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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 riskletters@lrp.com

You Be the Judge

Is a Subcontractor an Employee Entitled to Benefits?

A district court found that intent was the most important factor in determining whether a subcontractor qualified as an employee, but an appeals court disagreed.
By: | July 14, 2014 • 3 min read
You Be the Judge

A carpenter was working for Stark Construction when his saw kicked back and his left index and middle fingers were cut by the blade. He underwent surgery to repair tendon damage. At the hospital, he provided information that he was employed by another company and was self-insured. He said he was not covered by workers’ compensation insurance and was the person responsible for the billing.

The carpenter owned a subcontractor business and had reported pay he received from Stark as income for his business. Stark kept track of his hours and paid him an hourly wage. The carpenter sometimes brought his adult son to assist him on the job, and Stark provided the carpenter wages to pay his son. Another construction worker said that it was common for construction companies to pay subcontractors more than employees because they did not have to “pick up their insurance.”

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Stark told the carpenter what job to go to each day and set the work hours. The carpenter could not change the way the work was to be performed. Stark had the ability to fire or reprimand him. Stark controlled the contracts with customers. The carpenter brought his own basic tools, but Stark provided specialized tools and the supplies needed for the project.

The carpenter filed a claim for workers’ compensation benefits, claiming that he was Stark’s employee. A deputy workers’ compensation commissioner concluded that he failed to prove he was an employee. The commissioner reversed, awarding him permanent partial disability benefits, healing period benefits, and medical expenses. The District Court found the carpenter was not an employee, explaining that the “intent of the parties” was the most important factor in determining whether a worker qualified as an employee. The District Court also found no evidence showing that the parties intended to evade workers’ compensation law. The carpenter appealed.

Poll Question

Was the District Court correct in denying benefits to the carpenter?

View Results

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How the court ruled:

The court found that Stark had the right to control the carpenter’s work. The court found that the parties’ designation of their relationship as contractor and subcontractor was not controlling because it was “plainly and completely at odds with the undisputed facts.”

A is incorrect. The court said the construction worker’s testimony that companies paid more to subcontractors could raise an inference that work relationships were structured to “maximize the amount of take-home pay and not to reflect the true balance of responsibilities.” The court found that as a whole the evidence showed that Stark exercised control over the carpenter’s work.

B is incorrect.The court found that the District Court erred in viewing the intent of the parties as the controlling factor. The court said the most important consideration in determining whether a worker is an employee or independent contractor is the right to control.

C is correct.The Iowa Court of Appeals held that the carpenter was an employee of Stark and was eligible for benefits. Stark Construction v. Lauterwasser, No. 3-1114/13-0609 (Iowa Ct. App. 04/16/14).

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 riskletters@lrp.com
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View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | June 6, 2014 • 10 min read
Docket

Drug Treatment Compensable If Injury Made Addiction Worse

Kim v. Gen-X Clothing, Inc.,No. S-13-802 (Neb. 04/11/14)

Ruling: The Nebraska Supreme Court held that a manager was entitled to temporary total disability benefits and treatment for chemical dependency, an emergency room visit, and future medical expenses.

What it means: In Nebraska, a worker who engaged in recreational drug use before his work-related injury can be entitled to compensable inpatient drug treatment when his drug use increased after the work incident.

Summary: A manager of a Gen-X Clothing store suffered multiple gunshot wounds at work. The shooting was revenge for reporting a previous robbery at the store. The manager began seeing a licensed mental health counselor who diagnosed him with post-traumatic stress disorder and chemical dependency. Before the shooting, the manager drank alcohol and was a recreational drug user, but he said his use of alcohol and drugs increased after the shooting. Three months after the incident, the manager visited the emergency room after waking from a nightmare and suffering a panic attack. He was eventually admitted to inpatient drug and alcohol treatment. The manager sought workers’ compensation benefits. The Nebraska Supreme Court held that he was entitled to temporary total disability benefits and treatment for chemical dependency, an emergency room visit, and future medical expenses.

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Gen-X argued that the manager was a lifelong drug user and would have needed inpatient treatment regardless of the shooting. The manager’s counselor indicated that at the time he began treatment he did not meet the definition of chemical dependency. Although expert opinions differed regarding whether the inpatient treatment was related to the shooting and PTSD diagnosis, the court found the compensation court was the sole judge of the credibility of the witnesses and did not err in concluding that the treatment was compensable.

