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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

View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | November 13, 2014 • 13 min read
judge

Fall injuries Compensable Despite Visible Intoxication

St. Regis Hotel, 114 NYWCLR 148 (N.Y. W.C.B., Panel 2014)

Ruling: The New York Workers’ Compensation Board held that a server was entitled to benefits for his ankle injury from a fall.

What it means: In New York, no compensation is awarded when the worker’s intoxication from alcohol or a controlled substance while on duty was the sole cause of the worker’s accident.

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Summary: The board found that a banquet server for the St. Regis Hotel was entitled to benefits for an injury to his left ankle when he tripped and fell. He was carrying a tray of wine glasses when he opened the door to the ballroom in the kitchen, stepped on something, twisted his left foot, and fell. The server testified he was a recovering alcoholic but had two glasses of wine that evening and was on medication to treat his HIV. The server also said that the medication gave him side effects such as stomach problems, dizziness, lack of sleep, and tiredness, but he was on the medication for so long that he was used to the side effects. In finding that the workers’ compensation law judge properly established the claim, the board noted that the server had been working the entire evening before the accident. The injury did not occur solely from alcohol the server had consumed but rather arose in and out of the course of employment. The board found that walking down a ramp with a heavy tray of glasses, alone, could have contributed to the server’s accident.

A security officer said there was no liquid on the ramp, and the catering supervisor said the server was incoherent and slurring after the accident. The board found this testimony did not establish that alcohol and intoxication were the sole cause of the accident. Therefore, the hotel could not establish the intoxication defense.

Employer Not Liable for Stolen Workers’ Comp Checks

Yerdon v. Eihab Human Services, 29 PAWCLR 149 (Pa. W.C.A.B. 2014)

Ruling: The Workers’ Compensation Appeals Board affirmed the workers’ compensation judge’s decision that the employer/insurer was not required to issue new compensation checks or pay a penalty for nonpayment.

What it means: In Pennsylvania, where the employer properly issued compensation checks in a timely manner, but the worker never received those funds because her signature was forged on the checks and they were cashed by a third party, the employer is not required to issue new checks to the worker.

Summary: In affirming the WCJ, the board held that although the worker did not receive four compensation checks that were sent to her, the employer/insurer was not required to issue new checks or pay a penalty for nonpayment. It was undisputed that the worker did not sign the four compensation checks that were sent to her. It was also undisputed that the checks were sent to the appropriate address and never returned to the employer/insurer. The worker’s signature was apparently forged on the checks, and they were cashed by someone other than the worker. The board ruled that although the worker argued she never actually received her compensation payments because somehow those payments were intercepted by a third party, the employer/insurer honored its obligation to make payment of compensation. The employer/insurer could not be made responsible for the actions of a third party.

Therefore, although the worker technically never received her payment of indemnity benefits, this was not due to any action on the part of the employer/insurer, and it should not be forced to pay twice.

Widow Wins Four Years of Interest on Death Benefits

Stenz v. Industrial Commission of Arizona, No. 2 CA-IC 2013-0022 (Ariz. Ct. App. 10/08/14)

Ruling: The Arizona Court of Appeals held that a widow was entitled to interest on death benefits dating back to a worker’s death.

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What it means: In Arizona, interest on benefits begins to accrue when there is a legal indebtedness or other obligation to pay benefits and the carrier has notice of this obligation to pay.

Summary: A worker for the City of Tucson suffered a compensable injury. The insurer, Pinnacle Risk Management, accepted the claim and paid benefits. Later, the worker died, and his widow sought death benefits. Pinnacle denied the claim for death benefits. Subsequently, an administrative law judge granted the widow’s claim for death benefits. The following month, Pinnacle paid the benefits dating back to the worker’s death but did not pay any interest. The widow asserted that she was entitled to interest on the unpaid death benefits for the four-year period between the worker’s death and their payment. Pinnacle asserted that no interest was due because it timely paid the claim following the ALJ’s award. The Arizona Court of Appeals held that the widow was entitled to interest on the death benefits.

