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]

The State of the States

Regulatory Review

A round-up of nationwide regulatory changes affecting the workers' compensation industry.
By: | July 27, 2015 • 4 min read
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California

Qualified Medical Evaluators

The Division of Workers’ Compensation proposed modifications to its proposed regulations regarding qualified medical evaluators. The modifications state that initial represented panel requests postmarked after Sept. 3 will not be accepted or processed by the medical unit for initial represented panel requests only. The last day to mail in panel requests will be Sept. 3. Effective Oct. 1, all initial panel requests must be submitted electronically.

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Under the proposed modifications, parties will have 10 days from service of the panel list to strike a doctor. Also, disputes regarding the validity of panel requests must be resolved by a workers’ compensation judge. Disputes regarding the appropriateness of the specialty designated must be resolved by the medical director. Either party may appeal the decision with a workers’ compensation judge.

Medical Billing and Payment Guide

The Division of Workers’ Compensation proposed to modify rules to transition from the International Classification of Diseases, 9th Revision diagnosis and inpatient procedure coding systems to the ICD-10 diagnosis and inpatient procedure systems. The change will go into effect on Oct. 1. The proposed amendments also adopt new forms and amend the medical billing and payment guide to adopt the ICD-10 code tables and index. Additional updates were proposed to the medical billing and payment guide to adopt more current versions of instruction manuals for professional and facility paper billing forms and updated dental codes.

Colorado

Medical Fee Schedule

The Division of Workers’ Compensation proposed amendments to rules regarding the medical fee schedule. The rules revise the standard terminology and the administrative procedures and requirements necessary to implement the medical treatment guidelines and medical fee schedule. The proposed rule amendments also update the language of the medical fee schedule, revise the billing codes systems, and update the fees and relative values. The amendments also revise the medical requirements, procedures, and payments as they relate to the medical fee schedule.

Maine

Medical Fees

The Workers’ Compensation Board proposed to repeal and replace a rule regarding medical fees and amend rules regarding formal hearings and expenses and fees.

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The rule states that in the event that the employer or insurer contends that the medical records and information, preexisting and subsequent to the workplace injury, are relevant for determination of compensability and disability, it may obtain from the worker and the employee is obliged to within 14 calendar days execute a limited authorization for focused written medical records. Also, an employer or insurer must pay a worker’s travel expenses incurred for medical treatment, including actual costs for overnight lodging, parking, tolls, and public transportation if accompanied by a receipt.

New York

Fees

The Workers’ Compensation Board announced the elimination of a number of fees. Starting April 1, fees for licensing compensation medical bureaus and laboratories were eliminated. Fees were also eliminated for physician arbitration, psychologist arbitration, chiropractor arbitration, and podiatrist arbitration. Licensed third-party administrator fees and licensed hearing representative fees were also eliminated.

Ohio

Claims Procedure Rules

The Bureau of Workers’ Compensation proposed amendments to the claims procedure rules regarding lump-sum advancements. The rule states that an injured worker or surviving spouse must file an application requesting a lump-sum advancement with the bureau. The injured worker or surviving spouse must provide proof that the lump-sum advancement is advisable for the purpose of providing financial relief or furthering the injured worker’s rehabilitation. The bureau will not grant a lump-sum advancement in a claim where the allowance of the award of compensation is on appeal.

Oregon

Medical Services

The Workers’ Compensation Division proposed amendments to rules regarding medical services. The rules clarify that the dispute record packet must include certification whether there is or is not an issue of compensability of the underlying claim or condition. The rules limit the denial of reimbursement based on the late submission of a treatment plan by an ancillary service provider to those services provided before the treatment plan is sent.

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The amendments also require that an insurer approve or disapprove a health care provider’s request for preauthorization of a diagnostic study within 14 days of receipt of the request. The division scheduled a public hearing on July 21 at 9 a.m. at 350 Winter Street NE, Room B, in Salem.

