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.

Dollar Tree in Virginia suspected an employee was abusing workers’ comp. She’d received more than $100,000 over a year and a half for back problems.

The employee posted on her MySpace page that she had a side job taking photos at a wedding.

Dollar Tree representatives saw her lugging camera equipment and picking up children at the event, showing no signs of back pain.

The retailer won its appeal of her case.

Has an employee’s Web page ever tipped your company off about workers’ comp or another type of fraud? Let us know in the Comments Box below.

If you’ve read up on workers’ comp cases, you may have already guessed that the answer is yes, he did get comp.

And it’s cases like this one that are prompting states to rewrite their comp laws. Tennessee just did.

In this particular case, Robert Powell, a Cedar Rapids Gazette employee, was one of 75 workers who participated in a family night of bowling sponsored by his employer.

The day after the event, he felt pain in his back and left leg. He underwent two rounds of surgery. He was placed on disability, but later lost his job because of a dispute over whether he was able to work, according to an article in the Des Moines Register.

Four years later, the Iowa Workers’ Compensation Commissioner awarded Powell more than $100,000 in benefits.

The commissioner pointed to a Supreme Court ruling that says if activities that led to an injury were for the benefit of the employer, or for the mutual benefit of the employer and worker, they should be treated as work-related.

So, should you cancel that employee picnic or your softball team? Employers get in trouble when:

• employee attendance is expected
• the event takes place during normal work hours
• uniforms promoting the company are worn, or
• transportation is provided to the event.

About one in four states have taken legislative action to limit workers’ comp awards for injuries that happen at company-sponsored events.

Tennessee’s governor signed one such piece of legislation into law in June. The new law states, “No compensation shall be allowed for an injury due to the employee’s voluntary participation in recreational, social, athletic or exercise activities (including, but not limited to, athletic events, competitions, parties, picnics and exercise programs) whether or not the employer pays some or all of the costs thereof.”

There are four exceptions:

• required participation
• participation that benefits the company in ways other than employee health or morale
• events during work hours that are part of work duties, and
• injuries due to an unsafe condition during voluntary participation using facilities designated by, furnished by or maintained by the employer, and the company had knowledge of the unsafe condition.

Should employers have to pay for employees’ injuries during company-sponsored recreational events? Let us know in the Comments Box below.

Imagine this: A company sponsors a Family Fun night of bowling for its employees and their families to improve morale. One employee injures his back while bowling. Does he get workers’ comp because this was an employer-sponsored event?

If you’ve read up on workers’ comp cases, you may have already guessed that the answer is yes, he did get comp.

And it’s cases like this one that are prompting states to rewrite their comp laws. Tennessee just did.

In this particular case, Robert Powell, a Cedar Rapids Gazette employee, was one of 75 workers who participated in a family night of bowling sponsored by his employer.

The day after the event, he felt pain in his back and left leg. He underwent two rounds of surgery. He was placed on disability, but later lost his job because of a dispute over whether he was able to work, according to an article in the Des Moines Register.

Four years later, the Iowa Workers’ Compensation Commissioner awarded Powell more than $100,000 in benefits.

The commissioner pointed to a Supreme Court ruling that says if activities that led to an injury were for the benefit of the employer, or for the mutual benefit of the employer and worker, they should be treated as work-related.

So, should you cancel that employee picnic or your softball team? Employers get in trouble when:

• employee attendance is expected
• the event takes place during normal work hours
• uniforms promoting the company are worn, or
• transportation is provided to the event.

About one in four states have taken legislative action to limit workers’ comp awards for injuries that happen at company-sponsored events.

Tennessee’s governor signed one such piece of legislation into law in June. The new law states, “No compensation shall be allowed for an injury due to the employee’s voluntary participation in recreational, social, athletic or exercise activities (including, but not limited to, athletic events, competitions, parties, picnics and exercise programs) whether or not the employer pays some or all of the costs thereof.”

There are four exceptions:

• required participation
• participation that benefits the company in ways other than employee health or morale
• events during work hours that are part of work duties, and
• injuries due to an unsafe condition during voluntary participation using facilities designated by, furnished by or maintained by the employer, and the company had knowledge of the unsafe condition.