The court explained that a workers’ compensation claimant is owed interest on benefits not timely paid. Interest begins to accrue when there is a legal indebtedness or other obligation to pay benefits and the carrier has notice of this obligation to pay. Interest is allowed on “liquidated claims” but not “unliquidated claims.” Liquidated means the evidence furnishes data that makes it possible to compute the amount with exactness without reliance on opinion or discretion. The court explained that death benefits are “susceptible to mathematical computation” and subject to a “statutory payment schedule.” Therefore, the death benefits the widow was awarded were liquidated and constituted a legal indebtedness or other obligation to pay upon the ALJ’s award.

The court found that Pinnacle had notice of its obligation to pay when it received notice of the widow’s claim. It could have begun payments to the widow after receiving notice of her claim and before the Industrial Commission made its determination. The court found the benefits were not timely paid, and interest began to accrue from the time Pinnacle received notice of the widow’s claim.

The court found its decision was supported by the public policy considerations underlying the workers’ compensation law. An award of interest serves to compensate the injured party. The court pointed out that Pinnacle’s initial challenge to the widow’s entitlement to benefits did not affect its analysis. Also, permitting carriers to avoid paying interest on liquidated benefits from the time they are notified of a claim provides carriers a disincentive to pay legitimate claims because there would be no penalty for contesting payment until a final award is issued.

Inadequate Protective Equipment Doesn’t Prove Intentional Wrong

Blackshear v. Syngenta Crop Protection, Inc., No. A-3525-12T1 (N.J. Super. Ct. App. Div. 10/06/14)

Ruling: The New Jersey Superior Court, Appellate Division held that the exclusive remedy provision barred a widow’s suit against an exterminator’s employer.

What it means: In New Jersey, the intentional wrong exception to the exclusive remedy provision applies when the employer possesses a “substantial certainty” that harm will result from the action.

Summary: An exterminator for Corbett Exterminating died from brain cancer. His widow sued Corbett, asserting that his death was connected to the pesticides to which he was exposed at work. The New Jersey Superior Court, Appellate Division held that the exclusive remedy provision barred the widow’s suit.

The widow asserted that the intentional wrong exception to the exclusive remedy provision applied. The intentional wrong exception applies when the employer possesses a “substantial certainty” that harm will result from the action. The widow’s proof at most demonstrated that Corbett, by providing the exterminator with inadequate personal protective equipment, knowingly exposed him to cancer-causing pesticides and concealed that information from him. The court found this failed to meet the substantial certainty test.

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The court noted that the coverage of occupational diseases under the workers’ compensation law reflected a general awareness of potentially hazardous conditions in the workplace that can result in debilitating diseases necessitating compensation. Assuming the exterminator’s brain cancer was a result of his exposure to pesticides at work due to inadequate personal protective equipment, the court could not conclude that such was beyond what the legislature intended to be covered under workers’ compensation. The court found the exterminator’s exposure could be fairly “viewed as a fact of life of industrial employment” for which recovery under workers’ compensation was designed.

Policy Violation Doesn’t Bar Coverage of Knee Injury

Best Western Inn v. Paul, No. CV-14-277 (Ark. Ct. App. 10/01/14)

Ruling: The Arkansas Court of Appeals held that a housekeeper was entitled to benefits for her knee injury, including additional medical treatment.

What it means: In Arkansas, a compensable injury does not include an injury inflicted upon the worker at a time when employment services were not being performed.

Summary: A housekeeper for Best Western was cleaning a room and discovered that she needed new towels. As she was walking downstairs to the laundry room to retrieve some towels, she slipped and fell on water, injuring her knee. She was also carrying food that she found in one of the hotel rooms to put in the refrigerator in the laundry room. Best Western claimed that the housekeeper was not acting in the course and scope of her employment at the time of the incident because she was taking food to the laundry room refrigerator for her own benefit when she fell. The housekeeper denied that the food was for her own personal use. The Arkansas Court of Appeals held that the housekeeper was entitled to benefits, including additional medical treatment.

Best Western asserted that the housekeeper was not performing employment services when she was injured because she was taking food from the room of a former hotel guest for her own use in violation of hotel policy. The court rejected the argument, finding that the housekeeper was performing employment services at the time she was injured.

