Christina Lumbreras

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | July 6, 2015 • 12 min read
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Work Release Program Employer Covers Inmate’s Traumatic Brain Injury

Nevada Department of Corrections, et al. v. York Claims Services, Inc., et al., No. 64473 (Nev. 05/07/15)

Ruling: The Nevada Supreme Court held that a car wash’s carrier was liable for an inmate’s workers’ compensation benefits.

What it means: In Nevada, an inmate injured while working under a work release program has workers’ compensation coverage under the employer the inmate is working for with the program.

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Summary: An inmate with the Nevada Department of Corrections worked for a car wash under a work release program. The car wash paid premiums on behalf of the inmate to York Claims Services so that he was covered under its workers’ compensation insurance coverage. After discovering that the inmate had a background in gardening, the car wash owner asked him to trim some trees on the car wash’s property. While trimming the trees, the inmate fell off a ladder and struck his head. The inmate suffered a traumatic brain injury and underwent various surgeries. York denied the claim, asserting that the department was financially responsible for the inmate’s workers’ compensation coverage. While walking around his recovery facility, the inmate suffered a major seizure and fell, striking his head. He required surgery. York denied coverage for the second injury, asserting that it was not work-related or a result of the first injury. The Nevada Supreme Court held that York was liable for the inmate’s workers’ compensation benefits following both injuries.

Nevada law states that an inmate at the state prison, while engaged in work in a prison industry or work program, is entitled to workers’ compensation coverage from the department. The court found that the term “work program” in the law was ambiguous. After considering the legislative history, the court found the law did not cover the work release program in this case. The legislature intended to cover prison industry programs such as jobs taking place inside the prison or outdoor day labor projects.

The court agreed with an appeals officer’s decision finding that the inmate’s first injury was a substantial contributing cause of the second injury.

Exclusive Remedy Provision Blocks Suit Alleging Occupational Hearing Loss

Arrant, et al. v. Graphic Packaging International, Inc., et al., No. 2013-C-2878 (La. 05/05/15)

Ruling: The Louisiana Supreme Court held that the exclusive remedy provision of workers’ compensation barred a suit brought by workers alleging that they suffered hearing losses due to hazardous levels of industrial noise during their employment.

What it means: In Louisiana, gradual noise-induced hearing loss caused by occupational exposure to hazardous noise levels is a personal injury by accident under the pre-1990 definition and an occupational disease.

Summary: A group of current and former workers for Graphic Packaging International claimed that they suffered hearing losses, which they attributed to being exposed to hazardous levels of industrial noise during their employment. The workers sued. Graphic Packaging asserted that the exclusive remedy provision of workers’ compensation applied. The Louisiana Supreme Court held that the exclusive remedy provision barred the suit.

The court found that noise-induced hearing loss qualified as a “personal injury by accident” under the pre-1990 definition. The court found that the traumatic damage to the inner ear qualified as an “injury” because the high levels of noise caused damage to the inner ear “by violence to the physical structure of the body.” The noise exposure qualified as an accident because the hazardous level of noise was an “unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.” The record established that the workers’ duties at Graphic Packaging caused or contributed to the breakdown and damage to their inner ears and was the cause of their gradual noise-induced hearing losses.

The court also found that the workers’ hearing loss constituted an occupational disease. A causal link between the workers’ hearing losses and their work-related duties was established by the workers’ testimony and that of their experts. The court explained there is no requirement that the nature of the disease or injury be unique to the particular trade or industry. The court said there was “no doubt that hearing loss is a disability.” Also, courts have traditionally awarded benefits for occupational disease for impairments to functions not traditionally considered vital to human existence.

A dissenting judge opined that noise-induced hearing loss is not a covered occupational disease or a personal injury by accident. The judge stated that a worker does not lose enough hearing to fall below the “normal threshold” until several years have passed. Also, the legislature did not add gradual hearing loss to the definition of occupational disease. The judge opined that hearing loss did not meet the definition of an accident because it did not happen “suddenly or violently.”

Statutory Employee Status Not Cut Off After Making Delivery

Collins v. Seko Charlotte, et al., No. 27519 (S.C. 04/29/15)

Ruling: The South Carolina Supreme Court held that Seko Charlotte was liable for benefits because a worker was its statutory employee.

What it means: In South Carolina, once the statutory employee status attaches, the extent of the status is determined by the nature of the work to be performed.

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Summary: A worker for West Expedited and Delivery Service was killed in an automobile collision while returning to South Carolina after making a delivery in Wisconsin for Seko Charlotte. West Expedited was a subcontractor of Seko. Seko customarily paid West Expedited for mileage one way. However, West Expedited included the cost of the return trip in the mileage rate charged to Seko. The worker’s dependents filed a workers’ compensation claim against West Expedited and Seko. The South Carolina Supreme Court held that the worker was a statutory employee of Seko. Therefore, Seko was liable for benefits.

