An employee injures her knee just by walking up stairs at work and applies for workers’ comp benefits.

Maureen Shay was a teacher in North Carolina. She normally used the school’s elevator to reach the second floor where her classroom was because it was difficult for her to walk up the stairs.

Then the elevator broke and she had to use the stairs.  A month later, her knee gave out while walking up the stairs.

Another month later, her knee pain hadn’t improved. An MRI revealed a medial meniscus tear in her knee.

Shay had surgery and filed a claim for workers’ comp benefits.

The insurance company denied coverage, saying the injury wasn’t work-related.

On appeal, the workers’ comp commission ruled in Shay’s favor and awarded her benefits.

The company appealed to a state court.

Was it an ‘accident?’

In court, both sides agreed that the injury arose out of and in the course of Shay’s employment. However, there was another issue to settle.

Under the state’s Workers’ Compensation Act, an employee is entitled to compensation for an injury only if it is caused by an “accident.”

North Carolina courts have defined accident as “the direct result of a specific traumatic incident” and not part of the employee’s normal work routine.

The court said in Shay’s case, since she didn’t stumble, fall, trip, slip or twist her knee, she didn’t suffer an accident.

Shay tried to argue that, because the elevator broke, walking up stairs to her classroom wasn’t part of her normal work routine.

But the court didn’t buy that argument either. It noted that she’d been walking up the stairs for four weeks before she injured her knee. It said that climbing the stairs for a month became part of her normal work routine.

The court’s final word: Comp benefits denied.

(Shay v. Rowan Salisbury Schools, Court of Appeals of NC, No. COA-09-1587, 7/20/10.)

What do you think about the court’s decision? You can leave a reply below.

When no one witnesses a workplace injury and the injured employee files for workers’ comp, sometimes all you have to go on is the worker’s story. The situation can become more complicated when the worker delays reporting the injury.

Frank Karban said he was moving equipment at work on Feb. 24, 2007, when he bent down, made a twisting motion and “felt a pop” in the right side of his lower back.

Karban says he continued to work that day and didn’t report the injury to his supervisor until the next month.

His supervisor says Karban never told him about the incident.

Almost seven months later, Karban went to his employer’s environmental health and safety representative to report the injury.

Before he reported the injury at work, Karban saw his doctor who sent him for an MRI, which revealed lumbar spine abnormalities. His doctor and a specialist both recommended Karban stop working.

More than a year after the injury took place, Karban filed a claim seeking lifetime medical benefits for injuries resulting from the injury and temporary total disability. He claimed he’d never suffered a back injury before the workplace incident.

His doctor sent a note to the Workers’ Compensation Commission stating Karban had been to his office complaining that he hurt his back. However, that visit happened one month before Karban said the injury occurred at work.

Despite that information from the doctor, a deputy commissioner awarded Karban temporary total disability benefits for six months.

His former employer appealed, and the full commission reversed the deputy commissioner’s ruling, finding Karban failed to prove he suffered a compensable workplace injury and failed to provide adequate notice of the injury to his employer. The full commission also reversed the deputy commissioner’s finding that Karban was credible.

Karban appealed to a state court.

The court sided with the full commission: It didn’t find Karban to be credible. Specifically, the court noted several discrepancies in Karban’s testimony. Karban was unable to explain the medical records that showed he suffered an injury before his alleged workplace injury.

The credibility issue was enough to throw out Karban’s claim — in the end, he didn’t get workers’ comp benefits. Therefore, the court never ruled on whether he provided adequate notice of his injury to his employer.

Cite: Karban v. Universal Fiber Systems, Court of Appeals of VA, No. 2094-09-3, 7/13/10.

As this case shows, the longer a worker waits to report an injury, the more complicated a workers’ comp claim can become. What is your company’s policy on employees reporting injuries? How late is too late? Do you have specific procedures for when no one else witnesses a workplace injury? Let us know what you think in the Comments Box below.

Example: Joshua Petrie was a plant operator at a natural gas processing facility in Texas owned by Quicksilver Resources.

On May 25, 2007, 27-year-old Petrie and another worker were trying to restart a hot oil heater.

After trying several times, they couldn’t restart the heater. They were unaware that gas had accumulated, and when Petrie tried to light the heater one more time, it exploded.

Petrie was found unconscious nearby. He never regained consciousness and died several hours later at a hospital. He suffered extensive injuries including blunt force trauma to the head, face, neck and back, and multiple rib and vertebrae fractures.

Quicksilver bought the plant from Hanover Compression L.P. The plant had been idle for two years. As part of the sales agreement, Hanover agreed to return the plant to operating order, which included installation of the heater that exploded.

Lawyers for Petrie’s estate argued that Hanover didn’t follow National Fire Protection Association (NFPA) standards for installation of the heater. Hanover argued the NFPA standards didn’t apply to this heater and that Petrie’s negligence caused the explosion because he failed to close one of the heater’s gas feed valves.

The jury sided with the arguments from Petrie’s estate. It found Hanover 90% responsible and Quicksilver 10% responsible. The jury also found gross negligence by Hanover, which accounted for $25 million of the verdict.

The jury awarded his widow, three young children (four-years-old and younger) and his father a total of $82.5 million.  Since Quicksilver had workers’ comp insurance, it wasn’t responsible for any actual damages.

It’s difficult to put a price on a human life. What do you think of the verdict amount? Let us know in the Comments Box below.

If you guessed $1.6 billion, you’re right. Federal employees filed more than 79,000 new claims, and that doesn’t include the Postal Service.

President Obama has announced a four-year program to reduce injuries and related costs. It’s called POWER: Protecting Our Workers and Ensuring Reemployment.

The program doesn’t have specific goals, at least not yet.

But by the end of FY 2014, federal agencies must improve performance in seven areas:

1. Reduce total injury and illness case rates.
2. Reduce lost time injury and illness case rates.
3. Analyze lost time injury and illness data.
4. Increase the timely filing of workers’ compensation claims.
5. Increase the timely filing of wage-loss claims.
6. Reduce lost production day rates, and
7. Speed employees’ return to work in cases of serious injury or illness.

