National Conference Session Points to Increase Use of Telemedicine for Injured Workers

In the past few years, a great deal of appropriate attention has been spent pondering various ways in which access to medical care could be improved for injured workers. Various constituencies argue that in spite of significant improvements in information technology, medical care is all too often still delivered in an old-fashioned, inefficient manner. They ponder whether improvements might flow from increased use of telemedicine. In a recent breakout session at the 25th Annual National Workers’ Compensation Conference & Expo [November 30 – December 2, 2016, in New Orleans’ Morial Convention Center], three prominent experts—Ann Schnure (former VP, Risk Management – Claims, Macy’s), Jill Allen (President & CEO, Consumer Health Connections, LLC), and Paul Morizzo, Provider Networks Manager, Missouri Employers Mutual) presented a lively and optimistic discussion of the subject.  Continue reading

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Lousiana Court Sustains Worker’s West Nile Virus Claim as Accidental Injury

A Louisiana appellate court affirmed, in relevant part, a ruling by a state workers’ compensation judge that a worker sustained an accidental injury arising out of and in the course of his employment when he was bitten by a mosquito and later was diagnosed with the West Nile virus [Allen v. Graphic Packaging Int’l, Inc., 2017 La. App. LEXIS 35 (Jan. 11, 2017)]. Noting that there was substantial conflict in the evidence presented, the court indicated the WCJ was not manifestly wrong in concluding that the worker was bitten while in the employer’s break room. The employer had contended, in pertinent part, that the worker’s evidence of work-relatedness was speculative, that the outbreak of the West Nile virus had been widespread, and that contaminated mosquitos had been trapped throughout the area. Indeed, evidence suggested that more than 1,000 people contracted the virus during the summer and early autumn. Continue reading

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Book Review: Does Pop Culture’s PTSD Discussion Give You Combat Fatigue?

Martin Klug’s New Book Provides Important Insight

During a famous incident that occurred in Sicily during August 1943, General George S. Patton, in two separate incidents, slapped U.S. Army privates who were being treated for “combat fatigue” in Army evacuation hospitals. Patton, who had no medical degree, of course, did not understand the nuances of a medical condition whose status would remain ambiguous for decades. Combat fatigue is now known to be a type of post-traumatic stress disorder (“PTSD”), a broad, somewhat general medical condition that is still widely misunderstood—particularly from a legal standpoint. Martin A. Klug, a prominent Missouri trial lawyer, who has practiced for almost 30 years in the Greater St. Louis area, hopes to clear up some of the confusion with his recent book, Nailing Jello: Understanding the PTSD Claim [2016–09–05; available here on Amazon].

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Memo to Worker’ Comp Carrier: Standing on Your Rights Can Result in Scorched Feet

Tennessee Appeals Panel Affirms $27K Attorney’s Fee Related to $187 Medical Claim

In Grissom v. UPS, 2017 Tenn. LEXIS 4 (Jan. 9, 2017), the Special Workers’ Compensation Appeals Panel of the Supreme Court of Tennessee affirmed a trial court’s award of attorney’s fees and expenses in the amount of $27,353.63, in connection with an employee’s petition to compel the employer to pay $187 for two trigger point injections for pain that had been provided to the injured employee by her authorized physician. The employer’s workers’ compensation carrier had objected to the two injections—it had paid for earlier ones—and had sought a peer utilization review as to their medical necessity. The UR provider found the injections unnecessary, but the trial court, following a hearing on the matter, disagreed. The case illustrates the difficult position within which an employer or carrier can find itself. Standing on one’s perceived rights can sometimes result in scorched feet.

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“Star” Opera Singer is not Employee of the Metropolitan Opera House

A New York appellate court has agreed with Wendy White, prominent opera singer at the Metropolitan Opera House at Lincoln Center (“the Met”), that White is not an employee and, therefore, may maintain a civil action in negligence against the Met for injuries she sustained in a fall from an elevated platform while she performed in the role of Marthe in the Met’s production of the opera Faust [see White v. Metropolitan Opera Assn., Inc., 2017 N.Y. App. Div. LEXIS 90 (Jan. 5, 2017)]. The Met contended that White, who had been featured in more than 500 performances at the Met over the course of 23 years, was its employee and that her exclusive remedy was to seek workers’ compensation benefits pursuant to the N.Y. Work. Comp. Law.

