Workers’ Comp Docket
Operator Wins Benefits for Guillain-Barre Syndrome From Flu Shot
Phillips v. Wyman Gordon Pennsylvania, 31 PAWCLR 128 (Pa. W.C.A.B. 2016)
Ruling: The Pennsylvania Workers’ Compensation Appeals Board affirmed the workers’ compensation judge’s decision awarding benefits to a worker, who alleged that he contracted Guillain-Barre syndrome after receiving a flu shot at work.
What it means: In Pennsylvania, a worker’s act of receiving a flu shot at work arises in the course and scope of his employment even though the shot is voluntary and he receives no benefit or penalty from the employer for receiving or refusing the shot.
Summary: The board affirmed the WCJ’s decision awarding benefits to a machine operator who alleged he contracted Guillain-Barre syndrome after receiving a flu shot at work.
The treating doctor testified that the operator’s condition was caused by the flu shot he got at work because there were no other potential causes identified and that GBS is one of the risk factors of a flu shot. This testimony constituted sufficient support for a finding that the operator’s GBS was caused by his flu shot.
Furthermore, the board found no error in the WCJ’s finding that the operator was in the course and scope of his employment when he was vaccinated at work. By opting to receive the flu shot that the employer made available, the operator was acting in furtherance of the employer’s business and affairs.
Despite the employer’s assertion that the operator’s decision to receive the flu shot was voluntary and that no employee received either a benefit or penalty for either receiving the shot or refusing it, it was clearly in the employer’s best interest to have its employees vaccinated.
By offering flu shots to its employees, the employer was attempting to ensure that there would be a sufficient number of healthy employees able to work and maintain production during flu season. Accordingly, the operator was within the course and scope of his employment when he was vaccinated at work.
Bystander Emotional Injury Claim Barred by Exclusive Remedy Provision
Velecela v. All Habitat Services, LLC, No. SC 19589 (Conn. 08/09/16)
Ruling: The Connecticut Supreme Court held that a suit brought by the wife of a deceased worker for bystander emotional distress was barred by the exclusive remedy provision of the workers’ compensation law.
What it means: In Connecticut, a suit against an employer for bystander emotional distress is barred by the exclusive remedy provision.
Summary: A worker for All Habitat Services was repairing an all-terrain vehicle that was elevated on a lift. During the repair, the vehicle slipped off the lift, crushing and killing him. The worker’s wife arrived to bring him lunch, and she discovered his body under the vehicle.
The wife received workers’ compensation survivor benefits. The wife also sued All Habitat, claiming bystander emotional distress. The Connecticut Supreme Court held that the wife’s suit was barred by the exclusive remedy provision of the workers’ compensation law.
The court explained that the language of the exclusive remedy provision is broad, abolishing “all rights and claims” that fall under the workers’ compensation law, including any rights and claims of workers’ dependents.
The court also noted that emotional distress, by itself, is not a bodily injury, so it can be compensable only if it flows from the bodily injury of another person. Bystander emotional distress results from and arises out of the underlying personal injury or death. When that personal injury or death is compensable under workers’ compensation, an action for bystander emotional distress is barred by the exclusive remedy provision.
Here, it was undisputed that the worker’s injuries and death arose out of and in the course of his employment and were compensable under workers’ compensation, and the wife’s alleged emotional injuries derived from and were caused by those injuries and death. Therefore, the wife’s claim was barred.
A concurring judge pointed out that a claim for a bystander emotional injury would be compensable if the underlying injury fell within an exception to the exclusivity provision.
Worker’s ‘Income Producing’ Activities Support Finding of Overpayment
State ex rel. Perez v. Industrial Commission of Ohio, No. 2015-0532 (Ohio 07/26/16)
Ruling: The Ohio Supreme Court held that a worker received an overpayment of temporary total disability benefits and that he fraudulently misrepresented that he was not working.
What it means: In Ohio, a finding that a worker committed fraud is proper when he misrepresented to the Industrial Commission that he was not working and was not forthcoming with his physicians about his activities.
Summary: A construction worker sustained a work-related injury and was awarded temporary total disability compensation. The worker had also owned and operated an auto repair business. The Bureau of Workers’ Compensation received information that the worker was operating his business while receiving TTD benefits.
