Legal Corner

Workers Compensation
No exception to medical professionals determining medical necessity - California

In Illinois Midwest Insurance Agency v. WCAB (Rodriguez), an appeals court explained that there is no statutory authority allowing the Workers Compensation Appeals Board or any other court to decide the necessity of ongoing or continual treatments - that responsibility rests solely with medical professionals. Reforms enacted in 2004 and 2013 require all disputes over requested medical treatments, including those for continued care, to go through utilization review and independent medical review. Employers and claims administrators can approve requested treatments, but only a medical expert can modify, delay, or deny a request.

Exposing workers to pesticides leads to over $125,000 in civil penalties - California

The Growers Co. Inc. was ordered to pay almost $1,300 for each of the 93 laborers a supervisor ordered to work in a lettuce field freshly sprayed with pesticides. Only 34 of the 66 who developed symptoms were taken to a doctor, violating state law. A felony charge was filed against the supervisor who ordered workers into the field, but he died before the case concluded.

Barred from receiving benefits for prior shoulder injury doesn't bar benefits for reinjury - Florida

In Pinellas County Transit Authority v. Jackson, a transit worker made misrepresentations related to a 2021 shoulder injury claim that barred her from receiving benefits. She reinjured her shoulder at work in 2022 and the carrier denied the claim, noting that the 2021 injury was the major contributing cause of her need for benefits. The Judge of Compensation Claims rejected this argument and the Appeals Court agreed.

"Major contributing cause" is irrelevant because it only applies when an accident is combined with a preexisting injury or condition unrelated to an employment accident and both injuries were work-related. The court noted that "compensability" and "entitlement to benefits," are distinct. The successful misrepresentation defense on the 2021 injury claim foreclosed the entitlement to benefits but "did not render either the 2021 or 2022 accident non-compensable because, again, compensability analysis doesn't directly concern benefit entitlement but whether a work-caused accident and injury occurred."

High court reverses disability pension award for injured police officer - Illinois

In Moreland v. Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago, an officer sustained hip and lower back injuries after striking a parked car and a tree while responding to an emergency call. While he initially returned to work, he later sought treatment for chronic pain, underwent hip surgery and eventually applied for a duty disability pension. His treating physician and the commanding officer of the police department's medical services section found that he was not qualified to return to duty without restriction.

The retirement board denied the application based on the opinion of the board-appointed orthopedic surgeon that the officer could perform full police duties after reaching maximum medical improvement. The Appeals Court overturned the denial based on an earlier Supreme Court decision that a police officer who could work only under medically documented restrictions, but was never offered a position accommodating those restrictions, was still "disabled" under the Pension Code. It also considered a case with a conflicting outcome, Nowak v. Retirement Board of the Firemen's Annuity & Benefit Fund of Chicago, that found proof of disability from a Board-appointed doctor was a statutorily required condition precedent to the receipt of disability benefits.

While the high court acknowledged that the outcome is an "unfortunate result" of a statutory scheme under which the Board and employer are "entitled to rely on the opinions of different doctors in determining whether the officer is disabled," it denied benefits, noting the officer could return to full, unrestricted duty. The Court observed that despite the physician's opinion, the Board held a full evidentiary hearing and allowed the officer to present evidence of the disability and could have awarded benefits. It clarified that in disability determinations the Board is the ultimate arbitrator and is not bound to defer to the opinions of a Board-approved physician. The statute merely requires that the Board obtain and consider the opinion of a Board-approved physician when determining whether an officer is entitled to disability benefits. The court then overruled Nowak.

Employer cannot appeal because Board's decision not final order - Indiana

In Speedway LLC v. Shedd, the Court of Appeals ruled that Speedway LLC could not directly appeal the Workers' Compensation Board's refusal to dismiss an employee's claim because the Board's decision was not a final, appealable order. The employee was severely injured, including the amputation of her right leg above the knee, when a car struck her while she was on a break outside the store. The carrier paid more than $630,000 in combined temporary disability and medical benefits.

Separately, the employee pursued a personal injury claim against the driver. While she agreed to settle that claim for $500,000, no payment was issued and no one signed the settlement release. She did not obtain the employer's consent to the settlement, even though the employer held a potential workers compensation lien.

