View From the Bench

Workers’ Comp Docket

Key workers' comp legal decisions from around the country.
By: | March 31, 2014
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Court Approves Benefits for Unexplained Fall

City of Brighton v. Rodriguez, No. 12SC737 (Colo. 02/03/14)

Ruling: The Colorado Supreme Court held that a coordinator was entitled to benefits for her unexplained fall.

What it means: In Colorado, an unexplained fall may be compensable if it would not have occurred but for the fact that the conditions and obligations of the employment placed the worker in the position where she was injured.

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Summary: A special events coordinator for a city fell down a flight of stairs, injuring her head, neck, and back. The stairs were dry and unobstructed, and she did not remember how she fell. A CT scan revealed four unruptured aneurysms on the right side of her brain. Doctors disagreed about whether the brain aneurysms were the cause of her fall. The coordinator sought workers’ compensation benefits. The city agreed that her injury occurred in the course of her employment but disputed whether the fall arose out of her employment. The Colorado Supreme Court held that she was entitled to benefits.

The city argued that the coordinator did not establish a causal connection between her work activities and her injuries because she did not provide evidence regarding the precise mechanism for her fall. The court found that the fall was not an employment risk because the stairs were dry and free of obstruction. The fall was not a personal risk because the administrative law judge found that her fall was not due to her preexisting brain aneurysms. The court found that an unexplained fall was a neutral risk, and the “but for” test applied.

The court found that the coordinator’s fall would not have occurred but for the fact that the conditions and obligations of her employment placed her on the stairs where she fell. Therefore, her injury arose out of her employment. The court said that “demanding more precision about the exact mechanism of a fall is inconsistent with the spirit” of the workers’ compensation law’s purpose of compensating workers for accidents regardless of fault.

A dissenting judge opined that because the cause of the coordinator’s fall was unexplained, she did not establish causation or that her injuries arose out of her employment. The judge opined that the majority erred in expanding the scope of neutral risks to include injuries that occurred at work where the cause was not known.

Mental Injury Must Be Tied to Physical Injury for PTD

Hathaway v. State of Wyoming ex rel. Wyoming Workers’ Safety and Compensation Division, No. S-13-0108 (Wyo. 01/24/14)

Ruling: The Wyoming Supreme Court held that an aide was not entitled to permanent total disability benefits.

What it means: In Wyoming, an “injury” does not include a mental injury unless it is caused by a compensable physical injury. Benefits for a compensable mental injury are not payable more than six months after a worker’s physical injury reaches maximum medical improvement.

Summary: A psychiatric aide at the Wyoming State Hospital was assaulted by a female patient, who hurled her to the ground, stomped on her, and threw her over a desk. The aide sustained physical injuries. Over the next 15 years, she saw numerous doctors for many psychological and physical problems. The aide sought permanent total disability benefits. The Wyoming Supreme Court held that she was not entitled to PTD benefits.

The court concluded that the aide’s only disabling condition was mental and not physical and not caused by a compensable physical injury. The majority of expert medical evaluators concluded that the aide’s disability was caused by somatoform pain disorder, a purely psychological condition. The court explained that even if her mental injuries were compensable she reached maximum medical improvement years before. Her eligibility for compensation for mental injuries expired six months later, well before she sought PTD benefits for her psychological disorder.

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The court rejected the aide’s argument that she was entitled to PTD benefits under the odd-lot doctrine. The court explained that this was not a case in which there was a physical impairment coupled with other factors that rendered the aide incapable of working. Rather, there was expert testimony establishing that the aide was disabled only as the result of somatoform pain disorder, a psychological impairment.

Employer-Paid Transport Overrides Coming and Going Rule

Seabright Insurance Co. v. Lopez, No. 04-12-00863-CV (Tex. Ct. App. 01/29/14)

Ruling: The Texas Court of Appeals held that a widow was entitled to benefits for a worker’s death in a motor vehicle accident.

What it means: In Texas, an employer’s provision of transportation is evidence that a worker’s trip originated in the employer’s business but is insufficient in itself to establish origination.

Summary: A construction worker worked on a project located 450 miles from his home. The employer provided per diem to cover the cost of food and a motel. The worker was driving himself and two coworkers in a company truck to the job site when he was killed in a motor vehicle accident. The worker’s widow sought workers’ compensation benefits. The employer’s insurer, Seabright Insurance Co., denied the claim, contending that the worker was not in the course and scope of his employment at the time of the accident. The Texas Court of Appeals held that the widow was entitled to benefits.