Washington

Penalties

The Department of Labor and Industries amended rules to meet new measures for calculating penalties set by the Occupational Safety and Health Administration. The amendments add a minimum penalty amount of $2,500 for violations issued when contributing to a fatality. In a rule regarding base penalty adjustments, the language was modified to state that no reduction will be given if the violations are classified as willful, repeat, failure to abate, or violations contributing to an inpatient hospitalization or a fatality. The rule also added clarifying language on how to determine an employer’s good faith. The rule goes into effect on Sept. 1.

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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View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | July 20, 2015 • 8 min read
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Driver’s Death While Engaging in Criminal Activity Not Compensable

Fisher v. Cimarron Coach of Virginia, Inc., No. 13-1025 (W. Va. 06/01/15)

Ruling: The West Virginia Supreme Court of Appeals held that a driver’s death was not compensable because it did not occur in the course of and as a result of her employment.

What it means: In West Virginia, a worker’s involvement in criminal activities not related to her employment will undermine a claim for benefits.

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Summary: A taxi driver for Cimarron Coach of Virginia was fatally shot by a passenger in her cab. The driver’s children sought workers’ compensation dependent benefits. The West Virginia Supreme Court of Appeals held that the driver’s death was not compensable. The assailant claimed that the driver picked him up with her boyfriend for the purpose of procuring drugs. The assailant said they went to a mall to meet a man to purchase drugs. After the assailant gave money to the man, he pulled out a gun and informed them that he was not going to give them drugs. While driving the assailant to his friend’s house after they left the mall, the assailant thought the others had attempted to defraud him. He pulled out his gun and attempted to shoot the driver’s boyfriend. Instead, he shot the driver.

The driver’s boyfriend stated that he was riding along with the driver when she saw a fare on the side of the road. The boyfriend said that the driver stopped the cab to inform the assailant that she could not pick him up because she had received a call from dispatch to pick up another fare. The boyfriend claimed that the assailant then pulled out a gun and demanded a ride. After the ride, the assailant stole her money and shot her.

A manager for Cimarron Coach said that the driver was advised to never pick people off the street without receiving a call from dispatch. Also, it was against company policy to have passengers in the taxi besides the paying customer. The manager noted that on the day of the shooting the driver called and said she could not pick up anymore fares because she had a sick child. The sick child story was later confirmed to be untrue. A toxicology report completed as part of the autopsy confirmed that the driver was using cocaine and an opioid on the date of her death.

The court found that the driver’s death did not occur in the course and as a result of her employment. The evidence supported an inference that she was either involved in a drug transaction that went bad or involved in a scheme to defraud the assailant. It was more likely than not that she was involved in acts not related to her employment when she was killed.

Coworker Immune From Suit Despite Alleged Intoxication While Driving Cart

Sims v. Marren, et al., No. OT-14-035 (Ohio Ct. App. 06/05/15)

Ruling: The Ohio Court of Appeals held that a worker’s suit against a coworker was barred under the workers’ compensation law.

What it means: In Ohio, a coworker’s suit against a coworker is barred when the actionable conduct occurred in the course of and arising out of the coworker’s employment.

Summary: Workers for Texas Roadhouse attended “Kitchen Managers University” on an island in Ohio. Attendees were informed that the event was “BYOB” and were told not to bring their vehicles to the island. Texas Roadhouse rented cabins for attendees and a space for group activities. The activity space was stocked with food and beverages, including alcoholic beverages, for attendees. Golf carts were the primary mode of transportation on the island, and attendees were told that they could rent golf carts. The last item on the itinerary indicated that the group would go downtown after dinner. A worker went to downtown bars after dinner with her coworkers. Once back at their cabin, they were invited to go back downtown to continue socializing. A coworker volunteered to drive the golf cart. While driving, the coworker swerved onto a curb. The worker was trapped under the cart and suffered an open fracture of her ankle and facial injuries. The worker received workers’ compensation benefits. Later, she sued the coworker. The Ohio Court of Appeals held that the suit against the coworker was barred.

The court explained that a coworker is immune from suit when the actionable conduct occurred in the course of and arising out of the coworker’s employment. The court found the coworker was entitled to immunity from suit.

