Test Proves Worker’s Intoxication Before Fall

Kamarad v. DRK, Inc., No. A-13-471 (Neb. Ct. App. 02/04/14)

Ruling: The Nebraska Court of Appeals held that a worker was not entitled to benefits because he was intoxicated at the time of his accident.

What it means: In Nebraska, a worker is not entitled to benefits if he was intoxicated at the time of his accident and his intoxication was a proximate cause of the accident.

Summary: A worker was working in the bar and dining area of a restaurant. While he was working, he ate a meal, watched a volleyball game with customers, and consumed a number of shots of liquor. He fell, injuring his head and tailbone. A blood test at the hospital revealed a blood alcohol level of .221. The worker sought workers’ compensation benefits, alleging that he choked on a piece of food, causing him to fall. The Nebraska Court of Appeals held that he was not entitled to benefits.

The worker testified that he could not recall anything about the fall. A toxicologist explained that a person with a blood alcohol level of .221 might experience a loss of critical judgment, impairment of perception, memory, and comprehension, sensory-motor incoordination, impaired balance, drowsiness, and impairment of swallowing. The toxicologist opined with “reasonable scientific certainty” that the worker’s actions in becoming significantly intoxicated led to the impairments that caused his injuries. The court agreed with the trial court’s finding that the worker was intoxicated and his intoxication was a proximate cause of his fall.

The court rejected the worker’s argument that he should have been afforded the presumption of acting with due care and diligence because there was no other witness testimony or explanation of how his fall occurred.

Failure to Install Safety Blocks Doesn’t Bar Exclusive Remedy

Gonzalez v. Seal Methods, Inc., No. B246825 (Cal. Ct. App. 01/24/14)

Ruling: The California Court of Appeal held that a worker’s suit against her employer was barred because her exclusive remedy was in workers’ compensation.

What it means: In California, the power press exception to the workers’ compensation exclusive remedy provision applies when an employer fails to attach or remove guards or devices that are capable of being permanently installed by the manufacturer or employer.

Summary: A worker for Seal Methods Inc. was operating a power press in “manual” mode. The press activated while the worker was loading material onto the die, crushing her hand. She sued Seal Methods. The power press exception to the workers’ compensation exclusive remedy provision allows an injured worker to sue her employer where the injuries were “proximately caused by the employer’s knowing removal of, or knowing failure to install, a point of operation guard on a power press.” The worker argued that Seal Methods failed to install safety blocks on the press. The California Court of Appeal held that the worker’s suit was barred and that her exclusive remedy was in workers’ compensation.

Considering the language of the statute, the court concluded that a “point of operation guard” did not include an unattached device such as a safety block that the worker moved in and out of the point of operation. The court found that a point of operation guard was a device capable of being permanently attached to the power press. The safety guard at issue was not a point of operation guard, and therefore, the power press exception did not apply.

The court pointed out that the legislature could have drafted the exception to apply when the worker’s injury was proximately caused by the employer’s failure to follow the manufacturer’s communicated safety directives. However, the legislature did not do so.

Employer Must Pay WC Premiums for Non-Employees

Continental Casualty Co., et al. v. Theraco, Inc., No. M2012-02100-COA-R3-CV (Tenn. Ct. App. (01/14/14)

Ruling: The Tennessee Court of Appeals held that a company had to pay its workers’ compensation carriers additional premiums for physical therapists who were independent contractors because they presented a litigation risk.

What it means: In Tennessee, an employer can be required to pay workers’ compensation insurance premiums for its independent contractors if its policy proves that it is liable for paying premiums for individuals presenting a risk of loss.

Summary: A Tennessee company, Theraco Inc., contracted with home health agencies to provide physical therapy sessions to patients. The company contracted with physical therapists, who were responsible for obtaining their own workers’ compensation insurance. Continental Casualty Co., the company’s workers’ compensation carrier, conducted an audit and concluded that it had been at risk for defending claims filed by the physical therapists. The company disputed that it was liable for paying additional premiums, asserting that the therapists were independent contractors. Theraco hired Travelers, which also calculated its premium to include the payroll of the therapists. Both policies provided that the company was liable for paying premiums for individuals who were employees or who presented a risk of loss to the insurers. The Tennessee Court of Appeals held that the company was liable for the additional premiums even though the therapists were independent contractors.