Seko argued that its contract with West Expedited terminated once the worker made the delivery and began his return trip to South Carolina. Seko conceded that the worker was a statutory employee on the trip to Wisconsin. The court concluded that the work for Seko concluded when the worker returned to South Carolina.

The court explained that the worker was engaged in an “express hot delivery,” or an immediate and direct trip, from South Carolina to Wisconsin. It was understood in the trade that it was unlikely that the driver would have cargo on the return trip from an express hot delivery. Here, the worker did not pick up any cargo for the return trip. The court found that the nature of the work required immediate travel to Wisconsin and an expected return trip to South Carolina.

The court also found that the nature of the work for Seko’s direct employees was the same as the work performed by the worker. Therefore, he was entitled to the same coverage as Seko’s direct employees.

PTD Benefits Warranted for Injury From Box of CDs

Strickland v. U.S. Xpress Enterprises, Inc. et al., No. E2014-00917-SC-R3-WC (Tenn. 04/27/15)

Ruling: The Tennessee Supreme Court held that a driver was entitled to permanent total disability benefits.

What it means: In Tennessee, an employer is liable for a disability arising from injuries sustained by a worker arising out of and in the course of her employment even though it aggravated a previous condition with resulting disability far greater than otherwise would have been the case.

Summary: A truck driver for U.S. Xpress Enterprises was injured when a 10-pound case containing compact discs fell from an overhead storage compartment in the cab and struck her in the head. The driver and her husband were team tractor-trailer drivers. At the time of the injury, the driver was riding in the passenger seat of the cab. Although the driver did not report the injury immediately, her husband reported the injury when her condition worsened. The driver’s pain increased, and she underwent a cervical fusion and surgery to implant an electric stimulator. The driver sought workers’ compensation benefits. The Tennessee Supreme Court held that she was entitled to PTD benefits.

The court found that the driver’s testimony and an independent medical examiner’s opinion that the work injury was related to her medical impairment were sufficient to support a holding of compensability. The court explained that whether the driver’s disability was a result of an aggravation of her preexisting conditions or a new injury, the result would be the same.

The court found the driver was entitled to PTD benefits. The testimony indicated that the driver could no longer work as a truck driver. A vocational expert testified that the driver’s age of 56 was not a deterrent to future employment. The court found the vocational expert did not take into account the driver’s limitations. The driver testified that her pain was so severe that she was unable to concentrate, perform tasks in a timely manner, or have regular attendance at a job.

Benefits Awarded for Renal Condition Caused by Meds for Compensable Injury

BellSouth Telecommunications, Inc. v. Harris, No. 2012-WC-01975-COA (Miss. Ct. App. 05/19/15)

Ruling: The Mississippi Court of Appeals held that a worker was entitled to payments for the medical treatment of his kidney condition that was caused by a medication taken for his compensable lung injury.

What it means: In Mississippi, when an injury arises out of and in the course of employment, every natural consequence that flows from the injury also arises out of the employment, unless it is the result of an independent intervening cause.

Summary: A worker for BellSouth Telecommunications inhaled materials under a building while installing cables in the course of his employment. BellSouth provided workers’ compensation for the lung condition caused by the inhalation. During the course of treatment for his compensable lung injury, the worker was prescribed amphotericin B. The worker’s treating physician opined that the medication caused complications with his kidney, which required kidney medication. The worker requested medical payments from BellSouth’s carrier for the medication prescribed for his renal insufficiency. The Mississippi Court of Appeals held that the worker was entitled to payments for the treatment of his kidney condition.

The court found that the worker’s renal insufficiency was a natural consequence that flowed from the treatment for his original compensable lung injury. His treating physician opined that there was a causal connection between the treatment for the lung injury and the kidney condition. Several other treating physicians corroborated the causal connection.

BellSouth argued that it was forced to defend what was tantamount to a products liability claim for the drug that caused the worker’s injury and was given no opportunity to defend the claim. However, the court pointed out that BellSouth was aware of the potential for a renal insufficiency claim through its expert.

Ankle Surgery Not Related to Worker’s Prior Work-Related Injury

Vukasin v. Liberty Northwest Insurance Corp., et al., No. A153002 (Or. Ct. App. 05/13/15)

Ruling: The Oregon Court of Appeals held that a worker was not entitled to compensation for her ankle surgery.

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What it means: In Oregon, even if medical conditions resulting from a workplace injury are accepted, subsequent treatment for conditions of the same type are not compensable when the medical evidence demonstrates that the conditions caused by the injury had resolved.

