View From the Bench

Workers’ Comp Docket

Significant workers' compensation legal decisions from around the country.
By: | November 3, 2017 • 10 min read

Forfeiture Provision of Workers’ Comp Law Ruled Unconstitutional

Gibby v. Hobby Lobby Stores, et al., No. 114065 (Okla. 10/03/17)

Ruling: The Oklahoma Supreme Court held that the forfeiture provision based on a worker’s failure to attend medical appointments is unconstitutional.

What it means: In Oklahoma, the forfeiture provision based on a worker’s failure to attend medical appointments is unconstitutional.

Summary: A worker for Hobby Lobby injured his right wrist and left knee when he fell three to four feet from a pallet jack while in the course and scope of his employment. Hobby Lobby provided temporary total disability and medical benefits. The worker sought permanent partial disability benefits.

Hobby Lobby asserted that the forfeiture provision prohibited the worker from receiving further workers’ compensation benefits because he missed three scheduled medical appointments without a valid excuse or notice to Hobby Lobby. An administrative law judge found no extraordinary circumstances existed for the worker’s missed medical appointments.

The worker challenged the constitutionality of the forfeiture provision. The Oklahoma Supreme Court held that the forfeiture provision is unconstitutional.

The forfeiture provision stated that if a worker missed two or more scheduled appointments for treatment, he is no longer entitled to receive benefits unless his absence was caused by extraordinary circumstances or he gave the employer at least two hours of notice and had a valid excuse.

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The court explained that the provision operates to forfeit existing vested rights to workers’ compensation benefits. The court said that “rights that vest on injury may not be destroyed except by due process of law.”

The court also found that the forfeiture provision “tips the delicate balance achieved in the Greta Bargain too far in favor of employers and therefore fails to provide an adequate substitute remedy to injured workers.” The provision also reinstated the concept of fault into a no-fault system.

A dissenting judge opined that the worker did not show that the provision was “repugnant to the constitution” and noted Hobby Lobby could have sought reimbursement for the cost of the missed appointments.

Compensation Judge Must Apply Good Cause Standard to Rehab Benefits

Halvorson v. B&F Fastener Supply, et al., No. A16-0920 (Minn. 09/20/17)

Ruling: The Minnesota Supreme Court held that the compensation judge improperly terminated a worker’s rehabilitation benefits on the basis that she had obtained “suitable gainful employment.”

What it means: In Minnesota, an employer must show “good cause” before terminating a worker’s rehabilitation benefits.

Summary: A worker for B&F Fastener Supply sustained an injury to her right elbow and both knees at work. A compensation judge found that she was entitled to benefits, including rehabilitation services.

The worker eventually obtained part-time employment with another employer, which prompted B&F to seek the discontinuation of her rehabilitation services. The compensation judge concluded that the worker was no longer a “qualified employee” in light of her part-time job, which eliminated the need for further rehabilitation services.

The Workers’ Compensation Court of Appeals reversed, finding that the compensation judge failed to apply the “good cause” standard. The Minnesota Supreme Court agreed with the WCCA that the compensation judge improperly terminated the worker’s rehabilitation benefits.

The court rejected B&F’s argument that when a worker receiving rehabilitation benefits finds suitable gainful employment and no longer meets the definition of a qualified employee, a compensation judge can terminate benefits without applying the good cause standard.

B&F asserted that if a recipient of rehabilitation services is no longer a “qualified employee,” it would be absurd to delay or prevent the termination of rehabilitation services. The court explained that the law contains procedural requirements that must be satisfied before enforcing legal rights and obligations.

Here, the plan modification provisions required an employer to file a request and make a showing of good cause before terminating a worker’s rehabilitation services.

The court also found that B&F erroneously assumed that requiring a showing of good cause was equivalent to saying that the definitional provisions played no role in a decision to terminate benefits.

The court explained that a worker who could not reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services would also tend to be unlikely to benefit from further rehabilitation services.

Dependency Benefits Denied When There Was No Marriage

Sanchez v. Carter, et al., No. A17A1135 (Ga. Ct. App. 10/17/17)

Ruling: The Georgia Court of Appeals held that a deceased worker’s partner was not entitled to dependency benefits.

What it means: In Georgia, one cannot recover dependency benefits arising from a living arrangement that did not include ceremonial or common-law marriage.

Summary: A worker for Carter suffered a fatal head injury when he fell from a roof during the course of his employment. Carter and its insurer agreed that the injury was compensable and paid the worker’s medical expenses.

The worker’s romantic partner lived with him from 2002 until his death in 2015. The worker and the partner were never ceremonially married, although they had discussed getting married and planned to be married in a church in 2015.

The partner became disabled in 2011, and the worker paid all of her living expenses, including the rent and utilities for their home. The partner filed a claim for dependency benefits. The Georgia Court of Appeals held that she was not entitled to benefits.

The court explained that the partner was not entitled to dependency benefits arising from her living arrangement with the worker because she was not married to him, either by ceremony or under the common law.

The partner pointed out that the legislature adopted a law stating that no common-law marriage can be entered into in the state after Jan. 1, 1997. The partner asserted that her relationship with the worker would have fallen within the definition of common-law marriage before it was abolished.

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The court explained that even if her relationship with the worker may have been considered a common-law marriage before 1997, she could not be deemed married by common law to the worker based on a relationship that began in 2002.

The court also explained that the Georgia Supreme Court previously held that one cannot recover dependency benefits arising from a living arrangement that did not include ceremonial or common-law marriage. This precedent prevented the partner from being awarded benefits.

