Safety and OSHA News

Was 81-year-old’s knee injury due to work or his age?

An employee slipped and injured his left knee while at work. Four months later, he said favoring his right knee caused another injury. Did the employee receive workers’ comp benefits? 

Benson Drake worked for Enterprise Leasing Company-South Central LLC in Alabama as a driver, transporting vehicles from one location to another. Enterprise would transport up to 15 drivers in a van to one location so they could drive vehicles to another place.

Drake says on Aug. 20, 2015, he slid out of the front passenger seat of the transport van and landed on his left heel, causing immediate pain in his left knee. Drake says he “shook it off” but his knee became swollen, so he went to the emergency room.

He was released from the ER with a cast on his left leg and was referred to an orthopedist who later performed surgery on his left knee.

Drake continued to have pain in the knee and never returned to work. He says as a result of protecting his left knee, he had overworked his right knee, causing another injury. Drake applied for workers’ comp. He was 81 years old when he was injured. The case went to court.

The trial court awarded permanent partial disability (PPD) benefits under workers’ comp to Drake for his left and right knee injuries. Enterprise appealed.

His own surgeon said …

Drake’s surgeon testified that the employee had cartilage tears and arthritis in his left knee and at his age, osteoarthritis could cause that kind of tear without an accident.

The surgeon said Drake started having problems with his right knee about four months after his work injury. The doctor said it was difficult to say if Drake’s right-knee injury had been caused by the injury to his left knee, particularly because of his age. The surgeon said that could be the case, but Drake’s age and arthritis were the main contributors to his current conditions.

Enterprise made four arguments in its appeal, the first of which was that Drake’s right-knee injury wasn’t compensable.

The court hearing Enterprise’s appeal noted that under Alabama law:

“To prove that an injury arose from work-related cumulative trauma, an employee must present clear and convincing evidence of legal and medical causation.”

That’s a higher standard of proof than for a non-cumulative injury.

The appeals panel said the trial court applied the wrong standard and threw out the entire decision. The case now goes back to the trial court for reconsideration.

Given the standard that the trial court must now use and his own surgeon’s testimony about the effects of age, it’s far from a sure thing that Drake will receive the same level of workers’ comp PPD benefits he did in the first trial.

(Enterprise Leasing Company-South Central LLCAlabama Court of Civil Appeals, No. 217870, 1/4/19)

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