View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | January 26, 2015 • 10 min read

Incarceration Doesn’t Block TTD Benefits

Damme v. Pike Enterprises, Inc., No. S-14-304 (Neb. 12/05/14)

Ruling: The Nebraska Supreme Court held that a worker was not barred from receiving temporary total disability benefits while she was incarcerated.

What it means: In Nebraska, if a worker can prove a loss of earning capacity, her incarceration after sustaining a compensable injury will not bar her receipt of benefits.

Summary: A worker with a history of degenerative disk disease felt a pop in her back while carrying bags when she was working in a McDonald’s restaurant. She was prescribed narcotic medications. Later, the worker was arrested and incarcerated. After she was released, she underwent surgery, which was a success. The surgeon released her to work without restrictions. The worker sought temporary total disability benefits. The Nebraska Supreme Court held that she was entitled to benefits during the time she was incarcerated.

The court rejected the employer’s arguments that the incident was a “temporary symptom aggravation” of the worker’s preexisting back problems and that she underwent surgery in an effort to obtain more narcotic prescriptions. The court found that two physicians’ opinions were sufficient to show that she sustained a work-related injury to her back. The physicians opined that she sustained an exacerbation of her preexisting degenerative disk disease. One physician’s notes showed that surgery was necessary to treat her condition. The court noted that nonsurgical treatment had been unsuccessful.

The court also rejected the employer’s argument that temporary disability benefits are intended to replace a worker’s wages while they are healing from an injury. Disability benefits are awarded for diminished employability or impaired earning capacity and do not depend on a finding that the worker cannot be placed with the same employer or a different one. The court explained that the workers’ compensation law does not disqualify incarcerated workers from receiving those benefits. Unless the legislature amends the statute, the court cannot deny workers’ compensation benefits to prisoners.

Here, the court found that the worker proved her diminished working capacity from the date of her injury until the date her surgeon released her to return to work.

Comp Denied for Pain Not Related to Work Accident

Bowman v. Terrebonne Parish Consolidated Government, No. 2014 CA 0978 (La. Ct. App. 12/23/14)

Ruling: The Louisiana Court of Appeal held that an associate was not entitled to benefits for his leg pain.

What it means: In Louisiana, a worker with a preexisting condition is entitled to benefits if he can prove that the work-related accident contributed to, aggravated, or accelerated his injury.

Summary: A juvenile care associate for the Terrebonne Parish Juvenile Detention Center fell backwards while attempting to break up a fight between two juvenile detainees. He reported experiencing “some tightening” on his right side and “some discomfort” in his neck immediately after the incident. He was cleared by a paramedic and completed working his shift for the night. He continued to work without missing any days until three months later when he complained of leg pain. An MRI revealed degenerative disk disease. The associate sought workers’ compensation benefits. The Louisiana Court of Appeal held that he was not entitled to benefits.

The court pointed out that the associate did not complain to his supervisors and coworkers of any problems after the date of the accident. The Office of Workers’ Compensation judge found that the employer rebutted the presumption that the associate’s disability was caused by the workplace accident. The judge pointed out that the disabling condition had to appear and continually manifest itself after the accident, and the associate had to provide sufficient medical evidence that there was a connection with the disabling condition.

The judge found no evidence of a disabling condition. The associate was able to work after the accident without consequence. The judge found that any subsequent issues that arose were not related to the accident but could have been related to his age and his preexisting condition.

Impartial Panel Rejects Finding of Causal Connection

Estate of Reitz v. Labor Commission, No. 20130373-CA (Utah Ct. App. 12/11/14)

Ruling: The Utah Court of Appeals held that a worker’s estate was not entitled to benefits.

What it means: In Utah, a worker must establish a medical causal connection between his work accident and his medical problems.

Summary: A worker for Hilti injured his back after falling from a ladder. He sought workers’ compensation benefits but died while his claim was pending. His estate also sought dependent and burial benefits. The Utah Court of Appeals held that the worker’s estate was not entitled to benefits because it failed to establish a medical causal connection between the work accident and the worker’s medical problems.

The worker had preexisting physical and emotional problems, including pain in his back, neck, and extremities, headaches, abdominal pain and vomiting, episodes of explosive anger, and periods of drug and alcohol abuse. He also had been involved in multiple accidents and had continued to receive medical treatment for his various ongoing problems, including injuries from a motor vehicle accident, sleep apnea, respiratory infections, depression, and vomiting.