The court agreed with Theraco that the company could not be charged premiums for the therapists based on their classification as employees. The company possessed little control over the means by which the therapists provided therapy to patients. The control the company exerted to ensure that they complied with state law was control over the quality of the service rather than control over the means by which the therapists provided services.

However, the court agreed with the insurers’ argument that even if the therapists were independent contractors, the insurers were at risk of defending a workers’ compensation lawsuit brought by therapists even if only to litigate their status. The court pointed out that the risk of loss provisions in the company’s policies did not require that potential lawsuits have a reasonable chance of success. The company was obligated by the policies to pay premiums for the therapists in return for shifting the risk of litigation to the insurers.

Shifting Pain Flattens Claim of Causation

Muckle v. Dolgencorp, LLC, No. COA13-653 (N.C. Ct. App. 01/07/14, unpublished)

Ruling: In an unpublished decision, the North Carolina Court of Appeals held that a manager was not entitled to benefits for her back injury.

What it means: In North Carolina, an expert medical opinion that there was a possibility of causation is not sufficient to establish medical causation.

Summary: A manager of a Dollar General store slipped and fell while collecting shopping carts in the store’s icy parking lot. She reported pain on the right side of her lower back down to her right thigh. Later, she reported to her doctor that her pain improved. She continued to work her regular hours, despite having light-duty work restrictions. She resigned from her job because of the pain. Later, she sought treatment for pain on her left side. An MRI revealed a herniated disc on her right side. The manager sought workers’ compensation benefits. The North Carolina Court of Appeals held that she was not entitled to benefits after her resignation.

The parties did not dispute that the manager was working within the scope of her employment when she slipped and fell in the store’s parking lot. The court concluded that the manager’s symptoms after she said her pain improved were not causally related to the work injury. No medical expert stated an opinion that the manager’s injuries were causally related to her workplace fall. An examining doctor expressly refrained from offering such an opinion. The doctor explained that the mechanism of injury was possible, but it would be hard to establish causation based on the information that her pain switched from one side to the other. The doctor’s testimony that there was a generalized possibility of causation was insufficient.

Worker Can’t File Claim Months After Psychological Injury

Shea v. RPRD Dyckman, Inc., 21 ILWCLB 211 (Ill. W.C. Comm. 2013)

Ruling: The Illinois Workers’ Compensation Commission denied benefits to a driver for an alleged mental disability sustained after his involvement in a motor vehicle accident.

What it means: In Illinois, for a psychological injury caused by nonphysical stimulus to be compensable, the worker must experience a sudden, severe, emotional shock, and psychological injury must be immediately apparent.

Summary: A semi-truck driver was involved in a motor vehicle accident while working. Immediately after the accident, he heard a woman screaming and saw a man lying in the road with part of his head missing and his clothes torn. He testified that he experienced shock and horror and felt sick. Five days later, he drove another route. He stated that he was still feeling shock and horror and that he worried constantly. The employer did not assign any more work to the driver due to litigation regarding the motor vehicle accident. The driver testified that he became irritable and agitated and had difficulty sleeping. He sought treatment seven months after the accident. The commission affirmed and adopted the decision of the arbitrator denying benefits.

The arbitrator pointed out that the driver did not seek immediate medical attention but waited until seven months after the accident. Also, the driver was able to perform the same job duties within days of the accident. When the employer no longer employed him, the driver looked for jobs as a truck driver with other carriers. The arbitrator noted that if the driver was truly mentally and emotionally unable to drive a truck because of the accident he would not have looked for another position as a truck driver. The driver failed to prove he sustained an accident arising out of and in the course of his employment.