The court found that the coworker’s alleged intoxication did not render her conduct outside the course of her employment. Her blood alcohol level was not tested, and she was not cited for driving under the influence. Also, Texas Roadhouse not only consented to or acquiesced in the consumption of alcohol and the use of carts to travel between the resort and bars, it encouraged such conduct. It invited attendees to “BYOB,” stocked the activity space with alcohol, and called for the event’s activities to continue at bars and restaurants. It was clear that attendees were using carts as transportation around the island.

Employer Steers Clear of Requirement to Pay for Medical Evaluation

Des Moines Area Regional Transit Authority v. Young, No. 14-0231 (Iowa 06/05/15)

Ruling: The Iowa Supreme Court held that an employer was not required to pay for a worker’s medical evaluation as a cost incurred in the hearing.

What it means: In Iowa, the Workers’ Compensation Commission cannot tax the fees of a physician arising from the evaluation of a worker done outside the statutory process for evaluating injured workers after maximum medical improvement as costs incurred in the hearing.

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Summary: A bus driver for Des Moines Area Regional Transit Authority sustained a back injury when the bus collided with an empty vehicle on DART’s premises. The driver went to a physician for a medical examination. The examination was not authorized by DART. In the report, the physician concluded that the driver reached maximum medical improvement and suffered a permanent disability. The driver filed a workers’ compensation claim. The workers’ compensation commissioner concluded that the driver had a permanent partial disability. The commissioner also taxed as a cost against DART the expense of the medical examination and report under the administrative rule governing the assessment of costs in a hearing. In an appeal, the Iowa Supreme Court held that DART was not required to pay for the medical evaluation as a cost incurred in the hearing.

The court explained that a statute sets forth the process to follow in evaluating injured workers after maximum medical improvement. The statute does not prevent a worker from seeking evaluations outside the process at the worker’s expense. An employer is not obligated to pay for an evaluation obtained by a worker outside the process. A rule allows the commissioner to tax costs of obtaining a medical report.

The court concluded that the commissioner could not tax the fees of a physician arising from a medical evaluation done outside the statutory process as costs incurred in the hearing when a worker submits a report from the evaluation at the hearing. The court explained that under the commissioner’s interpretation, a worker can obtain an evaluation independent of the statutory process and be awarded reimbursement for the evaluation fee. The court explained that the concept of obtaining a report for a hearing is separate from the concept of a physical examination. The court concluded that the statutory process is the sole method for reimbursement of an examination by a physician of a worker’s choosing.

Dissenting judges opined that the commission had the discretion to tax the reasonable cost incurred by the driver in obtaining the physician’s report. The judges said that a physical examination of a worker is a “crucial foundational component” of a physician’s report.

Deviation From Work Ends When Driver Struck While Crossing Street

Razorback Concrete v. Perkins, No. CV-15-59 (Ark. Ct. App. 06/03/15)

Ruling: The Arkansas Court of Appeals held that a driver’s injuries occurred while he was performing employment services.

What it means: In Arkansas, a worker is performing employment services when he is injured while returning to work from a short deviation.

Summary: A tanker truck driver for Razorback Concrete drove a truck to Razorback’s facility for it to be loaded with raw cement. He then drove to another facility for unloading. The employee responsible for opening the facility gates had not yet arrived. While waiting for the facility to be opened, the driver drove a half-mile to a convenience store. He was not required to clock out. He was on paid company time and was not breaking Razorback’s policies by going to the convenience store. The driver parked the truck on the shoulder of the road and entered the store to buy breakfast. As he was crossing the road to return to the truck, he was struck by a vehicle and died a few hours later. The Arkansas Court of Appeals held that he was performing employment services at the time of the injury.

The Workers’ Compensation Commission found that the driver’s break was reasonable and permitted by Razorback. Razorback’s facility was not open, and this prevented him from completing his work task at the time. He was injured after finishing his break, ending any deviation. The commission found that the act of walking back to his truck “was clearly an act of returning to his job duties.” The court agreed with the commission’s decision.