Best Western also asserted that the housekeeper was not entitled to additional medical treatment because she only suffered a sprain and additional diagnostic testing was related only to her long-standing and ongoing right knee problems that resulted in surgery just months before the accident. The housekeeper’s surgeon examined her after the work injury, determined that she suffered a new injury, and was worried about a re-tear. The surgeon recommended an MRI to understand the extent of her injury. The court found that the housekeeper was entitled to the additional medical treatment.

Nurse Fails to Obtain Reimbursement for Ayurvedic Therapy

Babu v. Workers’ Compensation Appeal Board, No. 166 C.D. 2014 (Pa. Commw. Ct. 09/15/14)

Ruling: The Pennsylvania Commonwealth Court held that a nurse was not entitled to reimbursement of bills for Ayurvedic therapy and treatment performed in India.

What it means: In Pennsylvania, services provided by non-licensed medical providers are not compensable if they are not provided under the supervision of or upon referral by a licensed practitioner.

Summary: A nurse sustained two work-related injuries to her shoulders and neck. She received indemnity benefits and sought reimbursement for Ayurvedic treatment, a type of holistic massage, which she received while in India. The Pennsylvania Commonwealth Court held that the nurse was not entitled to reimbursement for the Ayurvedic treatment.

The court explained that the practitioners who performed the Ayurvedic treatment were not licensed providers in Pennsylvania and the services were not performed under the supervision of a licensed Pennsylvania health care practitioner. Also, the medical certificates did not describe the treatment, what body parts the treatment was applied to, or include any medical reports required by the workers’ compensation law. Neither of the nurse’s physicians ever recommended such treatment to a patient. No evidence showed that the treatment was pursuant to a prescription or referral.

The nurse argued that she should be deemed the “supervising health care practitioner” over her own care in India. The court rejected the argument, finding no evidence that she was trained in massage therapy or that she exercised supervisory control over the practitioners in India or guided them during the treatment.

The court also rejected the nurse’s assertion that the workers’ compensation law that limits payment of medical bills to services by Pennsylvania licensed health care providers is unconstitutional. The court explained that the requirements for Pennsylvania licensing of health care providers promotes legitimate state interests of cost containment and cost certainty, and any classification of injured workers is related to promoting those interests.

Comp Doesn’t Cover After Hours Death From Hurricane Sandy

Empire Parking, 114 NYWCLR 141 (N.Y. W.C.B., Panel 2014)

Ruling: The New York Workers’ Compensation Board held that the death of a worker, who drowned during Hurricane Sandy while in his employer’s parking garage, did not arise out of and in the course of his employment.

What it means: In New York, where a worker chooses to remain on the employer’s premises even though his shift has ended and he has been instructed repeatedly to leave for his own safety due to an impending storm, the worker’s resulting death does not arise out of his employment.

Summary: The board held that the death of a worker, who drowned during Hurricane Sandy while in his employer’s parking garage, did not arise out of and in the course of his employment. The worker’s manager testified that the worker’s shift ended earlier in the day and that he instructed the worker several times to leave the premises. The manager also testified that on previous occasions he had allowed employees to spend the night in the garage.

In denying benefits, the board noted that for reasons unknown the worker chose to remain on the employer’s premises even though he was repeatedly told to leave the area. The worker’s shift had ended, and it was unreasonable for him to have remained at the garage since the garage was located in a mandatory hurricane evacuation zone.

The board said there was no work-related reason for the worker to be in the garage that evening. His decision to remain there was strictly a personal one, as evidenced by the fact that he refused to leave after numerous attempts to get him to do so.

Worker Allowed Travel Reimbursement for Weekly Rx Runs

Burkhamer v. AT&T Corp., No. 13-0521 (W.Va. 09/29/14)

Ruling: The West Virginia Supreme Court of Appeals held that an operator was entitled to travel reimbursement to pick up her prescriptions once per week.

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What it means: In West Virginia, a worker is not entitled to reimbursement for travel expenses to pick up prescriptions when the worker traveled an excessive and unreasonable number of times.

