Worker wins benefits after dog incident causes surgery failure
Case name: Kirby v. Memphis Jewish Nursing Home, No. W2010-02261-WC-R3-WC (Tenn. 12/01/11, unpublished).
Ruling: In an unpublished decision, the Tennessee Supreme Court held that a worker was entitled to benefits for the reinjury he sustained to his shoulder.
What it means: In Tennessee, a worker's reinjury is not compensable when it is the result of an independent, intervening cause attributable to the worker's conduct.
Summary: A maintenance worker for a nursing home injured his shoulder when he slipped on stairs climbing down from a roof and grabbed a railing to prevent himself from falling. He felt immediate pain. He received conservative treatment before he underwent surgery. He progressed well after surgery. After returning home from a physical therapy appointment, he found his dog was off her leash. He grabbed the dog by the collar, and the dog tried to run away. He felt pain in his arm. The worker's doctor determined that the pulling injury caused the surgery to fail and caused a "popeye" deformity in his bicep. The doctor opined that the reinjury did not cause an additional impairment to the worker's shoulder or arm. The worker sought benefits for the reinjury. The Tennessee Supreme Court held that he was entitled to benefits.
The home contended that the "popeye" defect, caused by the worker's arm being pulled by his dog, was an intervening injury and therefore not compensable. The court disagreed, finding that the worker did not act negligently. The court said the reinjury was a direct and natural consequence of the earlier work injury. The doctor said that failure was a risk of the surgery.
The court found no basis to assign additional impairment for the reinjury. The doctor testified that the anatomical change did not affect the worker's functioning. His shoulder and arm were as they would have been if an alternate procedure had been used.
The court awarded the worker 25 percent permanent partial disability. The court pointed out that he avoided heavy lifting and pulling. Also, the job opportunities in his field were limited.
Read more at the WorkersComp Forum homepage.
January 23, 2012
Copyright 2012© LRP Publications