She later filed an application to adjust the claim and a civil action. The employer argued her purported settlement terminated its liability and moved to dismiss her work comp claim. The Board denied the motion finding no settlement existed because no payment had been made. On appeal, the Court of Appeals held that this denial did not resolve all issues or include an award, and the Board must still hold a hearing on the merits. Therefore, the employer could not appeal at this stage.

Jury verdict affirmed for retaliation and employer sanctioned - Missouri

In Hicks v. Commercial Metals Co., a rebar bender operator was struck on the right shoulder and right side of her head and knocked unconscious while operating a new piece of equipment that was being tested at her workstation. The company had a policy of "no recordables and no lost time." After the accident, the shop superintendent drove her to the emergency room and remained for all medical evaluations, although he was asked to leave.

When she was discharged, he took her to the company clinic to be drug tested. The next day, he took her to the company clinic, where the doctor released her to work with no restrictions. He then drove her to the plant, placing her in a darkened room for her eight-hour shift. For three weeks she either sat in the darkened room or took PTO.

Medical professionals eventually diagnosed her with post-concussive syndrome, and she began receiving comp benefits. Throughout her recovery, a nurse case manager hired by the company's insurer attended her medical appointments and reported updates to the company. Although she reported that the employee was expected to be at maximum medical improvement by the end of July, the safety coordinator told corporate personnel that the worker was still "100 percent restricted."

Although she was released from physical restrictions, limitations on light and noise remained, and she was terminated. The company claimed it fired her for failing to communicate about her medical condition or provide proof of continued disability. She filed an employment retaliation claim and testified that she never received any communication prior to the termination letter. A jury awarded her $90,000 for back pay and $300,000 for non-economic damages.

Following the verdict, the trial court sanctioned CMC for attempting to mislead the court with false allegations of jury misconduct, ordering the company to pay an additional $312,450 in attorney's fees. The appellate court upheld the award of back pay and noneconomic damages and the sanctions.

COVID claim denied as ordinary disease of life - Missouri

In Gordon Johnson v. RBX Transportation, a load coordinator and evening dispatcher contracted COVID. His medical expert testified that the manager was the most likely source of exposure, however, he acknowledged risk of exposure was not inherent to the nature of work and that COVID was a disease the public was exposed to outside of employment. The court denied coverage because under state law, ordinary diseases of life are not compensable unless the employee proves a disease was contracted due to conditions peculiar to the employment and that employment created a greater risk of exposure than that faced by the public.

The Court of Appeals agreed with the lower court's denial of coverage.

High court rules on COVID and PTSD - New York

The high court considered the cases of three transit workers and a teacher who filed comp claims for post-traumatic stress disorder (PTSD) from workplace exposure to COVID-19 during the early days of the pandemic. When the Workers Compensation Board (WCB) rendered its decisions, stress injuries were considered accidental only if the worker established that they experienced greater stress than other similarly situated workers and it denied the claims. However, the appellate division reversed, finding the WCB failed to consider each claimant's vulnerabilities.

The high court noted transit workers and teachers everywhere were experiencing the same stressful circumstances during the pandemic and, therefore, the PTSD was not "extraordinary" enough to warrant eligibility for workers compensation.

Pickleball not enough to squash carpal tunnel claim - New York

In McGann v. Suffolk County Water Authority, the WCB denied benefits to a longtime Suffolk County Water Authority employee who, after he retired, alleged he developed bilateral carpal tunnel syndrome from decades of repetitive hand use. Both his treating physician and the employer's orthopedic consultant concluded that the condition was causally related to years of gripping, twisting, and manipulating tools during meter inspections and valve operations.

While a work comp judge accepted the claim, the employer raised concerns that the worker failed to disclose he played pickleball after retirement. The judge ordered addenda to the medical reports, but both physicians reaffirmed their causation opinions after considering the pickleball information. However, the WCB rejected both medical opinions and denied the claim.

Upon appeal, the appellate court found no basis to discount the physicians' addendums, writing, "Although the Board may disregard medical opinions as incredible or insufficient, it is not free to misread the record and fashion its own medical opinion." It reversed and remitted the matter for further proceedings.

