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Christina Lumbreras

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com

View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | July 25, 2014 • 13 min read
Docket

Injured Worker Not Entitled to Prosthesis of Choice

Whedbee v. North Dakota Workforce Safety and Insurance Fund,No. 20130391 (N.D. 04/29/14)

Ruling: The North Dakota Supreme Court held that the Workforce Safety and Insurance Fund properly awarded a specialist a body-powered prosthetic.

What it means: In North Dakota, the Workforce Safety and Insurance Fund is not required to provide a worker’s preferred medical device. It should consider each device’s durability, cost, and impact on the worker’s injuries.

Summary: A safety specialist for Black Hawk Energy Services was injured in an oil rig explosion. His left arm was amputated below the elbow. The Workforce Safety and Insurance Fund accepted liability for his injuries. The specialist’s treating physician recommended that he receive a myoelectric prosthesis. An independent medical examiner recommended a body-powered prosthesis. WSI denied the myoelectric prosthesis. WSI’s binding dispute resolution review committee agreed that the myoelectric prosthesis was not the most cost-effective option and approved the body-powered prosthesis. The specialist appealed. The North Dakota Supreme Court held that the WSI properly awarded the body-powered prosthetic.

The court explained that a managed care program should “effect the best medical solution for an injured employee in a cost-effective manner.” WSI determined that the myoelectric prosthesis was more elaborate than what the specialist needed for his work activities. Also, the myoelectric device was heavier than the body-powered device, raising concern over how the extra weight would effect his rehabilitation. The myoelectric device’s cost was also a concern because it would need a replacement every five to eight years and was susceptible to excessive moisture, dust, and potential breakage.

The court explained that WSI was not required to provide the specialist’s preferred device. WSI was not unreasonable in concluding that the body-powered prosthesis was the best medical solution in a cost-effective manner.

The court also rejected the specialist’s argument that his due process rights were violated. He did not have a protectable property interest in receiving one device over another, and WSI was not required to provide a “trial-type procedure” for managed care decisions. Also, the specialist did not show that the independent medical examination location in another state prejudiced him.

A dissenting judge opined that substantial evidence supported a finding that the myoelectric prosthesis was reasonably necessary to restore the specialist as far as practicable to his physical condition before the work-related injury. The judge said that WSI considered only the needs of the specialist’s job and not his other activities of daily living.

Heart Attack During Immigration Raid Not Compensable

Paredones v. Wrenn Brothers,No. COA13-910 (N.C. Ct. App. 05/06/14)

Ruling: The North Carolina Court of Appeals held that an undocumented worker’s children were not entitled to death benefits for his fatal heart attack.

What it means: In North Carolina, a worker’s death while attempting to evade a raid by immigration officials did not arise out of his employment when he was equally exposed to the risks associated with being an undocumented immigrant outside his employment.

Summary: A worker used falsified documentation to obtain employment for Wrenn Brothers. The worker was working when a coworker indicated that the plant was about to be raided by the Immigration and Naturalization Service. The worker and others attempted to run away, but after 100 yards, the worker collapsed and died. An autopsy determined that the worker suffered a heart attack. The worker’s children sought workers’ compensation death benefits. The North Carolina Court of Appeals denied death benefits, finding that the worker’s death did not arise out of his employment.

The worker’s children asserted that Wrenn Brothers was subjected to an increased risk of an immigration raid because it had Hispanic employees and other plants in the area had been raided by INS. The employer’s secretary said there had been no immigration raids in the area where the plant was located. The court found no direct evidence that the racial makeup of Wrenn Brothers’ employees increased the risk of an immigration raid. No evidence showed that the Hispanic workers were not legal workers or that Wrenn Brothers sought to hire illegal workers. There was also no evidence that Wrenn Brothers knew that the worker used falsified documents in order to obtain employment.

The court found that the worker died while fleeing from an apparent immigration raid and that there was no evidence of an increased risk of an immigration raid as part of his employment. The worker’s death was not caused by a risk that was inherent or incidental to his employment or a risk to which he would have been equally exposed outside his employment.

Traveling Employee Gets Down on the Dance Floor, Gets Comp

Gravette v. Visual Aids Electronics, et al.,No. 291, September Term, 2013 (Md. Ct. Spec. App. 04/29/14)

Ruling: The Maryland Court of Special Appeals held that a traveling technician was entitled to benefits for his injury that occurred while engaging in a recreational activity.

