Employer Liable for Hazard from Neighboring Facility

Plotner v. Metal Prep, No. W2012-02595-SC-WCM-WC (Tenn. 09/29/14)

Ruling: The Tennessee Supreme Court held that an operator established that his occupational disease arose out of his employment, and he was permanently and totally disabled.

What it means: In Tennessee, a worker’s exposure to dust that causes his occupational disease can arise out of his employment even if the dust did not originate from his employer.

Summary: A forklift operator for Metal Prep began experiencing breathing problems at work. He was diagnosed with farmer’s lung, which is an allergic reaction to environmental exposure to grain dust. The operator filed a claim for workers’ compensation benefits. Metal Prep denied the claim, arguing that it was not liable because the source of the grain dust that caused his condition was from a grain transfer facility located across the street. Metal Prep agreed that the operator’s occupational disease occurred in the course of his employment but argued that it did not arise from his employment. The Tennessee Supreme Court held that the operator’s occupational disease arose out of his employment, and he was permanently and totally disabled.

Metal Prep acknowledged that the operator’s condition followed as a natural incident of his work occasioned by his exposure to grain dust. Also, Metal Prep did not deny that a there was a direct causal connection between the conditions of the operator’s work and his occupational disease. The operator’s physician said that his condition could only come from large-scale exposure to grain dust. The court found the condition did not originate from a hazard to which he would have been equally exposed outside his employment. The court explained that the exposure or risk is not required to be related to a substance that emanated from the employer.

The court found that the operator’s exposure to grain dust causing his farmer’s lung was connected to his employment. Although the dust was not created by Metal Prep, it was part of the work environment. Therefore, the consequences of the operator’s exposure to the dust arose from his employment.

The court also found that the operator was permanently and totally disabled. His entire work history consisted of relatively strenuous work, and he was unable to perform such jobs. He had to use oxygen therapy and became tired from the simple act of checking his mail. The physician testified that the operator’s condition was likely to worsen in the future.

Widow Can’t Sue Coworkers for Death Covered by Comp

Kohn v. Marquis, et al., No. 131162 (Va. 09/12/14)

Ruling: The Virginia Supreme Court held that the exclusive remedy provision blocked a widow’s suit against a police chief and officers.

What it means: In Virginia, a deceased worker’s widow cannot sue an employer or coworker for an injury sustained in the course of employment if the workers’ compensation law covers the worker’s death.

Summary: A recruit for Norfolk Police Academy was repeatedly and violently struck in the head during training. He began demonstrating serious neurological defects during the training exercises and was transported to the hospital. Nine days later, he died of trauma to the head. The recruit’s widow sued the police chief and officers, asserting that the numerous blows to his head contributed to his death. The Virginia Supreme Court held that the exclusive remedy provision blocked the widow’s suit.

The parties did not dispute that the recruit’s injury and death arose out of and in the course of his employment or that the chief and officers were his coworkers.

The parties also agreed that the recruit suffered neurological deficits as a result of blows to the head during training and he was taken to the hospital as a result. Therefore, the court found no dispute that he suffered an injury by accident.

The widow asserted that the recruit’s death was not compensable under workers’ compensation because it was the result of a series of traumas over a period of time, rather than from a single identifiable event. The city asserted that whether or not the recruit had preexisting conditions and injuries, his undisputed injury by accident entitled him to workers’ compensation benefits. The court agreed with the city, explaining that the recruit suffered an obvious mechanical or structural change in his body while engaged in a work activity that exposed him to an employment-related hazard that injured him and contributed to his death.

Personal Crises Don’t Excuse Worker’s Failure To Cooperate With Claim Investigation

Hopper v. SAIF Corp., No. A152765 (Or. Ct. App. 09/10/14)

Ruling: The Oregon Court of Appeals held that a worker was not entitled to benefits based on her failure to cooperate with the claims process.

What it means: In Oregon, an insurer can deny a claim based on a worker’s failure to cooperate with the investigation of the claim.

Summary: A worker injured her lower back at work and filed a claim for workers’ compensation. SAIF sent the worker a letter informing her of her obligation to cooperate with the claims process. SAIF also contacted the worker to alert her that she needed to make a statement about her claim to an investigator. The worker did not contact an investigator. Later, the worker’s benefits were suspended based on her failure to participate in an interview. The worker requested a hearing on SAIF’s denial, and she explained that her brother died unexpectedly and she had been in a motor vehicle accident. The Oregon Court of Appeals held that the worker was not entitled to benefits.

The worker asserted that she fully and completely cooperated with SAIF’s investigation, SAIF’s investigative demands were unreasonable, and any failure to cooperate was for reasons out of her control. The court pointed out that she did not challenge the finding that she failed to cooperate with SAIF’s investigative demands before the Workers’ Compensation Board. She also did not contest the reasonableness of SAIF’s demands before the administrative law judge or the board.

The court said a reasonable fact finder could infer that the worker’s brother’s death and her motor vehicle accident did not interfere with her ability to cooperate with SAIF’s interview request and that her failure to cooperate resulted from her own lack of diligence. The worker said she was depressed when SAIF’s first letter about her interview arrived and she did not open it promptly. However, she did not explain why she did not contact SAIF after she opened the letter. Also, she only missed one day of work as a result of her brother’s death and did not miss work after her motor vehicle accident.

Ex Parte Communication With Worker’s Doctor Ruled Unconstitutional

Malcomson v. Liberty Northwest, No. DA 13-061 (Mont. 09/10/14)

Ruling: The Montana Supreme Court held that a statute allowing an insurer to have ex parte communications with a manager’s physicians without her knowledge and an opportunity to participate was unconstitutional.