Summary: A worker sustained an ankle injury while working for Oregon Health and Science University. The university’s insurer accepted her right distal tibiofibular sprain, synovitis, neuroma, fibular avulsion of the right lateral malleolus, right flexor halluces longus tenosynovitis, and chronic tear of the right anterior talofibular ligament. The worker was also diagnosed with chronic instability of the right ankle, but that claim was denied. Almost 10 years after her injury, the worker requested authorization for surgery. The insurer denied authorization on the ground that the surgery was to address right ankle instability, a denied condition. The worker sought review. The Oregon Court of Appeals held that the surgery was not compensable.

The court found that the conditions treated by the surgery were not the same conditions that had been accepted as a result of the worker’s workplace injury. A medical expert opined that none of the conditions accepted as a result of the work-related injury would generally be a cause for the surgery. Also, the evidence indicated that the peroneal tendinitis that resulted from the worker’s injury had resolved four years before the surgery. Experts testified that MRI scans of the worker’s ankle four years before the surgery did not reflect peroneal tendinitis. The worker’s surgeon said that the original peroneal tendinitis could have resolved and new peroneal tendinitis could have developed.

Also, the court found that the synovitis that resulted from the worker’s work-related injury had been removed in a prior surgery. Following that procedure, the worker was not diagnosed with active synovitis.

The court also found that although the surgery involved treatment of the worker’s ATFL, the evidence did not indicate that the procedure was directed at treating an ATFL tear, which had been an accepted condition. The surgeon did not assert that he treated an ATFL tear.

Claim for Reimbursement Isn’t Premature Under Medical Treatment Guidelines

Gales v. Whole Food Co., Inc., No. 2013-CA-1492 (La. Ct. App. 04/22/15)

Ruling: The Louisiana Court of Appeal held that a claim for compensation for food authorized by a worker’s doctors was not a claim that fell under the medical treatment guidelines but was a claim for reimbursement of medical supplies. The court sent the case back to the Office of Workers’ Compensation.

What it means: In Louisiana, a claim for reimbursement for medical treatment is not required to follow the administrative procedures in the medical treatment guidelines.

Summary: A worker was shot while in the course and scope of his employment. He remained in a permanent vegetative state. For many years the worker’s doctors ordered him to be bowl fed a particular food. PMSI, a supplier with whom the employer’s workers’ compensation carrier contracted to provide medical supplies, started sending a substitute food. The mother claimed that the substitute food caused problems for the worker, and she purchased the previous food on her own. The worker’s mother filed a claim for compensation requesting that the employer pay for the previous food. The Louisiana Court of Appeal held that the claim did not fall under the medical treatment guidelines but was a claim for reimbursement of medical supplies. The court sent the case back to the Office of Workers’ Compensation for further proceedings.

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The employer argued that the mother’s claim was premature because she did not follow the mandated administrative procedures necessary for filing a claim for medical treatment. The mother asserted that changes in the medical treatment guidelines became effective after the doctors ordered the particular food. The court explained that the administrative procedures apply to all requests for medical treatments and all disputes emanating from requests for medical treatment after the effective date of the schedule regardless of the date of the injury.

However, the court found that the mother’s claim was not a new request for medical treatment but rather a claim for medical reimbursement of sums she paid for allegedly necessary medical supplies. Therefore, the court rejected the employer’s argument that the claim was premature.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]
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The State of the States

Regulatory Review

A round-up of nationwide regulatory changes affecting the workers' compensation industry.
By: | June 29, 2015 • 4 min read
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California

Recordkeeping

The California Department of Industrial Relations, Division of Occupational Safety and Health proposed amendments to rules regarding recordkeeping.

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A reference to “a public and private employer” was changed to “an employer” because the rule covers all employers. The partially exempt industries list was updated to mirror the list of partially exempt industries under the federal Occupational Safety and Health Administration’s standard, with the exception of motion picture and video industries. The state will continue to require employers of establishments in motion picture and video industries to maintain such records.

Qualified Medical Evaluators

The California Department of Industrial Relations, Division of Workers’ Compensation proposed amendments to rules regarding qualified medical evaluators. The changes amend the procedures for obtaining qualified medical evaluator medical-legal evaluations that are used to resolve disputes in the workers’ compensation system. The proposed amendments implement an online system that will replace an existing paper system for requesting and generating a panel of randomly selected QMEs in represented cases. The proposed regulations also make changes to clarify and make uniform the specialty code listings on the QME application and request forms. The proposed regulations also simplify the form and process for requesting a QME panel in unrepresented cases.

Connecticut

Fee Schedule

The Connecticut Workers’ Compensation Commission announced changes to the official fee schedule for hospitals and ambulatory surgical centers.The new fee schedule includes instructions for computation of inpatient reimbursement. For outpatient hospital and ambulatory surgical center reimbursement, the fee schedule includes facilities’ wage index groups and corresponding fees. The changes are effective for medical services rendered on or after April 1, regardless of the date of injury, which are payable to health care facilities authorized or permitted to render care under the state’s workers’ compensation law.