What it means: In Maryland, an injury to a traveling employee is compensable if it occurred as a result of an activity reasonably incidental to the travel that the employer required.

Summary: An audio visual technician for Visual Aids Electronics, who was a resident of Idaho, traveled to Maryland to provide services for a customer at a hotel. The employer paid for the technician’s travel expenses and for the cost of his hotel room. The technician, while off-duty, entered into a nightclub in the hotel. He was dancing when he slipped on some liquid on the floor and fell, injuring his pelvis. There was no indication that he was intoxicated at the time of his injury. The technician sought workers’ compensation benefits. The employer asserted that his injury did not arise out of and in the course of his employment. The Maryland Court of Special Appeals held that the technician’s injury was compensable.

In considering cases from other states, the court concluded that a traveling employee who is engaged in reasonable and foreseeable recreational activities when injured is entitled to workers’ compensation benefits because the recreational activities are “reasonably incident to travel.” The court found that the employer had at least constructive notice that the technician would make use of the entire facility at the hotel. The court found that the activity the technician was engaged in at the time of his injury was reasonable in that it was not dangerous or out of the ordinary. Also, it was foreseeable because the accident occurred on premises where the technician could be expected to use and not far removed from his actual work site.

The employer asserted that the technician’s dancing at the nightclub was not a necessary activity that was incidental to travel. However, the court found that “necessity was not the test.” If it was the applicable test, “it would be difficult to envision any case allowing a traveling employee to recover if engaged in recreational activities when injured.”

Methadone Overdose Not Causally Related to Work Injury

Loar v. Cooper Tire & Rubber Co. et al.,No. CV-13-1128 (Ark. Ct. App. 04/23/14)

Ruling: The Arkansas Court of Appeals held that a worker’s widow was not entitled to death benefits for his death due to a Methadone overdose.

What it means: In Arkansas, death benefits will not be warranted if a worker’s death was the result of conduct that was unreasonable and an independent intervening cause not related to the work.

Summary: A worker for Cooper Tire & Rubber Co. sustained a work-related injury. The worker had been addicted to opioid medication prescribed for back pain for one year before the injury. Four years after the injury, the worker consumed on average 4.7 Oxycontin pills per day when he was prescribed three pills per day. The worker obtained a Methadone prescription for six pills per day to treat him for withdrawal from opiates. In the four days after he obtained the prescription, the worker consumed 41 pills, which was 17 pills in excess of the number he should have taken. The worker’s wife requested that he stop taking the Methadone and see a doctor, but he continued to use the Methadone. The worker died from a Methadone overdose four days after he obtained the prescription. His wife sought death benefits. The Arkansas Court of Appeals held that she was not entitled to benefits.

The court concluded that the worker’s overdose and death was unreasonable and an independent intervening cause not related to the work injury. The court found that the worker had a proclivity to drug addiction, had been filling Oxycontin prescriptions from two doctors, and went to another unapproved doctor for Methadone.

The court also pointed out that the worker was able to coach football and travel for football equipment shortly before his death, supporting that his overdose was not in response to uncontrolled pain but was the result of his drug addiction. Evidence that the worker was “plainly intoxicated” shortly before his death to the degree that his wife hid his medications and threatened to have him committed also supported this finding.

Prior Drug Use Doesn’t Undermine Claim

Young v. Great Bend Cooperative Association,No. 110,025 (Kan. Ct. App. 04/18/14)

Ruling: The Kansas Court of Appeals held that an operator was entitled to benefits for her asthma.

What it means: In Kansas, the impairment defense does not apply when the worker was not impaired at the time of the injury even if she had a previous history of drug use.

Summary: A grain elevator operator for Great Bend Cooperative Association was exposed to grain dust. She had no prior breathing or upper respiratory problems but had smoked half a pack of cigarettes per day for two years. She also regularly smoked crack cocaine four years before working as an operator. The operator developed breathing difficulties and stopped smoking. A physician concluded that she had adult-onset asthma. The physician attributed the cause of the operator’s asthma equally to her history of smoking cigarettes and crack cocaine and her work-related exposure to dust. The operator sought workers’ compensation benefits. Great Bend raised the impairment defense, asserting that she was not entitled to benefits because of her history of smoking tobacco and crack cocaine. The Kansas Court of Appeals held that the operator was entitled to benefits.

