View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | May 21, 2015

Traveling Employee’s Collision With Wild Hog Is Compensable

Choctaw Resort Development Enterprise v. Applequist, No. 2014-WC-00969-COA (Miss. Ct. App. 04/21/15)

Ruling: The Mississippi Court of Appeals held that an off-property casino director was entitled to benefits for the injuries she sustained in a car accident.

What it means: In Mississippi, a traveling employee is within the course of employment from the time she leaves home until she returns unless she deviates from her work task on a personal errand.

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Summary: An off-property director of player development for a casino worked from her home when she was not traveling, hosting events, or surveying competing bingo halls. She had no fixed employment hours but often worked long hours. She traveled to three new bingo facilities to survey them. The director had only lived in the area for a few weeks, so she asked her sister to accompany her. They left the last casino around 4 a.m. to return home. The director’s sister was driving in a rain storm when their car hit a 400-pound wild hog. The director was injured and hospitalized for several days. She sought workers’ compensation benefits. The Mississippi Court of Appeals held that she was entitled to benefits.

The court explained that travel was a large part of the director’s work. Her boss explained that her job duties included investigating competing gaming operations. The court agreed with the Workers’ Compensation Commission that the director was not on a personal errand when she was injured. She explained that she inspected the gaming operations for their size and location, amenities, and whether their parking lots were full.

The director explained that she asked her sister to drive because she was more familiar with the area. The 68-year-old director also claimed to have taken prescription medication.

The casino asserted that the director did not request reimbursement for her travel on the day of the accident. The director explained that she received travel advances.

Temp Worker’s Injury Covered Under General Liability Policy

Broom v. Wilson Paving & Excavating, Inc., et al., No. 109813 (Okla. 04/07/15)

Ruling: The Oklahoma Supreme Court held that a temporary worker’s injury from a collapsed trench was covered by a subcontractor’s general liability insurance policy.

What it means: In Oklahoma, a temporary worker’s injury can be covered by a subcontractor’s general liability insurance policy when he was an employee of, and received workers’ compensation from, the employment agency.

Summary: A temporary worker went to the offices of Labor Ready, an employment agency, to secure employment. The worker was directed by Labor Ready to work with Wilson Paving. He began work laying pipe inside a trench. The trench in which he was working collapsed, covering him in dirt to his neck. He sustained serious injuries. The worker received workers’ compensation benefits from Labor Ready. He also sued Wilson Paving for his injuries. Wilson Paving had two insurance policies — one for workers’ compensation and liability to employees and a general liability policy that covered injuries to the public. The Oklahoma Supreme Court held that the worker’s injury was covered by Wilson Paving’s general liability policy.

The general liability insurer argued that the worker was not covered under the policy as a temporary worker because there was no agreement granting coverage to a temporary worker. The court pointed out that the policy did not contain language excluding coverage injuries to temporary workers.

The court also explained that the insurer was not immune from liability under the workers’ compensation exclusive remedy provision. The worker was not considered Wilson Paving’s employee at the time of the incident. Labor Ready was identified as his employer in the workers’ compensation action. Negligence was the basis of the worker’s recovery against Wilson Paving.

The court concluded that coverage for the worker’s injuries was not precluded under the policy. The court rejected the insurer’s argument that coverage was excluded because a trench collapse was considered “earth movement” under the policy. The court found that the policy excluded coverage for naturally occurring earth movement such as earthquakes and landslides but several of the terms within the provision such as slipping and caving could be caused by naturally occurring events or man-made events. The record indicated that Wilson Paving expected coverage in a situation such as this. The insurer was aware of the nature of Wilson Paving’s business and could have excluded man-made earth movement from coverage. The court found that the policy only excluded earth movement caused by natural events.

Actual Notice of Injury Not Enough; Worker Must File Claim

Izikson v. Protein Science Corp., et al., No. AC 36325 (Conn. App. Ct. 04/21/15)

Ruling: The Connecticut Appellate Court held that a worker failed to provide proper notice of his claim.