An impartial medical panel concluded that the worker’s accident “may have aggravated chronic recurring low back pain,” but his condition became medically stable. The panel also concluded that medical care was not necessary to treat his condition as a result of the industrial accident but was necessary because his “underlying medical problems persisted, progressed, and were compounded.” The panel concluded that the worker’s death was likely the result of a cardiac arrhythmia due to an acute electrolyte imbalance from an episode of persistent vomiting. Headaches with vomiting may have accompanied back pain, but they were not caused by the abrasions and contusions to the back caused by the work-related ladder fall. The court found a reasonable mind could accept as adequate the medical panel report.

Worker’s Intoxication During Accident Bars Claim for Benefits

Giles v. Eagle Farms, Inc., No. 41469 (Idaho 11/28/14)

Ruling: The Idaho Supreme Court held that a worker was barred from receiving income benefits.

What it means: In Idaho, a worker is not entitled to income benefits if intoxication was a reasonable and substantial cause of the injury.

Summary: A worker for Eagle Farms was involved in a one-vehicle accident while returning from repairing a sprinkler pivot. He was ejected from his vehicle and suffered severe injuries. At the time of the accident, he was driving 123 miles per hour in a 50 mile per hour zone, he was legally intoxicated with a blood alcohol level of 0.11, he was familiar with the road, and he was not wearing a seat belt. The worker also claimed that he was texting at the time leading up to the accident. The worker sought benefits. The Idaho Supreme Court held that he was not entitled to income benefits.

The court found that the worker’s intoxication was a reasonable and substantial cause of the injury, stating that the case was “close to a no-brainer.” The court explained that just because a worker with a blood alcohol level of more than the legal limit is involved in an accident does not mean that intoxication was a reasonable and substantial cause of the accident. Here, a trooper who investigated the accident testified that the circumstances of the accident suggested that intoxication was a cause of the accident. The trooper opined that the judgment of a person behaving in such a way would have been affected by his consumption of alcohol. A pharmacologist also opined that the worker would have been impaired in his ability to safely operate a vehicle and that intoxication was a reasonable and substantial cause of the crash and injury.

The court found that the Industrial Commission’s consideration of the worker’s use of prescription pain medication was at most harmless error. The court also explained that even assuming that the worker had been texting at the time of the accident, there was still substantial and competent evidence to find that intoxication remained a substantial cause of the accident and resulting injuries. The court pointed out that the worker’s failure to wear a seat belt may have caused his injuries to be greater than they might otherwise have been, but it did not change the fact that there would have been no injuries if the worker had not had the accident.

Failure to Request Kidney Cancer Treatment Sinks Claim

Sears Outlet v. Brown, No. 1D14-2289 (Fla. Dist. Ct. App. 12/09/14)

Ruling: The Florida District Court of Appeal held that an employer was not required to pay the medical costs for the treatment of a worker’s renal cancer.

What it means: In Florida, a worker must make a specific request for the initial treatment, and the employer or carrier must be given a reasonable time period within which to provide the treatment before the worker can recover any amount expended for the initial treatment.

Summary: A worker experienced a recurrence of back pain after he underwent low back surgery to treat his compensable injury. An MRI of the lumbar spine revealed a right kidney mass suspicious for renal cancer. An authorized urologist referred the worker to a hospital for further diagnostic testing regarding the kidney. Physicians opined that the kidney mass needed to be removed before the worker could undergo further evaluation of the low back, have back surgery, or take additional anti-inflammatories. Instead of requesting the recommended kidney diagnostics and surgery from the employer, the worker had surgery to remove his kidney on an unauthorized, nonemergency basis. He asked the employer to pay for the surgery after it was complete. The Florida District Court of Appeal held that the worker was not entitled to medical costs related to the treatment of his renal cancer.

The court explained that a worker must make a specific request for the initial treatment, and the employer or carrier must be given a reasonable time period within which to provide the treatment before the worker can recover any amount expended for the initial treatment. Here, it was undisputed that the worker did not specifically request that the employer provide the treatment recommended by the urologist and provided by the hospital. Although the urologist recommended follow-up for the kidney mass, he indicated that it was unlikely that the kidney condition was related to the workers’ compensation injury. The court found that the urologist’s report could not be reasonably construed as a specific request for treatment from the employer.

Manager Within Scope of Employment When Shot

Modern Property Management v. Estate of Wilburn, et al., No. 2013-CA-001425-WC (Ky. Ct. App. 12/12/14, unpublished)

Ruling: In an unpublished decision, the Kentucky Court of Appeals held that a manager’s estate was entitled to death benefits.