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Ohio Decision Illustrates Conflict Between OSHA’s New Anti-Retaliation Rule and Drug-Free Workplace Policies

As most of us are aware, OSHA’s final rule regarding, inter alia, anti-retaliation protections within the workplace was published May 12, 2016. Technically effective on August 10, 2016, OSHA delayed enforcement to December 1, 2016. Under the new rule, OSHA is likely to penalize many employers who continue to utilize blanket post-accident drug and alcohol testing policies. OSHA’s rule appears to fly in the face of an employer’s general right to promote and require a drug-free work environment. A recent 5–2 decision of the Ohio Supreme Court, State ex rel. Cordell v. Pallet Cos., 2016-Ohio–8446, 2016 Ohio LEXIS 3142 (Dec. 29, 2016), illustrates the tension between an employer’s desire to maintain a zero tolerance position on illegal employee drug use, on the one hand, and the employee’s right to file a workers’ compensation claim without fear of retaliation, on the other. As I also discuss below, OSHA’s new rule may rule out most post-injury testing for marijuana. Continue reading

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The Top 10 Bizarre Workers’ Comp Cases for 2016

© Copyright 2016. Thomas A. Robinson. All rights reserved. For reprint permission, contact tom@workcompwriter.com.

For the past ten Decembers or so, I have annually compiled what I think are the Top 10 bizarre workers’ compensation cases for the year. Typically, my annual blog offering of the truly bizarre gets more hits than any of my other blog posts during the year. Several years ago, my annual list was even featured on National Public Radio’s Saturday morning show, “Wait, Wait, … Don’t Tell Me.” As I have mentioned from time to time, in posting these bizarre selections I am reenacting, at least in part, a tradition that my mentor, Dr. Arthur Larson, and I shared prior to his death some years ago. Each January, Arthur and I would meet in his Durham, NC home on Learned Place, near Duke University’s campus. We’d compare our respective lists of unusual or bizarre workers’ compensation cases reported during the previous 12 months. Often our respective lists would overlap a bit, but he’d always have several with truly quirky fact patterns that I had missed. One thing we always kept in mind: one must always be respectful of the fact that while a case might be bizarre in an academic sense, it was intensely real. It affected real lives and real families. And so, to continue in the spirit of that early January ritual, here follows my list (in no particular order) of 10 bizarre workers’ compensation cases during 2016. If you know of others that fit the category, please send them to me—along with any questions or comments—to tom@workcompwriter.com. Continue reading

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Nebraska County Courts Lack Jurisdiction to Determine Comp Insurer’s Subrogation Interest

A Nebraska county court lacked subject matter jurisdiction when it conducted a subrogation hearing to determine a workers’ compensation insurer’s interest in a wrongful death settlement that had been reached between a deceased employee’s estate and an alleged negligent third party. Sole jurisdiction was with the state’s district court, held the Supreme Court of Nebraska [see Travelers Indem. Co. v. Wamsley (In re Estate of Evertson), 295 Neb. 301, 2016 Neb. LEXIS 179 (Dec. 16, 2016)]. Moreover, since the parties could not confer subject matter jurisdiction upon a judicial tribunal either by acquiescence or consent, lack of subject matter jurisdiction could be raised at any time by any party or by the court sua sponte.

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Arkansas Estate’s Wrongful Death/Mesothelioma Case Barred by “Catch–22”

In a deeply divided decision, the Supreme Court of Arkansas recently held that a wrongful death action filed against a deceased worker’s employer was barred by the exclusive remedy provisions of the state’s Workers’ Compensation Act in spite of the fact that the Act provided no benefits at all for the worker’s asbestos-related disease, since it did not manifest itself until more than three years after the worker’s last injurious exposure [Hendrix v. Alcoa, Inc., 2016 Ark. 453, 2016 Ark. LEXIS 384 (Dec. 15, 2016)].

Quoting extensively from Larson’s Workers’ Compensation Law, the majority drew a distinction between an injury that did not come within the fundamental coverage provisions of the act, and an injury that was in itself covered, but for which, under the facts of the particular case, no compensation was actually payable. The majority stressed that the temporal limitation on recovery did not equate to the absence of a remedy under the Act. Three dissenting justices also quoted Larson. They argued that the exclusiveness defense was a part of the quid pro quo that the employer received for providing benefits and that it was unreasonable and unconstitutional to bar the wrongful death claim where no benefits could ever be provided to the injured worker.

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Shall We Dance—New Book Describes Complex, Psychological Tango Between Physician and Patient Over Opioid Prescriptions

Jane and I are seven days into a 10-day cruise to (and from) the Panama Canal. I’m gloating, of course. While even our native Durham, North Carolina, is currently shivering, we’re basking in hot, sunny weather “down here.” Knowing that cruise ship Internet is expensive, I determined to do some old-fashioned reading on the Promenade deck this week, so I tossed a relatively new title into my suitcase just before departure. I’m so glad I did. Drug Dealer, MD: How Doctors Were Duped, Patients Got Hooked, and Why It’s So Hard to Stop, by Anna Lembke, M.D. [Johns Hopkins University Press, ISBN–13: 978–1421421407 (September 28, 2016)], should be on every workers’ compensation practitioner’s “Santa’s list” this Christmas. Continue reading

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