The court rejected Gen-X’s argument that the manager was not entitled to TTD benefits because he was ready to return to work. The manager’s counselor and psychiatrist opined that he was not ready to return to work.

The court found that the manager’s emergency room visit was caused by the shooting. Notes from the visit indicated that the manager went to the emergency room because he felt unsafe because of the shooting. Therefore, the emergency room visit was compensable.

Based on the counselor’s testimony that future medical treatment was reasonably necessary, the court found the manager was entitled to future medical expenses.

Employer Successfully Uses Facebook Video to Attack Credibility

Ferraccio v. Tek Cusine, Inc.,29 PAWCLR 31 (Pa. W.C.A.B. 2013)

Ruling: The Pennsylvania Workers’ Compensation Appeal Board affirmed the workers’ compensation judge’s decision denying a representative’s petition for benefits for a back injury.

What it means: In Pennsylvania, the WCJ can find that the contents of a Facebook video of an injured worker eroded the worker’s credibility where the WCJ specifically explains the contents of the video of the worker, compares the video to her courtroom observation of the worker, and finds the two presentations are contradictory.

Summary: The board affirmed the WCJ’s decision denying a customer service representative’s petition for benefits for a back injury. On appeal, the representative argued the WCJ should not have relied on a Facebook video depicting the representative holding her newborn granddaughter where there was no mention of the weight of the child. Finding no merit in this argument, the board noted that the WCJ specifically explained the contents of the Facebook video, comparing it to her observation of the claimant as she entered the courtroom. Based on that comparison, the WCJ noted that the two presentations were contradictory, and therefore, this eroded the representative’s credibility.

As it was within the WCJ’s discretion to place weight on the video depiction of the representative, the board refused to disturb her credibility determination.

Aide Proves Workplace Harassment Caused Compensable Adjustment Disorder

Rockland Psychiatric Center, 114 NYWCLR 11 (N.Y. W.C.B., Full Board 2014)

Ruling: The New York Workers’ Compensation Board held that an aide sustained a compensable psychological injury due to harassment by coworkers.

What it means: In New York, a claim for work-related stress cannot be sustained unless the worker shows that the stress she experienced was greater than that which other similarly situated workers experienced in the normal work environment.

Summary: The board held that a mental health therapist aide sustained a compensable psychological injury due to harassment by coworkers. The aide testified that she was subjected to a hostile work environment that was the result of continuous harassment from three coworkers over several years. She testified she was exposed to verbal abuse and threats of physical harm. A witness for the employer testified that the aide was exposed to hostile altercations with a coworker on a daily basis that were always initiated by the coworker. The aide also testified that she was told by supervisors to ignore her coworkers’ behavior.

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Also, the carrier’s medical consultant testified that if the workers’ compensation law judge determined that the aide was bullied by a group of coworkers and if efforts to obtain assistance from her supervisors did not produce results, then the aide’s adjustment disorder would be causally related.

Based on this evidence, the board found sufficient support for a finding that the stress experienced by the aide was greater than that which other similarly situated workers experience in the normal work environment and that the aide had a causally related adjustment disorder.

Adjustor Becomes Claimant, Fails to Prove Permanent Injury

Kwietkauski v. Industrial Commission of Arizona,No. 1 CA-IC 13-0060 (Ariz. Ct. App. 04/03/14, unpublished)

Ruling: In an unpublished decision, the Arizona Court of Appeals held that an adjustor who was injured at work did not suffer a permanent impairment and she was not entitled to additional penalties.

What it means: In Arizona, an employer’s failure to provide notice to a worker that the workers’ compensation adjustor assigned to her case was changed is not bad faith.

Summary: A workers’ compensation claims adjustor for Sentry Insurance slipped and fell in the parking lot on her way to work, resulting in pain in her back, hip, wrist, and hand. The next day, she fell from an office chair. Sentry accepted her workers’ compensation claim. An independent medical examiner found her condition was “stationary without impairment.” The adjustor asserted that she had a permanent impairment and that she was entitled to penalties for Sentry’s bad faith. The Arizona Court of Appeals held that she did not suffer a permanent impairment and that she was not entitled to additional penalties.

