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Case name: Kelvin Corp. v. Nava-Garcia, No. 2010-CA-001362-WC (Ky. Ct. App. 04/01/11, unpublished).

Ruling: In an unpublished decision, the Kentucky Court of Appeals held that a laborer's refusal to have additional surgery was not unreasonable, so he was entitled to benefits.

Summary: A laborer for a cooperage company was unloading 150-pound whiskey barrels when some barrels rolled from a trailer and pinned his hand. His hand was crushed and the tip of his index finger was amputated. He underwent surgery and physical therapy. His doctor released him to return to work without restrictions. Subsequently, he was terminated when the company learned he was an illegal immigrant. The laborer continued to experience pain, and his doctor discussed the possibility of a second surgery. The laborer did not want to undergo a second surgery because no physician could guarantee that it would resolve his complaints. The company argued that the laborer unreasonably refused to have the surgery so his injury should not be compensable. The Kentucky Court of Appeals held that the laborer's refusal to have the second surgery was not unreasonable, so he was entitled to benefits.

The company argued that the laborer's impairment rating would likely decrease if he underwent the surgery successfully. The court said there was no direct medical testimony that the surgery would be "free from serious suffering or danger." There was disagreement among the medical experts about the extent of the potential surgery and no consensus that the surgery would result in a substantial improvement. An independent medical examiner said there was only a possibility of substantial improvement if the laborer underwent surgery.

The court pointed out that the company said the laborer returned to work at his regular job where his performance was "capable" before he was terminated.

Read more at the WorkersComp Forum homepage.

May 5, 2011

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