Workers’ Comp Docket
Former New York Knicks Player Scores Benefits in California
New York Knickerbockers v. Workers’ Compensation Appeals Board, No. B262759 (Cal. Ct. App. 10/01/15)
Ruling: The California Court of Appeal held that the New York Knicks was liable for benefits to a former player under California law.
What it means: California has jurisdiction over a professional athlete’s workers’ compensation claim when a portion of the athlete’s cumulative trauma injury occurred within the state.
Summary: A former basketball player for multiple NBA teams filed a claim in California for a cumulative trauma injury arising out of and occurring during the course of his employment. While employed by the New York Knickerbockers, the player played one game in California and participated in practices and warm-ups for three games. The player had also been employed by a California team. The Knicks argued that it was not liable for benefits under California law. The California Court of Appeal held that the Knicks was liable for the player’s benefits.
The court found that California had a sufficient relationship with the player’s injuries to make the application of California workers’ compensation law reasonable. Although the Knicks argued that the player played only one game and participated in three practice sessions for them in California, the player played for a California team for a portion of the period of the cumulative injury. The court pointed out that while employed by non-California teams, the player participated in seven games and additional practices in California.
The court explained that employment by a California team during the period of the cumulative injury was sufficient to reasonably apply the California workers’ compensation law. The court pointed out that liability was limited to employers who employed the player during one year immediately preceding either the date of injury or during one year preceding the last date on which he was employed in the occupation that exposed him to the hazards of the cumulative injury. The Knicks employed the player during that one-year period.
Russian Roulette Not Within Scope of Employment
Kofaan v. Braile Mini Mart, 29 MIWCLR 73 (Mich. W.C.B.M. 2015)
Ruling: The Michigan workers’ compensation magistrate held that a worker’s death when he shot himself in the head at work while participating in a game of Russian roulette was the result of horseplay and fell outside the scope of his employment.
What it means: In Michigan, when determining whether a worker’s horseplay removes him from the course of employment, the fact finder must consider: the extent and seriousness of the deviation; the completeness of the deviation; the extent to which the practice of horseplay had become an accepted part of the employment; and the extent to which the nature of the employment may be expected to include some such horseplay.
Summary: A deceased worker’s parents sought benefits, alleging that the worker died as a result of an accidental gunshot to the head in the course of his employment at a gas station. Video and audio evidence from the gas station revealed that the worker was participating in the activity of Russian roulette when he shot himself in the head. The magistrate held that the worker’s death was the result of horseplay and fell outside the scope of his employment. His participation in the deadly activity barred the claim for benefits.
The magistrate pointed out that the activity of placing a gun to one’s head and pulling the trigger was not commingled with his employment. Also, there was no proof that this type of horseplay was accepted in the employment.
Interest on Death Benefits Accrues From Date of Worker’s Death
Flagship Transportation, LLC v. Estate of Keeling, No. 2015-CA-000718-WC (Ky. Ct. App. 10/02/15)
Ruling: The Kentucky Court of Appeals held that an employer was required to pay interest on death benefits from the date of the worker’s death.
What it means: In Kentucky, interest on lump-sum death benefits begins to accrue on the date of the worker’s death.
Summary: A driver for Flagship Transportation was involved in a motor vehicle accident while working. He suffered multiple injuries and died the same day. Three weeks later, the driver’s widow was appointed the administratrix of his estate. Flagship later paid lump-sum death benefits to the widow, plus interest from the date she was appointed to represent the estate. The parties disputed whether the estate was entitled to interest from the day of the driver’s death. The Kentucky Court of Appeals held that Flagship was required to pay interest from the date of the driver’s death.
Flagship argued that it was not obligated to pay the death benefits until the driver’s estate was opened and a representative appointed. Flagship argued that the driver’s estate did not exist until the widow was appointed as the administratrix of the estate. The court disagreed, explaining that the statute did not say that the payment was due when the administrator is appointed or when some other action in probate is accomplished. The statute states that the payment is due to the “decedent’s estate.” The court pointed out that the estate comes into existence at the moment of the death.