During an investigation, the worker was observed performing auto work and meeting customers. Witnesses stated that the worker handled scheduling, diagnosed car problems, received payments, and picked up parts from an auto parts store. The Ohio Supreme Court held that the worker received an overpayment of TTD benefits and that he fraudulently misrepresented that he was not working.
The court rejected the worker’s argument that his business activities were unpaid and minimal and did not directly produce income for the business. The court concluded he was engaged in “more than minimal activities that were income-producing” for the business. Also, the court noted that during the relevant time period, he purchased more than $43,000 in auto parts, an amount that indicated that they were not merely for personal use.
The court also found that the evidence supported a finding of fraud. The worker misrepresented to the Industrial Commission on multiple occasions that he was not working. Also, he was not forthcoming to physicians about his activities with his business.
Psychological Condition Was Reasonably Contemplated at Time of Settlement
Ryan v. Potlach Corp., No. A15-1404 (Minn. 07/13/16)
Ruling: The Minnesota Supreme Court held that a worker had to bring a motion to set aside her settlement agreement with her employer before she could proceed with a claim for a psychological condition.
What it means: In Minnesota, a workers’ compensation settlement agreement can close out the work-related injury that is the subject of the agreement and also conditions and complications that arise from the injury and are within the reasonable contemplation of the parties at the time of the settlement agreement.
Summary: A worker injured her back while working for Potlach Corp. She and Potlach entered into a settlement agreement that provided for a full, final, and complete settlement of her workers’ compensation claims, excluding future reasonable and necessary medical treatment, in return for a lump-sum payment.
Later, the worker filed a claim for a consequential psychological injury. The Minnesota Supreme Court held that she had to bring a motion to set aside the settlement agreement before she could proceed with her claim for a psychological condition.
The court found that a workers’ compensation settlement agreement can close out the injury that is the subject of the agreement and also conditions and complications arising out of the injury. It is not necessary that the condition or complication be specifically referenced in the settlement agreement. The agreement must resolve any conditions or complications that arise out of the injury that were reasonable within the contemplation of the parties at the time of the agreement.
Here, the court rejected the worker’s argument that her depression was a new condition not within the contemplation of the parties at the time of the agreement. The court explained that her depression was a psychological condition that arose out of and was a consequence of her workers’ compensation injury, and therefore, it fell within the scope of the agreement. The court also pointed out that depression can arise from the pain and loss of function associated with a chronic back condition.
Dispute Over Timing of Termination Revives Mine Worker’s Retaliation Claim
Foster v. Mountain Coal Co., LLC, et al., No. 15-1025 (10th Cir. 07/26/16)
Ruling: The 10th U.S. Circuit Court of Appeals reversed and remanded a District Court decision granting summary judgment to an employer on a worker’s Americans with Disabilities Act claim. The 10th Circuit held that triable issues existed regarding the worker’s retaliation claim.
What it means: A worker who alleged he was terminated within hours of requesting an accommodation sufficiently showed causation for an ADA retaliation claim.
Summary: A worker for Mountain Coal Co. injured his neck at work and went to the emergency room. The ER doctor completed a return-to-work slip, but the company refused to accept it because it was not on the company’s form. The worker had his primary doctor complete the form, and he said he dropped it off at human resources. HR said they never received it, and the company accused him of lying. He later dropped off another form signed by his primary doctor.
At a meeting one week later, the worker was suspended. He claimed that he was suspended because he had his primary doctor complete the form even though he had not treated the worker’s neck injury. He told his supervisors that he was going to schedule surgery for his neck.
A week later, he received a letter terminating him effective a few days earlier, allegedly for lying about having dropped off the first note. The letter was written the same day he told another supervisor over the phone that he was going to have surgery. The parties disputed whether the decision to terminate him was made before or after the phone call.
The worker sued, claiming that his statements, once at the meeting and once over the phone, that he was going to have surgery were requests for accommodation and that he was terminated in retaliation for making them. The 10th Circuit held that there were triable issues regarding his claim.
The company argued that the worker’s alleged requests for accommodation were not specific enough to constitute protected activity. The court disagreed, concluding that a reasonable jury could interpret his statements that he was going to need surgery as adequate requests for accommodation.