What it means: In Kentucky, a death can be considered work-related when the worker’s exposure to the risk is related to his employment and except for his presence there, he would not have been killed.

Summary: A maintenance manager for Modern Property Management leased an apartment in a building managed by Modern. Tenants in the building sometimes approached him directly for repairs. The manager left work from another of Modern’s buildings and went home to eat lunch and visit with guests who were staying in his apartment. He planned to drive his guests to the airport after lunch. While eating lunch, a tenant in the building knocked on his door. The tenant, who had a history of mental illness, had previously complained about water and plumbing issues. The tenant shot the manager multiple times, and he died from his injuries. The manager’s estate and dependents sought workers’ compensation death benefits. The Kentucky Court of Appeals held that the estate was entitled to death benefits.

Modern argued that the manager was not acting within the scope of his employment at the time he was killed. The court found that he was on a personal errand when he returned to his apartment for lunch. However, he returned to his work duties when he began to interact with the tenant. Evidence showed that tenants in the building directly approached the manager with maintenance issues. Also, during criminal proceedings, the tenant told a psychologist that she believed dirty water was coming out of her faucets, and she wanted the manager to observe the situation. No evidence showed that the tenant randomly approached the manager that day or that she went to him for another reason.

The court found that the manager was exposed to the danger as a result of his employment. Therefore, his death was work-related.

The court also found that the estate was entitled to interest on the death benefits award.


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

The ACA and International Assignees

Large employers need to address ACA compliance issues for their globally mobile employees.
By: and | January 21, 2015 • 6 min read
ACA Global

The Affordable Care Act and its related implementation and reporting requirements make 2015 particularly challenging for employers with international assignees.

Some companies are still in the process of designing a health care plan that complies with the ACA; others are evaluating programs they already offer. Wherever your plan is along that continuum, large employers — with at least 50 full-time-equivalent employees as defined by the ACA — need to bear in mind the implications of international assignees and take steps to address compliance for their globally mobile employee base.


To start, note that the hours of service by employees performed within the United States determine whether an employer meets the 50 full-time-equivalent employee threshold.

A company that passes that threshold is a large employer that must offer the required health care coverage to actual full-time employees (those who work on average 30 or more hours a week, also within the United States) and their dependents in order to satisfy the law’s mandate.

The determination of a large employer must consider the employees of all the trades and businesses under common control — including foreign entities — under the U.S. controlled group rules of Internal Revenue Code section 414 (which apply to U.S. qualified plans and certain other benefits).

A foreign company with no U.S. entities or affiliates in its controlled group can still be considered a large employer based on the number of employees providing services within the United States.

Individual Mandate for International Assignees

The individual mandate under the ACA obliges individuals to obtain their own health insurance or incur their own penalties. Failure by an individual and members of the individual’s household to have health coverage — whether provided by an employer or obtained privately — may subject the individual taxpayer to penalties.

If any employer (large or not) pays for or reimburses employees for insurance purchased individually on a health exchange or from a private insurer, this coverage may satisfy the employee’s individual mandate requirement but may force the employer to pay a different IRS penalty.

Covering the employee’s cost for such coverage on a pre-tax basis may expose the employer to penalties of $100 per day per impacted employee.

Separate from this penalty, purchases of private coverage by employees on a health exchange or otherwise are not employer-sponsored coverage that satisfies the employer mandate.

Coverage That Satisfies the Employer Mandate

Eligible employer-sponsored coverage includes group health coverage under insured and self-insured employer plans typically offered by U.S. employers.

However, when an international assignee is covered under a non-U.S. plan, or a plan designated as an expatriate plan, only certain types of coverage qualify as minimum essential coverage (MEC) mandated by the ACA, including:

• Certain self-insured group health plans;

• Certain insured expatriate health plans (with plan years ending on or before Dec. 31, 2015); and

• Certain insured plans regulated by a foreign government.

Additionally, coverage offered for all full-time employees, including international assignees, must be minimum value and affordable to comply with the requirements of the employer mandate.

Failure to meet any of the above criteria may subject employers of international assignees to the employer shared responsibility penalty if any full-time employee obtains a credit or subsidy for coverage on a health care exchange.

Minimum value generally means the employer must pay at least 60 percent of the cost of the health coverage for the employee based on actuarial values — the equivalent of the “bronze” level of coverage available on health care exchanges.

To be affordable, the employee’s portion of the premium for single coverage generally must not cost more than 9.5 percent of the employee’s household income.