Because the driver’s death was the result of a work-related injury, Flagship became responsible for making the lump-sum payment to the estate at the moment of death. The court explained that the liability existed regardless of whether an administrator had been appointed to represent the estate and interest began accruing on the payment when it was due.
Worker’s Gradual Injury Connected to Safety Harness
PCL Construction Enterprises, Inc. v. Industrial Commission of Arizona, No. 1 CA-IC 14-0091 (Ariz. Ct. App. 10/01/15)
Ruling: The Arizona Court of Appeals held that a laborer was entitled to benefits for his gradual injury.
What it means: In Arizona, a gradual injury can be an accident within the meaning of the workers’ compensation law.
Summary: A laborer for PCL Construction wore a full safety harness for fall protection while removing forming materials used to hold concrete around an 18-foot tall tank. After spending the day removing forms and wearing the safety harness, the laborer noticed numbness down the front of his legs and on the top of his left foot. When the numbness continued, PCL sent the laborer for treatment. PCL denied the laborer’s workers’ compensation claim. The Arizona Court of Appeals held that the laborer was entitled to benefits.
PCL argued that the laborer failed to prove that his injury arose out of and in the course of his employment because he did not identify any event or incident that caused his symptoms. The court explained that a gradual injury can be considered an accident under the workers’ compensation law. Here, the laborer sustained a gradual injury, and the injury arose out of and in the course of his work while wearing a safety harness.
The court explained that although the doctors providing opinions could not connect the laborer’s symptoms to a specific work incident, the doctors connected the laborer’s symptoms to wearing the safety harness. The court also found that the medical evidence was sufficient to establish causation.
Worker to Receive Benefits for Injuries Sustained in Egg Toss Game
Heestand v. Cintas Corp. No. 2, 29 MIWCLR 64 (Mich. W.C.B.M. 2015)
Ruling: The Michigan workers’ compensation magistrate found a custodian was entitled to wage loss benefits for injuries sustained while participating in her company’s “safety day” activities.
What it means: In Michigan, when a worker is singled out by her human resources manager and prodded into participating in her employer’s “safety day” activities, her participation is not voluntary. Under these circumstances, an injury while participating in the safety day falls outside the exclusion of recreational activities from workers’ compensation coverage.
Summary: A custodian for Cintas testified that she was in the employee breakroom when the human resources manager invited her to participate in the employer’s “safety day” games. Cintas provided free lunch, encouraged participation in the games, and offered prizes. While stepping back and jumping to catch an egg in an egg toss game, the custodian hit a sign and fell. In awarding benefits, the magistrate noted there was a “thin line” between encouraging and expecting employees to participate in activities. The custodian felt somewhat obligated to join in the activities based on the personal direct request or invitation of the human resources manager. The custodian’s decision to accept this personal invitation showed her solidarity and willingness to comply with the employer’s request. Also, she was being paid during her participation in the games. These factors suggested that the activity was more occupational than recreational in nature. Therefore, the injury arose out of and in the course of employment.
The magistrate also found that the custodian was entitled to wage loss benefits for a total disability.
Employee Proves Shooting Event Constitutes Abnormal Working Condition
Cooney v. UPMC Presbyterian Shadyside, 30 PAWCLR 161 (Pa. W.C.A.B. 2015)
Ruling: The Pennsylvania Workers’ Compensation Appeal Board affirmed the workers’ compensation law judge’s decision finding that a case manager for a hospital sustained a compensable mental disability when an individual entered the building and began shooting.
What it means: In Pennsylvania, the fact that an employee receives active shooter training is not dispositive on the issue of whether a shooting at the workplace is a normal working condition.