Sound familiar? It seems, to save money, the federal government has to pursue the same safety goals as private businesses.

A worker slipped and fell, and sustained multiple injuries including one to her back. While the worker was still healing, she lost her job in a mass layoff. Does she still get comp payments?

Vivian Toscano suffered injuries to her hip, shoulder, elbow, ankle, knee, and lumbar and cervical spine. During her recovery, she was restricted by her doctor from performing various job functions.  She received temporary partial disability (TPD) benefits.

Her employer, Wyeth/Pharma Field Sales, didn’t offer her modified work appropriate to her restrictions.

Then Wyeth laid off about 1,200 employees, including Toscano, while she was still recovering.

Wyeth’s insurance company denied Toscano’s TPD benefits on the basis that her loss of earnings wasn’t related to her workplace injuries, rather it was caused by the layoff. Toscano appealed to get the TPD payments back.

An appeals court sided with the employee. It said Toscano wasn’t able to do her job because of a workplace injury. That fact didn’t change after the mass layoff.

Based on that, the court said she should continue to receive TPD benefits.

Cite: Wyeth/Pharma Field Sales v. Toscano, District Court of Appeal of FL, first district, No. 1D09-5138, 7/7/10.

What do you think of the court’s decision? Let us know in the Comments Box below.

The Ohio Industrial Commission awarded Millard Thomas benefits for a total loss of vision.

His employer, La-Z-Boy Furniture Galleries, appealed on the grounds it shouldn’t have to pay to return Thomas’ vision to his post-transplant condition, 20/50. The company said Thomas’ vision returned to the 20/200 it was before the transplant (which was brought on by a disease, not a workplace injury), and therefore he shouldn’t get comp benefits.

The case went all the way to the Ohio Supreme Court. It noted that this was a case of “first impression,” meaning one of its kind hadn’t been heard by the state’s highest court before.

In a nutshell, the court said, without precedent, the Industrial Commission could use its discretion to determine that Thomas’ 20/50 corrected vision after the corneal transplant could be used as the measure of his pre-injury visual acuity. Therefore, since his vision went from 20/50 to 20/200, he could receive benefits for a total loss of vision.

Cite: State ex rel. La-Z-Boy Furniture Galleries v. Thomas, Ohio Supreme Court, No. 2010-Ohio-3215, 7/13/10. You can download the court’s decision here (PDF).

What do you think about the court’s ruling? Let us know in the Comments Box below.

Yes, it involves tough investigative work, but a clear pattern seems to be emerging.

Consider these recent stories:

• A Quakertown, PA, woman was arrested for fraud after an investigation found her working as a stripper at a club in neighboring Easton, PA.
• A Lindenhurst, NY, man was nabbed for working as a disc jockey in a Utica, NY, club called “Peepers.” Investigators said he’d been working there for five years, in fact, and getting comp all the while.
• An Islip, NY, man has been charged with fraud after he was found working as a bouncer at an all-nude club in West Babylon, NY.

We’re not sure exactly what’s going on here. But we suggest you keep your eyes open.

For most employees, turning around isn’t dangerous. But for a nurse in Mississippi, that simple act resulted in a broken leg, a protracted court battle, and ultimately, a sizable workers’ comp award. 

Irene Hare was 74 at the time. She’d had serious problems with her left leg since 1964, when a car accident killed her mother and crushed her left ankle and knee. She’d walked with a limp ever since.

In 1987, another car crash again severely damaged the same left knee and ankle. After having a screw and side plate implanted in her left femur, she eventually had her kneecap removed.

In ‘88, she slipped on some ice and broke her femur above the knee.

Finally, in 2000, she broke her pelvis after falling off a curb.

But she was back at work one night in 2005. In fact, she was working for the sixth day in a row, although she was supposed to work only four days a week. She was always happy to fill in when others took time off.

Her leg, she admitted, hurt more than usual that night, and she told co-workers she planned to get a shot for arthritis when her shift ended.

While delivering meds to a patient, she remembered she’d left a glass of water on her cart. So she pivoted. And her left leg “popped just like a shotgun.” X-rays showed she’d fractured her left femur.

She filed a workers’ comp claim.

Her employer argued that the injury hadn’t arisen out of her employment. Rather, it was a natural progression of her 40-year history of injuries and surgeries on her left leg.

It brought in an expert witness who said she had significant weakness in the leg that made her susceptible to a “spontaneous fragility fracture.” The fracture could have occurred during any normal life activities, he said, but it happened to occur while she was doing her job.

Not true, said her treating doctor. Her past injuries were completely healed by the time of the accident, and this injury was “further up the shaft … well away from her original fracture.”

In overruling a comp commission decision that denied benefits, a court of appeals gave more weight to the treating doctor’s testimony, and added “that the employer takes the worker as the worker is found, that is, with all the physical strengths and weaknesses the worker brings to the job. If a lame worker suffers an employment fall and is injured, the injury is said to arise out of and in the course of employment under the same test applied for workers not lame. By the same token, if an awkward worker stumbles and falls, the rule is the same as if the worker were agile.”

The court also said the commission had failed to consider “the humanitarian aims” of comp laws to compensate and make injured workers whole.

A dissenting judge thought comp should have been denied, saying “the singular fact that an injury occurs while an employee is on the job does not create a compensable injury … I fear that the majority’s conclusion (turns every) employer into an insurer or guarantor for all injuries to any of its employees who suffer an ‘untoward’ event while on the job.”

What do you think? Feel free to comment below.

Cite: Beverly Healthcare v. Hare, Ct. App. Miss., No. 2009-WC-00344-COA, 6/29/10.

In a recent case, two employees of the same company sustained the same injuries. But the state’s Supreme Court said one could sue, and the other couldn’t.

Here’s what happened: A guy working for a recreational vehicle dealership was given a makeshift pre-fab “office” that was heated by a propane stove. He complained that the fumes from the stove made him sick, but the company ignored his complaints.

Then one day his girlfriend found him unconscious in the office. He was later diagnosed with numerous debilitating neurological impairments and declared permanently disabled.

A short time later, a new employee was hired to do the same job. He, too, complained that the fumes were making him sick. And he, too, was eventually found unconscious — this time by a co-worker. He was also eventually declared permanently disabled.