Because an employer cannot determine an employee’s household income, the regulations offer three methods to determine whether the cost is affordable for an employee.


Generally, the three safe harbors provide that the employee’s portion of the premium for single coverage cannot cost more than 9.5 percent (an indexed percentage) of:

• The employee’s Form W-2, box 1 wages;

• The Federal Poverty Limit based on the annual poverty rate for a family size of one; and

• 130 hours multiplied by the employee’s rate of pay at the beginning of the year.

Whichever method an employer chooses to use must be applied uniformly and consistently among a reasonable category of employees.

Understanding the Reporting Process

Effective Jan. 1, 2015, the IRS added new reporting responsibilities under the ACA and requires employers to submit new forms in early 2016. Company IT systems need to be in place to capture this information as required.Bottom of Form

Draft versions of Form 1095-C, and the 1094-C Transmittal Form require large employers to demonstrate that the health care coverage they offer is MEC that meets the minimum value and affordability requirements.

This reporting is required of large employers, regardless of whether they offer health coverage or not, and is different than the requirement to report health care costs on employees’ Forms W-2 (which has been required since 2012).

The new forms require details of health coverage offered to each employee, including months of coverage offered, cost of coverage, whether coverage meets minimum-value rules and “affordability rules,” and whether the coverage was offered to almost all full-time employees and their dependents.

In addition, if any employer (large or not) self-insures health coverage, separate information is required on a separate part of Form 1095-C for large employers, and on Form 1095-B and the 1094-B Transmittal Form for non-large employers.

This information must include not just the employee, but all family members who are covered under the plan.

Foreign insurers and employers are also accountable for these reporting requirements; this may mean an employer identification number is required for a foreign entity (including those within a large employer’s controlled group).

Communication is Key

Organizations need to ensure that the lines of communications are open between HR, finance and IT, among other departments, to ensure that the right information is available to meet reporting requirements.

Employers should consider communicating with international assignees their obligations under the ACA, particularly if there are concerns that their foreign coverage does not meet the individual mandate and may subject the assignee to the individual penalty.

Employers may also want to consider whether the individual penalty should be part of their tax equalization policy.

Even if the foreign coverage is MEC for purposes of the individual requirement, employers need to consider whether it meets the employer shared responsibility requirements.

When evaluating or designing health care plans, organizations need to assess what systems are already in place that can be utilized for reporting purposes. Chances are large organizations are already collecting the information needed by the IRS.


As with other business challenges, globalization adds more pressure when it comes to efficient and accurate reporting.

This may mean communicating with foreign employers offering the coverage to the assignee, or foreign insurance companies if the plan is an insured plan.

Although these forms are not due until Jan. 31, 2016, they rely on data collected and compiled starting Jan. 1, 2015. If the information is not reported accurately or retained properly, even if the plan is compliant, the time spent resolving those gaps can translate into wasted resources and added expenses.

Karen Field is a principal at KPMG in Washington, D.C., and Veena Murthy is a director at KPMG in D.C. They can be reached at
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Sponsored: Healthcare Solutions

Diversifying Top Management in Workers’ Comp

Inaugural Women in Workers’ Compensation (WiWC) Forum focuses on advancing more women into top leadership roles.
By: | January 7, 2015 • 5 min read

The panel at the inaugural Women in Workers’ Compensation (WiWC) Forum. From left to right: Eileen Ramallo, Elaine Vega, Nina Smith-Garmon, Nancy Hamlet, Michelle Weatherson, Nanette de la Torre, Danielle Lisenbey.

Across the country, the business community is engaged in a robust conversation about women being under-represented among c-level positions.

Why aren’t more women breaking into upper management roles? Does gender bias still exist? And, perhaps more importantly, what can women and men do to add more diversity to top leadership ranks?

Elaine Vega and Nancy Hamlet, of Healthcare Solutions, the Duluth, Ga.-based health services provider to the workers’ compensation and auto liability/PIP markets, have discussed the issue between themselves many times over the years.

The duo agreed that starting an industry-wide conversation would be an effective start to addressing the challenge. After three years of internal discussions, the inaugural Women in Workers’ Compensation (WiWC) Forum became reality. Judging by the attendance, content and feedback, it was an auspicious, very successful, debut.

Nancy Hamlet, Senior Vice President of Marketing, Healthcare Solutions

Nancy Hamlet, Senior Vice President of Marketing, Healthcare Solutions

Specifically, Healthcare Solutions and LRP Publications teamed up at the National Workers’ compensation and Disability Conference (NWCDC), held Nov. 18-21, 2014 in Las Vegas, to present the first WiWC event focused on the development of women as leaders within the industry. The WiWC debut featured a keynote speaker, a panel discussion and a networking cocktail hour.