Summary: The board affirmed the WCLJ’s decision finding that a case manager for a hospital sustained a compensable mental disability in the form of post-traumatic stress disorder, anxiety, depression, and emotional strain when an individual entered the building and began shooting. The board rejected the hospital’s argument that an active shooter was a foreseeable event that was anticipated at the facility, and therefore, the manager was not exposed to an abnormal working condition. The fact that the manager received active shooter training was not dispositive on the issue of whether the shooting was a normal working condition. The WCLJ found that what the manager experienced when the shooter entered the building was not a normal working condition for anyone even someone who had received active shooter training. The WCLJ pointed out that the shooter shot through the manager’s office door, and the police escorted her out through the lobby where she witnessed bullet holes in the walls and blood.
Case Sent Back to Determine When Worker Was Advised of Injury
Consol of Kentucky, Inc. v. Goodgame, No. 2014-SC-000305-WC (Ky. 09/24/15)
Ruling: The Kentucky Supreme Court sent a case back for the administrative law judge to determine when a miner was advised that he suffered from a work-related cumulative trauma injury and whether the miner filed his claim within two years of that date.
What it means: In Kentucky, for cumulative trauma injuries, the statute of limitations period begins on the date the injured worker is advised that he suffered a work-related cumulative trauma injury.
Summary: A coal miner for Consol worked in Kentucky until Consol stopped operations at the mine where he worked. Then he started working for Consol at a mine in Virginia. Later, the miner resigned and took an early retirement. Two years later, he filed a workers’ compensation claim, alleging that he suffered injuries to his upper and lower extremities and to his spine as a result of the cumulative trauma he suffered performing work as an underground coal miner. Consol argued that the miner’s claim was time-barred because he had not filed it within two years of the date he last worked in Kentucky. The Kentucky Supreme Court held that for cumulative trauma injuries, the statute of limitations period begins on the date the injured worker was advised that he suffered a work-related cumulative trauma injury. The court sent the case back for the administrative law judge to determine when the miner was advised that he suffered from a work-related cumulative trauma injury and whether the miner filed his claim within two years of that date.
The court explained that for cumulative trauma injuries, the statute of limitations period begins on the date the injured worker is advised that he suffered a work-related cumulative trauma injury. Here, the ALJ did not make a factual determination concerning when the miner was advised that he had a work-related condition. Therefore, the court sent the case back to the ALJ.
The court also pointed out that Kentucky did not have extraterritorial jurisdiction over any claim arising from a Virginia injury. However, in this case, the ALJ found that no injury occurred in Virginia.
Did Assault Occur in the Course of Employment?
A caregiver for Care Solutions assisted aged or persons with disabilities in household living activities. As she was getting ready to leave a client’s home at the end of her workday, the client complained of chest pains and breathing problems. The caregiver called a Care Solutions nurse for instructions.
She was directed to call 911 and to accompany the client to the hospital and remain there until he was admitted or released. As the client was transported to the hospital, the caregiver followed in her personal vehicle. Hours later, the client was admitted to the hospital. The client asked her to take his medicine and clothing to his house and to tell his wife about his admission to the hospital.
The caregiver walked to her car in the hospital’s parking lot, and as she opened the door to get inside, a man accosted her and got into her vehicle. The man told her that he had just been released from jail, and he wanted her to drive him somewhere.
The caregiver tried to push him from her car. The man struck her several times in the face with a hard object. The caregiver’s screams scared the man away, and she went back to the hospital’s emergency room to seek treatment for her injuries. She sustained crushed and fractured facial bones under her eye, a broken nose, a laceration from her nose to her mouth, and a dislocated cheekbone.
The caregiver sought workers’ compensation benefits. Care Solutions disputed the claim. The workers’ compensation judge found that the caregiver was injured in the course and arising out of her employment. Care Solutions appealed.
How the Court Ruled
The court explained that the caregiver accompanied the client to the hospital at the direction of Care Solutions. The court said Care Solutions’ request could be considered a special mission. The court found that the injury arose out of her employment because she would not have been at the hospital but for the specific instructions of Care Solutions. The court sent the case back to the WCJ to evaluate the evidence on the issue of her disability.