The court explained that the impairment defense applies if the employer shows that the worker was impaired at the time of the injury and the impairment contributed to the worker’s injury or disability. In this case, the conclusive presumption of impairment did not apply to the operator because no evidence showed blood levels of any drug in her system at the time of the accident. Without evidence of contemporaneous impairment, the defense did not apply to the claim.

The court found no language in the statute to conclude that if some time in the past the operator’s blood test levels exceeded the statutory limits for cocaine, the legislature intended a presumption of impairment to apply and bar recovery of benefits. The court rejected Great Bend’s argument that the operator’s prior drug use contributed to the injury.

Widow Connects Suicide to Work-Related Injuries

Chaput’s Case,No. 12-P-1932 (Mass. App. Ct. 04/10/14)

Ruling: The Massachusetts Appeals Court held that a taper’s widow was entitled to benefits for his work-related injuries and suicide.

What it means: In Massachusetts, a worker’s suicide is compensable if it is causally connected to the unsoundness of mind resulting from the work-related injury.

Summary: A drywall taper for New England Finish Systems injured his right dominant hand in a work-related accident. The taper initially received workers’ compensation benefits, but the insurer later terminated benefits. Subsequently, the taper committed suicide. After the taper’s death, an administrative judge found that the insurer improperly terminated benefits. The taper’s widow sought dependency benefits. The Massachusetts Appeals Court held that the widow was entitled to benefits.

The court concluded that the taper’s suicide was committed while suffering from and as a result of his work-related depression. The court also found a direct causal relationship between the industrial injuries and the taper’s death. The widow’s medical expert opined that the taper was depressed from his work-related right hand pain and his severe limitations in using his hand. The expert also pointed out that the taper experienced financial pressure when the insurer ceased his benefits.

The court also found that lay testimony strengthened the medical opinion on causation. The widow explained that she “saw a change” in the taper after the accident. She said his wages were their only income, and after the insurer ended benefits, his depression worsened.

The court also found that the widow was entitled to recover attorney’s fees and costs for her appeal.

Intoxication Not to Blame for Fall Through Rotting Roof

Gideon v. Yost Properties,No. 110,232 (Kan. Ct. App. 04/11/14, unpublished)

Ruling: In an unpublished decision, the Kansas Court of Appeals held that a worker was entitled to benefits for his fall through a roof because his employer failed to prove that his intoxication contributed to the accident.

What it means: In Kansas, a worker’s intoxication will bar his claim for benefits if the intoxication contributed to his accident.

Summary: A worker for Yost Properties was directed to repair the roof of one of its buildings. He was tearing off the deteriorated roll roofing and shingles when a swarm of ants started crawling on him. When he attempted to brush the ants away, he heard a cracking noise. The roof shifted under the worker’s feet, gave way, and knocked him off balance, causing him to fall through the roof. He sustained injuries to his back and arm.

The worker admitted that he had been drinking beer earlier in the day. The worker’s urinalysis was positive for cocaine and marijuana metabolites. A blood test revealed a blood alcohol level of 0.095. The worker sought benefits. Yost asserted the intoxication defense.

The Kansas Court of Appeals held that the worker was entitled to benefits.

The court found that the worker was impaired at the time of the accident because his blood alcohol level taken after the accident was more than double the statutory amount required for a conclusive presumption of impairment. However, Yost did not show that the worker’s impairment contributed to his injuries.

The court found no evidence of any lack of judgment by the worker while he was on the roof. The court said his drinking could have affected his balance, but he did not sustain his injuries from falling down on the roof. His fall through the rotted roof onto the pavement caused his injuries.

Yost’s physician conceded that a sober person could have fallen through the roof if he stepped on a bad spot without realizing it.

Climb Up Grassy Hill Foils Benefit Claim

Neal v. State of Illinois/East Moline Correctional Facility,22 ILWCLB 45 (Ill. W.C. Comm. 2014)

Ruling: The Illinois Workers’ Compensation Commission denied benefits to a nurse for injuries sustained while climbing a grassy hill to get to her workplace.

What it means: In Illinois, when an employer does not control what pathway a worker takes to get to work, it will not be responsible for benefits when the worker voluntarily chooses a path that exposed her to a danger separate from her employment responsibilities.