Witnessing Coworker Being Shot Leads to PTD Benefits for Driver

Evans v. Alliance Healthcare Services, No. W2016-00653-SC-WCM-WC (Tenn. 09/26/17, unpublished)

Ruling: In an unpublished decision, the Tennessee Supreme Court held that a driver was permanently and totally disabled by post-traumatic stress disorder caused by witnessing the shooting of a coworker. She was entitled to medical expenses for hospitalizations related to the traumatic event.

What it means: In Tennessee, a worker’s mental injury is compensable when it resulted from a specific, acute, sudden, unexpected, and stressful event such as witnessing a coworker being injured in a shooting.

Summary: A bus driver for Alliance Healthcare Services was transporting a coworker, a counselor, to a patient’s home. When they reached the residence, the patient ran to the door carrying a gun.

As the driver and coworker entered the house, the patient shot the coworker. The driver subsequently witnessed two other shootings.

The driver was subsequently diagnosed with acute stress disorder and post-traumatic stress disorder. She sought workers’ compensation benefits.

The Tennessee Supreme Court held that she was permanently and totally disabled and that she was entitled to medical expenses for hospitalizations related to the traumatic event.

The court found that the shooting was a specific, acute, sudden, unexpected, and stressful event that caused the driver to develop PTSD. Therefore, her mental injury was compensable.

Alliance asserted that as the years went by, the major causes of the driver’s mental difficulties were preexisting conditions and stressful events in her personal life.

The court agreed with the trial court’s decision to give greater weight of the testimony to the driver’s treating physician.

It followed that the driver’s continuing symptoms were caused by the shooting and subsequent shootings witnessed by the driver and her ongoing difficulties with family did not constitute an independent intervening cause of her symptoms.

The court also found that the driver was permanently and totally disabled as a result of her compensable mental injury.

Both the driver’s physician and a physician who conducted an independent evaluation testified that she was unable to work. The driver also said that she did not believe she could hold a job because she was afraid to leave her residence alone.

The driver sought $196,461 in medical expenses for various hospitalizations. Alliance asserted that the hospitalizations were due to the driver’s suicide attempts, issues arising from her long-term drug use, and issues after the driver’s weight loss surgery.

The driver’s physician opined that all of the episodes and treatment were causally related to the original traumatic event. Therefore, the court ordered Alliance to pay the medical expenses.

Tuition Benefits Included in Calculation of Director’s AWW

Haller v. Champlain College, No. 16-332 (Vt. 09/29/17)

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Ruling: In a case of first impression, the Vermont Supreme Court held that tuition benefits should be included in the calculation of a director’s average weekly wage.

What it means: In Vermont, tuition benefits should be included in the calculation of a college employee’s average weekly wage.

Summary: A recruitment director for Champlain College suffered a work-related injury, which the college accepted as compensable.

During the time of her employment, the director took numerous classes at the college pursuant to its “tuition benefits” policy.

Under the policy, college employees, spouses, and eligible dependents can take undergraduate and graduate courses on a space-available basis, tuition free. Tuition benefits valued at more than $5,250 per calendar year were reported as taxable wages on employees’ tax forms.

During the 26 weeks before the injury, the director took 10.5 credits of coursework at the college. The parties disputed whether the tuition benefits were part of the director’s wages.

The Vermont Supreme Court held that tuition benefits should be included in the calculation of the director’s average weekly wage.

The court explained that “wages” are defined to include “bonuses and the market value of board, lodging, fuel, and other advantages which can be estimated in money and which the employee receives from the employer as part of his or her remuneration.”

Here, the court found that tuition benefits were “other advantages.” The director received the free tuition benefit, and the value was readily ascertainable. The benefit was provided directly to her, and it benefited her directly and quantifiably.

The court found that it was part of her compensation paid in consideration of her work for the college. The free tuition was also one of the reasons the director chose to work for the college.

Dissenting judges opined that the fringe benefits of free tuition could not be considered remuneration. One judge also opined that consideration of such fringe benefits in determining wages violated the premise and construction of the workers’ compensation law.

Comp Covers Worker’s Punctured Breast Implant

Bellanco v. Wood Co., 32 PAWCLR 148 (Pa. W.C.A.B. 2017)

Ruling: The Pennsylvania Workers’ Compensation Appeals Board affirmed the workers’ compensation judge’s ruling that a worker sustained a work-related rupture of her right breast implant. However, the WCJ erred in granting the worker unreasonable contest attorney’s fees.

What it means: In Pennsylvania, medical testimony that the worker had no problems with her right breast implant before the work accident, along with credible medical opinion that the worker’s right breast implant leak was directly related to a work incident while lifting a heavy item at work, constitutes sufficient evidence that the worker sustained a work-related compensable accident at work.

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Summary: The board affirmed the WCJ’s ruling that a worker, who felt a pop in the right side of her chest while lifting a heavy rack of glasses at work, sustained a work-related rupture of her right breast implant.

The worker presented the report of her doctor, who established that before the work incident, the worker had no problems with her right breast implant.

Another doctor explained that the worker’s right breast implant leak was directly related to the work incident. This evidence, which was found credible by the WCJ, was sufficient to sustain the worker’s burden on her claim petition.

The board also found that the WCJ erred in finding the employer’s contest was unreasonable. While the employer did not present its doctor’s medical report, in which he opined that the rupture was not work-related, until about a year after the work injury, the employer had information in its possession sufficient to justify its continued contest.

It was not until after the worker’s surgery that her doctor opined there was a link between the work injury and the puncture discovered in the worker’s breast implant.

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]

More from Risk & Insurance

More from Risk & Insurance

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]