B is incorrect. The court noted that it was irrelevant that the caregiver may have been finishing her shift or even “off the clock” when she went to the hospital with her client. She did so because she was instructed by a nurse for Care Solutions.
C is incorrect. The court found that the caregiver went to the hospital at the direction of Care Solutions.
A is correct. In Maxwell v. Care Solutions, Inc., No. 50,088-WCA (La. Ct. App. 09/30/15), the Louisiana Court of Appeal held that the caregiver’s injuries from the assault were covered by workers’ compensation.
Editor’s note: This feature is not intended as instructional material or to replace legal advice.
Workers’ Comp Docket
Regulation Doesn’t Prevent Treatment for Work-Related Erectile Dysfunction
Ex parte Ward International, No. 2140747 (Ala. Ct. App. 09/04/15)
Ruling: The Alabama Court of Civil Appeals held that a worker was entitled to medication for the treatment of his erectile dysfunction.
What it means: In Alabama, workers are entitled to reasonably necessary medical treatment and medicine for conditions resulting from an accident arising out of and in the course of employment.
Summary: A worker for Ward International injured his lower back and sought workers’ compensation benefits. Ward paid a lump sum as compensation for the injury and left open the issue of the worker’s future medical benefits. Later, the worker requested approval from Ward for medication for the treatment of erectile dysfunction. The worker’s authorized treating physician concluded that the medication was associated with the worker’s work-related injury. The Alabama Court of Civil Appeals held that the worker was entitled to the medication.
The workers’ compensation rules provide six conditions in which erectile dysfunction medication is covered. The worker did not suffer from any of these conditions. Also, a urologist did not determine that an organic erectile dysfunction as described in the regulation existed. Further, the worker was prescribed more than the limit of five tablets every 30 days. The court explained that the rule appeared to be a policy determination as to when erectile dysfunction is considered as resulting from a workplace accident. If erectile dysfunction does not arise from one of the six conditions that may result in “organic” erectile dysfunction, it is considered to be “psychological or psychiatric” erectile dysfunction and is not compensable.
Here, the court found that Ward was responsible for reasonably necessary medical treatment of conditions that are caused by the accident arising out of and in the course of the worker’s employment, despite the rule prohibiting treatment for erectile dysfunction that is not considered “organic.”
Disability Due to Pressure to Perform Deceptive Acts May Be Compensable
Cox v. Saks Fifth Avenue, et al., No. 520289 (N.Y. App. Div. 07/09/15)
Ruling: The New York Supreme Court Appellate Division reversed the Workers’ Compensation Board’s ruling that a sales associate at a department store did not sustain an accidental injury due to work-related stress.
What it means: In New York, mental injuries caused by work-related stress are compensable if the worker can show that the stress that caused the injury was greater than that which other similarly situated workers experienced in the normal work environment.
Summary: The New York Supreme Court, Appellate Division reversed the Workers’ Compensation Board’s ruling that a sales associate at Saks Fifth Avenue did not sustain an accidental injury due to work-related stress. The associate testified he became upset at work and was diagnosed with several conditions, including anxiety and panic disorder, after his supervisor directed that he fabricate reserve orders for high-end luxury goods, including submitting customer credit card numbers, to increase store inventory from the manufacturer. In denying the claim, the board reasoned that because all the employees were pressured to place reserve orders, the associate’s stress was not greater than that of similarly situated workers. Rejecting this analysis, the court reasoned that the mere fact other employees may have received the same instruction to carry out a deceptive business practice could not support the conclusion that such behavior was normal.
There was no other evidence supporting a conclusion that directions to place false reserve orders constituted part of a normal work environment for similarly situated employees. Saks’ witnesses testified that corrective action, including termination, had been taken when similar practices occurred at the store in the past, and the associate testified that he would have been terminated for such conduct in other upscale department stores where he previously worked. Accordingly, substantial evidence did not support the board’s determination.
