Was Fall Outside Building Within Course of Employment?
A lab technician assistant for Bardahl Manufacturing completed her work for the day and left the building through an “employees only” door. After walking about 15 steps, she slipped and fell on a patch of black ice.
The assistant fell near a drain in a paved area just outside Bardahl’s facility. Employees had set out an ashtray in the paved area to use as a smoking area. Bardahl generally did not use this area to conduct business, but it was occasionally used for storage, and employees frequently dumped buckets of water used in the business in the drain. Employees customarily parked in the paved area in front of the doors. The assistant believed one car was parked in the area where she fell.
After she fell, the assistant experienced significant pain and sought medical treatment. She sought workers’ compensation benefits.
The Department of Labor and Industries determined that her injuries were not covered under workers’ compensation because they occurred in a parking area and had not occurred in the course of employment. An industrial appeals judge and the Board of Industrial Insurance Appeals affirmed the department’s decision. The trial court also affirmed. The assistant appealed.
How the Court Ruled
The court explained that injuries occurring in parking areas while going to or from work are not covered under workers’ compensation. Evidence showed that the area in which the assistant fell had been used as a parking area for more than 50 years. At the time the assistant fell, at least one car was parked in the area between the employee-only entrance and the drain.
B is incorrect. The court explained that the parking area exception does not apply if the area was part of the worker’s job site. It is not enough that the parking area is a job site to some workers. The area must be a job site to the worker claiming benefits. Here, no evidence showed that the area was a job site to the assistant. At the time of her fall, she was not performing work duties but was on her way home.
C is incorrect. The court rejected the assistant’s argument that she was injured on a hazardous route. The hazardous route rule extends coverage to areas not owned or controlled by the employer under certain circumstances. Here, the rule did not apply because it was undisputed that the area of the assistant’s accident was owned by Bardahl. Even if the rule applied, the assistant’s injury was not compensable because it occurred in a parking area while she was on her way home from work.
A is correct. In an unpublished decision, the Washington Court of Appeals found that the assistant’s injury did not occur in the course of employment. Dillon v. Department of Labor and Industries, No. 70923-2-I (Wash. Ct. App. 12/08/14, unpublished).
Editor’s note: This feature is not intended as instructional material or to replace legal advice.
Chronic pain medical treatment guidelines
The Division of Workers’ Compensation proposed amendments to the chronic pain medical treatment guidelines. The proposed guidelines provide a set of best practices for considering a multidisciplinary approach to the management of chronic pain issuing from work-related injuries. The guidelines consist of an introduction and specific recommendations on interventions and treatments for chronic pain in addition to extensive bibliography and reference summaries. Specific guidance on opioid use is not contained in the chronic pain medical treatment guidelines but is provided in a separate medical treatment utilization schedule chapter.
The Division of Workers’ Compensation proposed amendments to rules regarding penalties. A penalty calculation worksheet was revised to provide the premium credit for the initial payment of premium made to secure coverage against an assessed penalty and to adjust the penalty look back period and the penalty multiplier to conform to statutory changes. The amendment changed the time frame to impute the employer’s payroll in the absence of business records from 20 to 28 days after receipt of the department’s request to produce records and changed the factor to calculate employee payroll from 1.5 to two times the state average weekly wage. Also, the time frame for the employer to provide additional records was revised to 20 business days after the service of the first amended order of penalty assessment.
Medical fee schedule
The Workers’ Compensation Court proposed amendments to the schedules of fees for medical, surgical, and hospital services. Effective Jan. 1, 2016, the schedule must include the Medicare resource-based relative value scale applicable to Nebraska. The schedule must include the current procedural terminology codes and the relative value units for each CPT code. The schedule will be adjusted annually to incorporate the CPT codes and relative value units in the then current Centers for Medicare and Medicaid Services tables. The rules also set the conversion factors and service categories of the schedule for the 2016 calendar year. Services subject to the medical fee schedule must be reimbursed at the lower of the fee schedule amount or the provider’s billed charge. The fee schedule does not apply to costs and expenses incurred by or on behalf of any party for the purpose of proving or disproving a contested claim except that X-rays, laboratory services, and other diagnostic tests provided in connection with a medical-legal evaluation are subject to the schedule.