Summary: A telephone operator for AT&T was injured in the course of her employment when she was electrocuted. She took nearly 30 medications and traveled 157 miles roundtrip from her home to pick up her prescriptions. The claims administrator sent the operator a letter stating that there had been an excessive amount of trips to pick up medication. The trips were often one or two days apart. The claims administrator authorized reimbursement for previous trips but stated that the operator needed to arrange to pick up her medications once per month. The claims administrator also stated that if she needed assistance organizing the pick-up, the claims administrator would provide it. The claims administrator also offered to set up a mail order pharmacy program. The operator continued to travel to pick up her medications twice per week. The claims administrator denied travel reimbursement to pick up medications. The West Virginia Supreme Court of Appeals held that the operator was entitled to travel reimbursement to pick up her prescriptions once per week.

The operator asserted that she had problems in the past with mail being taken from her rural mailbox. Also, she argued that some of her medications were narcotics and could not be filled early, making it difficult to pick up all of her prescriptions at once. The court agreed with the Workers’ Compensation Board of Review’s decision finding that the operator traveled an excessive and unreasonable number of times. She took numerous medications and possibly had problems obtaining them. However, AT&T asserted its willingness to assist her in organizing her medications to be picked up once per month. The court allowed reimbursement for trips made once per week.

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

A round-up of nationwide regulatory changes affecting the workers' compensation industry.
By: | November 7, 2014 • 4 min read
cali capitol resized

California

Durable medical equipment

The Division of Workers’ Compensation ordered that the durable medical equipment, prosthetics, orthotics, and supplies portion of the official medical fee schedule is adjusted to conform to changes to the Medicare payment system that were adopted by the Centers for Medicare and Medicaid Services.

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Effective for services rendered on or after Oct. 1, the maximum reasonable fees for durable medical equipment, prosthetics, orthotics, and supplies must not exceed 120 percent of the applicable fees set forth in the fee schedule.

Florida

Periodic Reports

The Division of Workers’ Compensation proposed changes to a rule regarding periodic reports and employer work sites. The division proposed to repeal a rule requiring employers who are issued stop-work orders, where the assessed penalty exceeds $50,000, to file quarterly compliance reports with the division. Proposed amendments to the rule regarding employer work sites increase the time within which an employer must produce requested business records or be subject to a stop-work order from five business days to 10 business days.

Reimbursement Manual for Hospitals

The Division of Workers’ Compensation proposed changes to the reimbursement manual for hospitals. The threshold number of bills required to establish a “base rate” was increased from 20 to 40. This resulted in a revised set of “base rates.” The division proposed an effective date of Jan. 1, 2015. Those with questions should contact pamela.macon@myflorida.cfo.com.

Oregon

Reimbursement of Travel Costs

The Workers’ Compensation Division issued a bulletin regarding the reimbursement of injured workers’ travel, food, and lodging costs. The standard lodging and meal rates and the private vehicle mileage rate remain the same. The division updated the lodging and meal rates that exceed the standard rate for certain counties. The bulletin noted that if a worker needs special transportation or lodging, reimbursement can exceed the published rates. Parking fees and toll charges are also reimbursable. The division also said that lodging rates do not include taxes. Room tax is reimbursable in addition to the lodging allowance. The lodging and meal rates are effective from Oct. 1 through Sept. 30, 2015. The private vehicle mileage rates went into effect Jan. 1. Those with questions should contact a benefit consultant at (503) 947-7585. For a copy of the bulletin, visit wcd.oregon.gov/policy/bulletins/docconv_12819/bul_112.pdf.

Electronic Data Interchange

The Workers’ Compensation Division proposed changes to rules regarding electronic data interchange and proof of coverage. The rules more completely describe reporting requirements. The rules also adopt a new EDI transmission profile form for insurers that intend to report directly to the agency. The rules also set standards for accuracy and timeliness of reporting and describe consequences for failure to meet the standards, including possible sanctions or revocation of EDI transmission approval. The rules distinguish employer cancellations of coverage from insurer terminations of coverage and explain associated recordkeeping responsibilities for insurers.

Vermont

Administrative Procedures

The Workers’ Compensation and Safety Division proposed amendments to the administrative procedure rules. The rules update the workers’ compensation program’s administrative citation and penalty provisions to address the debarment penalties added to the statutes and state Supreme Court decisions on penalty assessment and calculation. A person who willfully makes a false statement or representation for the purpose of obtaining any benefit or payment for himself or another person will be assessed an administrative penalty of no more than $20,000. A worker who willfully makes a false statement or representation of material fact for the purpose of obtaining a workers’ compensation benefit forfeits all or a portion of his right to benefits based on the workplace injury.

