Workers’ Comp Docket
Surveillance Video Doesn’t Establish That Nurse Committed Fraud
Our Lady of the Lake Hospital, Inc. v. Johnson,No. 2013CA1314 (La. Ct. App. 06/06/14)
Ruling: The Louisiana Court of Appeal held that a nurse did not commit fraud in obtaining workers’ compensation benefits.
What it means: In Louisiana, a worker’s benefits are forfeited if she willfully made a false statement or representation for the purpose of obtaining benefits.
Summary: A licensed practical nurse was injured in the course and scope of her employment for a hospital when she received an electric shock while plugging in a laptop computer. As a result of the accident, she developed complex regional pain syndrome. She was also diagnosed with post-traumatic stress disorder. The hospital paid benefits. The hospital reduced her supplemental earnings benefits. Later, the hospital alleged that the nurse made false statements or representations for the purpose of obtaining workers’ compensation benefits. The nurse sought penalties and attorney’s fees. The Louisiana Court of Appeal held that the nurse did not commit fraud.
The hospital asserted that the nurse exaggerated her symptoms once she started recovering in order to continue receiving benefits. Surveillance footage showed the nurse going about her daily life without her hand brace and using her right hand. The court found that the nurse did not commit fraud. She and her husband testified that she had good days and bad days, she did not always wear her brace, and she attempted to use her right hand as a “helper” hand. The court found the surveillance video did not conflict this testimony.
A vocational counselor learned of a potential job as a medical transcriptionist with the hospital. The hospital offered the job with accommodations, but the nurse declined because the hospital would not hold the job for her until after she had a baby. The hospital asserted that it was justified in reducing the nurse’s benefits. The court disagreed, finding that the job was not suitable regarding the nurse’s limitations and the amount of travel required for the job.
The court also rejected the nurse’s request for penalties and attorney’s fees.
Player Can’t Score Benefits for Injury During Minicamp Tryout
Robinson v. Department of Labor and Industries, et al.,No. 69739-1-I (Wash. Ct. App. 05/27/14)
Ruling: The Washington Court of Appeals held that a free agent football player was not entitled to benefits because he was not an employee of the team.
What it means: In Washington, an employment relationship exists when the employer has the right to control the worker’s physical conduct in the performance of his duties and there is consent by the worker to the relationship.
Summary: A football player, who was a free agent, was invited to attend a three-day minicamp tryout for the Seattle Seahawks. The team paid his travel expenses. The player signed a waiver and release of liability that stated he was not an employee of the team and released the team from liability for injury.
During an on-field drill, the player injured his knee as he dove for the ball. The team trainer diagnosed a torn meniscus. The player sought workers’ compensation benefits. The Washington Court of Appeals held that he was not entitled to benefits because he was not an employee of the team.
The court found there was not an implied contract of employment between the player and the team. The team did not have the right to control the player’s physical conduct in the performance of his duties. Participation in the minicamp was voluntary and the on-field drills were different from preseason training or a game.
The player attended the minicamp in the hopes that the team would offer him a contract. Successful completion of the minicamp tryout did not guarantee employment with the team. The court also found there was no mutual agreement to an employment relationship between the player and the team, and no evidence supported a reasonable belief that he was an employee. The player had previously tried out for two other teams but had not been offered employment.
Although the player asserted that the team paid his travel expenses, the court said the statute defining wages was not applicable.
Attendant Care Required to Prevent Deterioration of Worker’s Condition
Alabama Forest Products Industry Workmen’s Compensation Self Insurer’s Fund v. Harris,No. 2121008 (Ala. Civ. App. 06/13/14)
Ruling: The Alabama Court of Civil Appeals held that an employer was required to pay attendant care expenses for a worker.
What it means: In Alabama, an injured worker is entitled to attendant care if because of his injury, attendant care is reasonably necessary to improve his condition, to prevent the deterioration of his condition, or to relieve him of the adverse effects of his injury on his ability to function.