The court rejected Razorback’s arguments that the driver was not in his truck or on company property at the time he was injured and was on a personal deviation from his work. The court found he was on paid company time, responsible for the truck during his workday, a half-mile away from Razorback’s locked facility, and returning to work after the permissible deviation had been completed.

Nurse Case Manager Must Be Removed From Case After Expiration of Contract

Trace v. University of New Mexico Hospital, No. 32,413 (N.M. Ct. App. 05/28/15)

Ruling: The New Mexico Court of Appeals held that the workers’ compensation judge improperly ordered a nurse case manager to continue serving in a case.

What it means: In New Mexico, the appointment of a case manager for ongoing coordination of health care services by a workers’ compensation judge is not a “litigation expense” that exempts a case manager’s fee from the procurement law.

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Summary: A registered nurse for the University of New Mexico Hospital injured her back while lifting and turning a patient. The workers’ compensation judge found that the nurse’s injuries were compensable and that the injuries were permanent and required continuing treatment. The nurse asserted that the hospital’s adjuster continued to deny treatments and medications and that she had increasing pain. The WCJ appointed a nurse case manager to coordinate medical treatment. Later, the hospital sought to have the nurse case manager’s services discontinued because her employer’s contract with the Workers’ Compensation Administration expired. The WCJ denied the hospital’s request. The New Mexico Court of Appeals held that the WCJ erred in ordering the nurse case manager to continue serving in the case.

The hospital argued that the administration has a statutorily and administratively created system of case management and a WCJ cannot unilaterally order case management by circumventing the system. The hospital also argued that the WCJ’s order exceeded his authority and violated the procurement law. The court explained that the law directs the administration to contract with an independent organization to assist with administering the case management system. The plain language of the statute demonstrated that the legislature intended the case manager to be a contractor with a contract in effect. The administrative rules implement this intent by creating a framework requiring case managers to be contractors who are paid as provided in the contract. Here, the contract with the nurse case manager had expired.

An exception to the procurement law exists for litigation expenses. The court declined to find that the fee of a case manager is a litigation expense. While a case manager’s fee may be the consequence of litigation, such fees are not an expense of litigation. While the nurse case manager acquired substantial knowledge about the nurse’s case in 15 years and the disputes between the parties resolved, the court explained that a WCJ cannot exceed his statutory authority.

Housekeeper Fails to Show She Suffered Bug Bite on the Job

Todorovic v. Industrial Commission of Arizona, et al., No. 1 CA-IC 14-0048 (Ariz. Ct. App. 05/28/15)

Ruling: The Arizona Court of Appeals held that a housekeeper’s hand injury was not compensable.

What it means: In Arizona, the unexplained injury presumption applies only when an injury occurring within the time and space of work itself renders a worker unable to remember or communicate how the injury occurred.

Summary: A housekeeper for a Hilton hotel noticed redness and swelling on her right hand while working. When her hand was worse the next morning, she reported the injury to a supervisor. A doctor diagnosed an infected insect bite and hand cellulitis and possible abscess. The housekeeper underwent surgery. She sought workers’ compensation benefits. The Arizona Court of Appeals held that the housekeeper’s injury did not arise out of and in the course of employment.

The housekeeper argued that the unexplained injury presumption applied to create a rebuttable presumption that she was injured while doing the employer’s work. The court rejected the argument, explaining that the presumption applies only when an injury occurring within the time and space of work itself renders a worker unable to remember or communicate how the injury occurred. Here, the housekeeper’s finger injury did not prevent her from explaining how she was injured. She recounted the events of the injury to the employer and her doctors.

The court also pointed out that an independent medical examiner noted that most people who are bitten by an insect immediately notice the bite. The housekeeper indicated that she never felt or saw a bug bite her, and she did not recall having any cuts, scrapes, or abrasions at work. The court found that the examiner’s opinion that the housekeeper had not suffered an insect bite on the job was supported by sufficient medical evidence.

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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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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