Delaware

Reimbursement

The Delaware Office of Workers’ Compensation amended a rule regarding the reimbursement percentages for non-covered medical codes. Medical codes for treatment in an ambulatory surgery center and not covered in the schedule are reimbursed at 64.02 percent for geozip 197 and 66.5 percent for geozip 199. Hospital outpatient non-covered medical codes are paid at 60 percent of charge for both geozips, per the fee schedule.

Hospital Outpatient and Ambulatory Surgical Treatment Methodology

The Delaware Office of Workers’ Compensation corrected a rule regarding health care payment rates. The rule states that reimbursement shall be made at the lesser of the maximum allowable or billed charges notwithstanding the contract provision in the statute. Rules regulating the payment of hospital outpatient and ambulatory surgical center fees are primarily from the outpatient prospective payment system. Reimbursement for hospital outpatient and ASCs shall be in compliance to federal regulations. Outpatient prospective payment system reimbursement incorporates ambulatory payment classification groups. Procedure codes (HCPCS Level I and II) are assigned an ambulatory payment classification group based on clinical characteristics and cost similarities. The Centers for Medicare and Medicaid Services assigns relative weights to the APC groups. Current procedural terminology category II and III codes may fall in an APC, but they are not recognized in the health care payment system.

Florida

Expert Medical Advisors

The Florida Division of Workers’ Compensation proposed amendments to rules regarding expert medical advisors. The proposed rule clarifies and streamlines the process by which a physician becomes certified as an expert medical advisor. The rule also introduces online certification and certificate issuance that includes an EMA tutorial. The rule also adds an online list of certified EMAs through which each physician is responsible for updating their profile to reflect any changes to the physician’s current information.

Michigan

Health Care Services

The Michigan Department of Licensing and Regulatory Affairs, Workers’ Compensation Agency proposed amendments to the health care services rules and fee schedule.

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The health care services rules were revised to update the health care fee schedules for reimbursement to providers for treatment of injured workers and to guide providers and payers on the scope of reimbursement. The proposed rules maintain consistency with the Centers for Medicare and Medicaid Services guidelines. The rules also update billing and reimbursement language to include the services of certified anesthesiologist assistants, clarify the application timetable for opioid treatment reimbursement rules, and enhance efficiency with respect to a carrier’s professional health care review certification renewal. Reimbursement for opioid treatment goes into effect for injury dates on or after June 26 and on Dec. 26 for all other injury dates.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]
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You Be the Judge

Is Accident on Way to Day Care Compensable?

The court debates whether an injury that occurred during a commute is within the course and scope of employment.
By: | June 22, 2015 • 2 min read
You Be the Judge

A patrol officer for the New Haven Police Department worked the third shift. He took his children to a day care center for the primary purpose of sleeping. When he drove the children to day care, he followed the same route he took to work but slightly altered the route at one street.

The officer left his home for the police station in his private motor vehicle dressed in his uniform. His children were in the vehicle because he had to take them to day care. He followed his usual route to work and was involved in a motor vehicle collision. The collision occurred at a point prior to where he would have altered his route to take the children to day care. The officer’s left knee and left foot were injured. He underwent surgery and sought workers’ compensation benefits.

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The workers’ compensation commissioner found that the officer’s injuries were compensable. The commissioner explained that the collision occurred within the officer’s period of employment and at a place where he reasonably may have been because he was a portal-to-portal employee on his way to work. He was fulfilling the duties of his employment by driving his vehicle to the police station to arrive at work on time. The commissioner also found that he did not substantially deviate from his employment. The Workers’ Compensation Review Board affirmed the commissioner’s decision awarding benefits to the officer. The police department appealed.

Poll Question

Was the board correct in awarding benefits to the officer?

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The court explained that an officer is a portal-to-portal employee, so his commute to and from the police station was within the course of his employment.

A is incorrect. The court explained that an injury does not arise out of the employment if it is sustained at the worker’s home and while he is engaged in preliminary acts or acts in preparation for work unless the acts are taken at the request of the employer.

Here, the court found that the officer had left his home and was traveling on his usual route to the police station at the time of the accident. Since the officer had already left his home to travel to work, his accident arose out of his employment.

C is incorrect. The court concluded that the officer’s travel was not a significant deviation from his work route. He was injured before the point where he would have deviated slightly from his normal route to work. At the time he was injured, he was where he would have been expected to be in the course of his employment.

How the court ruled: B. In McMorris v. City of New Haven Police Department, et al., No. AC36328 (Conn. App. Ct. 04/28/15), the Connecticut Appellate Court held that the officer’s injuries were compensable.

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

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]
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