Summary: A nurse at a correctional facility slipped and injured her back while walking up a damp grassy hill leading from the parking lot to the employer’s main building. The nurse testified that she could have walked on a grassy foot path or along the main road leading into the facility. The nurse explained that the grassy foot path “seemed easier and safer” than walking alongside the road. The parking at the top of the hill was designated for wardens, doctors, administration, and the general public. The parking at the bottom of the hill was for employees and the general public. The commission denied benefits to the nurse, finding that her injuries did not arise out of and in the course of her employment.

The commission found that the employer could control where the nurse parked, but it could not control what pathway she took to get to work. The nurse’s voluntary decision to take the grassy hill path exposed her to a danger entirely separate from her employment responsibilities.

The commission also pointed out that because the general public could also park at the bottom of the hill, the nurse was exposed to the same pathways as the general public to get to the employer’s main building. Therefore, the nurse’s injury did not arise from a risk to which she was exposed to a greater degree than the general public.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com
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You Be the Judge

Is a Subcontractor an Employee Entitled to Benefits?

A district court found that intent was the most important factor in determining whether a subcontractor qualified as an employee, but an appeals court disagreed.
By: | July 14, 2014 • 3 min read
You Be the Judge

A carpenter was working for Stark Construction when his saw kicked back and his left index and middle fingers were cut by the blade. He underwent surgery to repair tendon damage. At the hospital, he provided information that he was employed by another company and was self-insured. He said he was not covered by workers’ compensation insurance and was the person responsible for the billing.

The carpenter owned a subcontractor business and had reported pay he received from Stark as income for his business. Stark kept track of his hours and paid him an hourly wage. The carpenter sometimes brought his adult son to assist him on the job, and Stark provided the carpenter wages to pay his son. Another construction worker said that it was common for construction companies to pay subcontractors more than employees because they did not have to “pick up their insurance.”

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Stark told the carpenter what job to go to each day and set the work hours. The carpenter could not change the way the work was to be performed. Stark had the ability to fire or reprimand him. Stark controlled the contracts with customers. The carpenter brought his own basic tools, but Stark provided specialized tools and the supplies needed for the project.

The carpenter filed a claim for workers’ compensation benefits, claiming that he was Stark’s employee. A deputy workers’ compensation commissioner concluded that he failed to prove he was an employee. The commissioner reversed, awarding him permanent partial disability benefits, healing period benefits, and medical expenses. The District Court found the carpenter was not an employee, explaining that the “intent of the parties” was the most important factor in determining whether a worker qualified as an employee. The District Court also found no evidence showing that the parties intended to evade workers’ compensation law. The carpenter appealed.

Poll Question

Was the District Court correct in denying benefits to the carpenter?

View Results

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How the court ruled:

The court found that Stark had the right to control the carpenter’s work. The court found that the parties’ designation of their relationship as contractor and subcontractor was not controlling because it was “plainly and completely at odds with the undisputed facts.”

A is incorrect. The court said the construction worker’s testimony that companies paid more to subcontractors could raise an inference that work relationships were structured to “maximize the amount of take-home pay and not to reflect the true balance of responsibilities.” The court found that as a whole the evidence showed that Stark exercised control over the carpenter’s work.

B is incorrect.The court found that the District Court erred in viewing the intent of the parties as the controlling factor. The court said the most important consideration in determining whether a worker is an employee or independent contractor is the right to control.

C is correct.The Iowa Court of Appeals held that the carpenter was an employee of Stark and was eligible for benefits. Stark Construction v. Lauterwasser, No. 3-1114/13-0609 (Iowa Ct. App. 04/16/14).

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com
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View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | June 6, 2014 • 10 min read
Docket

Drug Treatment Compensable If Injury Made Addiction Worse

Kim v. Gen-X Clothing, Inc.,No. S-13-802 (Neb. 04/11/14)

Ruling: The Nebraska Supreme Court held that a manager was entitled to temporary total disability benefits and treatment for chemical dependency, an emergency room visit, and future medical expenses.

What it means: In Nebraska, a worker who engaged in recreational drug use before his work-related injury can be entitled to compensable inpatient drug treatment when his drug use increased after the work incident.