The Bureau of Workers’ Compensation proposed amendments to rules regarding specific safety requirements for workshops and factories. The rules state that hoisting and haulage equipment must not be loaded in excess of the recommended safe working load as prescribed by the manufacturer in identification markings. When, upon examination, evidence reveals a pole to be unsafe for climbing, workers are not required to climb such pole beyond the point where the unsafe condition begins until the pole has been substantially reinforced. Regarding vehicle-mounted elevating and rotating work platforms, the rules state that the employer must provide a vehicle that will assure a stable support for the aerial device. Regarding helicopters, the rules provide requirements for slings and tag lines, cargo hooks, personal protective equipment, housekeeping, weight limitations, signal systems, communications, and fires.
The Workers’ Compensation Division proposed changes to rules regarding the recognition of preexisting conditions and the effects of a compensable injury versus accepted conditions. The rules reflect that a contributing cause to impairment must be a statutorily recognized preexisting condition to qualify for apportionment. In injury claims, to be recognized as a preexisting condition, a condition must be arthritis or an arthritic condition or diagnosed or treated prior to the compensable injury. In an occupational disease claim, to be recognized as a preexisting condition, a condition must precede the onset of the claimed occupational disease. The division also proposed to amend rules to distinguish definitions and actions that are relevant to compensable injuries from those definitions and actions that are relevant to accepted conditions.
Electronic data interchange
The Workers’ Compensation Division accepted changes to rules regarding electronic data interchange. The purpose of the rules is to require workers’ compensation proof of coverage reporting by EDI. The rules provide general filing information. Transaction rejected acknowledgements will be generated for transactions with errors. Rejected transactions are not considered filed and do not satisfy proof of coverage requirements until they are corrected, resubmitted, and accepted by the division. An insurer that wants to self-report proof of coverage must report through an approved vendor until the insurer completes all of the testing requirements and receives approval from the director to self-report. The rules go into effect on April 1.
Pension discount rates
The Department of Labor and Industries proposed amendments to the pension discount rate and mortality tables. The department explained that the tables need to be updated for life expectancy and gender. The department has worked with the Workers’ Compensation Advisory Committee to develop a plan that would reduce the pension discount rate from the current 6.5 percent to 6.4 percent and would continue to adjust annually through 2022 until it reaches 4.5 percent.
Workers’ Comp Docket
Employer Can’t Terminate Undocumented Worker’s Benefits
Campos v. Daisy Construction Co., No. 33, 2014 (Del. 11/13/14)
Ruling: The Delaware Supreme Court held that an undocumented worker was entitled to receive partial disability payments.
What it means: In Delaware, if an employer cannot prove that jobs are available to an injured undocumented worker, the employer must continue to pay partial disability benefits until it shows that the worker was reemployed.
Summary: An undocumented worker for Daisy Construction was thrown off the back of a truck while working on a traffic crew, resulting in a permanent impairment of his shoulder and back. He underwent shoulder surgery and did not return to work. Daisy placed him on total disability. Daisy investigated the worker’s Social Security number at the request of its workers’ compensation carrier. The investigation revealed that the Social Security number that the worker gave Daisy was not valid. When the worker was not able to provide a valid Social Security number, Daisy discharged him. A doctor hired by Daisy opined that the worker was capable of returning to light-duty work. Daisy sought to terminate his benefits because he was physically capable of returning to work. The Delaware Supreme Court held that the worker was entitled to partial disability benefits.
The court explained that to avoid owing partial disability benefits, Daisy was required to prove that the worker had no decrease in earning power after his workplace injury. Daisy’s statement that it would rehire the worker if not for his immigration issues was not sufficient to show job availability because a job was not actually available to the worker. The court said that Daisy could petition to terminate the worker’s benefits when it can establish that he did not suffer a loss in earning power.
The court explained that undocumented workers are given equal treatment under the workers’ compensation law. The court said that under Daisy’s position, employers would be encouraged to hire undocumented workers. Also, if employers could avoid paying partial disability benefits to undocumented workers, the expected cost of workplace injuries would decrease, and employers would be encouraged to relax safety requirements.