What it means: In Connecticut, a worker must provide written notice that informs his employer of his intent to pursue a workers’ compensation claim.

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Summary: A worker for Protein Science Corp. injured his back and leg while lifting a box. He notified Protein Science’s controller of his injuries. The controller prepared a first report of injury form and transmitted it to its insurance provider, Chubb Indemnity Insurance Co. The controller advised the worker to contact Chubb directly to discuss his injuries and learn how to proceed with the matter. Chubb sent the worker a prescription card and filed a form contesting the worker’s assertion that he injured his back in the course of his employment. The worker did not file a notice of claim or request a hearing within one year of his injuries. Protein Science and Chubb did not provide him with medical treatment. Instead, the worker underwent surgery and sought payment for the surgery through his group health insurance carrier. More than one year after the injuries, the worker sought workers’ compensation benefits. The Connecticut Appellate Court held that the worker failed to provide proper notice of his claim.

The worker asserted that based on the totality of the circumstances, Protein Science and Chubb had notice that he was pursuing or intended to pursue workers’ compensation benefits. The worker asserted that Protein Science and Chubb had notice of the injury and his intent to file a claim based on the first report of injury, emails between him and the controller, correspondence from Chubb enclosing a prescription card, a schedule of weekly earnings prepared by the controller, and the form contesting the injury. The court explained that the worker failed to provide written notice of his claim. He pursued benefits through his group health care provider. He did not submit medical bills to Protein Science or Chubb and did not use the prescription card Chubb sent him.

The worker also argued that Chubb’s filing of the form contesting the injury should be an exception to the notice of claim requirement. The court disagreed, stating that the legislature was the proper forum to create additional exceptions.

Nurse’s Fall While Carrying Soiled Clothes Is Linked to Employment

Kilbane v. Lutheran Hospital-Cleveland Clinic, et al., No. 101897 (Ohio Ct. App. 04/16/15)

Ruling: The Ohio Court of Appeals held that a nurse’s fall in the parking lot at the end of her workday was compensable.

What it means: In Ohio, a causal connection exists between a worker’s injury and her employment when the worker was performing a duty for her employer’s benefit when she encountered a hazard and was injured.

Summary: A nurse for Lutheran Hospital was required to change back into her “street clothes” at the end of her workday and deposit her scrub uniform into a hospital laundry basket. As she prepared to leave work, she noticed that her lab coat and shoes were soiled as a result of her operating room duties. The hospital did not clean lab coats or shoes, so she obtained a plastic bag from the operating room and placed her lab coat and shoes inside.

The nurse then retrieved her purse and a container of food and “clocked out.” She crossed the street to the employee parking lot. While she was walking on a hill, wind captured the bag, and she stumbled and fell. The nurse sought workers’ compensation benefits. The Ohio Court of Appeals held that her injury was compensable.

The court rejected the hospital’s argument that the nurse’s injury did not occur in the scope of and arising out of her employment. The court explained that she was required to wear nursing garb while performing her duties. She was required to maintain her lab coat and shoes personally. She could do so only by taking those items with her when she left work for the day. The court said the nurse’s actions when she was injured were consistent with her contact for hire and logically related to the hospital’s business.

The court also found a causal connection between the nurse’s injury and her employment. Her fall resulted from the bag’s hindrance of her safe movement from her workplace to her car. The court explained that she was in the discharge of one of the duties placed upon her for the hospital’s benefit when she encountered a hazard.

Delayed Autopsy Report Tolls 6-Month Time Limit for Seeking Death Benefits

Sheena H., et al. v. West Virginia Office of the Insurance Commissioner, No. 13-0875 (W.Va. 04/10/15)

Ruling: The West Virginia Supreme Court of Appeals held that the six-month statute of limitations for filing a claim for death benefits was tolled until a miner’s heirs received an autopsy report indicating that his death was work-related.