The company contended that even assuming the requests were adequate the worker could not show causation. The court explained that where the protected activity “is closely followed by an adverse employment action” a worker can rely solely on temporal proximity to show causation.
Here, the court concluded that “because the purported protected activity occurred mere days or even hours before the adverse employment action” the worker sufficiently showed causation.
Furthermore, the parties disputed the reasons for the suspension and termination. The court concluded that if a jury credited the worker’s account — that he was suspended for one reason and terminated for another — then it could find that these inconsistent reasons were sufficient to show pretext.
Worker’s Volunteer Work Falls Outside Scope of Employment
Gray v. Bank of America, 24 ILWCLB 102 (Ill. W.C. Comm. 2016)
Ruling: The Illinois Workers’ Compensation Commission held that a worker’s accidental injury while performing volunteer work at a community event did not occur in the course of her employment even though she cochaired the employer’s community volunteer team.
What it means: In Illinois, where a worker is not paid extra for her work as cochair on her employer’s community volunteer team, her performance reviews are not tied to her volunteer participation, and her volunteer work is not ordered or assigned by the employer, the worker’s injury while participating in a volunteer event does not occur in the course of her employment.
Summary: A project manager for Bank of America was also the cochair of the bank’s community volunteer team. As such, she was responsible for establishing relationships between the bank and the community, including nonprofits as well as different lines of businesses within the bank.
She was reimbursed as part of her salary for the services she performed as cochair of the community volunteer team, but her salary stayed the same regardless of whether she volunteered. The manager was at an event organized by the Girl Scouts of America that bank volunteers were encouraged to attend. While at the event, the manager fell and broke her leg.
The arbitrator found the evidence was insufficient to show that the manager’s injury occurred from an activity that was compulsory or occurred in the course of her employment. The arbitrator noted that the manager was not ordered or assigned to participate in any volunteer program or activity by the bank. Rather, her participation at the event was purely under her own volition and not mandated by the bank.
The arbitrator agreed that the bank encouraged its employees to volunteer in the community, and the bank derived a benefit from employee attendance at community events. However, the manager was not paid extra for her participation, and her performance reviews were not tied to her volunteer participation.
Also, the Girl Scouts event was not sponsored by the bank. The fact that the bank’s corporate presence in the community may have resulted in some benefit incidental to its actual business of banking was too tenuous and intangible to be persuasive in this case. Also, bank employees could choose not to participate in the volunteer networks without negative effect at work. The commission affirmed and adopted the decision of the arbitrator.
The Division of Workers’ Compensation issued a second 30-day notice of modification to the proposed hospital outpatient departments and ambulatory surgical centers fee schedule regulation text.
The proposed modifications include clarification that for services rendered on or after Sept. 1, 2014, but before the effective date of this amendment, “Other Services” means Hospital Outpatient Department Services payable under the Medicare Hospital Outpatient Prospective Payment System that are not surgical, emergency department visits, or “Facility Only Services,” or services that are an integral part thereof. For services rendered after the effective date of this amendment, the definition of “Other Services” will not exclude “Facility Only Services.”
The modifications discontinue the current payment model which determines maximum allowance for “Other Services” on the Resource Based Relative Value Scale physician fee schedule relative values. The modifications also institute a payment model where the maximum allowances for all hospital outpatient department services that are payable under the Medicare HOPPS, including “Other Services,” are determined based on the Medicare HOPPS.
The modifications expand the definition of surgical procedure HCPCS codes to conform to Medicare’s HOPPS definition of surgical procedures for services rendered on or after the effective date of this amendment. Also, the changes adjust the fee schedule regulations to conform to relevant changes in the Medicare HOPPS for calendar years 2015 and 2016.
Home Health Care
The Division of Workers’ Compensation posted amended draft regulations regarding the implementation of a fee schedule for home health care services. Upon review of the comments received, the division amended its regulations to provide better organization and clarity. In addition, the division has adopted rates drawn from the federal Office of Workers’ Compensation Programs fee schedule for home health care services, which provides rates of provider compensation that are higher than in the previous draft.
A state bill grants the division the authority to base the home health care services fee schedule on sources other than the federal Medicare and state In-home Supportive Services programs.