In fact, he died a short time later (the decision doesn’t say whether his death was related to the exposure).

When the first employee and the family of the second combined forces and sued, the company was able to get both cases dismissed by a district court, successfully invoking exclusive remedy.

But the state’s Supreme Court saw things differently. The district court was right, it said, to toss the first employee’s complaint. But the second employee, it said, might have had a point. Granted, the company hadn’t intentionally harmed him. But given all the circumstances, the company might have been reasonably certain that harm would occur. And that might be enough to overcome exclusive remedy.

Now, the case will be heard by a jury, if it isn’t settled first.

While noting that it was hard to sympathize with the company in this case, one of the high court justices nonetheless vehemently disagreed with the decision to let the employee’s case be heard, saying, “I believe the legislature intended Workers’ Compensation to be the exclusive remedy except … where the defendant’s conduct arose from specific intent rather than willfulness. In other words, an assault would allow a personal injury action. Gross negligence, such as we have here, would not.”

The case, Alexander v. Bozeman Motors, Inc., was decided by the Supreme Court of Montana.

What do you think? Does exclusive remedy unfairly protect even reprehensibly negligent employers, or does the dissenting justice have it right — unless an employer sets out to deliberately harm an employee, workers’ comp should always be the only remedy? Feel free to comment below.

A worker at a bear park smoked pot before coming to work where he fed grizzlies. The worker was seriously injured by one of the bears. A workers’ compensation judge called that “mind-bogglingly stupid.” But did the judge rule the worker was entitled to workers’ comp?

Montana’s comp law says: “An employee is not eligible for benefits otherwise payable under this chapter if the employee’s use of alcohol or drugs not prescribed by a physician is the major contributing cause of the accident.”

Here’s what happened in this case:

Employee Brock Hopkins entered a pen at Great Bear Adventures in West Glacier, MT, to feed grizzlies. He was attacked by one of the bears and escaped by crawling under an electrified fence. He suffered severe injuries.

Hopkins admits he smoked marijuana that day. (Changed from original version to clarify that the defendant smoked marijuana on the day of the incident.)

His employer presented no evidence about his level of impairment on the day of the attack.

Hopkins sought workers’ comp benefits for his injuries but was initially denied on the grounds that his use of marijuana was the major contributing cause of the accident. Hopkins appealed to the state’s Workers’ Compensation Court.

Here’s what the judge wrote: “When it comes to attacking humans, grizzlies are equal opportunity maulers, attacking without regard to race, creed, ethnicity, or marijuana usage. Hopkins’ use of marijuana to kick off a day of working around grizzly bears was ill advised to say the least and mind-bogglingly stupid to say the most.”

The judge noted that, while using pot before interacting with bears may have been stupid, there was no evidence presented to conclude that Hopkins’ pot use was the major cause of the incident.

The decision: Hopkins was entitled to workers’ comp benefits.

What do you think about the judge’s decision in this case? Let us know in the Comments Box below.

Hopkins v. Uninsured Employers’ Fund, Workers’ Compensation Court of MT, No. 2008-2152, 5/4/10.

What types of workplace noise do you think of in connection with occupational hearing loss? Jack hammers, lawn tractors, manufacturing assembly lines? In this case, a worker claims hearing loss from being yelled at on the phone by angry customers.

Linda Zahm worked for National Fuel for 31 years. For 18 of those years, she spent varying parts of her day on the phone with customers who were angry and/or had difficulty hearing.

When she started at the company, a pre-employment hearing exam revealed Zahm had a measurable loss of hearing.

Two years after she retired, Zahm filed a workers’ compensation claim contending she’d suffered occupational hearing loss due to long-term noise exposure “from being on the telephone for years.”

A workers’ compensation law judge and the Workers’ Compensation Board ruled that Zahm had suffered occupational hearing loss. The company appealed.

Zahm’s treating physician testified that her hearing loss was from employment.

However, the appeals court sided with the company.

The court said Zahm’s doctor based her opinion on an erroneous assumption that Zahm spent all 31 of her years on the job on the phone for eight hours a day and was exposed to 80 to 90 decibels of noise.

The court said Zahm’s “description of the actual noise level, which was not measured, was simply too vague and imprecise to establish that it was in fact injurious.”

Outcome: Award of workers’ comp benefits overturned.

What do you think about this case? Let us know in the Comments Box below.

Cite: Zahm v. National Fuel, Appellate Div. of NY Supreme Crt., 4/15/10.

Example: Taxi cab drivers. Right now in Pennsylvania, they’re considered independent contractors. A bill in the state legislature would change that.

Alex Friedman, secretary of the Philadelphia Taxi Association, a group that owns the medallions for about half of the cabs in the city, says they’re contractors.

“We do not pay them salary. We do not control their working hours. We do not tell them to go in certain routes. They are not our employees. We are not their employers,” Friedman told the Philadelphia Inquirer. “Therefore we do not pay any workers’ compensation.”

Ronald Blount, who heads the Taxi Workers Association of Philadelphia, sees it differently. “We believe we’re misclassified,” he said. Blount said cab drivers can’t turn off the dispatch radio during their shifts to take a nap. There are monitors that track their every move. He calls that the type of control an employer exercises over employees.

In some places, such as San Francisco, taxi drivers are considered employees and are eligible for workers’ comp.

Here’s another reason why it matters to the cabbies: Driving a taxi is one of the nation’s most dangerous jobs. About 19 out of every 100,000 cab drivers died on the job in 2008.

Other cab drivers face life-altering injuries. Cabbie Ralph Rescigno was stabbed in the back one night by a robber. Both his lungs were punctured. In the hospital he suffered a stroke.

Rescigno is now wheelchair-bound and can’t speak. He doesn’t receive workers’ comp benefits.

Which factors should determine whether a worker is considered an employee and be eligible for workers’ comp? Are taxi drivers employees or contractors? Let us know what you think in the Comments Box below.

An employee was injured at work. At first his injury seemed minor. But as time passed, his condition grew more serious. He didn’t tell his employer about the incident until he needed to see a medical specialist.

