6 Workers’ Compensation Legal Decisions and Their Impact on the Industry
Pre-Season Injury Forces Court to Calculate Benefits for Pro Football Player
Jones v. Pro-Football, Inc., t/a The Washington Redskins, et al., No. 1219-18-4 (Va. Ct. App. 02/12/19)
The Case: A professional football player for the Washington Redskins suffered an injury to his right shoulder during practice when he was tackled by another player. An MRI of his shoulder revealed a labral tear. The Redskins terminated the player. He filed a workers’ compensation claim.
The Virginia Court of Appeals held that the player was entitled to temporary total disability benefits and permanent partial disability benefits based on an average weekly wage finding of $783.
The player argued that his average weekly wage (AWW) should be $6,115, which he calculated by dividing his contractual $318,000 injured reserve salary by 52 weeks. The Redskins argued that the player’s AWW should be calculated by dividing the $8,214 the player received in preseason payments and a signing bonus by the number of weeks he worked for the Redskins.
The deputy commissioner determined that the player’s AWW should be calculated by adding the six checks he received before his injury, his signing bonus and preseason payments, then by dividing them by the number of weeks he worked for the Redskins.
The court found the deputy commissioner’s calculation was proper. Had the player made the final team roster, his salary would be $435,000 or $318,000 if he was placed on the injured reserve. However, he suffered an injury before making the final team roster, and the Redskins never placed him on injured reserve.
The court also found the player was entitled to continuing partial disability benefits. The court pointed out that the player’s physician only released him to work in a non-football player role. The physician did not release or authorize him to continue in his professional football career or begin a conditioning program.
Scorecard: The Virginia Court of Appeals held that a football player was entitled to temporary total disability benefits and permanent partial disability benefits based on an average weekly wage finding of $783.
Takeaway: In Virginia, when the employment before the injury extended over a period of less than 52 weeks, the worker’s average weekly wage can be calculated by dividing the worker’s earnings by the number of weeks during which he earned wages.
Lack of Outside Employment Doesn’t Extinguish Volunteer Firefighter’s Benefits
Kocanowski v. Township of Bridgewater, No. A-55 September Term 2017, 080510 (N.J. 02/19/19)
The Case: A volunteer firefighter for the Township of Bridgewater usually had outside employment in addition to her volunteer work. She eventually left her outside employment to care for her ill father, and after he died, she took a leave from volunteer firefighting.
She returned to volunteer firefighting but did not resume outside employment. Later, while carrying equipment, the firefighter slipped on ice. She broke the upper shaft of her right fibula, severely damaged her ankle and tore several ligaments.
She underwent surgery but continued to have issues with her back, legs and feet, which impeded her ability to return to volunteer firefighting and her previous outside employment. The Division of Workers’ Compensation judge denied her claim for temporary disability benefits. The New Jersey Supreme Court held that she was entitled to temporary disability benefits.
The court found that the law authorizes all volunteer firefighters injured in the course of performing their duties to receive the maximum compensation permitted, regardless of their outside employment status at the time of injury.
The court said it would be inconsistent, after years of expending protections and exemptions for volunteer firefighters, for the legislature to abruptly limit the class of volunteer firefighters who qualify for temporary disability to only volunteer firefighters employed at the time of injury.
The court said that the Township’s interpretation would lead to absurd results, because it would allow a volunteer firefighter who completes work for a nominal salary to automatically receive the maximum compensation authorized when a volunteer firefighter who had no outside employment would receive no temporary disability benefits.
Scorecard: The New Jersey Supreme Court held that a volunteer firefighter was entitled to temporary disability benefits.
Takeaway: In New Jersey, all volunteer firefighters injured in the course of performing their duties are entitled to receive the maximum compensation permitted, regardless of their outside employment status at the time of the injury.
IME Physician Not Liable for Malpractice for Worker’s Injury During Exam
Reagan v. Newton, No. 50662-9-II (Wash. Ct. App. 03/05/19)
The Case: A worker injured her back during the course of employment. She filed a workers’ compensation claim, and the Department of Labor and Industries accepted her claim for injuries to her thoracic and cervical regions.
DLI later requested she undergo an independent medical examination (IME) to determine her work restrictions, if she could return to work, if her treatment had concluded, and whether she had a permanent impairment.
During the IME, the worker informed the physician that she had a previous injury to her left hip. The physician had the worker lie on her back. He bent her left knee toward her chest and rotated her bent knee from the hip joint.
The worker said that her hip would not rotate any further because of her previous injury. The physician then pushed her leg, and the worker screamed in pain.
The worker sued the physician alleging his negligence in manipulating her hip during the IME caused her injury. The Washington Court of Appeals granted in part and denied in part summary judgment to the physician.
The court rejected the worker’s argument that the medical malpractice statute did not apply because an IME does not involve “health care.” The court explained the physician used his medical skills to examine the worker.
Although they did not have a traditional physician-patient relationship, the worker was the physician’s “patient” in the sense that he interacted with and examined her. The court also found the physician had a duty not to injure her during the examination.
However, the court granted summary judgment to the physician on the worker’s medical malpractice claim, because she did not provide the required expert testimony that the physician violated the accepted standard of care.