What it means: In West Virginia, the six-month time limitation on filing a claim for death benefits can be tolled until the worker’s heirs receive the autopsy report finding that the worker’s death was work-related when the heirs could not have learned through reasonable diligence that the death was work-related until the autopsy report.

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Summary: A coal miner suffered a work-related injury when a wrench fell from a mine’s ceiling and hit him on the head. The injury left him unconscious for one minute and resulted in a golf ball-size knot on his head. His treating physicians prescribed him pain medication.

The miner did not seek additional medical treatment for the injury, and he returned to work two days later. Nearly two years later, the miner died in his sleep. Due to the medical examiner’s delay, an autopsy report was not completed until eight months after his death.

The report declared that the miner’s death was the result of a traumatic seizure disorder that stemmed from the work-related head injury.

Six months after the autopsy report, the miner’s mother applied for death benefits on behalf of the miner’s daughter. Dependents of a deceased worker have six months from the date of the work-related death to apply for death benefits. The employer asserted that the claim was not timely filed. The West Virginia Supreme Court of Appeals held that the six-month statute of limitations was tolled until the mother received the autopsy report.

The mother argued that there was no way of knowing that the miner’s death was work-related until the autopsy report was completed. The court noted that a claim filed before the autopsy report would have been “purely speculative.” The court also said a finding that the time limitation could never be tolled was “patently unfair.”

The court found that the legislature did not intend that a worker’s heirs be completely barred from receiving death benefits where, due to the medical examiner’s delay in completing the autopsy, there was no knowledge that the worker’s death was work-related until eight months after the death, and the heirs promptly filed the claim within six months of learning that the death was work-related. The court noted that it limited its holding to when the delay was on the part of the medical examiner, not the heirs.

The employer also argued that the mother was not a proper party to file for death benefits on behalf of the miner’s daughter. The court said that when a worker or dependent of a worker is mentally or physically incapable of filing the application, it can be filed by her attorney or by a member of her family. Here, the miner’s six-year-old daughter was mentally and physically incapable to file an application for death benefits. The miner’s mother was a member of the daughter’s family, so she could file an application on the daughter’s behalf.

Teacher Connects Respiratory Problems With Dusty, Moldy Classroom

United Heartland, Inc., et al. v. Brown, No. 14-1070 (Iowa Ct. App. 04/08/15)

Ruling: The Iowa Court of Appeals held that a teacher was entitled to workers’ compensation benefits for the respiratory problems she sustained from exposure to mold or dust in her classroom.

What it means: In Iowa, a worker’s respiratory injury arises out of her employment when evidence establishes a causal connection between her injury and the moldy and dusty conditions in the building.

Summary: A teacher for Camanche Community School District taught in a windowless room with little ventilation. She recalled seeing ceiling tiles that were stained from water intrusion and believed a “buildup of dirt and grunge was an ongoing problem” at the school. She brought a humidifier into her classroom to help with her chronic cough and noticed mold on the filter. She claimed that she developed respiratory problems from exposure to mold or dust in her classroom. The Iowa Court of Appeals held that the teacher was entitled to benefits.

The court rejected the school district’s argument that the teacher did not suffer “a pulmonary function injury” related to her work. Although two doctors did not believe the teacher had asthma or a chronic impairment of the respiratory system, a pulmonologist diagnosed the teacher with an occupational lung disease, including hyper-reactive airways and shortness of breath. Another doctor found a positive methacholine challenge test to support his diagnosis of asthma. He also reviewed several air quality reports, which discussed examples of water damage to the school.

The court found that the teacher’s injury arose out of her employment. Expert evidence established a causal relationship between her injury and the conditions in the school. Water had infiltrated the roof and ceiling tiles in the school building. A doctor opined that the water damage more likely than not was the cause of the teacher’s lung injury. Indoor air testing pointed to heavy dust accumulation and elevated levels of carbon dioxide from low ventilation in the building.

The court also pointed out that other teachers experienced sinus and respiratory problems when they were in the building during the school year, which dissipated when they were away from the building.

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]

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