Safety and OSHA News

No relief after wrist surgery: Can injured employee get more comp benefits?

This office worker was already receiving workers’ comp benefits for a wrist injury. Then she had surgery, but her condition didn’t improve. Can she get additional comp benefits? 

Joann McCrary worked as a customer service specialist for the Employees’ Retirement System of Georgia (ERSGA) from 2005 to 2011. She answered calls from employees inquiring about benefits, typed up information about the calls and entered this data into her employer’s system.

McCrary’s right hand became swollen and painful and she could barely move her fingers. She had two surgeries on her right wrist which were covered by workers’ comp. Afterward, McCrary couldn’t type or use her right hand well. She was terminated for failing to return to work when asked.

ERSGA accepted her workers’ comp claim, and McCrary received medical care, temporary total disability benefits, temporary partial disability benefits and permanent partial disability benefits.

In 2016, McCrary sought a designation of catastrophic injury and disability income benefits. This is after her doctor, who performed the surgeries, wrote in a status report that McCrary “is unable to type for any length of time and should be on no typing.”

Unable to do any work?

At a hearing before an administrative law judge (ALJ), a vocational expert testified McCrary was unable to do her prior work and “was unable to do any work for which she’s qualified that exists in substantial numbers.”

The vocational expert said it was unlikely for McCrary, who is right-hand dominant, high-school educated and computer literate, to find a job in the metropolitan Atlanta area. The expert rejected the suggestions that McCrary could use voice recognition software because it wasn’t particularly accurate and joy sticks or rollerballs because they would be difficult to use with her non-dominant left hand.

The ALJ found McCrary failed to prove she had sustained a catastrophic injury. The Workers’ Compensation Board adopted the ALJ’s conclusion. McCrary appealed to a state court which also affirmed the decision. She then took her case to a state appeals court.

McCrary argued the Board hadn’t properly considered the vocational expert’s testimony. The ALJ had discounted the testimony of the vocational expert, finding “these opinions unconvincing, as accuracy can be attained with voice recognition software and as [the expert] appears to underestimate the ability of human beings to compensate for their limitations.”

The ALJ also pointed out that the vocational expert eventually conceded that McCrary could return to work if she was able to perform a job without using her right hand.

The appeals court rejected McCrary’s argument that the ALJ and Board failed to properly consider the vocational expert’s testimony. The court affirmed the decision to deny McCrary the catastrophic injury designation and additional workers’ comp benefits.

(McCrary v. Georgia Employee Retirement System, Court of Appeals of Georgia, No. A18A2015, 3/13/19)

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