The court allowed the worker’s medical battery claim to move forward because genuine issues of fact existed regarding the physician’s liability.
Scorecard: The Washington Court of Appeals granted in part and denied in part summary judgment to a doctor who performed an independent medical examination on an injured worker’s suit alleging that the physician injured her during an IME.
Takeaway: In Washington, a physical examination during an independent medical examination that causes injury to the worker being examined constitutes “health care” under the medical malpractice law.
Comp Denied When Worker’s Pre-existing Cancer Was Cause of Fracture
Hammond v. Liberty Northwest Insurance Corp., et al., No. A163010 (Or. Ct. App. 02/27/19)
The Case: A worker was traveling for work. He had been diagnosed with and was undergoing treatment for metastatic lung cancer that had spread to his bones, causing fractures. As the worker was walking through a hotel lobby, his left femur fractured due to weakness caused by the presence of cancer in the bone.
The worker died seven days later. The worker’s widow sought death benefits. The Oregon Court of Appeals held that the claim was not compensable.
The court found that the worker’s cancer and its spread to his bones was a pre-existing condition. Even though a femur tumor had not been diagnosed, there was no dispute that it was part of his cancer.
The court also found that although walking at work contributed to the worker’s condition, the fracture was the result of a combination of his leg bearing weight while walking and his pre-existing cancer. The medical evidence showed that the major contributing cause of the fracture and the need for treatment was the cancer. Therefore, the claim was not compensable.
Scorecard: The Oregon Court of Appeals held that a deceased worker’s spouse was not entitled to death benefits.
Takeaway: In Oregon, when the initially claimed condition is a combined condition, it is compensable only if the work injury is the major contributing cause of the disability or need for treatment.
Presumption of Impairment Applies When Worker’s Drug Test Is Admissible
Woessner v. Labor Max Staffing, No. 119,087 (Kan. Ct. App. 02/15/19)
The Case: A worker fell 15 feet from a job site catwalk. A drug test performed after the accident showed that the worker had marijuana metabolites in his system when he fell. The worker died. His widow sought workers’ compensation benefits.
The Workers’ Compensation Appeals Board found that the drug test results were not admissible and awarded the widow benefits. The Kansas Court of Appeals reversed and sent the case back for further proceedings.
The court found that the board improperly found the worker’s drug test result was not admissible. The board relied on a law stating that results performed on a sample collected by an employer are inadmissible. However, the sample was collected by personnel at a hospital. The court also found that a regulation did not prevent the admission of the test result.
The court found that the employer presented evidence supporting the reliability of the test result. For example, the evidence showed how the urine sample was obtained at the hospital, how the hospital lab tested it, how the hospital stored the sample, and how the hospital transferred the sample to a lab.
Since the test result was admissible, a conclusive presumption that the worker was impaired applied.
Scorecard: The Kansas Court of Appeals held that a deceased worker’s drug test result was admissible and reversed the Workers’ Compensation Appeals Board’s decision awarding benefits to his widow.
Takeaway: In Kansas, if there is a lab test showing a concentration of a listed drug above certain levels, the worker is presumed to have been impaired and there is a rebuttable presumption that the impairment contributed to the worker’s injury.
Manager Established Possibility That Treatment Caused Her Infection
Lenox v. Central Louisiana Spokes, LLC d/b/a Renegade Harley, et al., No. WCA 18-556 (La. Ct. App. 02/13/19)
The Case: A store clerk/manager for Renegade Harley went to retrieve a pair of boots for a customer. When she bent over to get them, she “experienced a weird sensation.”
When her husband later came to the store to meet her for lunch, she told him that her back was “killing” her and that pain was shooting down her leg. She reported the incident to Renegade’s human resources office and went to get medical treatment.
An MRI revealed degenerative disk disease and a small focal disk protrusion. The manager went to the hospital and received an epidural steroid injection. She later went to a second hospital, where she was diagnosed with an infection of the lumbar spine.
The manager filed a claim for compensation. Renegade accepted the incident as compensable but only paid for medical treatment up to the time the manager developed the spinal infection.
The Office of Workers’ Compensation granted summary judgment to Renegade, finding that the spinal infection was not causally related to the work accident. The Louisiana Court of Appeal reversed and sent the case back to the Office of Workers’ Compensation.
The court explained that there was clear evidence the manager had no infection before the accident. A physician testified the infection developed during her first hospital stay while she was being treated for her workplace injury.
He also stated that it was possible the epidural steroid injection she received to treat her work injury caused the infection. The court found a genuine issue of material fact as to whether the manager’s infection was contracted during the course of treatment for her workplace accident.
Scorecard: The Louisiana Court of Appeal reversed a grant of summary judgment to the employer on a manager’s claim and sent the case back to the Office of Workers’ Compensation for further proceedings.
Takeaway: In Louisiana, a worker can establish causation if she can prove that before the accident she had not manifested disabling symptoms, that the symptoms commenced with the accident and manifested themselves afterward, and that the evidence indicates a reasonable possibility of causal connection between the accident and the disabling symptoms. &