at the employer’s facility. The counselor explained that he brought the matter to the attention of his supervisor but the supervisor did not do anything about it. He stated this made him depressed because he did not feel as though he was doing a good job protecting the kids. In reversing, the board noted that the counselor acknowledged he never worked with the other counselor, and he did not actually witness the other counselor and the client acting inappropriately with each other. Also, the supervisor testified that the counselor’s concerns were addressed.
The board concluded that the counselor’s depression was the result of a subjective reaction to inappropriate behavior he perceived to have taken place and the employer’s perceived lack of action regarding that behavior. The counselor’s reaction to perceived events was not sufficient to establish that he was subjected to abnormal working conditions.