The court found that the travel arrangement between the employer and worker fell within an exception to the coming and going rule where “the transportation is furnished as a part of the contract of employment or is paid for by the employer.” The court also found that the worker’s travel from his motel to work was in furtherance of the employer’s business.

The court concluded that the worker’s injury occurred in the course and scope of his employment. The relationship between the travel and employment was so close that it could fairly be said that the injury had to do with and originated in the work, business, trade, or profession of the employer. The fact that the employer provided a truck was evidence that the worker’s trip originated in the employer’s business but was not in itself dispositive of origination.

However, the working conditions suggested that the worker’s presence in the area of the accident and the accident itself originated in his work. The court pointed out that the nature of the remote job site and provision of per diem showed that the employer knew the only reason workers would be present in the area was their job.

Workers’ Comp Only Remedy for Injury Caused by Coworker

Bungard v. Jeffers, No. 12CA26 (Ohio Ct. App. 01/28/14)

Ruling: The Ohio Court of Appeals held that a coworker was not liable for a worker’s injuries because the injuries were covered by workers’ compensation.

What it means: In Ohio, a coworker is not liable for a worker’s injury if the accident occurred in the course and scope of the worker’s employment.

Summary: A worker parked his truck in a Kraton Polymers employee parking lot before starting his shift. A coworker pulled into the parking spot behind the worker and rear-ended the worker’s truck. The worker sued the coworker for his injuries. The coworker argued that he was immune from the worker’s suit. The Ohio Court of Appeals held that the coworker was not liable and that the worker’s injuries were covered by workers’ compensation.

The parking lot was adjacent to the plant entrance and workers had to pass through one of two employee parking lots to enter the plant. Guards made rounds of the parking lot to ensure that workers’ automobiles were safe and that only authorized persons were in the lots. There was no gate restricting access to the lot, and sometimes, contractors or other visitors parked in the lot.

The court explained that the coming and going rule provides that a worker with a fixed place of employment who is injured while traveling to work is not entitled to workers’ compensation benefits. The court found that the zone of employment exception to the coming and going rule applied. Even if contractors or other visitors were permitted on occasion to park in the lot, the court said that did not defeat the evidence that the lot was an exclusive parking area for employees.

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Reasonable minds could only conclude that Kraton controlled the parking lot where the accident occurred and it was in the zone of employment. Because the worker was on his way to work and it was necessary for him to pass through the parking lot to enter his place of work, his injury occurred in the course of and arising out of employment and was compensable under workers’ compensation. By establishing a causal connection between the worker’s injury and employment, the coworker was entitled to fellow employee immunity.

Employer’s ‘Doctor-Shopping’ Wins Penalties and Fees for Worker

Greer v. Whole Foods Market, Inc., No. 2013-CA-0455 (La. Ct. App. 01/15/14)

Ruling: The Louisiana Court of Appeal held that a worker was entitled to surgery, penalties, and attorney’s fees after his employer failed to authorize surgery and required him to undergo an improper second medical opinion and independent medical examination.

What it means: In Louisiana, if a worker is referred by an employer-selected physician to a second physician, the second physician is also deemed the employer’s choice.

Summary: A worker for Whole Foods Market sustained injuries to his neck and shoulder during the course and scope of his employment when he grabbed a falling meat cart. His employer referred him to a physician, who then referred him to an orthopedic surgeon. The worker refused to see the surgeon because he had a bad experience with him during a prior, unrelated surgery. The doctor referred him to a second orthopedic surgeon, who recommended surgery.

The employer sent the worker to a third physician for a second medical opinion and an independent medical examination. The worker asserted that the recommended surgery was not approved, the use of a second medical opinion and the IME were improper, and he requested penalties and attorney’s fees. The Louisiana Court of Appeal held that the worker was entitled to the surgery, penalties, and attorney’s fees.

The employer asserted that because the worker refused to see the first surgeon, he became directly involved in selecting his physician, and as a result, the employer did not “specifically direct” him to the second surgeon. The court explained that when the employer-selected physician referred the worker to the second surgeon for treatment, the second surgeon became the employer’s choice of physician. The second surgeon was the physician of choice for both the worker and employer.

The court rejected the employer’s assertion that it was entitled to a second opinion. The court explained that the employer was bound by its choice of physician. The employer was not entitled to choose a new physician in an attempt to find a more acceptable prognosis. The court said that the employer’s actions amounted to “doctor-shopping.” The court also found that the IME was unwarranted.

The court awarded penalties and attorney’s fees because the employer failed to authorize surgery. The employer sought a second opinion seven months after its choice of physician recommended surgery. During this time, the worker’s symptoms worsened.

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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