In Kentucky, where this incident took place, workers’ comp law states that compensation shouldn’t be provided if the employee didn’t tell his employer about the injury “as soon as practicable.”

So the question in this case is: Does the worker get comp?

Here’s what happened:

A crate coming down a chute struck the employee on the shin. The force of the blow knocked him over. He immediately noticed a red welt on his leg. The worker didn’t report the injury because, at the time, he felt it was “no big deal.”

The next day the welt was bigger and started to turn black and blue.

The leg got worse several days later.

Two months after the injury, the spot was “like a blister or boil.” Soon after that it turned into an open wound.

It wasn’t until 60+ days after the incident that the worker finally reported the injury at work.

By this time, doctors had to bandage the wound. Eventually he had to see a specialist for wound care.

The company said it always stressed to its employees the importance of immediately reporting injuries because of the presence of bacteria and chemicals in the workplace that could cause even minor cuts to become infected.

An administrative law judge (ALJ) found the worker had waited too long to report the injury to qualify for workers’ comp. On appeal, the workers’ comp board upheld the decision. The worker appealed again to a state court.

The court found no reason to disagree with the ALJ’s finding. It noted that there are three reasons the notice requirement was required in the state’s workers’ comp law:

1. to provide prompt medical treatment
2. to allow a prompt investigation, and
3. to prevent fraudulent claims.

The worker said he provided notice to his employer as soon as he “became aware of the seriousness of his injury.” But the ALJ and the state court said that wasn’t good enough.

Verdict: No workers’ comp.

A side note: The court observed that there is no definition of “as soon as practicable” in the state’s workers’ comp law. It relied on the ALJ’s discretion to determine that.

How soon is soon enough? Within 15 minutes of injury? The same day? Is first thing the next morning OK? At what point should an employee be denied workers’ comp benefits for delaying the report of an injury? Let us know in the Comments Box below.

Cite: Granger v. Dairy, Court of Appeals of KY, No. 2009-CA-001345-WC, 3/5/10.

Under Connecticut’s workers’ comp law, a police officer can receive benefits for post-traumatic stress disorder (PTSD) after facing serious injury or deadly force from another person.

But Stamford Police Officer Frank Chiafari, who suffers from PTSD after the incident, can’t get comp because he was forced to shoot and kill an animal, not a person.

Chiafari responded to the scene where the chimp, Travis, had attacked Charla Nash, ripping her face and hands to pieces.

The officer had opened his squad car door to try to help Nash. The chimp jumped into the car.

In testimony before a state legislative committee, Chiafari described the chimp as “a monster with fangs and blood all over it.” After it jumped in his car, Chiafari said, “He was saying, ‘You’re next.’”

The officer shot and killed the chimp. The City of Stamford denied his workers’ comp claim five days after he filed it.

The city later came to an agreement with the police association to cover Chiafari’s $6,400 out-of-pocket medical expenses.

Chiafari was testifying before the state Labor and Public Employees Committee in support of a bill that would amend workers’ comp law to make officers eligible for benefits related to police shootings of an animal threatening serious injury or death.

The bill has been drafted so that it wouldn’t include instances involving rabid raccoons or when an officer has to shoot a deer that’s been seriously injured in a car crash.

The Connecticut Conference of Municipalities opposes the bill, saying it could create an enormous liability for cities and towns. A statement from the Conference says the present law is reasonable and shouldn’t be changed because of one high-profile case.

Should the law be changed? Let us know what you think in the Comments Box below.

(This isn’t the first workers’ comp case spawned by the chimp attack. See our earlier article here.)

If doctors declare an injured worker totally disabled, what happens if he looks for work while he’s waiting to see if he gets workers’ comp benefits?

John DeHaven injured his shoulder at work in April 2005. He received temporary total disability payments until November 2005 when he took a light-duty position with his employer.

Three months after taking the light-duty position, DeHaven was laid off.

Eight months later, he filed a claim for workers’ comp benefits for his shoulder injury.

His former employer fought the claim using a few different arguments. But given today’s economic climate, this one is interesting.

DeHaven testified before the workers’ comp commission that he’d been looking for work since he was laid off. He said he had to look for work because he wasn’t receiving workers’ comp benefits and he didn’t have any income. DeHaven wasn’t able to find a job he was physically able to do.

His former employer said since DeHaven had looked for work, that negated his doctors’ opinions that his injury left him totally disabled.

The court didn’t buy the company’s reasoning. “We will not penalize DeHaven for seeking work despite his disability due to financial necessity, and we defer to the opinion of DeHaven’s treating physicians who concluded he was totally disabled,” the court’s opinion stated.

The court ruled DeHaven should receive temporary total disability benefits.

What do you think about this case? Let us know in the Comments Box below.

Cite: Land N Sea Distributing, Inc. v. DeHaven.

Karen Mackey was driving from her home to a patient’s when her car slid on some ice and went off the road.

When Mackey got out of her car, another vehicle slid off the road, hitting her.

She suffered serious injuries to her ribs, knee and back. She filed a workers’ comp claim.

Her employer objected, saying her injuries didn’t occur in the course and scope of her employment.

Mackey relied on an established exception to the coming-and-going rule that says workers won’t receive workers’ comp benefits if they’re injured on the way to or from work.

The exception: if the employee has no fixed place of work.

Specifically, Mackey pointed to a previous decision in which an employee of a nursing agency was injured in a car crash while traveling to the workplace assigned to her by her employer. That worker received workers’ comp benefits.

However, the workers’ comp judge, appeal board and appeals court all found that the two cases were different, and Mackey shouldn’t receive benefits.

The nurse who received benefits in the previous case was regularly assigned to different clients. But Mackey had been assigned to the same client for 18 months.

For that reason, the court said Mackey’s assignment didn’t qualify for the “no fixed place of work” exception.

The narrow exception in Pennsylvania depended entirely upon whether the agency worker had long-term or short-term assignments. What do you think about that? Let us know in the Comments Box below.

Cite: Mackey v. Workers’ Compensation Appeal Board, Commonwealth Court of PA, No. 1903 C.D. 2009, 2/17/10 (PDF).