Comp Awarded for Assault-Related Psychological Injuries
Hynes v. Good Samaritan Hospital, No. S-15-002 (Neb. 09/04/15)
Ruling: The Nebraska Supreme Court held that a nurse was entitled to benefits for her psychological injuries.
What it means: In Nebraska, a claim for a psychological condition requires that the mental condition be related to or caused by a physical injury.
Summary: A nurse in the mental health unit of Good Samaritan Hospital alleged that she suffered from post-traumatic stress disorder and depression as a result of three incidents that occurred in the course of her employment. In the first incident, a patient whipped the nurse with a vacuum cleaner cord and punched her in the jaw. In the second incident, the nurse was kicked and bitten on the arm by a patient. In a third incident, a patient grabbed the nurse and made aggressive sexual comments to her. The nurse sought workers’ compensation benefits, claiming that the incidents left her unable to work. The Nebraska Supreme Court held that she was entitled to benefits.
In Nebraska, a claim for a psychological condition requires that the mental condition be related to or caused by a physical injury. Good Samaritan conceded that the first injury resulted in a physical injury but argued that the second and third incidents did not result in a physical injury. The court found that the second incident, in which a patient bit and kicked her, caused a welt and bruises. The fact that the nurse did not receive immediate medical care did not negate the fact that she sustained a physical injury.
The court also found that the third incident could be considered in a causation analysis even though it was not independently compensable. The Workers’ Compensation Court had found that the nurse was not mentally stable or healthy after the first and second incidents and that her mental health deteriorated. The court concluded that the nurse’s psychological injuries resulted directly from an assault in which she suffered a physical injury.
Post-Rehab Patient Wins Additional Pain Management Treatment
Rice v. Boyd Metals, No. CV-15-128 (Ark. Ct. App. 09/02/15)
Ruling: The Arkansas Court of Appeals held that a worker was entitled to additional medical treatment in the form of pain management.
What it means: In Arkansas, an employer must provide a worker with medical treatment that it reasonable, necessary, and causally related to the work injury.
Summary: A worker for Boyd Metals sustained compensable injuries to his back, shoulder, and neck during a motor vehicle accident. The worker was prescribed pain medications after his injury, including two narcotic medications. Later, the worker was sent to a rehabilitation center in another state based on a nurse case manager’s suggestion. While the worker was there, the center took him off his narcotic medications. After the one-month program, he only took non-narcotic medications. The worker’s pain decreased. He did not receive further treatment and his pain increased. The worker sought additional medical treatment in the form of pain management. The Arkansas Court of Appeals held that the worker was entitled to additional treatment.
The court found no medical proof or support that the worker’s condition did not warrant any further treatment. The court pointed out that the worker changed physicians and both physicians recommended many of the same non-narcotic medications and forms of treatment.
A concurring judge expressed concern about how the insurer and the Workers’ Compensation Commission viewed the worker’s need for medical treatment after he returned from the rehabilitation center. The worker’s pain returned after he was not referred for the aftercare recommended by the program, including physical therapy and a gym membership. The worker was also denied pain management recommended by his physicians. His request to return to the center for help was also denied.
Inspector’s Supervisory Authority Warrants Award of Double Benefits
Svenson’s Case, No. 14-P-514 (Mass. App. Ct. 08/08/15, unpublished)
Ruling: In an unpublished decision, the Massachusetts Appeals Court held that a technician was entitled to double compensation benefits.
What it means: In Massachusetts, to receive double compensation, a worker must establish that a supervisor committed serious and willful misconduct that caused the worker’s injury.
Summary: An X-ray technician for General Electric regularly worked with an inspector. If the inspector found a problem with an X-ray, he had the authority to send it back to the technician and provide supervision and guidance about what was wrong and how to correct it. The technician and a higher-level supervisor went to the inspector to discuss a complaint that the inspector raised about the technician’s X-ray. Later, the technician went to the inspector to seek guidance. The inspector told the technician to get out of his office. Subsequently, the two men began to argue. The inspector grabbed the technician and shoved him into the wall. The inspector also punched the technician in the face, pushed him to the ground, and choked him. After the incident, the technician was diagnosed with major depression and post-traumatic stress disorder. He sought workers’ compensation benefits. The Massachusetts Appeals Court held that he was entitled to double compensation benefits.
