View From the Bench

Workers’ Comp Docket

A round-up of key workers' comp decisions from around the country.
By: | February 27, 2014 • 8 min read
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Positive Cocaine Test Doesn’t Block Driver’s Benefits

Hicks v. Butler Transport, Inc., No. 109,844 (Kan. Ct. App. 12/13/13, unpublished)

Ruling: In an unpublished decision, the Kansas Court of Appeals held that a driver was entitled to benefits because his employer failed to show that his drug use contributed to his injuries.

What it means: In Kansas, an employer is not liable for benefits if it can show that the worker’s injuries were “contributed to” by his drug use.

Summary: A truck driver was driving in thick fog and decided to pull over. The truck rolled over, and the driver landed on his head, neck, and shoulders. He provided a urine sample at the hospital after the accident and tested positive for cocaine. The driver sought workers’ compensation benefits. The employer agreed that the driver’s injuries arose out of and in the course of his employment. However, the employer argued that it was not liable because the driver was impaired. The Kansas Court of Appeals held that the driver was entitled to benefits.

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The court found that the driver’s urine test showed a level of cocaine metabolite concentration significantly above the level at which impairment is conclusively presumed. In addition to impairment, the employer was required to show that the driver’s injuries were “contributed to” by his drug use. The court found that the employer did not meet its burden. The employer did not produce evidence showing the effects of the impairment level on the driver.

The driver drove the truck in foggy conditions and parked in a certain location. The employer did not show that he performed these actions improperly. The court found that the driver’s description of the accident did not show any actions attributable to cocaine impairment. The employer’s arguments that he could have performed better in the fog absent his impairment were speculative.

Worker Fails to Show Accident Was Caused by Employer’s Safety Violation

Salazar v. Dependable Roofing, Inc., No. 2013-CA-000737-WC (Ky. Ct. App. 01/03/14, unpublished)

Ruling: In an unpublished decision, the Kentucky Court of Appeals held that a worker was entitled to benefits but not increased benefits for a violation of safety laws.

What it means: In Kentucky, a worker is entitled to enhanced benefits if he proves that the employer intentionally violated a safety statute or regulation. He must show that the work-related accident was caused by the violation.

Summary: A worker for a roofing company was called to the job site in the early morning to check a roof for leaks. He claimed that the company owner requested that he cover the roof with a tarp. The owner said he instructed the worker not to climb onto the roof. The worker fell off the roof, suffering multiple injuries. Although safety equipment was at the job site, it was not being used when the worker fell. The worker sought benefits. The Kentucky Court of Appeals held that he was entitled to benefits but not increased benefits for a safety penalty.

The court explained that a worker must establish the employer’s intentional violation of a safety law to be entitled to enhanced benefits. The court found that although the worker cited to Occupational Safety and Health Administration regulations, he was not entitled to increased benefits. The worker did not show that the work-related accident was caused by a violation. There was no compelling evidence to disturb the administrative law judge’s finding that the cause of the worker’s fall was his failure to follow the owner’s instruction.

The court noted there were three conflicting medical opinions regarding the worker’s impairment. The court said it was within the ALJ’s discretion to determine which medical evidence was persuasive. The ALJ found one doctor’s medical opinion based on the worker’s subjective symptoms and functional limitations was not as persuasive as the medical assessment of another doctor.

Housekeeper’s Delay Seeking Treatment Doesn’t Topple Claim for Benefits

1568 Broadway Hotel, 113 NYWCLR 204 (N.Y. W.C.B., Full Board 2013)

Ruling: The New York Workers’ Compensation Board held that the evidence supported a finding that a housekeeper’s injuries to her back, left leg and left hip were causally related to her work accident when she slipped and fell on a wet bathroom floor.

What it means: In New York, a worker’s delay in seeking treatment for her injuries will not bar benefits where she credibly testifies that she was taking pain medication for a nonwork-related condition and, therefore, her injury was not initially painful.