Frantz Pierre broke his ankle when he fell on a sidewalk where water was flowing from an outdoor sink used to wash clothes.

The South Carolina Workers’ Compensation Commission found that Pierre wasn’t required to live in the employer-provided housing, so he shouldn’t receive comp benefits.

Courts often consider what is known as the bunkhouse rule in these cases. The rule requires workers’ comp for employees who are injured while on an employer’s premises if they are required to be there. Courts often consider whether an employee’s use of the premises is part of their compensation.

Pierre appealed the commission’s decision. A state circuit court upheld the ruling.

But Pierre appealed once more to the South Carolina Supreme Court which overturned the decision. It said the worker should receive comp benefits.

The state’s highest court found that Pierre was essentially required to live on the grounds because he and other migrant workers employed by the company didn’t earn enough money to rent seasonal housing.

Do you think the court made the right decision? Let us know in the Comments Box below.

Cite: Pierre v. Seaside Farms, Inc., SC Supreme Court, No. 26777, 2/16/10.

Paulette Freeman suffered low back strain, a fractured big toe and bruises while at work. Later, she was also diagnosed with a herniated disc.

A doctor who examined Freeman said she was capable of driving and returning to work in a light-duty, non-physical capacity. The doctor reviewed the light-duty position, that of “building substitute teacher,” and said she was capable of that job.

The job didn’t involve lifting, bending or carrying. The school is wheelchair accessible, and there would be no problem with Freeman sitting, standing or changing her position as needed.

However, Freeman said she had stopped driving because of spasms in her legs and couldn’t drive to the school. She also said pain all over her body interfered with her ability to think and focus.

And she presented testimony from another doctor who said she could not do the substitute teacher job.

A workers’ comp judge and then the workers’ comp appeals board both ruled in favor of the employer, saying that after Freeman didn’t report for her light-duty job, her benefits could be suspended. Freeman appealed once again to a state court.

The court agreed with the previous two rulings, that Freeman should no longer receive workers’ comp benefits after she failed to report to the light-duty job. The judges agreed with the workers’ comp judge that Freeman’s testimony lacked credibility because she changed her story more than once about a previous injury she suffered 20 years before the workplace incident.

The court also found the testimony of the doctor who said Freeman could go back to work more credible than that from the doctor who said she could not.

The judges also said Freeman’s demeanor conflicted with her testimony that her pain affected her ability to think and focus.

In this case, the employer took several steps to help its case:

• It offered the employee a light-duty job
• Details about the demands of the job were spelled out, and
• The employer took the specifics of the job to a doctor who had treated the injured employee and got an opinion that she was able to perform the necessary tasks for the position.

And it’s probably not a good idea for injured workers who want to remain on workers’ comp to claim they can’t think or focus and then appear to be perfectly able to do so in court.

Cite: Freeman v. Workers’ Comp. Appeals Board, Commonwealth Court of PA, No. 1278 C.D. 2009, 2/1/10.

Imagine this: A worker has surgery to insert metal plates and screws to repair damaged discs in his neck. He says his injury happened at work … when he sneezed.

And since he claims it happened at work, the employee wants workers’ comp (WC) benefits.

Joseph Hopper says he was injured at work when he reached to grab a tire while unloading a truck. He claims he didn’t report the injury because his supervisor wasn’t at work.

Hopper says ten days later, he was opening the shop when he sneezed and heard a popping sound in his back. The pain was so bad, according to Hopper, that he had to leave work.

After having the neck surgery, Hopper applied for WC benefits.

His boss testified that Hopper didn’t report a work-related injury, but told him that he’d injured his neck at home.

A doctor testified in support of Hopper, saying “when the sneeze happened [it] finally sort of put him over the edge.”

However, hospital records show that when Hopper went to the emergency room because of pain, he said the sneeze “happened at night,” which would have put him at home at the time of the incident.

At one point, Hopper was awarded WC benefits, but his employer appealed. The state WC commission reversed its ruling, then Hopper appealed.

Now a state appeals court has upheld the commission’s second opinion that comp benefits should be denied. Since Hopper didn’t report a work injury and he was on record as saying the sneeze happened at night, the court said there wasn’t enough evidence to prove the injury happened at work.

What about the claim that a sneeze can cause a neck or back injury? This season, LA Clippers coach Mike Dunleavy reported that he aggravated a herniated disc in his lower back by sneezing. And we found several articles on the Web that say a sneeze can cause a back injury.

What’s the strangest injury claim you’ve ever heard? Let us know in the Comments Box below.

Cite: Hopper v. Krevinec, Crt. of Appeals of MS, No. 2009-WC-00206-COA, 1/19/10 (PDF).

Workers’ comp laws usually prohibit lawsuits against companies when a worker is seriously injured or killed on the job. But a lawyer in Texas found a way to skirt the law and win a huge jury award.

Crane operator Adrian Flores was killed after he was pinned by a 1,200 ton weight.

Flores’ crane was one of four working simultaneously to lift the weight from one end of a dry dock to the other.

The load shifted and came into Flores’ cab. He was trapped for over two hours and was conscious for much of that time. He was taken to a local hospital where he died on the operating table.

William Tinning, the lawyer for Flores’ family alleged that Gulf Marine Fabrication:

• didn’t use enough cranes
• didn’t send instructions on how to lift the load
• failed to hire an outside engineering company to design a lift plan, and
• relied on an unqualified engineer whose plan deviated from accepted practices and contained math errors.

The attorney sued the employer’s parent and sister companies, alleging they had control of the worksite. At the same time, he admitted that the employer bore some responsibility, just not all of it.

Tinning used the deposition of an executive with the parent company who signed the contract, oversaw daily operation and did hiring onsite to show the parent company had control over the crane operation.

The jury assigned 15% of the blame for the employer and awarded $5 million to Flores’ widow, $500,000 to each of his four adult children, and $1 million to each of his two minor children. The remainder of the $11 million award went to his estate for his own pain and suffering.

Lawyers for the company only called two witnesses during the trial: the engineer who designed the plan and an OSHA expert.

Did the jury make the right decision? Let us know what you think in the Comments Box below.

Jesse Cooper was a master plumber and foreman for Barnickel Enterprises. He’d gone to a location where a job was about to begin to discuss details.