Summary: A manager of a Gen-X Clothing store suffered multiple gunshot wounds at work. The shooting was revenge for reporting a previous robbery at the store. The manager began seeing a licensed mental health counselor who diagnosed him with post-traumatic stress disorder and chemical dependency. Before the shooting, the manager drank alcohol and was a recreational drug user, but he said his use of alcohol and drugs increased after the shooting. Three months after the incident, the manager visited the emergency room after waking from a nightmare and suffering a panic attack. He was eventually admitted to inpatient drug and alcohol treatment. The manager sought workers’ compensation benefits. The Nebraska Supreme Court held that he was entitled to temporary total disability benefits and treatment for chemical dependency, an emergency room visit, and future medical expenses.

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Gen-X argued that the manager was a lifelong drug user and would have needed inpatient treatment regardless of the shooting. The manager’s counselor indicated that at the time he began treatment he did not meet the definition of chemical dependency. Although expert opinions differed regarding whether the inpatient treatment was related to the shooting and PTSD diagnosis, the court found the compensation court was the sole judge of the credibility of the witnesses and did not err in concluding that the treatment was compensable.

The court rejected Gen-X’s argument that the manager was not entitled to TTD benefits because he was ready to return to work. The manager’s counselor and psychiatrist opined that he was not ready to return to work.

The court found that the manager’s emergency room visit was caused by the shooting. Notes from the visit indicated that the manager went to the emergency room because he felt unsafe because of the shooting. Therefore, the emergency room visit was compensable.

Based on the counselor’s testimony that future medical treatment was reasonably necessary, the court found the manager was entitled to future medical expenses.

Employer Successfully Uses Facebook Video to Attack Credibility

Ferraccio v. Tek Cusine, Inc.,29 PAWCLR 31 (Pa. W.C.A.B. 2013)

Ruling: The Pennsylvania Workers’ Compensation Appeal Board affirmed the workers’ compensation judge’s decision denying a representative’s petition for benefits for a back injury.

What it means: In Pennsylvania, the WCJ can find that the contents of a Facebook video of an injured worker eroded the worker’s credibility where the WCJ specifically explains the contents of the video of the worker, compares the video to her courtroom observation of the worker, and finds the two presentations are contradictory.

Summary: The board affirmed the WCJ’s decision denying a customer service representative’s petition for benefits for a back injury. On appeal, the representative argued the WCJ should not have relied on a Facebook video depicting the representative holding her newborn granddaughter where there was no mention of the weight of the child. Finding no merit in this argument, the board noted that the WCJ specifically explained the contents of the Facebook video, comparing it to her observation of the claimant as she entered the courtroom. Based on that comparison, the WCJ noted that the two presentations were contradictory, and therefore, this eroded the representative’s credibility.

As it was within the WCJ’s discretion to place weight on the video depiction of the representative, the board refused to disturb her credibility determination.

Aide Proves Workplace Harassment Caused Compensable Adjustment Disorder

Rockland Psychiatric Center, 114 NYWCLR 11 (N.Y. W.C.B., Full Board 2014)

Ruling: The New York Workers’ Compensation Board held that an aide sustained a compensable psychological injury due to harassment by coworkers.

What it means: In New York, a claim for work-related stress cannot be sustained unless the worker shows that the stress she experienced was greater than that which other similarly situated workers experienced in the normal work environment.

Summary: The board held that a mental health therapist aide sustained a compensable psychological injury due to harassment by coworkers. The aide testified that she was subjected to a hostile work environment that was the result of continuous harassment from three coworkers over several years. She testified she was exposed to verbal abuse and threats of physical harm. A witness for the employer testified that the aide was exposed to hostile altercations with a coworker on a daily basis that were always initiated by the coworker. The aide also testified that she was told by supervisors to ignore her coworkers’ behavior.

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Also, the carrier’s medical consultant testified that if the workers’ compensation law judge determined that the aide was bullied by a group of coworkers and if efforts to obtain assistance from her supervisors did not produce results, then the aide’s adjustment disorder would be causally related.

Based on this evidence, the board found sufficient support for a finding that the stress experienced by the aide was greater than that which other similarly situated workers experience in the normal work environment and that the aide had a causally related adjustment disorder.

Adjustor Becomes Claimant, Fails to Prove Permanent Injury

Kwietkauski v. Industrial Commission of Arizona,No. 1 CA-IC 13-0060 (Ariz. Ct. App. 04/03/14, unpublished)

Ruling: In an unpublished decision, the Arizona Court of Appeals held that an adjustor who was injured at work did not suffer a permanent impairment and she was not entitled to additional penalties.