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The commissioner will prohibit an employer who willfully makes a false statement or representation for the purpose of deriving any benefit, including a lower insurance premium, from contracting with the state or any of its subdivisions for up to three years. An employer that fails to comply with the requirements to maintain workers’ compensation insurance or self-insurance will be assessed a penalty of no more than $100 per day for the first seven days that the employer neglected to secure coverage and no more than $150 per day thereafter.

Washington

Rates

The Department of Labor and Industries proposed amendments to rules that will amend the tables of classification base premium rates, experience rating plan parameters, experience modification factor calculation limitations, and retrospective rating plan size groupings for the workers’ compensation insurance program for the 2015 calendar year. Classification base rates were amended for updates loss and payroll experience. The department proposed a 1.8 percent overall average premium rate increase. The rule proposal also repealed the farm internship program rates and the rate holiday dividend. The department also proposed to move tree care and pruning services not otherwise classified into a new classification. To partially fund the logger safety initiative, the supplemental pension fund will be increased from 2 mils to 47.2 mils per hour for each employer and worker for work reported in the forest products industry risk classifications.

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: | October 31, 2014 • 10 min read
judge

Employer Liable for Hazard from Neighboring Facility

Plotner v. Metal Prep, No. W2012-02595-SC-WCM-WC (Tenn. 09/29/14)

Ruling: The Tennessee Supreme Court held that an operator established that his occupational disease arose out of his employment, and he was permanently and totally disabled.

What it means: In Tennessee, a worker’s exposure to dust that causes his occupational disease can arise out of his employment even if the dust did not originate from his employer.

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Summary: A forklift operator for Metal Prep began experiencing breathing problems at work. He was diagnosed with farmer’s lung, which is an allergic reaction to environmental exposure to grain dust. The operator filed a claim for workers’ compensation benefits. Metal Prep denied the claim, arguing that it was not liable because the source of the grain dust that caused his condition was from a grain transfer facility located across the street. Metal Prep agreed that the operator’s occupational disease occurred in the course of his employment but argued that it did not arise from his employment. The Tennessee Supreme Court held that the operator’s occupational disease arose out of his employment, and he was permanently and totally disabled.

Metal Prep acknowledged that the operator’s condition followed as a natural incident of his work occasioned by his exposure to grain dust. Also, Metal Prep did not deny that a there was a direct causal connection between the conditions of the operator’s work and his occupational disease. The operator’s physician said that his condition could only come from large-scale exposure to grain dust. The court found the condition did not originate from a hazard to which he would have been equally exposed outside his employment. The court explained that the exposure or risk is not required to be related to a substance that emanated from the employer.

The court found that the operator’s exposure to grain dust causing his farmer’s lung was connected to his employment. Although the dust was not created by Metal Prep, it was part of the work environment. Therefore, the consequences of the operator’s exposure to the dust arose from his employment.

The court also found that the operator was permanently and totally disabled. His entire work history consisted of relatively strenuous work, and he was unable to perform such jobs. He had to use oxygen therapy and became tired from the simple act of checking his mail. The physician testified that the operator’s condition was likely to worsen in the future.

Widow Can’t Sue Coworkers for Death Covered by Comp

Kohn v. Marquis, et al., No. 131162 (Va. 09/12/14)

Ruling: The Virginia Supreme Court held that the exclusive remedy provision blocked a widow’s suit against a police chief and officers.

What it means: In Virginia, a deceased worker’s widow cannot sue an employer or coworker for an injury sustained in the course of employment if the workers’ compensation law covers the worker’s death.

Summary: A recruit for Norfolk Police Academy was repeatedly and violently struck in the head during training. He began demonstrating serious neurological defects during the training exercises and was transported to the hospital. Nine days later, he died of trauma to the head. The recruit’s widow sued the police chief and officers, asserting that the numerous blows to his head contributed to his death. The Virginia Supreme Court held that the exclusive remedy provision blocked the widow’s suit.

The parties did not dispute that the recruit’s injury and death arose out of and in the course of his employment or that the chief and officers were his coworkers.