Should employers have to pay for employees’ injuries during company-sponsored recreational events? Let us know in the Comments Box below.

Employees can receive comp for mental injuries at work under certain circumstances.

In this case, Laila Young said she was harassed at work after September 11, 2001 because of her Egyptian ethnicity. The company fired her in April 2003.

Young claims she was:

• cursed at
• struck in the head by one of her co-workers
• subjected to offensive anti-Arab cartoons that were placed on a bulletin board
• repeatedly ignored and belittled by her supervisor in front of others, and
• asked by her supervisor if she had turned her family in to the FBI.

Her employer, Pentax Precision Instrument Corp., provided witness testimony that told a different story.

There were direct denials of Young’s accusations and reasonable explanations of others.

The company also showed that when Young had complaints, it dealt with them promptly.

Add to all this that Young had been transferred within the company in 1998 because of problems interacting with co-workers. Some of those problems persisted, according to testimony.

Two doctors, two different opinions

Young presented testimony from her doctor that her anxiety and stress were related to harassment at work. However, an independent medical exam performed by the employer’s doctor found no causal relationship between her anxiety and work.

A workers’ comp law judge, the state workers’ comp board and finally the state supreme court all ruled in the company’s favor. The court found no reason to reverse the board’s previous judgment that the company’s testimony was more credible.

In its ruling, the New York Supreme Court noted that if a claimant can show that stress that caused an injury was “greater than that which other similarly situated workers experienced in the normal work environment,” then the employee can receive workers’ comp.

In this case, Young wasn’t able to show that.

You can read the court’s decision here.

Should employees be able to get workers’ comp for stress on the job? Let us know in the Comments Box below.

South Carolina legislators have introduced a bill that would bar illegal immigrants from collecting disability benefits when they’re hurt on the job.

State Sen. Tom Davis (R) said there’s a lot of frustration that illegal immigrants enjoy public benefits to the same extent as citizens or immigrants with proper paperwork.

However, Sen. Brad Hutto (D) feared that doctors and hospitals would be left with unpaid bills if this legislation is passed.

Diana Salazar, president of the Latino Association of Charleston said it’s unfair that these illegal immigrants can care for children, build houses and hold other jobs but not get benefits if they’re hurt on the job.

The state senate committee considering the bill set it aside for the time being to collect more testimony.

Should illegal immigrants get workers’ comp if they’re hurt on the job? Let us know what you think in the Comments Box below.

1. When it comes to safety, training and prevention are a lot less expensive than the alternative.

2. Even when workers’ compensation laws are unwieldy and a nuisance, there’s a lot to be said for “exclusive remedy” provisions.

3. You never want any case to end up in the hands of a jury.

It happened in Texas, the only state where workers’ comp participation is still voluntary. An industrial worker lost most of the vision in one eye after being sprayed by acid.

He sued, claiming the acid-addition system he was working on had been negligently designed because it lacked a pressure ventilator and failed to properly vent.

The trial lasted two weeks. But the sympathetic jury took less than two days. Its verdict: a $9.6 million award to the partially blinded employee.

The jury assigned 75% of the blame to the company that designed the system, 20% to his employer and only 5% to the employee himself.

The employee got comp. Here’s what happened:

Clinton Dwyer was working at a Circuit City when a co-worker asked him to help her get a stuck bag of chips out of a vending machine.

There was a history of snacks not dropping down from the machine’s spindles. Employees would shake the machine to dislodge the stuck snack.

Dwyer shook the machine twice, but no luck.

Then, he took a step back and gave a hockey-player-like check to the machine with his shoulder.

Next thing, Dwyer was on the ground in pain. He fractured his hip in the process of trying to retrieve the snack.

Doctors operated on him that day for the fractured hip. Years after the incident he still feels pain in humid weather and after a certain amount of exertion.

He filed for workers’ comp, and Circuit City fought it.

Did personal comfort doctrine apply?

The state Workers’ Comp Commission awarded him comp, saying the personal comfort doctrine applied.

That doctrine says at-work employee actions for personal comfort — such as eating or using the restroom — are covered by workers’ comp.

