Wyoming Worker Fails to Connect the Dots Between Original Surgery and Subsequent Procedure to Alleviate Continued Pain

The Supreme Court of Wyoming affirmed a finding by a state district court that an injured worker failed to establish a causal connection between her 2013 need for shoulder surgery and either her original 2004 shoulder injury or the 2005 right shoulder arthroscopy to treat the original injury, in spite of some medical evidence that during the 2013 procedure, her surgeon spotted and repaired what may have been a defect in the earlier surgery [see In re Claim of Price v. State ex rel. Dep’t of Workforce Servs., 2017 Wyo. LEXIS 16 (Feb. 16, 2017)(emphasis added)]. The Court also indicated the worker had failed to show that the soft tissue calcification in her shoulders, which may have been at least part of her pain problem, was causally related to the original injury.

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Ohio Employee’s Personal Delivery of FMLA Documents Was Not in Course and Scope of Employment

An Ohio appellate court affirmed a trial court’s finding that injuries sustained by an employee when she slipped and fell while descending a stairway as she left her employer’s HR department on a Sunday evening, after delivering papers related to her Family Medical Leave Act (FMLA) leave of absence, did not arise out of and in the course of her employment [see Samuel v. Progressive Cas. Ins. Co., 2017-Ohio–388, 2017 Ohio App. LEXIS 389 (Feb. 2, 2017)]. Continue reading

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Like Oil & Water, Oxycodone and Xanax Don’t Mix

Nebraska Worker’s Death From Apparent Suicide is Not Compensable

In a case that is heartbreaking from multiple points of view, the family of an injured Nebraska employee was denied workers’ compensation death benefits on the basis that the employee’s death, due to a fatal cocktail of oxycodone, methadone, and Xanax was the result of her own willful negligence (i.e., suicide) and not causally connected to her original work-related injury [Michael B. v. Northfield Retirement Communities, 24 Neb. App. 504, 2017 Neb. App. LEXIS 32 (Feb. 7, 2017)]. While the case was correctly decided—as far as the legal issues are concerned—the entire scenario illustrates the fragility of many “injured veteran[s] of industry,” a term often used by my mentor, Dr. Arthur Larson (see Larson’s Workers’ Compensation Law, § 1.03[2]). Fraught with pain, no longer able to work, existing on the economic fringes of society, they are all too often susceptible to deep depression. Many live within a slow, but constant downward spiral. In this case, an eviction from her home, and the potential loss of custody regarding her daughter, apparently drove her the injured employee to take her own life. Continue reading

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NCCI May Not Impose Bankrupt Staffing Company’s Experience Rating on Purchaser in Court-Approved Sale of Assets

A debtor’s workers’ compensation experience rating is the sort of “interest” of which the debtor’s assets can be sold free and clear, under § 363 of the U.S. Bankruptcy Code, held the U.S. Bankruptcy Court for the District of New Hampshire recently [In re ARSN Liquidating Corp., 2017 Bankr. LEXIS 185 (D. N.H., Jan. 20, 2017)]. Accordingly, National Council on Compensation Insurance (“NCCI”) could not impose the Debtor’s experience rating on the purchaser and any attempt to do so violated the terms of the court’s Sale Order.

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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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