When he arrived, he found the person he needed to talk to was teaching a class and wouldn’t be available for 45 minutes. Cooper decided to go get some coffee at a deli about five miles away.

On the way there, he was involved in a serious accident that broke one of his arms and both of his legs.

The New Jersey Division of Workers’ Compensation awarded Cooper 100% disability.

Barnickel appealed, arguing that Cooper’s accident didn’t arise out of and in the course of his employment.

A state appeals court rejected Barnickel’s argument and said Cooper should receive workers’ comp benefits.

The court said Cooper engaged in “exactly the kind of brief activity which if embarked on by an inside employee working under set time and place limitations, would be compensable under the personal comfort doctrine.”

In other words, accidents occurring during coffee breaks for off-site employees, which are equivalent to those of on-site workers, are eligible for workers’ comp benefits.

Do you think the court made the right decision? Let us know in the Comments Box below.

Cite: Cooper v. Barnickel Enterprises, Superior Crt. of NJ Appellate Div., No. A-1813-08T3, 1/13/10. Court opinion is available here (PDF).

A worker tests positive for PCP right after he’s injured. Is he still able to collect workers’ comp benefits?

As this case shows, it’s sometimes a matter of who the workers’ comp commission decides to believe.

Carl Johnson, a truck driver, was lifting 80-pound boxes when he felt a sharp pain in his shoulder and lower back.

After reporting the injury to his employer, he was drug tested the same day. He tested positive for PCP, also known as angel dust, a hallucinogenic.

Johnson claimed he didn’t use PCP and that he wasn’t impaired at work on the day of his injury.

Arkansas state law says comp can be denied when there is a positive drug test. However, if the worker can prove the drug use didn’t substantially cause the injury, comp can be awarded.

When the case was first heard, an administrative law judge found there was no evidence presented that Johnson appeared impaired.

Is worker’s word enough?

However, when the Workers’ Compensation Commission took up the case, it disagreed. The commission said it was up to Johnson to prove that he wasn’t impaired, and he presented no testimony other than his own to prove that.

He didn’t call on co-workers or customers to testify that he wasn’t impaired the day he was injured.

Johnson took the commission’s decision to the state appeals court.

The court said the burden to prove the PCP in his system didn’t cause his injury was on Johnson.

The court noted, “While Johnson’s testimony about his lifting injury might begin to carry this burden if credited 100%, the Commission was not required to believe him.”

Because the commission didn’t believe Johnson’s testimony, the court upheld the commission’s decision: Comp denied.

However, had the commission found reason to believe that Johnson wasn’t impaired by the drug use, he would have received comp payments.

How should cases where an injured worker tests positive for drug use be handled? Let us know what you think in the Comments Box below.

Cite: Johnson v. U.S. Food Service, Inc., AR Court of Appeals, No. CA09-851, 1/6/10.

Workers’ comp laws in some states do contain provisions to discourage employees from trying to cheat the system. Here’s one example:

A worker injured his back on the job while lifting boxes. He had substantial back surgery and received workers’ comp benefits because he wasn’t able to work.

The employee said due to pain in his leg from his back injury, he walked with a limp most of the time and that his activities were extremely limited. He said he could only “lift a little.”

However, video from the insurance company showed him bending, picking up and swinging his grandchildren, among other activities.

When he saw the insurance carrier’s doctor, he walked with a severe limp. However the doctor watched him walk out to the parking lot with only a slight limp.

The Workers’ Compensation Board in New York state ruled that, because of his exaggeration, benefits were cut off. But that’s not all.

The Board also, under law, has the discretion to disqualify someone from receiving any future workers’ comp benefits even if the person suffers a compensable injury in the future, and did so in this case.

The worker appealed to a state court which affirmed the comp board’s decision.

Do you think relating this story to employees during a safety meeting would discourage employees from trying to become comp cheats? Let us know in the Comments Box below.

Cite: Church v. Arrow Electric, 3rd App. Div. NY Supreme Crt., No. 503836, 1/7/10 (PDF).

Sickening perfume, bowling injuries, texting while driving and snack machines that cause injuries. These are just some of the topics in our Safety News Alert Top 10 stories of 2009, determined by what readers clicked on the most.

1. Co-worker’s perfume made her sick: Is company liable?
2. Company takes ‘em bowling, then pays big for comp
3. Texting while driving: Take this test
4. Will violent, bloody video stop people from texting and driving?
5. Worker attacked by snack machine sues for comp
6. Employer surveillance ‘harmed’ employee, says court
7. Cell phone bans to reach new levels for safety?
8. Photo shows why it’s a bad idea to talk or text and drive
9. Obama bans texting while driving
10. Fired employee sues, says co-worker tried to punch him

California’s Supreme Court has refused to reconsider a decision granting workers’ comp benefits to an employee after she was injured while shopping for a work-related potluck.

Yvette Casarez was injured while traveling to a shopping center to buy food and gifts for a holiday party for co-workers to be held at the employer’s office the next day.

Her husband lost control of the truck in which she was a passenger. The truck struck the center divider and rolled over several times.

Her employer supported the potlucks to promote teamwork. Casarez also showed that she was on call for the employer at the time of the crash. For those reasons, a workers’ comp administrative judge concluded she was injured in the course of performing a work-related duty that benefited the employer.

The company, Davita, Inc., appealed the comp award to the full workers’ comp board, a state appeals court and finally to the state supreme court. At every step, the benefits were upheld.

What do you think of the court’s decision? Let us know in the Comments Box below.

Cite: Yvette Casarez v. Davita, Inc., Workers’ Compensation Appeals Board, State of CA, Case No. ADJ278138.

Imagine this: One of your employees complains that a customer’s perfume made her so sick that she needs permanent and total disability benefits. We’re not making this up: It actually happened.

Carol Ervin was an administrative professional at Richland Memorial Hospital in South Carolina. Part of her job was to greet hospital visitors and new patients.

One day she was exposed to perfume worn by a hospital visitor. Ervin claimed that exposure aggravated and exacerbated a preexisting condition (asthma) to such a degree that she became permanently and totally disabled.

