Legal Corner

Exclusive remedy nixes claim against employer for inadequate COVID-19 protocols - California

In a recent case, Brooks v. Corecivic of Tennessee, LLC, the federal District Court for the Southern District of California ruled that the workers' compensation exclusive remedy barred claims of the employer's alleged failure to maintain a safe and healthy work environment. An employee alleged her former employer, a private operator of correctional facilities, caused intentional infliction of emotional distress by negligent supervision and failing to maintain a safe and healthy work environment at the facility during the COVID-19 pandemic, leading to the spread of the virus among other employees and detainees. The court argued that the obligation to provide a safe workplace existed at all times; therefore, the employer's duty did not fall outside the compensation bargain just because the triggering event was a pandemic.

Encouraging server to drink with customers doesn't override exclusive remedy - California

In an unpublished opinion, an appeals court ruled in Contreras Curiel Corp. v. G.S., No. D077407 that encouraging servers to drink, even to the point of intoxication, did not upend the exclusive remedy of workers' comp. After working a night shift, a young server was killed in a single-car accident and the guardian of her child filed a wrongful death lawsuit. While the restaurant had a policy prohibiting employees from consuming alcohol on their shifts, it was reported managers "took shots" and workers were routinely encouraged to drink with customers.

The court determined that the restaurant's conduct did not fall within the exceptions to workers' compensation exclusivity and the server's son was limited to recovery of workers' compensation benefits.

TTD benefits must be paid during stay-at-home emergency order - California

In a Noteworthy Panel Decision of Corona v. California Walls, Inc., a warehouse worker was on modified duty when the state was shut down due to the stay-at-home order by the Governor. The issue was whether he should receive temporary total disability benefits (TTD) during the stay-at-home period. The employer argued that its obligations to pay TTD ended when the employee returned to work; the inability to work was caused by the COVID-19 stay-at-home orders and not the industrial injury. The trial judge and Appeals Board disagreed, concluding that an employer's inability to accommodate a temporarily disabled employee's work restrictions does not release it from its obligation to pay. (Note: Noteworthy panel decisions are not binding authority.)

Denial overturned because of broad stipulation by carrier - Florida

In Sanchez v. Yellow Transportation, an appellate court overturned a denial of workers' comp benefits for additional treatment for a back injury. In 2004, the worker was found to have suffered an injury to his lumbar spine while driving on a bumpy road. In 2016, the carrier entered into a stipulation with the injured worker and agreed to continue to provide medical care for the lumbar spine. In 2018, he again experienced back pain and was diagnosed with lumbar degenerative disc disease and spondylosis with stenosis. He filed a petition requesting authorization for pain management and epidural steroid injections as recommended by the treating physician.

The court noted that generally the worker would bear the burden of proving the compensable industrial injury was the major contributing cause for the requested medical treatment, however, the stipulation had established compensability of the injury. Although the carrier claimed it had only accepted liability for a lumbar strain, the broad stipulation did not define the accepted compensable injury any more narrowly than "the lumbar spine."

Exclusive remedy does not bar claims for biometric violations - Illinois

In a case of first impression, McDonald v. Symphony Bronzeville Park LLC, an appellate court ruled the exclusivity provisions of the Workers' Compensation Act do not bar a worker's claims for statutory damages for violating her rights under a state biometric privacy law. It found that a claim by an employee for damages under the privacy act does not "represent the type of injury that categorically fits within the purview of the Compensation Act." A class of workers could proceed with their claims of violations of the Illinois Biometric Information Privacy Act and their request for statutory damages.

High court reverses denial of benefits for sous chef - Illinois

In Kevin McAllister v. The Illinois Workers' Compensation Commission et al., the Supreme Court ruled a sous chef who injured his knee when he knelt down to look for a tray of carrots was entitled to benefits. The decision overturned several lower court decisions that had found the injury did not result from an employment-related risk, since he was injured while "simply standing up after having kneeled one time," and such activity "was subjected to a neutral risk which had no particular employment or personal characteristics." The high court found the knee injury "was employment-related because it was caused by kneeling and standing while assisting a coworker's search for carrots in a walk-in cooler - acts that were incident to and causally connected to claimant's job duties as an arranger of the walk-in cooler."

No prescription for massage therapy nixes coverage - Michigan

In Russ M. Belcher v. Ford Motor Co., a worker was injured while working for Ford Motor Co. in 2006 and required medical treatment for injuries to his back and right leg and for headaches. He began massage therapy when his PT ended in 2014. His physician indicated his condition improved for only a few days with the massage therapy and a doctor retained by Ford "concluded that massage therapy would not change plaintiff's overall diagnosis or functional abilities".

The company refused to pay for the therapy as part of the workers' comp claim and the employee appealed to the courts. A magistrate and the Compensation Appellate Commission concluded that massage therapy was "reasonable and necessary." The state Court of Appeals disagreed noting the worker, "did not receive a prescription for his massages and they were performed by massage therapists, not physical therapists or physical therapist assistants under the supervision of a licensed physical therapist. Thus, plaintiff is not entitled to worker's compensation reimbursement from defendant for his massages."

"Possible" cause insufficient to award benefits - New York

In Johnson v. Borg Warner Inc., a WCJ and the Workers' Compensation Board awarded benefits to a worker for a meniscus tear and the company appealed. An appellate court overturned the award noting, the medical opinion "must signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility." The doctor's opinion that it was difficult to determine where the tear occurred, but there was a "strong possibility" that the tear was exacerbated by his work fell short of the reasonable probability that is required to establish a causal relationship.

