View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | October 12, 2015

Regulation Doesn’t Prevent Treatment for Work-Related Erectile Dysfunction

Ex parte Ward International, No. 2140747 (Ala. Ct. App. 09/04/15)

Ruling: The Alabama Court of Civil Appeals held that a worker was entitled to medication for the treatment of his erectile dysfunction.

What it means: In Alabama, workers are entitled to reasonably necessary medical treatment and medicine for conditions resulting from an accident arising out of and in the course of employment.

Summary: A worker for Ward International injured his lower back and sought workers’ compensation benefits. Ward paid a lump sum as compensation for the injury and left open the issue of the worker’s future medical benefits. Later, the worker requested approval from Ward for medication for the treatment of erectile dysfunction. The worker’s authorized treating physician concluded that the medication was associated with the worker’s work-related injury. The Alabama Court of Civil Appeals held that the worker was entitled to the medication.

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The workers’ compensation rules provide six conditions in which erectile dysfunction medication is covered. The worker did not suffer from any of these conditions. Also, a urologist did not determine that an organic erectile dysfunction as described in the regulation existed. Further, the worker was prescribed more than the limit of five tablets every 30 days. The court explained that the rule appeared to be a policy determination as to when erectile dysfunction is considered as resulting from a workplace accident. If erectile dysfunction does not arise from one of the six conditions that may result in “organic” erectile dysfunction, it is considered to be “psychological or psychiatric” erectile dysfunction and is not compensable.

Here, the court found that Ward was responsible for reasonably necessary medical treatment of conditions that are caused by the accident arising out of and in the course of the worker’s employment, despite the rule prohibiting treatment for erectile dysfunction that is not considered “organic.”

Disability Due to Pressure to Perform Deceptive Acts May Be Compensable

Cox v. Saks Fifth Avenue, et al., No. 520289 (N.Y. App. Div. 07/09/15)

Ruling: The New York Supreme Court Appellate Division reversed the Workers’ Compensation Board’s ruling that a sales associate at a department store did not sustain an accidental injury due to work-related stress.

What it means: In New York, mental injuries caused by work-related stress are compensable if the worker can show that the stress that caused the injury was greater than that which other similarly situated workers experienced in the normal work environment.

Summary: The New York Supreme Court, Appellate Division reversed the Workers’ Compensation Board’s ruling that a sales associate at Saks Fifth Avenue did not sustain an accidental injury due to work-related stress. The associate testified he became upset at work and was diagnosed with several conditions, including anxiety and panic disorder, after his supervisor directed that he fabricate reserve orders for high-end luxury goods, including submitting customer credit card numbers, to increase store inventory from the manufacturer. In denying the claim, the board reasoned that because all the employees were pressured to place reserve orders, the associate’s stress was not greater than that of similarly situated workers. Rejecting this analysis, the court reasoned that the mere fact other employees may have received the same instruction to carry out a deceptive business practice could not support the conclusion that such behavior was normal.

There was no other evidence supporting a conclusion that directions to place false reserve orders constituted part of a normal work environment for similarly situated employees. Saks’ witnesses testified that corrective action, including termination, had been taken when similar practices occurred at the store in the past, and the associate testified that he would have been terminated for such conduct in other upscale department stores where he previously worked. Accordingly, substantial evidence did not support the board’s determination.

Comp Awarded for Assault-Related Psychological Injuries

Hynes v. Good Samaritan Hospital, No. S-15-002 (Neb. 09/04/15)

Ruling: The Nebraska Supreme Court held that a nurse was entitled to benefits for her psychological injuries.

What it means: In Nebraska, a claim for a psychological condition requires that the mental condition be related to or caused by a physical injury.

Summary: A nurse in the mental health unit of Good Samaritan Hospital alleged that she suffered from post-traumatic stress disorder and depression as a result of three incidents that occurred in the course of her employment. In the first incident, a patient whipped the nurse with a vacuum cleaner cord and punched her in the jaw. In the second incident, the nurse was kicked and bitten on the arm by a patient. In a third incident, a patient grabbed the nurse and made aggressive sexual comments to her. The nurse sought workers’ compensation benefits, claiming that the incidents left her unable to work. The Nebraska Supreme Court held that she was entitled to benefits.

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In Nebraska, a claim for a psychological condition requires that the mental condition be related to or caused by a physical injury. Good Samaritan conceded that the first injury resulted in a physical injury but argued that the second and third incidents did not result in a physical injury. The court found that the second incident, in which a patient bit and kicked her, caused a welt and bruises. The fact that the nurse did not receive immediate medical care did not negate the fact that she sustained a physical injury.

The court also found that the third incident could be considered in a causation analysis even though it was not independently compensable. The Workers’ Compensation Court had found that the nurse was not mentally stable or healthy after the first and second incidents and that her mental health deteriorated. The court concluded that the nurse’s psychological injuries resulted directly from an assault in which she suffered a physical injury.

Post-Rehab Patient Wins Additional Pain Management Treatment

Rice v. Boyd Metals, No. CV-15-128 (Ark. Ct. App. 09/02/15)

Ruling: The Arkansas Court of Appeals held that a worker was entitled to additional medical treatment in the form of pain management.

What it means: In Arkansas, an employer must provide a worker with medical treatment that it reasonable, necessary, and causally related to the work injury.

Summary: A worker for Boyd Metals sustained compensable injuries to his back, shoulder, and neck during a motor vehicle accident. The worker was prescribed pain medications after his injury, including two narcotic medications. Later, the worker was sent to a rehabilitation center in another state based on a nurse case manager’s suggestion. While the worker was there, the center took him off his narcotic medications. After the one-month program, he only took non-narcotic medications. The worker’s pain decreased. He did not receive further treatment and his pain increased. The worker sought additional medical treatment in the form of pain management. The Arkansas Court of Appeals held that the worker was entitled to additional treatment.