Summary: A worker suffered severe injuries to his pelvis and right lower extremity in a work-related accident. His employer’s insurer, Alabama Forest Products, paid various members of his family a monthly stipend to assist him, as instructed by his treating physician. The worker settled his workers’ compensation claim against his employer, and Alabama Forest Products continues to pay a monthly sum to various members of his family for attending to him for the next 20 years. Later, the worker sent notice to the third-party administrator that he wanted his future son-in-law to replace his daughter as his designated caregiver. When the TPA discovered that the son-in-law was employed full time out of the town where the worker lived, it terminated payments for attendant care. The Alabama Court of Civil Appeals held that Alabama Forest Products was required to pay attendant care expenses.
Due to the severity of his injuries, the worker regularly required assistance with the ordinary activities of daily living. He needed help performing his leg exercises, taking his medication, applying medicine to his injured areas, and preventing bedsores. The worker’s physician said that attendant care services would prevent the deterioration of his physical condition and that he considered attendant care reasonably necessary medical attention and physical rehabilitation. The court explained that the worker did not have to further prove that the attendant care would actually improve his physical condition.
The court also said that the fact that the worker retained some limited mobility and function such that he did not require constant monitoring and attendance did not change its decision. The worker ordinarily received attendant care throughout the day and always kept his telephone nearby in case he needed help from a family member who lived moments away.
Employer Must Provide Wheelchair-Accessible Van to Worker
Simmons v. Precast Haulers, Inc.,No. S-13-848 (Neb. 07/03/14)
Ruling: The Nebraska Supreme Court held that a worker was entitled to a wheelchair-accessible van and payment for the in-home care provided by his wife.
What it means: In Nebraska, a wheelchair-accessible van can be a medical “appliance” that will help restore the worker’s health.
Summary: A worker for Precast Haulers sustained extensive injuries when he was run over by a fully loaded tractor-trailer. Precast conceded that the worker’s injuries and his medical bills were compensable but asserted that he was not entitled to a wheelchair-accessible van and payment for the in-home care provided by his wife. The worker’s doctors recommended that he receive custom wheelchairs and a wheelchair accessible van. The worker required 24-hour in-home nursing care. His wife took over his care for 108 hours per week. The Nebraska Supreme Court held that the worker was entitled to the van and payment for the in-home care provided by his wife.
In a case of first impression, the court found that a wheelchair-accessible van was an “appliance” that would help restore the worker’s health. His treating physicians opined that a van would assist in his outpatient recovery and rehabilitation. No evidence from the physicians showed that the worker could not or should not drive. The court found that the van was necessary to allow the worker and his family to transport his new powered wheelchair.
Precast asserted that many of the hours spent by the worker’s wife “on call” were spent sleeping, completing ordinary household duties, and caring for herself. The court pointed out that a paid third-party nurse might read, nap, or perform household tasks and would be compensated for that time. The court found Precast knew the worker needed assistance and there was a means of determining the reasonable value of services rendered by the wife. The wife completely replaced the care of the night and weekend nurses.
Taxi Driver Picks up Benefits for Injury While Traveling Home in Cab
Fahmi, 114 NYWCLR 68 (N.Y.W.C.B., Panel 2014)
Ruling: The New York Workers’ Compensation Board held that a taxi driver, who was driving the employer’s taxi home upon the employer’s instruction due to a post-hurricane gas shortage, sustained injuries arising out of his employment when he was assaulted and robbed after exiting the vehicle.
What it means: In New York, where a worker is injured while performing a special errand for the benefit of the employer, and the employer encouraged the errand, the worker is entitled to portal-to-portal workers’ compensation coverage.