The administrative law judge awarded the adjustor a number of penalty benefits for Sentry’s bad faith and unfair claims processing. The adjustor argued that she should have been awarded penalties for additional claims of bad faith and unfair claims processing. She alleged that Sentry did not tell her when the adjustor assigned to her case changed, and a letter advising her of an IME indicated that it was mailed when it was handed to her a few days later. The court found that the adjustor failed to provide legal analysis as to why the actions were bad faith. She did not point to any requirement that Sentry provide notice of a change of adjustor.

The court found the record supported a finding that the adjustor’s condition was medically stationary and she did not sustain a permanent impairment. Two physicians found her to be permanent and stationary without impairment. The adjustor asserted that she continued to need medical attention, but the court found she did not show her condition was not stationary. She also failed to present evidence regarding her wrist and claimed psychological issues.

Permanent Incapacity Stems Solely From Preexisting Condition

Madison Academy, Inc. v. Hanvey,No. 2120753 (Ala. Civ. App. 04/04/14)

Ruling: The Alabama Court of Civil Appeals held that a janitor was not entitled to permanent total disability benefits.

What it means: In Alabama, to prove that employment factors permanently aggravated a worker’s underlying disease, a worker can rely on circumstantial evidence showing that since the accidental exertion or exposure, the worker experienced new or increased symptoms that have persisted.

Summary: A janitor for a school was exposed to chemicals and developed a strong headache, rawness in her throat, and difficulty talking and breathing. Eventually, she was diagnosed with myasthenia gravis, an idiopathic disease of the immune system that results in dysfunction of muscular contraction. Medical experts opined that she developed the condition before her workplace chemical exposure. A treating physician informed the janitor that it was “very possible” that the work exposure could have aggravated the condition. The janitor sought permanent total disability benefits. The Alabama Court of Civil Appeals held that she was not entitled to PTD benefits.

The school did not contest that the janitor’s myasthenia gravis was aggravated by her physical exertion and chemical exposure at work. It admitted that she was entitled to temporary total disability benefits for the period during her recovery. However, the school argued that the aggravation of her disease was only temporary. The court found no evidence indicating that the aggravation persisted. Physicians testified that the physical exertion and chemical exposure worsened the myasthenia gravis temporarily and that the janitor recovered completely. There was also no evidence that the aggravation resulted in residual chronic restrictions or sensitivity making the janitor more susceptible to further injury.

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The court also found no evidence indicating that the work-related exposure rendered the janitor unable to return to work or perform her accustomed trade. The school did not dispute that the janitor was unable to work, but the court found it correctly observed that her permanent incapacity stemmed solely from her myasthenia gravis. The court pointed out that it could not award compensation for a disability arising solely from a preexisting condition and its natural progression merely because the worker at one time was able to work normally despite the condition.

A dissenting judge opined that the janitor was entitled to PTD benefits. The judge asserted that a preexisting condition that did not affect a worker’s work performance before the disabling injury is not considered a preexisting condition.

Manual Labor Exception Doesn’t Apply to Truck Drivers

Chaisson v. Louisiana Rock Monsters, LLC,No. 2013-CA-1423 (La. Ct. App. 04/02/14)

Ruling: The Louisiana Court of Appeal held that a driver was not entitled to benefits because he was an independent contractor.

What it means: In Louisiana, truck drivers do not fit under the manual labor exception for independent contractors.

Summary: A truck driver was hired by Louisiana Rock Monsters, a concrete crushing business, to pick up and haul debris from construction sites to dump sites. The driver was injured in a motor vehicle accident while he was driving a truck owned by Louisiana Rock Monsters. He sought workers’ compensation benefits. Louisiana Rock Monsters denied the claim, asserting that he was an independent contractor. The Louisiana Court of Appeal held that he was not entitled to benefits.

The court explained that the “essence of the employer-employee relationship is the right to control.” The driver was hired each day to perform the specific project for an agreed-upon price. Louisiana Rock Monsters exercised no control over how or when the driver performed the work, and it did not direct or supervise his work. The driver used a truck and supplies that belonged to Louisiana Rock Monsters, and Louisiana Rock Monsters maintained the trucks. Although no contract existed between the driver and Louisiana Rock Monsters, he was paid using an independent contractor form and no taxes were withheld from his pay. Based on the totality of the circumstances, the court found that the driver was an independent contractor.