The court explained that to receive double compensation, a worker must establish that a supervisor committed serious and willful misconduct that caused the worker’s injury. General Electric’s insurer, Electric Insurance Co., asserted that the inspector was not the technician’s supervisor. The court considered testimony of employees and General Electric’s practice and procedure manual and concluded that the inspector exercised supervisory authority over the technician. In his position, the inspector had the power of “direction or oversight, tending to control others and to vary their situation or action because of his direction.”
Teacher’s PTSD After Robbery Doesn’t Lead to PPD Benefits
Gibbons v. Clark County School District, No. 66818 (Nev. Ct. App. 08/31/15, unpublished)
Ruling: In an unpublished decision, the Nevada Court of Appeals held that a teacher was not entitled to permanent partial disability benefits for her post-traumatic stress disorder resulting from a robbery in a school parking lot.
What it means: In Nevada, the workers’ compensation law allowing permanent partial disability benefits for a psychological condition does not apply retroactively.
Summary: An elementary school teacher for the Clark County School District was robbed at gunpoint in the school parking lot. The district accepted the teacher’s workers’ compensation claim for post-traumatic stress disorder. The teacher received regular treatment and the claim remained open for more than two years. After the teacher reached maximum medial improvement and returned to work, the district sought to close the claim without a permanent partial disability evaluation, stating that there was “no possibility of a permanent impairment of any kind.” The teacher appealed the determination. The Nevada Court of Appeals held that the teacher was not entitled to PPD benefits.
The court explained that at the time of the teacher’s injury, a workers’ compensation claimant could not obtain a PPD award for a psychological condition. Three months after the teacher was robbed, the law was amended to allow PPD benefits for psychological conditions. The court found that the amended law did not apply retroactively.
The court explained that the law would apply retroactively only if the legislature demonstrated an intent for the amendment to operate retroactively. However, the text of the law and the legislative history of the amendment did not provide any indication that the legislature intended the law to apply retroactively.
Operator’s Participation in Fight With Coworker Doesn’t Block Benefits
Ochodnicky v. BCN Structured Employment 105 Inc., 29 MIWCLR 60 (Mich. W.C.B.M. 2015)
Ruling: The Michigan workers’ compensation magistrate found that an operator, who suffered a fractured jaw when he was struck by a coworker, was disabled from a work-related injury and was entitled to all reasonable and necessary medical expenses.
What it means: In Michigan, a worker is not entitled to workers’ compensation benefits when he is injured due to his intentional and willful misconduct. A company policy that forbids all fighting, as the aggressor or in self-defense, should not be the basis for a finding of willful misconduct.
Summary: The magistrate found that a machine operator, who suffered a fractured jaw when he was struck by a coworker, was disabled from a work-related injury and was entitled to all reasonable and necessary medical expenses. At issue was whether the operator engaged in willful misconduct. In this case, the evidence showed that the fight arose over a work issue — a dispute regarding whether the coworker was performing his job appropriately and whether he should have to stay at work beyond the time he wished. The employer contended that although the operator was not the aggressor, he was terminated for participating in the fight because company policy forbids all fighting, as the aggressor or in self-defense. The magistrate found the company policy put employees at risk and therefore should not be the basis for a finding of willful misconduct.
Employees attempting to avoid or minimize the risk or any injury from that risk should not find that their workers’ compensation benefits have been forfeited. This is especially true here, where the employer’s policy was not clear. As the operator was not the aggressor, but was assaulted and simply defended himself, the evidence did not support the conclusion that the operator knew that such conduct would be misconduct sufficient for termination if he defended himself, yet willfully proceeded to do so. Therefore, such self-defense was not willful misconduct.