Circuit City took the case to the state appellate court.

The court said Dwyer should get comp, but not because of the personal comfort doctrine.

Instead, the court said the good Samaritan doctrine applied.

That doctrine says when an employee leaves his work duties to help someone else, whether that is “in the course of work” hinges on whether the employee’s action was reasonably foreseeable.

The court said, since there were previous problems with the snack machine, and the company had no stated policy against shaking it, it was foreseeable that Dwyer would help his co-worker. For that reason, he got comp.

This isn’t an isolated case. An Oregon court has also ruled that an employee who injured his foot while helping a co-worker dislodge candy from a machine should also receive comp.

Did the court extend the good Samaritan doctrine too far? Do you think Dwyer should get comp? Let us know in the Comments Box below.

Cite 1: Circuit City v. Dwyer, Appellate Court of Illinois, 5/21/09.

Cite 2: Washington Group International v. Barela, Oregon Court of Appeals, 8/22/07.

An employee helps a co-worker get a stuck bag of chips out of a workplace vending machine and in the process fractures his hip. Does he get workers’ comp or not?

The employee got comp. Here’s what happened:

Clinton Dwyer was working at a Circuit City when a co-worker asked him to help her get a stuck bag of chips out of a vending machine.

There was a history of snacks not dropping down from the machine’s spindles. Employees would shake the machine to dislodge the stuck snack.

Dwyer shook the machine twice, but no luck.

Then, he took a step back and gave a hockey-player-like check to the machine with his shoulder.

Next thing, Dwyer was on the ground in pain. He fractured his hip in the process of trying to retrieve the snack.

Doctors operated on him that day for the fractured hip. Years after the incident he still feels pain in humid weather and after a certain amount of exertion.

He filed for workers’ comp, and Circuit City fought it.

Did personal comfort doctrine apply?

The state Workers’ Comp Commission awarded him comp, saying the personal comfort doctrine applied.

That doctrine says at-work employee actions for personal comfort — such as eating or using the restroom — are covered by workers’ comp.

Circuit City took the case to the state appellate court.

The court said Dwyer should get comp, but not because of the personal comfort doctrine.

Instead, the court said the good Samaritan doctrine applied.

That doctrine says when an employee leaves his work duties to help someone else, whether that is “in the course of work” hinges on whether the employee’s action was reasonably foreseeable.

The court said, since there were previous problems with the snack machine, and the company had no stated policy against shaking it, it was foreseeable that Dwyer would help his co-worker. For that reason, he got comp.

This isn’t an isolated case. An Oregon court has also ruled that an employee who injured his foot while helping a co-worker dislodge candy from a machine should also receive comp.

Did the court extend the good Samaritan doctrine too far? Do you think Dwyer should get comp? Let us know in the Comments Box below.

Cite 1: Circuit City v. Dwyer, Appellate Court of Illinois, 5/21/09.

Cite 2: Washington Group International v. Barela, Oregon Court of Appeals, 8/22/07.

No question about this: Workers’ Compensation covers medical treatment for employees injured on the job. However, does a home security system qualify as medical treatment?

According to an appeals court in Maryland, the answer is yes.

Carol Simmons, a night auditor, was brutally attacked with a baseball bat during a robbery at a Comfort Suites Hotel.

Left for dead, 67-year-old Simmons was found hours later, lying unconscious in a pool of blood.

She was treated for severe traumatic brain injury and multiple skull fractures during 2.5 months in the hospital.

Maryland’s Workers’ Compensation Commission awarded Simmons temporary total disability benefits.

A neuropsychologist treating Simmons said she continued to fear someone would harm her in her home and that her anxiety was contributing to insomnia.

The doctor strongly recommended a home security system be installed.

The WC Commission granted the request for the security system.

Comfort Suites appealed.

What constitutes medical treatment?

The motel chain argued that a security system didn’t constitute medical treatment.

In an initial appeal, a court sided with Comfort Suites’ argument.

But Simmons appealed that ruling. This time, the court of appeals said a jury could reasonably find that a home security system, in Simmons’ case, did qualify as medical treatment.

