Medical Benefits Must be “Reasonable and Necessary”—Not Just Beneficial

Virginia Employer Need Not Provide Specialized “Running Blade” Prosthesis

While all but a few American jurisdictions require employers to provide medical benefits that are essentially unlimited in terms of duration and amount [see e.g., Larson’s Workers’ Compensation Law (“Larson”) § 94.01], in most states such medical care need not be provided unless it is “reasonable and necessary.” A recent decision from Virginia, Pacheco v. J.P. Masonry, Inc., 2017 Va. App. LEXIS 294 (Nov. 28, 2017), illustrates the point that while an injured worker might derive some legitimate, real benefit from a medical procedure, prescription, or device, it does not necessarily follow that the cost of that medical expense must be borne by the employer. Specifically, although medical evidence clearly showed that an injured worker—who sustained a work-related accident that resulted in a below-the-foot amputation of his left foot—might benefit from the provision of a special “running blade” prosthesis used by amputees in various athletic activities, the special prosthesis was not medically necessary under Va. Code Ann. § 65.2-603.

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Virginia Court Reiterates Objective Standard For PTSD Claims

The Virginia Workers’ Compensation Commission did not err when it found that a state trooper’s PTSD did not arise out of and in the course of his employment [Hess v. Virginia State Police, 2017 Va. App. LEXIS 280 (Nov. 14, 2017)]. While the circumstances of the fatal accident in question were undoubtedly gruesome, the test of whether or not a stress or shock was unusual could not be based upon the trooper’s subjective reaction. A supervising officer, who also was present at the investigation of the fatal vehicle incident in question testified that the crash scene, while bad, was not one of the worst that he had seen.

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Exempt Florida Corporate Officer of Subcontractor Barred From Suing General Contractor

An officer of a Florida corporation, who elected to be exempt from workers’ compensation coverage [see § 440.02(15)(b)(1), Fla. Stat. (2008)], and whose “employing” corporation was a subcontractor on a construction project, may not sue the general contractor and other subcontractors in tort for injuries the officer sustained in a work-related accident; horizontal and vertical immunity insulate the defendants from tort liability in spite of the fact that the exempt officer is not a covered employee [Gladden v. Fisher Thomas, Inc., 2017 Fla. App. LEXIS 16821 (1st DCA, Nov. 15, 2017)].

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MS Worker’s Staph Infection Was Causally Connected to Epidural Injections for Back Injury

Stressing that the weighing of expert medical evidence is the province of the state’s Workers’ Compensation Commission—and not the appellate courts—the Court of Appeals of Mississippi affirmed a decision awarding workers’ compensation benefits for a worker’s staph infection that the Commission found was causally connected to epidural injections the worker received as treatment for a work-related back injury [Lowe’s Home Ctrs., LLC v. Scott, 2017 Miss. App. LEXIS 618 (Oct. 31, 2017)]. Observing that the Commission had been presented with “dueling expert opinions,” the appellate court indicated the Commission was entitled to give more weight to the testimony of one physician over that of another.

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Texas Electrician Was Not Traveling Employee In Spite of Weekly Stipend

Death Benefits Claim Barred by Going and Coming Rule

In spite of (1) an employer’s designation of an employee as a “field electrician”; (2) the employer’s payment of a $75 weekly stipend to the employee because he lived some distance from his work assignment; and (3) the fact that, at the time of the employee’s fatal auto accident, he was carrying time records to be delivered to the employer’s main office before reporting to his assigned workplace, the employee’s fatal injuries did not arise out of and in the course of his employment, held a Texas appellate court [see Fuentes v. Texas Mut. Ins. Co., 2017 Tex. App. LEXIS 10243 (Nov. 1, 2017); see also Larson’s Workers’ Compensation Law, § 14.02]. The death benefit claim filed by the deceased employee’s common law spouse was barred by the going and coming rule.

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Raped California Hotel Employee May Proceed Against Employer under State’s Fair Employment and Housing Act

Where a California employee alleged facts showing that she was raped while working on the employer’s premises by a drunk nonemployee trespasser, that the employer knew or should have known the trespasser was on the employer’s premises for about an hour before the rape occurred, and that the employer knew or should have known that, while on the employer’s premises, the trespasser had aggressively propositioned at least one other housekeeping employee for sexual favors, the plaintiff/employee had stated a claim against the employer under the California Fair Employment and Housing Act (FEHA [M.F. v. Pacific Pearl Hotel Management LLC, 2017 Cal. App. LEXIS 933 (Oct. 26, 2017)]. Continue reading

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SC Workers’ Comp Insurance Policy Procured After Injury is Void

Where owners of a roofing business rushed to an insurance agent and procured a workers’ compensation insurance policy just after an employee was taken to a hospital for treatment of serious injuries sustained in a work-related incident, the policy was void ab initio; cancellation under S.C. Code Ann. § 38-75-730 (2015) was, therefore, not required [Bessinger v. R-N-M Builders & Assocs., LLC, 2017 S.C. App. LEXIS 83 (Oct. 25, 2017)]. Stressing that insurance, by its very nature, is meant to protect against the unknown or the possibility of a loss, the court noted that here the employer attempted to gain coverage for a known loss that had already occurred.

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Florida: Abnormal Pre-Employment BP Reading Does Not Mean Loss of Presumption of Compensability

“White Coat” Syndrome Could Explain Isolated Reading

As do a number of states, Florida provides a specialized presumption of compensability favoring certain law enforcement officers [see § 112.18(1), Fla. Stat.]. To take advantage of the presumption, a Florida claimant must show, among other things, that he or she successfully passed a pre-employment physical examination that “failed to reveal any evidence of such condition” [emphasis added]. A divided Florida appellate court recently held that an isolated elevated blood pressure reading at an officer’s pre-employment physical examination did not constitute evidence of the condition of hypertension [City of Tavares v. Harper, 2017 Fla. App. LEXIS 15183 (1st DCA, Oct. 24, 2017)]. The reading could have been explained by, among other things “white coat” syndrome—when elevated BP is observed only in a medical setting.

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Ohio Claimant Has Burden of Showing Unexplained Fall Was Not Caused by Idiopathic Condition

Where an injured employee’s medical history and medications raised a fact issue about the possible role of risks personal to the employee in an otherwise unexplained fall, the employee was required to eliminate an idiopathic explanation for her fall, held an Ohio appellate court [White v. Buehrer, 2017-Ohio-8254 (Oct. 20, 2017)].

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In Georgia, Co-Habitation Without Marriage = No Death Benefits

Within the context of a Georgia workers’ compensation claim, a meretricious relationship works to deny dependency benefits, even if actual dependency exists, held a state appellate court on Tuesday [see Sanchez v. Carter, 2017 Ga. App. LEXIS 465 (Oct. 17, 2017)]. Accordingly, where claimant lived continuously with the employee from 2002 until his death in 2015, was wholly dependent upon him because of her own disability, and yet claimant and the deceased employee had never ceremonially married (nor established a valid common law marriage), she could not recover death benefits under OCGA § 34-9-13 [see Larson’s Workers’ Compensation Law, §§ 96.02, 97.06, 98.04].

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