The driver argued that the manual labor exception applied to make him covered by workers’ compensation. According to the statute, truck drivers do not fit under the manual labor exception. The court concluded that the manual labor exception did not apply to the driver.

Employer Not Liable for Post-Pension Medical Treatment Costs

Boeing Co. v. Doss,No. 69759-5-I (Wash. Ct. App. 03/31/14)

Ruling: The Washington Court of Appeals held that the Department of Labor and Industries was liable for the costs of a disabled worker’s ongoing post-pension medical treatment rather than the self-insured employer.

What it means: In Washington, the Department of Labor and Industries is liable for the costs of a disabled worker’s ongoing post-pension medical treatment rather than the self-insured employer.

Summary: A worker for Boeing alleged that chemical exposure permanently aggravated her preexisting asthma. The Department of Labor and Industries determined that she was permanently and totally disabled as a result of the combined effects of her industrial exposure and her preexisting condition. The department awarded her a pension and authorized ongoing post-pension medical treatment for her asthma. The department asserted that these post-pension treatment benefits were the responsibility of Boeing and not the second injury fund. The Washington Court of Appeals held that the department was liable for the worker’s ongoing post-pension medical treatment.

When second injury fund relief has been granted, employers are only responsible for the accident costs that resulted solely from the worker’s industrial injury or disease. The court said that the second injury fund prevents placing unfair financial burdens on employers. The department did not assert that the worker’s need for post-pension medical care resulted solely from her chemical exposure at Boeing. Therefore, Boeing could not be required to pay for the care.

The court explained that requiring Boeing to pay for the worker’s post-pension medical care would conflict with the second injury fund’s purpose to contain the future workers’ compensation costs for employers who hire workers with preexisting disabling conditions to make the costs comparable to those for workers without preexisting disabling conditions. The court said that “a contrary result would provide an economic disincentive to hiring previously disabled workers.”

Boeing also asserted that requiring it to pay the worker’s post-pension medical treatment costs would constitute a double assessment and a windfall to the department. The court agreed with Boeing that it pays assessments for the second injury fund based in part on treatment costs. The court pointed out that the department’s proposed result would impose a greater financial burden on self-insured employers.

Personal Errand After Doctor’s Appointment Cuts Off Comp

Holiday Inn, 114 NYWCLR 14 (N.Y. W.C.B., Full Board 2014)

Ruling: The New York Workers’ Compensation Board held that injuries sustained by a waitress in a motor vehicle accident, which occurred after she left her doctor’s office where she received treatment for a compensable injury, were not compensable.

What it means: In New York, a worker’s injuries after driving to an appointment with her treating physician to receive treatment for her compensable injury are not compensable when the worker was pursuing a personal errand.

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Summary: The board held that injuries sustained by a waitress in a motor vehicle accident, which occurred after she left her doctor’s office where she received treatment for a compensable injury, were not compensable. Evidence indicated that after her doctor’s appointment, the waitress drove in the opposite direction of her home to buy a salad. At the time of the accident, she was engaged in travel for purposes of completing a purely personal errand. Because the waitress’s travel at the time of the accident was not related to the fact that she had attended a doctor’s appointment for the purpose of receiving treatment for her compensable injury, the connection between her compensable injuries and her new injuries was significantly weakened.

The board said it was clear that at the time of the waitress’s motor vehicle accident, the work-related aspects of her travel had ended and the causal connection between the her work-related injuries and the injuries that she sustained as a result of her off-duty accident was sufficiently severed by her pursuit of a personal errand.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com
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The State of the States

Regulatory Review

Key workers' comp regulatory updates from around the country.
By: | May 30, 2014 • 4 min read
Texas capital

California

Medical fee schedule. The Division of Workers’ Compensation adjusted the official medical fee schedule to conform to changes in the Medicare payment system. The durable medical equipment, prosthetics, orthotics, and supplies update includes all changes adopted by the Centers for Medicare and Medicaid Services for the 2014 calendar year. The physician and nonphysician practitioner fee schedule was also updated to conform to Medicare changes. The medically unlikely edits were adopted. Also, the maximum fees for splints and casts billed by physicians and nonphysician practitioners are governed by the durable medical equipment, prosthetics, orthotics, and supplies fee schedule.