The hospital argued this wasn’t a case for workers’ comp benefits because Ervin’s exposure in the workplace was no more than what she experienced in the general environment.

A workers’ comp commissioner who heard her case said Ervin had suffered a compensable injury by an accident arising out of and in the course and scope of her employment because her preexisting condition was aggravated and exacerbated by her job. She was found to be permanently and totally disabled, and her employer was ordered to pay a lump sum award and for related medical treatment for the rest of her life.

However, a workers’ comp Appellate Panel reversed that ruling, which has now been upheld by a trial court and an appeals court.

In the most recent decision by the appeals court, it noted that the South Carolina Supreme Court has ruled that for an injury to have arisen out of employment, the hazard has to be unique to the workplace and not common to the general environment.

Since Ervin testified that she had or could have had reactions to perfume at church, the grocery store, a restaurant and department stores, the hazard was exceedingly common, and the injury didn’t arise out of her employment.

What do you think of the court’s decision? Let us know in the Comments Box below.

Ervin v. Richland Memorial Hospital, Court of Appeals of SC, No. 4636, 12/8/09.

Ever face an appeal in a workers’ comp case? Then you know it can take a long time. But here’s a case that’s been in the courts for 27 years, and it isn’t over yet. And the injury was to the worker’s little toe.

Kirk Jacobs injured his toe in a work-related accident in 1982. He received workers’ comp benefits for a number of related conditions for many years, including for treatment of chronic abdominal pain.

What, you say? How is a toe injury related to abdominal pain?

Five months after his toe injury, Jacobs had an allergic reaction to an antibiotic used to treat an infection which had developed in his right foot. The reaction manifested itself as colitis and nerve damage which left Jacobs with severe chronic pain, according to his account.

But wait, there’s more.

In 2001, 19 years later, Jacobs sought benefits for lung problems in connection to the little toe injury. He argued that his abdominal pain required his continued use of narcotic pain medication. Because of his need for large amounts of pain medicine, he developed breathing and pulmonary problems requiring treatment.

His former employer and its insurance company thought all these claims had been settled and dismissed.

Jacobs appealed his case one more time to his state’s supreme court. In reviewing the long case history, the court recently determined that, while the claim for benefits for the lung problem had been properly dismissed, it could find no record that a final decision was ever entered regarding the chronic abdominal pain. The court has sent the case back for final review.

Twenty-seven years later, the case goes on.

What do you think about this case? What’s the longest you’ve ever had a workers’ comp case drag out? Let us know in the Comments Box below.

Cite: Jacobs v. Wyoming Workers’ Safety and Compensation Div., WY Supreme Court, No. S-08-0255, 9/25/09 (PDF).

An employee is injured while playing volleyball. He files for workers’ comp, saying it was part of his job. His employer disagrees, saying it wasn’t part of his tasks. Does the employee in this case get comp?

Here are the details:

Sean Murphy worked at a fitness facility as a fitness supervisor.

One day while at work, a co-worker asked him to participate in a game of wallyball (volleyball on a racquetball court).

At first he declined, but the co-worker, who wasn’t his supervisor, insisted, saying without him, the game couldn’t go forward “because they didn’t have enough people to participate.”

He agreed to play, and when he jumped up to block a shot, he came down and injured his right leg.

He underwent surgery to repair a fracture.

Since one of his duties was to promote and implement the classes and programs that his employer offered, he filed for workers’ comp.

An arbitrator awarded him comp benefits. The employer appealed for these reasons:

• Murphy had no duties in the racket sports department
• Wallyball wasn’t within Murphy’s responsibilities
• His supervisor never ordered or directed him to play or participate
• The center had a policy prohibiting employees from playing while they were on duty, and
• Playing wallyball was a voluntary recreational activity.

A state court upheld Murphy’s comp benefits, saying his participation in the game “clearly benefited the business of operating a health facility and [Murphy] clearly believed the activity was part of his work duties.”

The court said Murphy’s situation was similar to that of a pro athlete: Recreational activity was part of his job.

What’s your opinion of the court’s decision? Let us know in the Comments Box below.

Cite: Elmhurst Park District v. Sean T. Murphy, Appellate Court of IL, No. 07-MR-947, 10/6/09. (PDF)

A worker at David’s Cookies was assigned one day to pack biscotti into boxes after they passed through a chopping machine. Sometimes small bits of cookie caused the machine to get clogged.

The employee had worked at the cookie production plant for a year, but never near the biscotti machine. She didn’t speak or read English.

The biscotti machine got clogged. While it was still running, the employee reached her hand under the machine’s guard. Her hand came into contact with the blade, and its chopping motion caused her significant injuries.

The worker sued her employer for intentional harm.

David’s Cookies pointed out that the machine had a proper guard and a sign with a pictogram that showed workers they shouldn’t stick their hands into the machine. Workers’ comp should cover this case, the employer said.

The employee argued she’d never been given training on the biscotti machine.

The company won when the court threw out the lawsuit. The judge wrote an employer “could … assume that a rational person is not gonna stick his hand in a machine that’s being operated by electrical power” but would “call somebody or pull the plug or disengage the machinery.”

Cite: Cong Su v. David’s Cookies, Superior Court of NJ, 8/10/09.

A tow-truck operator in Connecticut is dealing with a bizarre twist on workplace violence. Her pet chimpanzee went nuts on an employee, ripping off her hands, nose, lips and eyelids, according to an Associated Press story. Eight months later, the employee remains hospitalized.

And her family wants to sue the chimp’s owner for $50 million.

But the owner is claiming that workers’ comp should be the exclusive remedy, insisting that the chimp was an integral part of the business. The proof? His picture was on the wrecker and he regularly made promotional appearances.

Further, the house where the attack happened is a business office. And the employee’s duties included cleaning the chimp’s play area and picking up his supplies, says the company’s lawyer.

If the courts agree, the employee will have her medical bills paid, and will get some sort of wage replacement, but zilch for pain and suffering.

It’s an interesting strategy for the employer, and one that creates a quandary for the victim, the story points out. She has only one year to file a comp claim. If she chooses not to, and the lawsuit is eventually tossed, she could be left with nothing.