The court found no medical proof or support that the worker’s condition did not warrant any further treatment. The court pointed out that the worker changed physicians and both physicians recommended many of the same non-narcotic medications and forms of treatment.

A concurring judge expressed concern about how the insurer and the Workers’ Compensation Commission viewed the worker’s need for medical treatment after he returned from the rehabilitation center. The worker’s pain returned after he was not referred for the aftercare recommended by the program, including physical therapy and a gym membership. The worker was also denied pain management recommended by his physicians. His request to return to the center for help was also denied.

Inspector’s Supervisory Authority Warrants Award of Double Benefits

Svenson’s Case, No. 14-P-514 (Mass. App. Ct. 08/08/15, unpublished)

Ruling: In an unpublished decision, the Massachusetts Appeals Court held that a technician was entitled to double compensation benefits.

What it means: In Massachusetts, to receive double compensation, a worker must establish that a supervisor committed serious and willful misconduct that caused the worker’s injury.

Summary: An X-ray technician for General Electric regularly worked with an inspector. If the inspector found a problem with an X-ray, he had the authority to send it back to the technician and provide supervision and guidance about what was wrong and how to correct it. The technician and a higher-level supervisor went to the inspector to discuss a complaint that the inspector raised about the technician’s X-ray. Later, the technician went to the inspector to seek guidance. The inspector told the technician to get out of his office. Subsequently, the two men began to argue. The inspector grabbed the technician and shoved him into the wall. The inspector also punched the technician in the face, pushed him to the ground, and choked him. After the incident, the technician was diagnosed with major depression and post-traumatic stress disorder. He sought workers’ compensation benefits. The Massachusetts Appeals Court held that he was entitled to double compensation benefits.

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The court explained that to receive double compensation, a worker must establish that a supervisor committed serious and willful misconduct that caused the worker’s injury. General Electric’s insurer, Electric Insurance Co., asserted that the inspector was not the technician’s supervisor. The court considered testimony of employees and General Electric’s practice and procedure manual and concluded that the inspector exercised supervisory authority over the technician. In his position, the inspector had the power of “direction or oversight, tending to control others and to vary their situation or action because of his direction.”

Teacher’s PTSD After Robbery Doesn’t Lead to PPD Benefits

Gibbons v. Clark County School District, No. 66818 (Nev. Ct. App. 08/31/15, unpublished)

Ruling: In an unpublished decision, the Nevada Court of Appeals held that a teacher was not entitled to permanent partial disability benefits for her post-traumatic stress disorder resulting from a robbery in a school parking lot.

What it means: In Nevada, the workers’ compensation law allowing permanent partial disability benefits for a psychological condition does not apply retroactively.

Summary: An elementary school teacher for the Clark County School District was robbed at gunpoint in the school parking lot. The district accepted the teacher’s workers’ compensation claim for post-traumatic stress disorder. The teacher received regular treatment and the claim remained open for more than two years. After the teacher reached maximum medial improvement and returned to work, the district sought to close the claim without a permanent partial disability evaluation, stating that there was “no possibility of a permanent impairment of any kind.” The teacher appealed the determination. The Nevada Court of Appeals held that the teacher was not entitled to PPD benefits.

The court explained that at the time of the teacher’s injury, a workers’ compensation claimant could not obtain a PPD award for a psychological condition. Three months after the teacher was robbed, the law was amended to allow PPD benefits for psychological conditions. The court found that the amended law did not apply retroactively.

The court explained that the law would apply retroactively only if the legislature demonstrated an intent for the amendment to operate retroactively. However, the text of the law and the legislative history of the amendment did not provide any indication that the legislature intended the law to apply retroactively.

Operator’s Participation in Fight With Coworker Doesn’t Block Benefits

Ochodnicky v. BCN Structured Employment 105 Inc., 29 MIWCLR 60 (Mich. W.C.B.M. 2015)

Ruling: The Michigan workers’ compensation magistrate found that an operator, who suffered a fractured jaw when he was struck by a coworker, was disabled from a work-related injury and was entitled to all reasonable and necessary medical expenses.

What it means: In Michigan, a worker is not entitled to workers’ compensation benefits when he is injured due to his intentional and willful misconduct. A company policy that forbids all fighting, as the aggressor or in self-defense, should not be the basis for a finding of willful misconduct.

Summary: The magistrate found that a machine operator, who suffered a fractured jaw when he was struck by a coworker, was disabled from a work-related injury and was entitled to all reasonable and necessary medical expenses. At issue was whether the operator engaged in willful misconduct. In this case, the evidence showed that the fight arose over a work issue — a dispute regarding whether the coworker was performing his job appropriately and whether he should have to stay at work beyond the time he wished. The employer contended that although the operator was not the aggressor, he was terminated for participating in the fight because company policy forbids all fighting, as the aggressor or in self-defense. The magistrate found the company policy put employees at risk and therefore should not be the basis for a finding of willful misconduct.

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Employees attempting to avoid or minimize the risk or any injury from that risk should not find that their workers’ compensation benefits have been forfeited. This is especially true here, where the employer’s policy was not clear. As the operator was not the aggressor, but was assaulted and simply defended himself, the evidence did not support the conclusion that the operator knew that such conduct would be misconduct sufficient for termination if he defended himself, yet willfully proceeded to do so. Therefore, such self-defense was not willful misconduct.

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]