Failure of employer to file timely paperwork does not guarantee compensability - New York

In the Claim of Wen Liu v. Division of General Internal Medicine, Mount Sinai School of Medicine, et al., Workers' Compensation Board, a program analyst filed a claim that she became dizzy at work and fell, injuring her head, neck, and wrist. The employer failed to file a timely notice to contest the claim and was precluded from submitting evidence.

However, a Workers' Compensation Law Judge "found that claimant hadn't demonstrated a causal connection between her injuries and her employment and disallowed the claim." The decision was upheld by The Workers' Compensation Board and the appeals court.

Worker awarded $1M in retaliation suit for reporting safety concerns - North Carolina

In Driskell v. Summit Contracting Group Inc., a construction worker had complained about his supervisor's intoxication at job sites on several occasions. After he contacted the CEO, the complaint was investigated by a senior employee who could not corroborate the complaint. Shortly after, there was an argument with the supervisor and the worker was punched in the face repeatedly. Both men sought medical treatment for their injuries.

Following the fight, the worker was told he was fired. The worker filed a complaint with the Department of Labor alleging that he was terminated for reporting safety issues and because the company believed that he would file a workers' compensation claim. A jury found he was fired in retaliation and awarded him $65,000 in compensatory damages, $681,000 in punitive damages for wrongful discharge, and $441,600 in attorney's fees and the company appealed.

While the company argued that internal complaints are not protected from retaliation, the appellate court disagreed, saying that internal complaints of ongoing safety concerns can be protected when they lead to an investigation. The company also argued that the worker never explicitly "threatened" to file a workers' comp claim nor filed one, but the court noted that the jury could find that the law prohibits an employer from firing someone in anticipation of a "good-faith filing of a workers' compensation claim."

Case to watch: High court to decide if pharmacists have right to intervene in utilization - Pennsylvania

In Keystone Rx LLC v. Bureau of Workers Compensation Fee Review Office, the Supreme Court agreed to hear the challenge to the Commonwealth Court's ruling that non-treating providers, such as pharmacists, have a right to intervene in the utilization review process. While the court held that the Workers' Compensation Act allows non-healthcare providers to challenge only the amount and timeliness of the payment from the insurer or employer, but not the reasonableness or necessity of treatment, which are subject to utilization review at the direction of the employer, insurer, or employee, it did add a new rule that utilization review procedures occurring after the date of the opinion must afford pharmacists, testing facilities, or medical supply providers notice and an opportunity to intervene.

Benefits can be terminated for worker who stopped treatments - Pennsylvania

In Ciarolla v. WCAB (Astrazeneca Pharmaceuticals LP), a sales representative was injured in a car accident and the company accepted liability for a lumbar sprain/strain. A few years later, the employer filed a termination petition and its medical expert testified that the worker had a pre-existing back condition, but had fully recovered from her injury and had not sought further treatment for it.

The employee's medical expert diagnosed spondylosis, spondylolisthesis, and disk degeneration of the lumbar region, but could not definitely identify the car accident as the cause. He also referred to the opinions of two other physicians, but the court dismissed these as hearsay. The employee argued that she was using medications and performing exercises, but the employer's medical expert argued these did not constitute medical treatment, since she did not actively consult with a medical professional.

Date of mental injury for jurisdictional purposes clarified - Tennessee

In Nickerson v. Knox County Government a forensics technician for the sheriff's department investigated cases involving catastrophic and sexual injuries to children, including at least one death for 13 years before moving to another position, which did not involve traumatic incidents. She was diagnosed with PTSD seven years after leaving her first position and argued that the statute of limitations was tolled until she discovered she had a work-related condition.

The judge questioned whether the Court of Workers' Compensation Claims and the Appeals Board had jurisdiction. The Reform Act conferred those courts with jurisdiction for cases with dates of injury on and after July 1, 2014. The court considered several methods to determine the date on which a mental injury begins since the statutory definitions of "injury" or "mental injury" don't contain one.

One consideration was a cumulative trauma injury, where the last day worked or the date the employee was last exposed to the work activity that caused the injury should be used. However, the court noted the Supreme Court has treated mental injury claims as "accidental injuries" and rejected those caused by gradual or cumulative work-related stress. In this case of first impression, the court ruled that the date of injury in mental injury claims for jurisdictional purposes is the date of the identifiable work-related event or events resulting in a sudden or unusual stimulus. Because the worker viewed the crime scenes involving children in 2011 and earlier, "well in advance of the effective date of the Reform Act," the Court of Workers' Compensation Claims does not have jurisdiction.

$8M settlement in devastating industrial accident - Virginia

A Virginia woman who lost her entire scalp while working at an Ikea furniture plant has settled a lawsuit against an equipment manufacturer and installer for $8 million. Earlier she had received a $1.2M workers' comp settlement.The employer's insurer has waived its subrogation lien because initially it was thought that another employee removed safety panels. But later, it was discovered that the panels may have been left off when the machine was shipped or installed. The defendants in the tort action also agreed to directly fund a Medicare set-aside account.

The gruesome accident occurred when she was checking on a machine that spreads glue on fiberboard and her hair got caught in the rollers. She suffered some brain damage, has undergone multiple skin grafts, and will need medical care for years.