The proposed regulations set forth a payment methodology and fees for skilled care by licensed medical professionals and unskilled personal and chore services for injured workers in the home setting that will provide incentives for an adequate number of potential care providers to participate in home health care for injured workers while containing costs to the overall workers’ compensation system.
The Department of Financial Services, Division of Workers’ Compensation issued a bulletin advising insurers, self-insurers, and other related stakeholders of an order setting the assessment rate for the workers’ compensation administration trust fund for the 2017 calendar year. Beginning Jan. 1, 2017, the assessment rate for the workers’ compensation administration trust fund is reduced from 1.43 percent to 1.25 percent. Those with questions should call Gene Smith, assessments coordinator for the division, at (850) 413-1644.
Reimbursement for Burials, Funerals, and Memorial Services
The Workers’ Compensation Board amended a rule to provide for the reimbursement for memorial services under the workers’ compensation law and to increase the amount of reimbursable expenses for burials, funerals, and memorial services. Reimbursable expenses must not exceed $12,500 in the counties of Bronx, Kings, Nassau, New York, Queens, Richmond, Rockland, Suffolk, and Westchester, and $10,500 in the remaining counties. This applies to deaths occurring on or after June 8, 2016.
Opioid Prescribing Rules
The Bureau of Workers’ Compensation proposed new opioid prescribing rules. The rules establish provisions and criteria for the treatment of opioid dependence that arose secondary to treatment with opioid medications covered by the bureau and provide and strengthen bureau peer-review processes for opioid prescribing that can be implemented to address serious noncompliance with these best practices.
Under the proposed rules, bureau reimbursement for opioid prescriptions used to treat a work-related injury or occupational disease is limited to claims in which current best medical practices are followed. The bureau will not reimburse for any further prescriptions for opioids, and prescribers should discontinue prescribing opioids, if the applicable criteria of the rules are not met. The rules would go into effect on Oct. 1 for claims with a date of injury on or after Sept. 1 and for all claims on or after Jan. 1, 2017.
The Workers’ Compensation Division issued a bulletin revising the cost-of-living matrix and vocational assistance fee schedule. The changes went into effect on July 1.
Mediation And Hearing Procedures
The Bureau of Workers’ Compensation proposed amendments to rules regarding mediation and hearing procedures. Visit the bureau’s website for more information.
Workers’ Comp Docket
Bartender Serves Up Compensable Claim for Injury Due to Hugging Incident
LaFave v. Blue Lounge, 30 MIWCLR 39 (Mich. W.C.B.M. 2016)
Ruling: The Michigan workers’ compensation magistrate awarded benefits to a bartender, who injured her back while hugging an overly enthusiastic bar patron.
What it means: In Michigan, a worker’s injuries are compensable when the accident occurred while she was acting within the scope of her duties.
Summary: The magistrate awarded benefits to a bartender, who injured her back while hugging an overly enthusiastic bar patron. A video showed the two hugging and each woman lifting the other off the ground.
Finding the incident did not fall within the social and recreational exclusion, the magistrate explained that the bartender was performing her duties when the incident occurred. She was approached by a patron, whom she happened to know, and was hugged. As part of the hug each woman lifted the other off the ground. A bartender is expected to be pleasant and polite to the customers.
Also, immediately before the patron greeted and hugged the bartender and immediately after the incident she was engaged in her regular bartending duties. Being polite to an overly enthusiastic patron would arguably fall within the bartender’s duties.
The magistrate accepted the bartender’s uncontroverted medical evidence of disability and awarded benefits for a closed period. The magistrate denied benefits for her concurrent employment since she continued working there throughout the closed period. The magistrate also found that the bartender was entitled to reasonable and necessary medical expenses related to her treatment for her post-traumatic myofascial pain and low back strain.
Worker Wins Benefits for Accident During Personal Errand
Colquitt v. Starr Aviation, 31 PAWCLR 93 (Pa. W.C.A.B. 2016)
Ruling: The Pennsylvania Workers’ Compensation Appeal Board affirmed the workers’ compensation judge’s finding that an agent’s injury arose out of and in the course of her employment.