What it means: In Arizona, an employer’s failure to provide notice to a worker that the workers’ compensation adjustor assigned to her case was changed is not bad faith.

Summary: A workers’ compensation claims adjustor for Sentry Insurance slipped and fell in the parking lot on her way to work, resulting in pain in her back, hip, wrist, and hand. The next day, she fell from an office chair. Sentry accepted her workers’ compensation claim. An independent medical examiner found her condition was “stationary without impairment.” The adjustor asserted that she had a permanent impairment and that she was entitled to penalties for Sentry’s bad faith. The Arizona Court of Appeals held that she did not suffer a permanent impairment and that she was not entitled to additional penalties.

The administrative law judge awarded the adjustor a number of penalty benefits for Sentry’s bad faith and unfair claims processing. The adjustor argued that she should have been awarded penalties for additional claims of bad faith and unfair claims processing. She alleged that Sentry did not tell her when the adjustor assigned to her case changed, and a letter advising her of an IME indicated that it was mailed when it was handed to her a few days later. The court found that the adjustor failed to provide legal analysis as to why the actions were bad faith. She did not point to any requirement that Sentry provide notice of a change of adjustor.

The court found the record supported a finding that the adjustor’s condition was medically stationary and she did not sustain a permanent impairment. Two physicians found her to be permanent and stationary without impairment. The adjustor asserted that she continued to need medical attention, but the court found she did not show her condition was not stationary. She also failed to present evidence regarding her wrist and claimed psychological issues.

Permanent Incapacity Stems Solely From Preexisting Condition

Madison Academy, Inc. v. Hanvey,No. 2120753 (Ala. Civ. App. 04/04/14)

Ruling: The Alabama Court of Civil Appeals held that a janitor was not entitled to permanent total disability benefits.

What it means: In Alabama, to prove that employment factors permanently aggravated a worker’s underlying disease, a worker can rely on circumstantial evidence showing that since the accidental exertion or exposure, the worker experienced new or increased symptoms that have persisted.

Summary: A janitor for a school was exposed to chemicals and developed a strong headache, rawness in her throat, and difficulty talking and breathing. Eventually, she was diagnosed with myasthenia gravis, an idiopathic disease of the immune system that results in dysfunction of muscular contraction. Medical experts opined that she developed the condition before her workplace chemical exposure. A treating physician informed the janitor that it was “very possible” that the work exposure could have aggravated the condition. The janitor sought permanent total disability benefits. The Alabama Court of Civil Appeals held that she was not entitled to PTD benefits.

The school did not contest that the janitor’s myasthenia gravis was aggravated by her physical exertion and chemical exposure at work. It admitted that she was entitled to temporary total disability benefits for the period during her recovery. However, the school argued that the aggravation of her disease was only temporary. The court found no evidence indicating that the aggravation persisted. Physicians testified that the physical exertion and chemical exposure worsened the myasthenia gravis temporarily and that the janitor recovered completely. There was also no evidence that the aggravation resulted in residual chronic restrictions or sensitivity making the janitor more susceptible to further injury.

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The court also found no evidence indicating that the work-related exposure rendered the janitor unable to return to work or perform her accustomed trade. The school did not dispute that the janitor was unable to work, but the court found it correctly observed that her permanent incapacity stemmed solely from her myasthenia gravis. The court pointed out that it could not award compensation for a disability arising solely from a preexisting condition and its natural progression merely because the worker at one time was able to work normally despite the condition.

A dissenting judge opined that the janitor was entitled to PTD benefits. The judge asserted that a preexisting condition that did not affect a worker’s work performance before the disabling injury is not considered a preexisting condition.

Manual Labor Exception Doesn’t Apply to Truck Drivers

Chaisson v. Louisiana Rock Monsters, LLC,No. 2013-CA-1423 (La. Ct. App. 04/02/14)

Ruling: The Louisiana Court of Appeal held that a driver was not entitled to benefits because he was an independent contractor.

What it means: In Louisiana, truck drivers do not fit under the manual labor exception for independent contractors.