Worker’s Death on Railroad Tracks Is Compensable
Bonner-Hill v. Southland Waste Systems, Inc., No. A14A0931 (Ga. Ct. App. 11/18/14)
Ruling: The Georgia Court of Appeals held that a widow was entitled to death benefits because the ingress/egress rule applied.
What it means: In Georgia, under the ingress/egress rule, if a worker is injured while on the employer’s premises in the act of going to or coming from his place of work, the injury is compensable.
Summary: A worker for Southland Waste Systems was headed to work, and as he crossed the railroad tracks after turning into Southland’s entrance roadway, his vehicle was struck by a train. The collision resulted in the worker’s death. The railroad track had to be crossed to access Southland, and there was no other point of entry for a vehicle. The worker’s widow sought workers’ compensation death benefits. The Georgia Court of Appeals held that she was entitled to death benefits.
The court explained that under the ingress/egress rule if a worker is injured while on the employer’s premises in the act of going to or coming from his place of work, the injury is compensable. Application of the ingress/egress exception requires a factual inquiry into whether the location at which the injury occurred was part of the employer’s premises.
In this case, the court found that the worker arrived at Southland’s premises when the accident occurred. Southland’s lease stated that the premises included access to the property over the entrance road on which the worker was driving when he was killed.
Cook Wins Benefits for Dog Bite Injuries Sustained During Smoke Break
1912 Hoover House Restaurant v. Workers’ Compensation Appeal Board, No. 309 C.D. 2014 (Pa. Commw. Ct. 11/10/14)
Ruling: The Pennsylvania Commonwealth Court held that a cook was entitled to benefits for the injuries he sustained when he was bitten by a coworker’s dog while he was outside the workplace on a cigarette break.
What it means: In Pennsylvania, a worker can be entitled to benefits when he is injured during a temporary departure from his work duties.
Summary: During his approved smoking break, a line cook for a restaurant got down on his knee to pet a coworker’s dog, and it started to lick his face for approximately 10 seconds. When he got up, the dog bit him on the lower lip. He sustained facial lacerations and permanent scarring. The Pennsylvania Commonwealth Court held that he was entitled to benefits.
The court rejected the restaurant’s contention that the cook’s decision to pet the dog and the subsequent injury demonstrated more than a temporary departure from his work duties. The cook did not actively disengage from his work to pet the dog. His departure was simply a short cessation from work duties. At the time of his injury, the cook still had a cigarette in his hand. As the cook did not make a pronounced departure from his work but rather was on a break expressly permitted by the restaurant in an area designated as the smoke break area, the court found that the workers’ compensation judge did not err in finding the cook’s act of petting the dog was a temporary departure from his work duties. Also, the cook’s act of petting the dog was not premeditated, deliberate, extreme, and inherently of a high-risk nature, so as to remove him from his course of employment.
The court rejected the restaurant’s argument that the cook’s actions amounted to an abandonment of his employment. The smoke break was a temporary departure from his work to administer to his personal comforts and thus did not take him out of the course of his employment. The court said that smoking during intervals that do not interfere with work duties are acceptable deviations from work.
Worker Fails to Demonstrate That Elevator in Home Is Reasonable, Necessary
Loeber v. Fair Lawn Board of Education, No. A-1990-13T1 (N.J. Super. Ct. App. Div. 12/05/14, unpublished)
Ruling: In an unpublished decision, the New Jersey Superior Court, Appellate Division held that a worker was not entitled to an elevator as a home modification.
What it means: In New Jersey, a worker can be entitled to a home modification if there is sufficient medical evidence to establish that the requested “other treatment” or “appliance” is reasonable and necessary to relieve the worker of the effect of the injuries. Also, the cost must be reasonable.
Summary: A worker for the Fair Lawn Board of Education was partially paralyzed in a work-related accident and was confined to a wheelchair. The board admitted there was a compensable accident and provided the worker with medical treatment. The worker sought modifications to his home, including the elevation of the family room floor, modifications to the kitchen, a platform lift at the end of a wheelchair ramp, and an elevator. The worker explained that he wanted the elevator so he could access the second floor and basement of his home. The New Jersey Superior Court, Appellate Division held that the worker was entitled to the requested home modifications except for the elevator.