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Opioids guideline. The Division of Workers’ Compensation proposed a guideline for the use of opioids to treat work-related injuries. The division intends to remove the existing parts of the medical treatment utilization schedule that refer to opioid use and revise the MTUS to include this proposed guideline. The proposed guideline provides a set of best practices for considering opioids in the management of acute, subacute, post-operative, and chronic pain related to work-related injuries. Recommendations include when it is appropriate to consider adding opioids to the treatment regimen; medications to avoid when using opioids; methods and tools to monitor patients on opioids; the need to educate patients about the adverse effects of opioid use; and responsible storage and disposal of opioids.

Hospital outpatient departments. The Division of Workers’ Compensation proposed amendments to regulations regarding hospital outpatient departments and ambulatory surgical centers. The proposed modifications include updating the definitions of emergency room visit and surgical procedures to conform to Medicare and health care common procedure coding system coding changes. The modifications also provide a base facility fee “formula” to give additional clarification regarding the payment methodology for “other services” that are determined solely on the non-facility practice expense relative value units. The rules clarify that the alternative payment methodology will be inapplicable for dates of service on or after the effective date of the proposed regulation.

Florida

Notice of election to be exempt. The Division of Workers’ Compensation proposed amendments to a rule regarding the process through which corporate officers can apply to be exempt from workers’ compensation coverage requirements. The proposed rule is amended to reflect the meaning of “corporate officer” as defined in the statutes. Under the definition, members owning at least 10 percent of a nonconstruction limited liability company qualify as corporate officers and can elect to be exempt from coverage requirements.

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The division revised the “Notice of Election to Be Exempt” form to accommodate application by nonconstruction industry employers seeking to be exempt from coverage requirements. The proposed rule also provides updated contact information and deletes obsolete language.

New York

Inpatient hospital care. The Department of Health provided the Workers’ Compensation Board with reimbursement rates for inpatient hospital care with discharge dates for 2014. New reimbursement rates were provided for medically managed detoxification and medically supervised inpatient withdrawal. Inpatient hospital care reimbursement rates were determined using the Medicaid inpatient methodology. Inpatient hospital care exempt reimbursement rates were also determined using the Medicaid inpatient methodology.

Electronic data interchange. The Workers’ Compensation Board announced the implementation of a new regulation that mandates electronic filing for First Report of Injury/Subsequent Report of Injury filings for all claim administrators. Effective May 23, certain board forms will not be scanned into the case folder nor considered duly filed. The forms will be replaced by electronic data interchange equivalent forms. The equivalent forms need to be filed and accepted with the board to be considered duly filed. The board has also has created FROI/SROI transaction reports for mailing to the parties. The new regulation went into effect on April 23. Those with questions should contact eclaims@wcb.ny.gov.

Oregon

Clinical justification for certain drugs. The Workers’ Compensation Division issued a bulletin explaining that physicians and other providers must complete a clinical justification form when prescribing more than a five-day supply of certain high-cost drugs, including Celebrex, Cymbalta, Fentora, Kadian, Lidoderm, Lyrica, and OxyContin. Physicians do not have to complete the form for drugs not on the list. The division noted that these seven drugs make up about 30 percent of total pharmaceutical costs in the workers’ compensation system.

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The requirement to provide justification is an effort to encourage providers to consider other lower cost options to treat workers’ compensation patients when appropriate. Those with questions should send an email to wcdmedicalquestions@state.or.us.

Washington

Retrospective rating. The Department of Labor and Industries proposed amendments to a rule regarding the retrospective rating for workers’ compensation insurance. The proposal modifies a formula that allowed a small number of retro participating employers to receive refunds or larger refunds inconsistent with the intent of the retrospective rating program when their loss ratio exceeded the maximum loss limit they chose. The rule will also amend the net insurance charge. The department proposed removing the performance adjustment factor from the calculation of insurance changes for those retro participants whose insurance charges are based on standard premium paid. A public hearing was scheduled on May 6. The department intends to adopt the amendments on May 30.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com
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