Summary: A taxi driver, who was driving the employer’s taxi home upon the instruction of the employer due to a post-hurricane gas shortage, sustained injuries when he was assaulted and robbed after exiting the vehicle. The board held that the driver’s injuries arose out of and in the course of his employment. The board explained that a worker is entitled to workers’ compensation while performing a special errand for his employer, provided the employer encouraged the errand and obtained a benefit from the worker’s performance of the errand. The evidence established that the driver was performing an errand for the benefit of the employer at the time of the injury and therefore was entitled to portal-to-portal coverage.
Treating Physicians’ Opinions Not Assigned Greater Weight Than Other Physicians
Estate of Cleveland v. Heritage Properties, Inc.,No. 2013-WC-00451-COA (Miss. Ct. App. 06/10/14)
Ruling: The Mississippi Court of Appeals held that a manager’s mental injury and death were not compensable.
What it means: In Mississippi, the testimony of a worker’s treating physicians’ opinions is not required to be given more weight than the employer’s examining physicians.
Summary: An apartment manager for Heritage Properties was injured when a filing cabinet allegedly fell on her. She filed for disability benefits for a closed head injury and a mental injury. While her claim was pending, she died of a drug overdose. Her mother sought death benefits. Heritage and its carrier admitted a physical injury but contested a physical impairment after the neurosurgeon found the manager reached maximum medical improvement. Heritage and its carrier also disputed liability for the manager’s mental injury and death. The Mississippi Court of Appeals held that the manager’s mental injury and death were not compensable.
The court rejected the mother’s argument that the manager’s treating physicians’ opinions should be given greater weight than Heritage’s examining physicians. The court also pointed out that the treating physicians lacked complete medical records and proper medical histories of the manager’s lengthy drug, alcohol, sexual, psychological, and physical abuse. The court also said the fact that a doctor examines a patient once does not render his examination inadequate or incomplete. The court pointed out that a doctor who examined the manager once was one of four doctors who found no causal relationship between the work incident and the claimed injuries.
The court found that the manager’s preexisting psychological issues rather than the alleged work injury led to her increased dependence on a destructive relationship and substance abuse.
No Coverage for Depression Caused by Reaction to Perceived Events
White v. Valley Youth House Committee Inc.,29 PAWCLR 69 (Pa. W.C.A.B. 2014)
Ruling: The Pennsylvania Workers’ Compensation Appeal Board reversed the workers’ compensation judge’s decision granting the claim petition of a counselor who alleged that he sustained depression during the course and scope of his employment.
What it means: In Pennsylvania, a worker’s depression that is a result of a subjective reaction to perceived events is not sufficient to establish that he was subjected to abnormal working conditions.
Summary: The board reversed the WCJ’s decision granting the claim petition of a counselor for troubled youth who alleged that he became depressed and stopped working after receiving letters which appeared to confirm that another counselor was acting inappropriately with a female client at the employer’s facility. The counselor explained that he brought the matter to the attention of his supervisor but the supervisor did not do anything about it. He stated this made him depressed because he did not feel as though he was doing a good job protecting the kids. In reversing, the board noted that the counselor acknowledged he never worked with the other counselor, and he did not actually witness the other counselor and the client acting inappropriately with each other. Also, the supervisor testified that the counselor’s concerns were addressed.
The board concluded that the counselor’s depression was the result of a subjective reaction to inappropriate behavior he perceived to have taken place and the employer’s perceived lack of action regarding that behavior. The counselor’s reaction to perceived events was not sufficient to establish that he was subjected to abnormal working conditions.
Medical Treatment Utilization Schedule
The Division of Workers’ Compensation proposed amendments to the medical treatment utilization schedule. The proposed regulation revises regulatory definitions of “evidence-based medicine,” “functional improvement,” “nationally recognized,” “peer reviewed,” and “scientifically based.” The rules clarify that the schedule constitutes the standard for the provision of medical care. The rules set forth the process to determine if medical care is reasonable and necessary when the schedule is silent on a particular medical condition or diagnostic test or when the schedule is successfully rebutted. The rules establish a minimum standard for conducting a medical literature search.