An application seeking treatment or reimbursement for treatment must be supported by medical reports concerning the worker’s diagnosis and the medical need for the treatment. The court found that the board waived that requirement regarding the worker’s physical disability and his need for modifications to his house to provide him reasonable access and mobility in it.
A worker can be entitled to a home modification if there is sufficient medical evidence to establish that the request is reasonable and necessary to relieve the worker of the effect of the injuries. The court found that the elevation of the family room floor, modifications to the kitchen, and platform lift were adequately related to the nature of the worker’s disability. The court explained that these modifications were reasonable and necessary to enable the worker to participate in sharing household duties and caring for himself when other family members are away from home.
The court said that while the elevator would appear to be beneficial, no evidence demonstrated that it was necessary and its cost reasonable.
Truck Driver’s Claim for Injuries While Acting as Good Samaritan Stalls
Eastling v. Production Tooling, Inc., 28 MIWCLR 88 (Mich. W.C.B.M. 2014)
Ruling: The Michigan Workers’ Compensation Board of Magistrates denied benefits, finding a truck driver was not acting in the course and scope of employment when he was struck by a motor vehicle after he stopped on the highway to help someone in an accident.
What it means: In Michigan, a worker’s performance of an act of humanity entirely dissociated from the employer’s work is not compensable.
Summary: The magistrate denied benefits, finding a truck driver was not acting in the course and scope of employment when he was struck by a motor vehicle after he stopped on the highway to help someone in an accident. In addressing whether the injury arose out of his employment, the magistrate explained that the driver’s accident did not occur as a result of his employment activities. Rather, it occurred as a result of his decision to assist others at the scene of the accident.
Regarding the course of employment, the magistrate found the driver’s injuries were not caused while he was engaged in activities that were part of his job duties. The act of stopping the vehicle to act as a witness or render aid was not within the specific functions of his job. Also, the injury occurred after the driver made a series of decisions, each of which removed him further from the course of his employment. These decisions, which included stopping at the scene to act as a witness, failing to call his employer, leaving his vehicle, and proceeding along a hazardous roadway to assist someone, along with the passage of time which was estimated to be five to 10 minutes before the injury occurred, removed the driver’s actions from the course of his employment. Although the driver was “acting for all the right reasons” as a matter of morality and civic mindedness, the major purpose of these acts of altruism was social and in no way attendant to or contingent upon his employment activities.
Worker’s Resignation Due to Pain Isn’t Meaningful Return to Work
Keller v. Thyssenkrupp Elevator Corp. No. W2013-02529-SC-WCM-WC (Tenn. 11/21/14, unpublished)
Ruling: In an unpublished decision, the Tennessee Supreme Court held that a worker was entitled to 68 percent permanent partial disability benefits.
What it means: In Tennessee, a worker has not had a meaningful return to work if he returns to work but later resigns for reasons that are reasonably related to his work injury. In such cases, benefits can be awarded up to six times the impairment rating.
Summary: A worker for Thyssenkrupp Elevator was moving a 150-pound elevator panel when he suffered a low back injury. He had surgery but continued to have pain, numbness, and tingling. Although the worker advised his physician of his continuing symptoms, the physician returned him to work without restrictions. After he returned to work, he still had pain. Later, he resigned from his position, citing his continued low back pain. The worker sought benefits. The Tennessee Supreme Court held that he was entitled to 68 percent permanent partial disability benefits.
The court concluded that the worker did not have a meaningful return to work and rejected Thyssenkrupp’s argument that his decision to retire was entirely voluntary. Although he worked for more than nine months after his physician released him to return to work, he was in “excruciating pain” by the end of the day and was unable to enjoy his home life or play with his children. His physician acknowledged that the worker continued to complain of leg, back, and foot pain during his treatment. The court found that the worker’s resignation was reasonably related to the workplace injury.
The court found that the worker was entitled to an award of 68 percent PPD. Doctors testified that the worker’s pain, numbness, and tingling had not been alleviated or relieved. The worker had been a good and dependable worker for Thyssenkrupp for more than 20 years and although he wanted to work, his physical and financial condition limited his vocational and educational opportunities.