“We believe this is just the beginning for the WiWC organization,” said Hamlet, senior vice president of marketing, adding that the event’s main theme was the conversation regarding challenges that still exist for women in the workplace is “current, real … and relevant.”

Originally the forum was allocated a room to hold 150 people. Vega and Hamlet worried about the room being too large, so they asked LRP what the contingency would be to make the room smaller if they couldn’t fill it. They needn’t have worried, as more than 400 women, and some men as well, registered and attended, requiring an even larger room.

“Clearly, the topic is relevant and there was plenty to discuss,” said Vega, senior vice president of account management.

Hamlet explained that WiWC was formed to create an open forum to promote a strong sense of community and support for current and future female leaders in the workers’ compensation industry. Going forward, the WiWC forum will provide insight and ideas with opportunities for members to:

  • Engage … with accomplished industry professionals and build lasting relationships.
  • Enrich … their knowledge base with tactical insights from speakers and panelists.
  • Explore … opportunities and challenges facing women leaders today.
  • Encounter … senior executives’ perspectives on leadership.
  • Examine … leadership strategies and how to effectively apply the strategies.
  • Empower … themselves and others to achieve success and groundbreaking results.

At the inaugural event, keynote speaker Peggy Holtman, co-author of “Leading at the Edge: Leadership Lessons from the Extraordinary Saga of Shackleton’s Antarctic Expedition,” discussed how a seemingly unconnected historical event can offer critical lessons on leadership in the workplace, especially for women looking to move into top executive spots.

Elaine Vega, Senior Vice President of Account Management, Healthcare Solutions

Elaine Vega, Senior Vice President of Account Management, Healthcare Solutions

After Holtman’s talk, a panel discussion, moderated by Vega, offered the perspectives of five workers’ compensation industry executives on ways in which women can navigate past the glass ceiling. Panelists included Eileen Ramallo , EVP Healthcare Solutions; Danielle Lisenbey, CEO Broadspire; Nanette de la Torre, VP Zenith; Nina Smith-Garmon, EVP Mitchell International; and Michelle Weatherson, Director, Claims Medical and Regulatory Division, State Fund of Calif.

The panelists discussed a wide range of topics related to women in workers’ compensation. For example, one topic focused on the need to take the big risks when it comes to moving past workplace barriers. Other topics included the importance of women in higher positions serving as sponsors and advocates for younger, less experienced women; and the impact of industry consolidation on women’s careers and how to best manage that change. Another topic was how women could best master conflict and emotions in the workplace.

“What’s clear is conflict has to be managed; it will not go away. It will only get worse,” said Healthcare Solutions’ Ramallo. “It then can create other rifts that won’t necessarily be visible immediately, but can have a very large impact. You have to be able to understand what it is early on from another’s perspective, why the situation exists, and then encourage and try to resolve a conflict situation, whatever may be driving it.”

In the wake of the first WiWC Forum, Hamlet noted that while there are countless general reports showing that women have not yet achieved equal representation in top leadership positions in the workplace, studies deal with averages rather than individual stories. And while women must continue to look at the data and work toward closing the gap, hearing from accomplished women in the workers’ compensation industry at NWCDC drove home critical messages on a person level.


Today, Vega and Hamlet are looking to expand WiWC to make it “truly owned” by the industry. For example, they expect to recruit companies interested in becoming sponsors, forming an advisory council, creating a charter and discussing future possibilities for the organization on both the national and regional levels.

“Much remains to be done, but I have confidence that we will come together and make the organization stronger so that it prospers for years to come,” Hamlet said. “After all, it’s clear that our industry is filled with talented women who can make things happen!”

Vega added that WiWC has already received requests to live stream the event in the future, so it will examine the feasibility of that option in an effort to be even more inclusive.

“We have a shared vision for improving opportunities for current and future women leaders in workers’ compensation,” Vega said. “It doesn’t matter our gender or our title, it’s all about supporting the greater vision. As was said several times at the event, this is just the beginning. We hope more women and men will join us in this continued dialogue.”

For more information about the WiWC, send email to or join our WiWC group on LinkedIn.


This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Healthcare Solutions. The editorial staff of Risk & Insurance had no role in its preparation.

Healthcare Solutions serves as a health services company delivering integrated solutions to the property and casualty markets, specializing in workers’ compensation and auto liability/PIP.
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