The parties also agreed that the recruit suffered neurological deficits as a result of blows to the head during training and he was taken to the hospital as a result. Therefore, the court found no dispute that he suffered an injury by accident.

The widow asserted that the recruit’s death was not compensable under workers’ compensation because it was the result of a series of traumas over a period of time, rather than from a single identifiable event. The city asserted that whether or not the recruit had preexisting conditions and injuries, his undisputed injury by accident entitled him to workers’ compensation benefits. The court agreed with the city, explaining that the recruit suffered an obvious mechanical or structural change in his body while engaged in a work activity that exposed him to an employment-related hazard that injured him and contributed to his death.

Personal Crises Don’t Excuse Worker’s Failure To Cooperate With Claim Investigation

Hopper v. SAIF Corp., No. A152765 (Or. Ct. App. 09/10/14)

Ruling: The Oregon Court of Appeals held that a worker was not entitled to benefits based on her failure to cooperate with the claims process.

What it means: In Oregon, an insurer can deny a claim based on a worker’s failure to cooperate with the investigation of the claim.

Summary: A worker injured her lower back at work and filed a claim for workers’ compensation. SAIF sent the worker a letter informing her of her obligation to cooperate with the claims process. SAIF also contacted the worker to alert her that she needed to make a statement about her claim to an investigator. The worker did not contact an investigator. Later, the worker’s benefits were suspended based on her failure to participate in an interview. The worker requested a hearing on SAIF’s denial, and she explained that her brother died unexpectedly and she had been in a motor vehicle accident. The Oregon Court of Appeals held that the worker was not entitled to benefits.

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The worker asserted that she fully and completely cooperated with SAIF’s investigation, SAIF’s investigative demands were unreasonable, and any failure to cooperate was for reasons out of her control. The court pointed out that she did not challenge the finding that she failed to cooperate with SAIF’s investigative demands before the Workers’ Compensation Board. She also did not contest the reasonableness of SAIF’s demands before the administrative law judge or the board.

The court said a reasonable fact finder could infer that the worker’s brother’s death and her motor vehicle accident did not interfere with her ability to cooperate with SAIF’s interview request and that her failure to cooperate resulted from her own lack of diligence. The worker said she was depressed when SAIF’s first letter about her interview arrived and she did not open it promptly. However, she did not explain why she did not contact SAIF after she opened the letter. Also, she only missed one day of work as a result of her brother’s death and did not miss work after her motor vehicle accident.

Ex Parte Communication With Worker’s Doctor Ruled Unconstitutional

Malcomson v. Liberty Northwest, No. DA 13-061 (Mont. 09/10/14)

Ruling: The Montana Supreme Court held that a statute allowing an insurer to have ex parte communications with a manager’s physicians without her knowledge and an opportunity to participate was unconstitutional.

What it means: In Montana, a statute allowing an insurer to communicate directly with a worker’s health care providers without prior notice to the worker violates the worker’s right to privacy.

Summary: A manager of Freemo’s Pizza suffered a back injury. She sought medical treatment and filed a worker’s compensation claim. The manager signed an authorization form providing that her health care providers and the employer’s insurer, Liberty Northwest, could release health care information relevant to her claim to one another. The authorization also provided that communication between her doctors and Liberty could take place without her knowledge or opportunity to participate. Later, the manager revoked the authorization, stating that Liberty did not have her permission to “speak” to her health care providers without first notifying her or her attorney and providing them an opportunity to participate in the communication. As a result, Liberty terminated the manager’s medical benefits. The manager asserted that the statutes relied upon by Liberty to terminate her benefits were unconstitutional. The Montana Supreme Court held that a statute allowing Liberty to have ex parte communications with a manager’s physicians with her knowledge and an opportunity to participate was unconstitutional.

Liberty asserted that the manager did not have an expectation of privacy as to any medical information relevant to her claim because the workers’ compensation laws placed her on notice that such information had to be provided to the insurer. The court rejected the argument, pointing out that the manager only objected to the provision that allowed Liberty to communicate directly with her physicians without prior notice to her or the opportunity to participate in the discussion. Also, the court pointed out that it previously concluded that medical records “deserve the utmost constitutional protection.”