What it means: In Montana, a statute allowing an insurer to communicate directly with a worker’s health care providers without prior notice to the worker violates the worker’s right to privacy.

Summary: A manager of Freemo’s Pizza suffered a back injury. She sought medical treatment and filed a worker’s compensation claim. The manager signed an authorization form providing that her health care providers and the employer’s insurer, Liberty Northwest, could release health care information relevant to her claim to one another. The authorization also provided that communication between her doctors and Liberty could take place without her knowledge or opportunity to participate. Later, the manager revoked the authorization, stating that Liberty did not have her permission to “speak” to her health care providers without first notifying her or her attorney and providing them an opportunity to participate in the communication. As a result, Liberty terminated the manager’s medical benefits. The manager asserted that the statutes relied upon by Liberty to terminate her benefits were unconstitutional. The Montana Supreme Court held that a statute allowing Liberty to have ex parte communications with a manager’s physicians with her knowledge and an opportunity to participate was unconstitutional.

Liberty asserted that the manager did not have an expectation of privacy as to any medical information relevant to her claim because the workers’ compensation laws placed her on notice that such information had to be provided to the insurer. The court rejected the argument, pointing out that the manager only objected to the provision that allowed Liberty to communicate directly with her physicians without prior notice to her or the opportunity to participate in the discussion. Also, the court pointed out that it previously concluded that medical records “deserve the utmost constitutional protection.”

The court found that the state had a compelling interest in the orderly administration of the workers’ compensation process. However, the statute was not narrowly tailored to effectuate that interest. The court said the manager’s concerns that she would not know if Liberty obtained irrelevant medical information or cast her in a negative light were valid and justified. The court also pointed out that the state was long able to administer the worker’s compensation program without exposing workers to a potential violation of their constitutional right of privacy.

Worker’s Accident While Speeding Is Compensable

Linde Gas v. Edmonds, No. 2013-WC-01942-COA (Miss. Ct. App. 09/30/14)

Ruling: The Mississippi Court of Appeals held that a technician’s injury while driving a truck owned by Linde Gas was compensable.

What it means: In Mississippi, an exception to the going and coming rule arises when the employer either provides a worker’s means of transportation or pays the worker’s transportation costs.

Summary: An instrumentation technician for Linde Gas was assigned a company truck. Linde Gas authorized him to use the truck to travel to and from work. It did not pay for his travel time to and from his regular work. Linde Gas paid for the truck’s fuel, insurance, and maintenance. While on his way to report to work, the technician sustained an injury to his back in an automobile accident. An automotive technologist who investigated the crash determined that the technician was speeding, not wearing a seatbelt, and the headlights were not on. Also, the technician had little sleep the night before the accident and had taken pain medication. Linde Gas argued that the technician’s injury was not compensable. The Mississippi Court of Appeals held that he was entitled to benefits.

Generally, a worker’s injury while traveling to or from work is not compensable. An exception to the going and coming rule arises when the employer either provides a worker’s means of transportation or pays the worker’s transportation costs. The court rejected Linde Gas’ interpretation of the rule to mean that a worker must prove that the employer both provided the worker’s means of transportation and compensated the worker additional reimbursement for travel time. The court found that the technician’s employer-sponsored travel was an exception to the going and coming rule and was compensable.

Linde Gas also asserted that the technician acted with willful intent to injure himself. The court found no authority that the technician’s actions before and during the accident were willful intent.

A dissenting judge opined that the technician’s acts in driving to work while ill, after receiving little sleep, after taking pain medications, and failing to wear a seatbelt or turn on his headlights were voluntary acts and a willingness to incur risk outside the scope of employment.

Worker’s Skill Operating Business Proves Wage-Earning Capacity

Spain v. David J. Spain d/b/a Spain’s Mobile Home Movers, No. COA14-312 (N.C. Ct. App. 09/16/14, unpublished)

Ruling: In an unpublished opinion, the North Carolina Court of Appeals held that a worker was not entitled to temporary total disability benefits but his employer was required to pay for additional treatment of his right arm symptoms.

What it means: In North Carolina, a self-employer worker has a wage-earning capacity if he is actively involved in the day-to-day operations of the business and he uses skills that would enable him to be employable in the competitive market.

Summary: A worker for his father’s mobile home transportation business was using an auger machine to drill an anchor into the ground. He accidentally drilled into an underground power line and sustained an electric shock injury. He complained of right upper extremity numbness. Later, a doctor noted that although the worker’s muscles had recovered, he still reported being unable to move his right hand. The doctor believed there was a “psychiatric component” to the worker’s symptoms. The worker and his wife opened a business providing auto and truck servicing. The employer sought to terminate his benefits. Also, the worker sought additional medical treatment for his right arm. The North Carolina Court of Appeals held that he was not entitled to temporary total disability benefits but the employer was required to pay for additional medical treatment.

In finding that the worker’s benefits should be terminated, the court found the auto business’ website stated that it was “run by” the worker and his wife. The worker was present at the business on a regular basis. The court found he was involved in the day-to-day operations of the business. The worker was licensed to be an inspection mechanic and met with customers, handled tire orders, and logged in codes for vehicle inspections. The skills he used in operating the business, when considered with his young age, educational level, and work experience, the court found he had wage-earning capacity in the competitive market.

The court explained that employers are required to pay for medical treatment that is directly related to the worker’s compensable injury. The court found the employer’s arguments against paying for the worker’s medical treatment were an attempt to relitigate the compensability of the worker’s injury. The employer was required to pay for further treatment, including a psychological evaluation.