What it means: In Pennsylvania, a worker’s temporary departure from performing her work to administer to her personal needs does not take her out of the course and scope of her employment.
Summary: The board affirmed the workers’ compensation judge’s finding that an airport ramp agent, who injured her left leg when the tug she was driving flipped over, was entitled to benefits. Her injuries arose out of and in the course of her employment.
The agent was given permission between flight arrivals to drive the tug to the other side of the terminal to meet her mother, who was bringing her money and feminine hygiene products. The board explained that because the agent was simply going to meet her mother, her injury occurred during a temporary departure from work during regular business hours, and therefore, her work injury fell under the personal comfort doctrine.
The board said that the employer’s arguments would have it consider whether the trip to meet her mother was necessary. The board explained that workers’ compensation is “no-fault” and there was no such precedent, so it rejected the argument.
The board also found that the employer’s argument of whether the agent was on the employer’s premises when she was injured was moot. There was no requirement that the agent be on the employer’s premises at the time of her injury because she was engaged in the furtherance of the employer’s affairs.
Employee Can’t Be Disqualified From Benefits Due to Violent Thoughts
Cory Fairbanks Mazda/The PMA Insurance Group v. Minor, No. 1D15-1600 (Fla. Dist. Ct. App. 05/25/16)
Ruling: The Florida District Court of Appeal held that a worker was entitled to temporary partial disability benefits.
What it means: In Florida, malevolent thoughts alone, without evidence establishing an intent to harm, do not establish misconduct.
Summary: An office worker for Cory Fairbanks Mazda sustained compensable workplace injuries to her head, neck, low back, and left knee as a result of two incidents of being struck by a door opened by a coworker. The worker thought that the coworker intentionally injured her. The worker received medical care for her injuries and returned to work with accommodations.
Later, the worker’s attorney informed the judge of compensation claims and the employer that the worker “expressed suicidal and homicidal ideation,” but not to the degree of imminent threat. The employer terminated the worker based on the attorney’s representation.
The employer and its insurer argued that the worker was ineligible for temporary partial disability benefits because she was terminated for misconduct. The Florida District Court of Appeal held that the worker was entitled to temporary partial disability benefits from the date of her termination.
After an examination, a psychiatrist described the worker’s expressions of anger as “blowing off steam” rather than declaring an intent to inflict physical harm. The worker said that she told her attorney that she wanted to punch the coworker.
The employer’s allegation of misconduct was based solely on the attorney’s statement that the worker shared that she had suicidal and homicidal thoughts arising from her injuries. The employer argued that the worker intended to harm or kill the coworker.
The court rejected the employer’s argument, stating that malevolent thoughts alone, without the requisite evidence establishing an intent to harm, do not meet the definition of misconduct.
Driver Allowed to Pursue Texas, Oklahoma Benefits Simultaneously
Maxwell v. Faith Transport, LLC, No. 113832 (Okla. Civ. App. 05/25/16)
Ruling: The Oklahoma Court of Civil Appeals held that it had jurisdiction over a claim brought by a driver.
What it means: Oklahoma may hold concurrent jurisdiction over a claim with another state.
Summary: A truck driver, who lived in Oklahoma, worked for Faith Transport, a Texas entity. He was severely injured in an accident while driving on duty in Texas. Faith’s workers’ compensation carrier, Texas Mutual Insurance Co., initiated payments of workers’ compensation benefits to the driver pursuant to Texas law.
Later, Texas Mutual Insurance Co. sent the driver a letter notifying him of the suspension of his benefits. The driver filed a workers’ compensation claim in Oklahoma. Faith rejected the claim, asserting that Oklahoma did not have jurisdiction over the claim. The Oklahoma Court of Civil Appeals held that it had concurrent jurisdiction with Texas.
The court explained that an Oklahoma worker injured while on the job in another state can pursue benefits from both jurisdictions simultaneously. The court rejected Faith’s argument that the driver’s acceptance of the Texas Mutual Insurance Co. checks amounted to an election of Texas law.
The court found that by filing a claim in Oklahoma the driver elected to initiate an Oklahoma claim. He performed no similar act in Texas. The payments the driver received pursuant to Texas law were voluntarily initiated by Texas Mutual Insurance Co.
