Within the workers’ compensation arena, it is axiomatic that the medical consequences and sequelae that flow from the primary injury are themselves compensable. [see Larson’s Workers’ Compensation Law, § 10.01]. It is uniformly held, therefore, that aggravation of the primary work-related injury by medical or surgical treatment is compensable. A distinction must be drawn, however, between those incidents that actually flow from the original injury and others that flow from an independent, intervening cause, such as rash conduct on the part of the injured employee that impedes recovery or the employee’s refusal of reasonable treatment. These latter instances are often held to break the chain of causation between the aggravation and the original injury and relieve the employer/carrier of further responsibility.
A classic early case, Kill v. Industrial Comm’n, 160 Wis. 549, 152 N.W. 148 (1915), illustrates the principle. There a claimant, whose hand was healing nicely, rashly decided to get into a boxing match, during which he tore open the wound, which then became infected. The court held that the claimant could not attribute the aggravation to his employment.
But what about something much more passive? Can benign neglect of a claimant’s condition break the chain of causation as well? A recent Nebraska decision, Boger v. Magnus Co., 2014 Neb. App. LEXIS 54 (Feb. 25, 2014), warns that claimants who fail to follow the advice of their doctors can sometimes be disqualified from benefits.
Two days after beginning his employment as a machine operator with the employer, the employee developed a severe blister on his right big toe, caused by the special, leather steel-toed shoes that the employee was required to wear because he dealt with lead. He showed the blister to his employer and began to self-treat. A few weeks later, he went to his family doctor because a small portion of the blister had failed to heal. The doctor prescribed an antibiotic and told the employee to stay off his foot.
Six months later, the employee began to run a fever and he was again seen by his family doctor, who gave him a shot and some medicine and advised the employee to go to the hospital. The employee declined, however, to do so. He continued, however, to see his doctor and he was also referred to a wound care clinic. The doctors prescribed a “Darby shoe,” a special open-toed boot that prevented the toe from touching the ground or floor. Although the doctors prescribed crutches to assist in recovery, the employee didn’t use them.
Still the wound did not heal. Physicians performed a skin graft, but eventually the employee’s big toe had to be amputated. The employee sought various workers’ compensation benefits in connection with the blister. The employer agreed that the blister initially had been caused by the employment, but otherwise disputed the nature and extent of the injury. In particular, the employer contended that the employee had failed to follow and comply with medical treatment and that his actions or inactions led to the amputation.
Casual Approach to Doctor’s Advice
At trial, the employee admitted that he took the initial antibiotic for only three of the ten days it was prescribed, that he then waited six months before going back to the doctor, and only then, because he had a 103-degree temperature and a non-healing blister. He further admitted he had disregarded the doctors’ instructions to use crutches to keep weight off his foot and toe.
The employer contended the employee’s casual approach to medical conditions was not limited to his toe. It offered evidence that the employee had also poorly managed his diabetes, that he had resisted medical advice to take insulin, and had suffered visual problems because his diabetes was so uncontrolled. All this pointed to a pattern of refusal to follow reasonable medical suggestions, said the employer.
The compensation court found that the employer had shown that the employee unreasonably hindered his medical treatment and was not compliant with reasonable treatment requests. The court found the employee’s noncompliance with recommended medical care after the initial treatment amounted to an independent intervening event so as to terminate the employer’s responsibility for any workers’ compensation benefits after the initial doctor’s visit.
Appellate Court’s Decision
Citing Lowe v. Drivers Mgmt., Inc., 274 Neb. 732, 743 N.W.2d 82 (2007), the appellate court indicated the employer must meet a two-part test in these disqualification cases. The employer must show (1) that the employee either refused to undertake or failed to cooperate with a court-ordered physical, medical, or vocational rehabilitation program, and (2) that the employee’s refusal was without reasonable cause.
Noting that in the instant case, two physicians had testified that the employee’s non-compliance was a significant factor in the worsening of his condition, that the employee failed to comply not only with the medical advice about his toe, he also failed to follow advice regarding his diabetes, which affected the treatment of his toe injury, the appellate court indicated it could not say that the lower court’s findings were clearly wrong.