Is the employer unfairly trying to exploit the system? Or is the strategy simply a fair response to existing laws?  Let us know in the comments box below.

If one of your employees was injured in an exercise class, you wouldn’t expect that to be covered by workers’ comp. But that’s not how one court saw it.

Frank Torre worked for Logic Technology, a company that performed on-site contracting work for General Electric.

Torre suffered a spinal cord injury while participating in an exercise class at the G.E. fitness center during work hours.

A workers’ comp law judge ruled that his injury arose out of and in the course of his employment.

Torre was off duty when he took the class and wasn’t compensated for nor required to take it.

So to receive workers’ comp, he’d have to prove that his employer sponsored the activity, which required “an affirmative act or overt encouragement by the employer to participate.”

It turns out Torre was encouraged by his employer to have a gym membership. Logic Technology offers reimbursement to its employees for half of their G.E. fitness center membership fees. But in this case, Torre didn’t even seek reimbursement for the membership.

Another factor: Torre’s job required him to develop contacts with current and prospective clients, and the company president stated that participating in the fitness class helped do that.

Not only did the comp board rule in his favor, but on appeal, the Supreme Court of New York did also.

Do you agree with the court’s decision? Since Torre was encouraged to make business contacts at the gym, did that make his workouts part of his job? Let us know what you think in the Comments Box below.

Cite: Torre v. Logic Technology, Inc., Supreme Court, New York, No. 506423, 7/2/09. (PDF)

The workers’ comp premium rate in Oregon will decrease 1.3% for 2010. The state had 21,660 accepted disabling claims in 2008, a decrease of 1,773 from 2007. The claims rate is 1.2 per 100 workers, down from 1.3 in 2007.

The report from Oregon also notes that 30.4% of claims were filed by workers in the first year with their employer.

The average age of workers making claims was 41. If you assume most workers are between the ages of 18 and 64, 41 is the average age of workers overall.

So it’s not how old workers are that matters, it’s how long they’ve been with your company.

Some other statistics from Oregon’s report:

• The most common injuries were sprains, strain and tears (47%); fractures, 12%
• The top events causing injuries: overexertion (24%); struck by or against an object (14%); and bodily reaction (14%)
• The biggest sources of injuries: bodily condition or motion (24%); floors, walks or ground (17%); and containers (8.5%), and
• The body parts most commonly affected: back (21.5%); trunk, except back (16%); and knees (11%).

Workers’ comp boards and courts draw a fine line between what is and what isn’t a work-related injury that qualifies for benefits. See if you can guess how the court ruled in this case:

Michael Haley worked in a shipping yard which handled arriving and departing tractor trailers and the loading and unloading of the trucks. Part of his regular duties included climbing into and out of truck cabs.

One day at work, when he stepped into the cab of a truck, he felt a spasm in his left leg.

Haley didn’t climb the step in an unusual or awkward way, and there wasn’t anything strenuous about stepping up a total of 16 inches.

After the spasm, Haley had no strength in his leg and had trouble moving it.

Doctors diagnosed a ruptured quadriceps tendon and performed surgery quickly thereafter. Complications soon developed, causing Haley to walk with a cane for some time after the injury.

He applied for workers’ comp. The state comp commission found that he hadn’t proven his injury “arose out of” his employment and denied his claim for benefits. Haley appealed.

A state appeals court upheld the comp commission’s decision, so Haley didn’t get benefits.

Haley had argued that the 16-inch step was higher than a normal step that most people would encounter outside of work, and for that reason, he should get comp.

However, the court noted that doctors weren’t able to explain any link between Haley’s work duties and the rupture. All they were able to say is that the injury occurred at work.

“At work” isn’t necessarily good enough to qualify for workers’ comp. Case closed: The company won.

Do you think the court made the right decision? Let us know in the Comments Box below.

Cite: Haley v. Springs Global U.S., Inc. and Zurich American Insurance Co., Court of Appeals of Virginia, No. 2841-08-3, 8/18/09.

Andrew Holcombe of Bath, England, has been sent to jail for 18 months for dealing crack.

The 54-year-old said he bought the drugs after receiving compensation for a workplace accident. He claims he was just sharing the drugs with his friends.

Police found almost 22 grams of cocaine, weighing scales and £2,800 cash ($4,600) in Holcombe’s house.

His lawyer claims Holcombe turned to cocaine after suffering a serious workplace accident and becoming listless when he was laid up for six weeks.

He’d received £9,300 ($15,350)  for the workplace accident.

Imagine this: An employee, who happens to be morbidly obese, is injured at work. Doctors say, before he has surgery to correct the workplace injury, he needs weight-loss surgery.

And, in two separate cases, courts rule that comp must cover the weight-loss surgery!

First, the case of Adam Childers. While working at Boston’s Gourmet Pizza in Indiana, he was struck by a freezer door, injuring his lower back. At the time, Childers was six feet tall and weighed 340 pounds.

A doctor said before Childers could have back fusion surgery, he needed lap-band surgery to lose weight.

A workers’ comp panel awarded him benefits to have the weight-loss surgery. His employer appealed, arguing that Childers suffered from a pre-existing health condition of morbid obesity.

However, the court said the restaurant couldn’t prove that Childers had a weight problem that impaired his health and/or required medical intervention. Case closed, he gets the surgery paid for by comp.

In the second case, Edward Sprague injured his knee at work in 1976 and reinjured it in 1999.

During that time span, Sprague’s weight went from 225 to 350 pounds.

Doctors told Sprague his weight would prevent successful treatment of the knee condition, so he sought workers’ comp benefits for weight-loss surgery.

His insurance carrier argued that the claim wasn’t compensable because the obesity wasn’t caused by his 1976 accident.

Last year a state court ruled Sprague’s bypass surgery should be paid for by workers’ comp. The court said the injury was more than a minor cause of Sprague’s need for gastric surgery.

Now, the Oregon Supreme Court has issued the last word in this case. It agrees that comp should cover the weight-loss surgery.

Should state comp laws be amended to prohibit employees from getting workers’ comp benefits to pay for weight-loss surgery in cases like these? Let us know what you think in the Comments Box below.