The receipt of those benefits was not an election to proceed in Texas. The court explained that the right of election for a claim of benefits belongs to the worker, not an out-of-state insurance carrier.
The court explained that logic and statutory construction led to a conclusion that if the election to file a claim in Oklahoma did not prevent Texas benefits, then the receipt of Texas benefits does not prevent the election of a claim in Oklahoma. The court concluded that the driver was not precluded from electing to file a claim in Oklahoma, assuming that no final decision was reached in Texas.
The court found that the suspension of the driver’s Texas benefits was not the equivalent of a “final determination” because the suspension was subject to review or appeal.
Witnessing Aftermath of Car Accidents Created Compensable Mental Injury
Mantia v. Missouri Department of Transportation, No. ED103016 (Mo. Ct. App. 06/14/16)
Ruling: The Missouri Court of Appeals held that a worker’s mental injury was compensable and that she was entitled to benefits for a 50 percent permanent partial disability of the whole body and future medical benefits.
What it means: In Missouri, under the 2005 amendments to the law, evidence of the work stress encountered by similarly situated workers is not required to establish a claim for a mental injury. A worker must show that she suffered a mental injury resulting from stress that was work-related and “extraordinary and unusual” as measured by objective standards and actual events.
Summary: A worker for the state Department of Transportation provided traffic control and assistance at motor vehicle accident scenes. Over her 20-year career, she witnessed the aftermath of a multitude of serious accidents that involved catastrophic injury, dismemberment, and death. She began to suffer significant emotional and psychological symptoms.
The worker filed a claim for workers’ compensation benefits. The Missouri Court of Appeals held that she was entitled to benefits.
The court found that under the 2005 amendments to the law, evidence of the work stress encountered by similarly situated workers was not required to establish a claim for a mental injury. The worker had to show that she suffered a mental injury resulting from stress that was work-related and “extraordinary and unusual” as measured by objective standards and actual events.
The court found that the worker met this burden. Both parties’ medical experts agreed that the worker’s work-
related stress was the cause of her disability. The court found that witnessing the aftermath of serious accidents placed stresses on the worker more extreme than most workers would ever experience. The court found that the experiences were “extraordinary and unusual” and also “unmistakably exceptional and remarkable.”
The court found sufficient evidence supporting an award for 50 percent permanent partial disability of the whole body. The court also ordered the department to pay for the worker’s future medical care to treat her mental injuries. The court noted that continued antidepressant medication would likely require ongoing medical management by the prescribing physician.
Medical Evidence Shows Preexisting Conditions Caused Manager’s Disability
Buchinsky v. The Arc of Anchorage, No. S-15547, No. 1585 (Alaska 05/25/16)
Ruling: The Alaska Supreme Court held that a manager was not entitled to benefits because the work-related injuries were not the cause of her disability or need for treatment.
What it means: In Alaska, medical evidence that a worker’s preexisting conditions, rather than her work-related injuries, were the cause of her need for treatment will support the denial of a claim.
Summary: A case manager for The Arc of Anchorage sustained injuries when a filing cabinet fell on her twice in one week. The manager sought benefits. The Arc disputed the claim after its doctor said that the work-related injury was not the substantial cause of the manager’s later need for medical treatment.
The Alaska Supreme Court held that the manager was not entitled to benefits because she did not show that the work-related injuries were the cause of her disability or need for treatment.
The court found that substantial evidence supported a conclusion that the manager’s preexisting orthopedic problems, rather than her work-related injury, were the substantial cause of her disability and need for medical treatment of her knees, back, and neck.
One doctor compared MRIs of the manager’s neck both before and after the work injury and determined that the MRIs were almost identical. Imaging studies of her knees showed considerable arthritis before the work injury. A doctor told the manager after the work injury that she did not need knee surgery because her knee problems were due to her arthritis.
Also, a month before the work injury, the manager and a neurosurgeon discussed neck surgery to resolve her complaints related to pain and numbness.
The court pointed out that continuing pain after a work-related injury does not mean that the work-related incident caused the pain.
The court also noted that in this case the medical records did not show an immediate increase in pain in the period after the injury. The manager’s chiropractor released her to return to work without restrictions less than a week after the second incident. Her pain complaints increased a month later.