Summary: The board held that the evidence supported a finding that a hotel housekeeper’s injuries to her back, left leg and left hip were causally related to her work accident when she slipped and fell on a wet bathroom floor. Although the housekeeper did not seek treatment for her injuries until more than three months after the accident, she credibly testified that she was taking vicodin and hydrocodone for osteoarthritis on her right side and, therefore, her left side was not initially painful.

Also, it was unclear why the housekeeper initially failed to provide her treating doctors with a history of a work-related injury. However, there was no doubt that the work accident occurred.

Benefits During Vocational Rehabilitation Count Toward 300-Week Maximum

Becerra v. United Parcel Service, No. A-13-227 (Neb. Ct. App. 12/31/13, unpublished)

Ruling: The Nebraska Court of Appeals held that an employer was entitled to a credit for the permanent partial disability benefits it previously paid in full against the temporary total disability benefits a worker would receive during vocational rehabilitation.

What it means: In Nebraska, benefits a worker receives while pursuing vocational rehabilitation are TTD benefits and count against the 300-week limitation on benefits.

Summary: A worker suffered an injury in an accident arising out of and in the course of his employment. The employer paid him permanent partial disability benefits and agreed that he was entitled to permanent partial disability benefits. The employer paid the full amount of future PPD benefits. Subsequently, the trial court approved a plan of vocational rehabilitation for the worker to obtain an associate degree. The employer asserted that it was entitled to a credit for the PPD benefits it previously paid against the TTD benefits the worker would receive during vocational rehabilitation. The Nebraska Court of Appeals held that the employer was entitled to a credit.

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Compensation for partial disability benefits is limited to 300 weeks. If payments for partial disability follow payments for total disability, the employer is given credit against the 300-week total for the number of weeks it paid total disability benefits. The court found that the benefits the worker received while pursuing vocational rehabilitation were TTD benefits, and those benefits counted against the 300-week maximum.

The court rejected the worker’s argument that the employer was not entitled to a credit for the PPD benefits it already paid in full. The court explained that PPD benefits for a loss of earning power are suspended during the time a worker engages in vocational rehabilitation and is receiving TTD benefits. Because the employer prepaid the full amount of PPD benefits, the worker already received 300 weeks of benefits prior to any determination of vocational rehabilitation. The court explained that if the employer was not given a credit, the worker would receive a double payment.

Worker’s Death From Accidental Overdose Doesn’t Entitle Widow to Death Benefits

South Coast Framing, Inc. et al. v. Workers’ Compensation Appeals Board, et al., No. D063945 (Cal. Ct. App. 12/09/13, unpublished)

Ruling: In an unpublished decision, the California Court of Appeal held that a widow was not entitled to death benefits after a worker’s death due to an accidental overdose of prescription medication.

What it means: In California, a worker’s death is compensable if the industrial injury and employment constituted material factors in contributing to the worker’s death.

Summary: A construction worker suffered back, head, neck, and chest injuries when he fell from a roof while working. He was prescribed an antidepressant, pain medication, and opioids. He also took medication prescribed by his personal physician for his nonwork-related anxiety and sleeping difficulties. The worker died from the combined effects of the medications and associated early pneumonia. His widow sought death benefits, alleging that his death was the result of the work injury and the industrially prescribed medications. The California Court of Appeal held that the widow was not entitled to benefits.

The court found that the widow did not establish a causal connection between the worker’s death and the specific medication he was taking as a result of his work-related injury. An agreed medical examiner stated that the antidepressant had a “small role” in the worker’s death, but that the worker’s death was the result of an additive drug interaction between the anxiety and sleeping medications. The examiner recognized that the mixtures of drugs are difficult to quantify. The court said that although a precise percentage was not required, the widow had to show a “reasonable probability of industrial causation.” The court found the evidence demonstrated that if the work-related antidepressant played a role, it was not significant such that it constituted a material factor contributing to the worker’s death.

The court noted there was a dispute regarding whether the worker took the sleeping medication due to his industrial injury. The widow said the worker had difficulty sleeping before his work injury. The worker’s personal physician noted that the worker was not experiencing pain during the times he had trouble sleeping. The court found that the worker did not use the sleeping medication as a result of pain from his work injury.

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]