Exclusivity bars staffing company employee from suing - North Carolina

In Solis-Santos v. Lester, a Court of Appeals held that workers compensation exclusivity barred a civil suit by a staffing company employee against the borrowing employer and its employee. Global Environmental Control supplied workers to Prime Demolition, which supervised their day-to-day work. A worker assigned to a Prime jobsite, was injured when a light tower fell from a skid steer operated by a Prime employee. After settling his workers compensation claim with Global, he sued Prime and the employee for negligence.

Applying the state's three-prong test under the "special employee" doctrine, the court found an implied employment contract between the injured worker and Prime because he accepted the assignment, performed Prime's work, and worked under Prime's supervision. This made Prime a special employer and triggered the exclusive remedy. Claims against the Prime employee were also barred, as co-employees are immune unless they act willfully or recklessly, and the court found the claim amounted only to negligence.

Splitting liability with two insurers - Pennsylvania

In Factory Grinding Service Inc. v. Hanna, the Commonwealth Court affirmed a ruling allowing an insurer to amend the description of a worker's injuries and requiring two insurers to share liability. A salesman for Factory Grinding Service was injured in a 2020 motor vehicle accident. Two insurers, SWIF and Berkshire Hathaway, issued separate compensation notices: one stating there was no physical injury, and the other listing a skull contusion. After the worker underwent spine surgery, Berkshire sought to correct the injury description and join SWIF as a second liable carrier.

A workers compensation judge (WCJ) found the accident aggravated the worker's preexisting degenerative spinal condition and that this injury should have been included in both insurers' notices. The judge ordered SWIF to reimburse Berkshire for half of all wage-loss and medical benefits. The Commonwealth Court affirmed, explaining that a WCJ's power to amend a notice of compensation payable is not limited to instances where it is alleged that a material mistake existed at the time the notice was issued. The law authorizes a WCJ "to scrutinize the accepted description of injury as the claimant's physical or mental condition evolves over time."

Appeals Board clarifies injured workers have right to second opinion about surgery - Tennessee

In McCool, Martha v. Professional Care Services, the Appeals Board clarified that an employee is automatically entitled to a second surgical opinion once an authorized treating physician recommends surgery. The case involved a psychiatric nurse practitioner stabbed by a patient, resulting in multiple physical injuries and PTSD. After several surgeries, her doctor recommended additional abdominal-wall reconstruction. When she requested a second opinion, the employer refused, claiming the physician had to order it directly.

The Appeals Board disagreed, holding that the statute gives the employee, not the employer or doctor, the right to seek a second opinion whenever surgery is recommended to protect workers facing invasive procedures. The employer must authorize and pay for the evaluation. The Board also reversed the denial of attorney's fees, finding the employer's refusal to allow the second opinion constituted a failure to provide required medical benefits.

Jury awards $10 million to teacher shot by student - Virginia

In Abby Zwerner v. Ebony Parker, a jury awarded $10 million to an elementary school teacher who was shot by a 6-year-old student after finding the former assistant principal grossly negligent in ignoring multiple warnings that the student had a gun on campus. The case began as a $40 million civil lawsuit against the Newport News School Board and several administrators. The school board contended that because the teacher was injured on the job by a student, the exclusive remedy was workers compensation.

However, a judge ruled that her injuries "did not arise out of her employment," and a Court of Appeals, dismissed the school board's pretrial appeal, clearing the way for the civil suit. Notwithstanding the judgment, the school board filed a workers compensation claim on the teacher's behalf to ensure she would not miss the two-year deadline for filing. However, she publicly stated she would not accept benefits.

In a related case, the state Supreme Court issued a significant ruling (Newport News School Board v. Z.M.). The ruling confirmed that school boards are protected by sovereign immunity from lawsuits, which prevents the board from being sued. Thereafter, the teacher filed a motion to nonsuit (drop a defendant from a case), which was granted. The judge dismissed claims of simple negligence against the superintendent and the principal, leaving only the claims of "gross negligence" against the assistant superintendent.