Summary: A truck driver was hired by Louisiana Rock Monsters, a concrete crushing business, to pick up and haul debris from construction sites to dump sites. The driver was injured in a motor vehicle accident while he was driving a truck owned by Louisiana Rock Monsters. He sought workers’ compensation benefits. Louisiana Rock Monsters denied the claim, asserting that he was an independent contractor. The Louisiana Court of Appeal held that he was not entitled to benefits.

The court explained that the “essence of the employer-employee relationship is the right to control.” The driver was hired each day to perform the specific project for an agreed-upon price. Louisiana Rock Monsters exercised no control over how or when the driver performed the work, and it did not direct or supervise his work. The driver used a truck and supplies that belonged to Louisiana Rock Monsters, and Louisiana Rock Monsters maintained the trucks. Although no contract existed between the driver and Louisiana Rock Monsters, he was paid using an independent contractor form and no taxes were withheld from his pay. Based on the totality of the circumstances, the court found that the driver was an independent contractor.

The driver argued that the manual labor exception applied to make him covered by workers’ compensation. According to the statute, truck drivers do not fit under the manual labor exception. The court concluded that the manual labor exception did not apply to the driver.

Employer Not Liable for Post-Pension Medical Treatment Costs

Boeing Co. v. Doss,No. 69759-5-I (Wash. Ct. App. 03/31/14)

Ruling: The Washington Court of Appeals held that the Department of Labor and Industries was liable for the costs of a disabled worker’s ongoing post-pension medical treatment rather than the self-insured employer.

What it means: In Washington, the Department of Labor and Industries is liable for the costs of a disabled worker’s ongoing post-pension medical treatment rather than the self-insured employer.

Summary: A worker for Boeing alleged that chemical exposure permanently aggravated her preexisting asthma. The Department of Labor and Industries determined that she was permanently and totally disabled as a result of the combined effects of her industrial exposure and her preexisting condition. The department awarded her a pension and authorized ongoing post-pension medical treatment for her asthma. The department asserted that these post-pension treatment benefits were the responsibility of Boeing and not the second injury fund. The Washington Court of Appeals held that the department was liable for the worker’s ongoing post-pension medical treatment.

When second injury fund relief has been granted, employers are only responsible for the accident costs that resulted solely from the worker’s industrial injury or disease. The court said that the second injury fund prevents placing unfair financial burdens on employers. The department did not assert that the worker’s need for post-pension medical care resulted solely from her chemical exposure at Boeing. Therefore, Boeing could not be required to pay for the care.

The court explained that requiring Boeing to pay for the worker’s post-pension medical care would conflict with the second injury fund’s purpose to contain the future workers’ compensation costs for employers who hire workers with preexisting disabling conditions to make the costs comparable to those for workers without preexisting disabling conditions. The court said that “a contrary result would provide an economic disincentive to hiring previously disabled workers.”

Boeing also asserted that requiring it to pay the worker’s post-pension medical treatment costs would constitute a double assessment and a windfall to the department. The court agreed with Boeing that it pays assessments for the second injury fund based in part on treatment costs. The court pointed out that the department’s proposed result would impose a greater financial burden on self-insured employers.

Personal Errand After Doctor’s Appointment Cuts Off Comp

Holiday Inn, 114 NYWCLR 14 (N.Y. W.C.B., Full Board 2014)

Ruling: The New York Workers’ Compensation Board held that injuries sustained by a waitress in a motor vehicle accident, which occurred after she left her doctor’s office where she received treatment for a compensable injury, were not compensable.

What it means: In New York, a worker’s injuries after driving to an appointment with her treating physician to receive treatment for her compensable injury are not compensable when the worker was pursuing a personal errand.

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Summary: The board held that injuries sustained by a waitress in a motor vehicle accident, which occurred after she left her doctor’s office where she received treatment for a compensable injury, were not compensable. Evidence indicated that after her doctor’s appointment, the waitress drove in the opposite direction of her home to buy a salad. At the time of the accident, she was engaged in travel for purposes of completing a purely personal errand. Because the waitress’s travel at the time of the accident was not related to the fact that she had attended a doctor’s appointment for the purpose of receiving treatment for her compensable injury, the connection between her compensable injuries and her new injuries was significantly weakened.

The board said it was clear that at the time of the waitress’s motor vehicle accident, the work-related aspects of her travel had ended and the causal connection between the her work-related injuries and the injuries that she sustained as a result of her off-duty accident was sufficiently severed by her pursuit of a personal errand.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com
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