Legal Corner

Drug rehab required before further benefits can be determined - Louisiana

A heavy machine operator incurred a neck injury that led to a cervical fusion and 14 years of narcotic pain medications. Despite treatment, he still experienced chronic pain and sleeping difficulties. A pain management physician recommended that he undergo a sleep apnea test and testosterone replacement therapy, because a side effect of the narcotics could be low testosterone levels leading to erectile dysfunction, low libido, lethargy, fatigue and depression. Also recommended was an inpatient pain treatment program that would include weaning him off of pain drugs.

A Workers' Comp judge denied the claims for sleep apnea testing, erectile dysfunction treatment, and testosterone replacement therapy as premature until the pain treatment program was completed.

A RICO violation may arise from denied Workers' Compensation benefits - Michigan

The wrongful deprivation of an employee's entitlement to benefits under Michigan's Worker's Disability Compensation Act can be the basis of a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), the U.S. Court of Appeals for the Sixth Circuit decided in Brown v. Cassens Transport, No. 10-2334. The decision recognized that a claim for Workers' Compensation benefits, as well as the expectation of a fair process for a Workers' Compensation claim, were "property" under RICO.

Six current or former employees of the trucking company alleged that the employer and a doctor colluded to deny them Workers' Compensation benefits by making fraudulent communications amongst themselves and to the plaintiffs by mail and wire in violation of RICO. Triple damages are available under RICO. While the district court held that the plaintiffs did not allege an injury to property, as required by RICO, the appellate court reversed, finding that federal law recognizes that the recipient of a statutory entitlement has a property interest in the continued receipt of those benefits, such that an "injury to such statutory entitlements is an injury to property within the meaning of RICO."

Although this case is limited to an interpretation of Michigan's Workers' Compensation laws, the rationale could be extended by other cases.

Cap on compensation awards applies to multiple injuries - New York

New York's highest court ruled that a weekly cap on Workers' Compensation benefit awards applies even when a worker suffers several different injuries. "Schedule awards," which are granted when a worker loses partial or total use of a body part in a work-related injury, and awards for temporary disabilities may not overlap if, when combined, they exceed a statutory cap on weekly payments.

"A claimant entitled to a schedule award that is to be paid periodically must wait until his other disability payments have ceased, or have dipped below the cap, to be paid his schedule award," Judge Robert Smith wrote for the court.

Officer entitled to benefits for injury reported six weeks later - North Carolina

A correctional officer fell while walking up the stairs and struck his knee. He immediately sought treatment for the knee pain and the next month reported pain in his foot, leg and back. After an MRI revealed a disk protrusion, he underwent back surgery but continued to experience pain and required narcotic medication.

The court rejected the employer's argument that the officer's back injury was not compensable because it developed gradually over a period of time and had not been reported until six weeks after the accident. The court concluded that the fall was indisputable and that it was a "contributing or causative factor" to the back injury.

Crooked nose not significantly unsightly to warrant compensation - Pennsylvania

In Pennsylvania, facial disfigurement is compensable if it is both permanent and unsightly. In the case of Walker v. Workers' Compensation Board, an injured worker fell down the steps, broke her nose and was compensated for the injury until her physician returned her to work without restrictions. Subsequently, she filed to add low back pain to the injury and sought facial disfigurement benefits for her nose, which now had small scars and was slightly crooked.

The Workers' Compensation judge (WCJ) denied the request to add injuries to her claim but awarded her 45 weeks of compensation for the disfigurement to her nose but, on appeal, the Workers' Compensation Appeal Board (WCAB) reversed the award for facial disfigurement. The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB, noting the law requires the disfigurement to be "unsightly," but the WCJ needed before and after pictures to see any difference. The court cautioned against using photographs to gauge unsightliness, as the judge had done, since "photographs can be manipulated by lighting and focus, to make the facial alteration appear worse than it actually is."

Injured linesman denied benefits for failure to follow safety rules - Tennessee

Although a public utilities employee was aware of a safety rule requiring the use of protective gloves while working in a bucket lift, he removed his gloves to more easily hammer a metal staple. Consequently he received an electrical shock of approximately 7,200 volts, causing significant burns to both hands and his side and was out of work for about one year.

While the employer acknowledged the injury was work related, it denied Workers' Compensation benefits because the employee had willfully violated the well-established rule of safety requiring gloves at all times in the lift. A trial court awarded benefits but the Supreme Court reversed, finding that the employee had willfully, rather than negligently or recklessly, violated the safety rule. The Court noted that the employee had candidly acknowledged the potential dangers of working near live wires without gloves.

Resignation from return to work assignment limits award - Tennessee

A certified nursing assistant for a hospital suffered a rotator cuff tear while attempting to move a patient and underwent surgery. Since his injury prevented him from continuing in his position the hospital offered him a position as a phlebotomist at an increased rate of pay. After two weeks of training, he resigned, stating he had pain and the job was stressful. When he sought Workers' Compensation benefits, the Tennessee Supreme Court held that he was not denied a meaningful return to work and was limited to an award of one-and-a-half times the medical impairment rating.

Death benefits awarded to widow of worker who died from prescription drug overdose - Texas

The growth of opioids in treatment of Workers' Comp injuries have lead to a number of cases examining whether or not a drug overdose is a direct and natural result of a compensable primary injury. A worker at an industrial contracting plant sustained injuries to his neck and shoulder and was prescribed a pain pill containing 7.5 milligrams of hydrocodone.

He died later that year and toxicology report showed his blood contained marijuana, carisoprodol, and a lethal amount of hydrocodone that would require ingesting about 20 of the prescribed pills.

While the Texas Division of Workers' Compensation found the death resulted from failure to comply with doctor's instructions and denied benefits, a trial court jury concluded that the death resulted from the injury treatment and Texas' 13th District Court of Appeals upheld the jury's finding. Witnesses had testified the side effects of hydrocodone, which can lead to disorientation and memory loss, contributed to the overdose and therefore, it did not result solely from his intentionally and knowingly failing to comply with his doctor's instructions.

Brain injured worker denied benefits - Virginia

Over the years, a loophole in the Workers' Compensation code allowed insurance companies to deny Workers' Comp benefits to people who had suffered such severe and disabling head injuries that they couldn't recall how their on-the-job accidents occurred. Last year, the Virginia General Assembly passed a law aimed at closing "the brain-injury loophole."

A construction worker fell off a roof he was building, hit the ground, fractured his skull and suffered a blood clot on his brain and now is confined to a wheelchair. Though he can't recall the accident because of his brain injury, he was able to testify as to his name and age at his Workers' Compensation hearing. The Commissioner denied benefits, ruling that the Virginia General Assembly intended that last year's law apply only to fatally injured workers or those in comas who can't testify to anything. The injured worker is appealing.