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The court found that the state had a compelling interest in the orderly administration of the workers’ compensation process. However, the statute was not narrowly tailored to effectuate that interest. The court said the manager’s concerns that she would not know if Liberty obtained irrelevant medical information or cast her in a negative light were valid and justified. The court also pointed out that the state was long able to administer the worker’s compensation program without exposing workers to a potential violation of their constitutional right of privacy.

Worker’s Accident While Speeding Is Compensable

Linde Gas v. Edmonds, No. 2013-WC-01942-COA (Miss. Ct. App. 09/30/14)

Ruling: The Mississippi Court of Appeals held that a technician’s injury while driving a truck owned by Linde Gas was compensable.

What it means: In Mississippi, an exception to the going and coming rule arises when the employer either provides a worker’s means of transportation or pays the worker’s transportation costs.

Summary: An instrumentation technician for Linde Gas was assigned a company truck. Linde Gas authorized him to use the truck to travel to and from work. It did not pay for his travel time to and from his regular work. Linde Gas paid for the truck’s fuel, insurance, and maintenance. While on his way to report to work, the technician sustained an injury to his back in an automobile accident. An automotive technologist who investigated the crash determined that the technician was speeding, not wearing a seatbelt, and the headlights were not on. Also, the technician had little sleep the night before the accident and had taken pain medication. Linde Gas argued that the technician’s injury was not compensable. The Mississippi Court of Appeals held that he was entitled to benefits.

Generally, a worker’s injury while traveling to or from work is not compensable. An exception to the going and coming rule arises when the employer either provides a worker’s means of transportation or pays the worker’s transportation costs. The court rejected Linde Gas’ interpretation of the rule to mean that a worker must prove that the employer both provided the worker’s means of transportation and compensated the worker additional reimbursement for travel time. The court found that the technician’s employer-sponsored travel was an exception to the going and coming rule and was compensable.

Linde Gas also asserted that the technician acted with willful intent to injure himself. The court found no authority that the technician’s actions before and during the accident were willful intent.

A dissenting judge opined that the technician’s acts in driving to work while ill, after receiving little sleep, after taking pain medications, and failing to wear a seatbelt or turn on his headlights were voluntary acts and a willingness to incur risk outside the scope of employment.

Worker’s Skill Operating Business Proves Wage-Earning Capacity

Spain v. David J. Spain d/b/a Spain’s Mobile Home Movers, No. COA14-312 (N.C. Ct. App. 09/16/14, unpublished)

Ruling: In an unpublished opinion, the North Carolina Court of Appeals held that a worker was not entitled to temporary total disability benefits but his employer was required to pay for additional treatment of his right arm symptoms.

What it means: In North Carolina, a self-employer worker has a wage-earning capacity if he is actively involved in the day-to-day operations of the business and he uses skills that would enable him to be employable in the competitive market.

Summary: A worker for his father’s mobile home transportation business was using an auger machine to drill an anchor into the ground. He accidentally drilled into an underground power line and sustained an electric shock injury. He complained of right upper extremity numbness. Later, a doctor noted that although the worker’s muscles had recovered, he still reported being unable to move his right hand. The doctor believed there was a “psychiatric component” to the worker’s symptoms. The worker and his wife opened a business providing auto and truck servicing. The employer sought to terminate his benefits. Also, the worker sought additional medical treatment for his right arm. The North Carolina Court of Appeals held that he was not entitled to temporary total disability benefits but the employer was required to pay for additional medical treatment.

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In finding that the worker’s benefits should be terminated, the court found the auto business’ website stated that it was “run by” the worker and his wife. The worker was present at the business on a regular basis. The court found he was involved in the day-to-day operations of the business. The worker was licensed to be an inspection mechanic and met with customers, handled tire orders, and logged in codes for vehicle inspections. The skills he used in operating the business, when considered with his young age, educational level, and work experience, the court found he had wage-earning capacity in the competitive market.

The court explained that employers are required to pay for medical treatment that is directly related to the worker’s compensable injury. The court found the employer’s arguments against paying for the worker’s medical treatment were an attempt to relitigate the compensability of the worker’s injury. The employer was required to pay for further treatment, including a psychological evaluation.

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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