The rules also explicitly set forth a systematic methodology to determine the strength of evidence used to support the recommendations of a medical condition. The rules also amend the composition of the Medical Evidence Evaluation Advisory Committee to include two additional members, one from the pharmacology field and one from the nursing field. The division scheduled a public hearing on July 1.
The Division of Workers’ Compensation proposed rules regarding medical services billing, filing, and reporting. The division rewrote and reorganized the current rule into five proposed rules. The proposed rules include revised billing instructions for dispensing practitioners when billing for dispensed medications. The proposed rules also incorporate revised form completion instructions for pharmacies and pharmacists, hospitals, ambulatory surgical centers, health care providers, work hardening programs, nursing homes, and home health agencies. Those with questions should contact firstname.lastname@example.org.
Outpatient Medication Formulary
The Bureau of Workers’ Compensation proposed amendments to the outpatient medication formulary rule. The proposed rule adds reimbursement for the sustained release gabapentin agents Gabapentin and Gabapentin Encarbil. Reimbursement for these agents will require a prior authorization that reflects a 30-day trial and clinical failure of the immediate release forms of gabapentin. The rule also adds reimbursement for ziconotide. Reimbursement requires previous approval of the use of an implanted pain pump. The rule limits reimbursement for all testosterone products to claims that have medical allowances that involve the genitourinary or endocrine systems. The rule allows reimbursement for treatment with transdermal forms of Fentanyl and Buprenorphine as initial sustained release opiates in claims with clinical documentation of an inability to swallow or absorb oral medications.
The rule revises the description of coverage of the proton pump inhibitor drug class to clarify what over-the-counter products and prescription products would be covered. The bureau proposed for the rule to go into effect on Sept. 1.
Vocational Rehabilitation Fee Schedule
The Bureau of Workers’ Compensation proposed amendments to the vocational rehabilitation provider fee schedule. The proposal increases all vocational rehabilitation base service fees by 2.36 percent. The rules also implement reimbursement codes and protocols that reflect a multi-tiered payment approach based on type of services provided. Standard services include the assessment of an injured worker’s readiness and potential for vocational rehabilitation services focused on return to work, and well as physical restorative services and retraining. Employment services are to assist an injured worker to seek employment with a different employer. Plan implementation services are provided when the vocational rehabilitation case manager’s comprehensive vocational rehabilitation plan has been authorized and implementation and monitoring of the injured worker’s progress begins. The bureau plans to implement the new fee schedule on Dec. 1.
Electronic Medical Billing
The Workers’ Compensation Division proposed to adopt new rules to establish standards for electronic medical billing. The rules adopt national-level electronic medical billing standards and define terms used to explain the standards. The rules provide an option for an insurer to become exempt from the requirement to accept electronic medical bills. The rules allow for use of alternative billing formats if those formats include all of the data elements required under the standard. The rules also describe how to track and submit related documentation. The rules prescribe standards for electronic medical bill acknowledgements, remittance advice, and explanations of benefits. The rules explain the potential for application of civil penalties.
Farm Internship Program Classifications
The Department of Labor and Industries issued a preproposal statement of inquiry regarding rulemaking to establish rates for farm internship program classifications and update reporting rules for workers’ compensation insurance. Without the rulemaking, rates for the farm internship classifications could not become effective. New rates and the updated reporting rule are necessary to ensure proper reporting of hours and collection of premiums for employers participating in the program. Comments should be submitted to email@example.com.
The DLI adopted a rule allowing employers to use the same employees in more than one basic risk classification as long as work records are kept and the rules allow.
For example, more than one basic risk classification can be assigned when a single classification does not describe all of the employer’s business operations because employer has multiple enterprises. Also, multiple classifications can be assigned when the employer is a contractor with workers performing more than one phase of construction or the employer operates a farm that raises more than one type of crop or animal. The rule also removes the need to identify the governing class and simplifies reporting.
Workers’ Comp 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.