The court wrote: “Where there is a recommendation from a medical professional that a device or service be provided because it will provide therapeutic medical relief from the effects of the injury, the determination whether it is compensable medical treatment is a question of fact.”

Now, the case will either go to a jury trial or be settled out of court. It may be difficult for Comfort Suites to argue its case before a jury, because its lawyer stated, “I completely understand and frankly agree with” the need for a home security system for her peace of mind.

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

Also, take our poll on current workers’ comp laws here.

Cite: Simmons v. Comfort Suites, Court of Special Appeals of Maryland, 3/31/09. You can download the case here (free Adobe Acrobat Reader required).

Four employees of furniture manufacturer Franklin Corp. of Houston, MS, sued the company for injuries they suffered from a hazardous glue they used.

Franklin argued that the lawsuit shouldn’t be allowed. It said the matter should have gone before the state’s Workers’ Compensation Commission.

The employees said Franklin ignored their complaints and information about exposure contained on the glue’s Material Safety Data Sheet (MSDS). They also claimed the company didn’t properly ventilate the factory.

A court allowed the case to go to trial, and a jury awarded damages totaling $9.5 million to the workers. A judge reduced that amount to $3.76 million.

The company appealed to the Mississippi Supreme Court which found that the lower court had ruled correctly in letting the case go to a jury trial because there were “genuine issues of fact as to whether there was intent to injure.”

You can download the court’s decision here (free Adobe Acrobat Reader required).

An employee developed psoriasis after being exposed to chemical cleaning agents at work.

After leaving her job voluntarily, she sought workers’ comp benefits on the grounds that her psoriasis was an occupational disease.

A workers’ comp judge awarded her temporary total disability benefits, vocational rehabilitation and payment of all related medical treatment. The judge found that the employee “suffers from an occupational disease which was either caused or aggravated by her work.”

The company appealed.

During the appeal, a doctor testified that psoriasis is often of unknown origin. The doctor said exposure to certain substances, such as cleaning chemicals, may aggravate existing psoriasis.

The appeals court said the workers’ comp judge failed to make a distinction on whether the disease was caused or aggravated by work conditions.

Since no medical evidence could show that the employee’s psoriasis was caused by exposure at work, the appeals court overturned the award of comp benefits.

The court said comp may be awarded to employees who suffer a psoriasis outbreak at the time when symptoms are active and severe.

Cite: Carrodine v. Pilgrim’s Pride Corp. and Louisiana Tech, Court of Appeals of LA, No. 43,902WCA, 3/11/09.

Who has more work during the down economy? A lawyer who represents people injured on the job expects he may be getting more work.

Scott Gennarelli, an attorney with Salenger, Sack, Schwartz & Kimmel in Woodbury, NY, says the economy could lead to companies cutting corners with safety. And of course, that could lead to more workplace injuries — and related lawsuits that his firm handles.

In a Long Island Business Review story headlined, “Down economy ups risk of construction injuries,” Gennarelli says economic pressure on builders could lead them to try to save money by having fewer workers do the same amount of work, rushing construction or saving money on materials.

According to Gennarelli, “There are incentive clauses. If contractors finish earlier, they get a bonus. If they’re late, there are penalties. That leads to pushing workers to get work done.”

Another point of view

A contractor quoted in the story, who asked to remain anonymous, provides a different point of view.

He says a down economy isn’t likely to change some companies. “There are always people who cut corners. Will people cheat when times get tough? Some people will never cheat.”

And speaking of cheating, another unidentified contractor quoted in the story says he’s seen a surge in workers’ comp claims among people about to be laid off.

“This is a pattern I’m observing,” the contractor said. “It was brought to me by my comptroller who said we’re having workmen’s comp claims for very minor injuries that seem to occur in the couple of weeks before we downsized.”

Example: An employee who fears a layoff may file a report complaining of a pulled muscle. It’s an injury that’s difficult to disprove.

After being laid off, the employee uses the previously filed report to apply for comp.

Have you experienced a recent rise in workers’ comp claims? Is this a pattern you’ve experienced in previous recessions? What sorts of bogus workers’ comp cases have you encountered?

Let us know in the Comments Box below.