Legal Corner

Workers Compensation
Electronic testimony permitted in comp hearings - California

In Tyson Perez v. Chicago Dogs et al., a professional ballplayer filed a cumulative trauma claim for physical and psychiatric injuries while playing for the Houston Astros and the Chicago Dogs. Although the underlying dispute centered on the state's jurisdiction over the Illinois-based Chicago Dogs, the Appeals Board (WCAB) provided an interpretation of WCAB Rule 10817(a) about electronic testimony that sets a blueprint for when and how witnesses may testify electronically in workers compensation trials.

At trial, the Houston Astros objected to a witness statement offered by the Chicago Dogs COO because it had not been served before the close of discovery and they could not cross-examine the witness. A judge denied the request to allow the testimony remotely because no formal petition was filed.

Although the WCAB noted that a formal pleading is ideal, it determined that an oral request for remote testimony made at the beginning of a hearing, coupled with the opportunity for the opposing party to respond, may be sufficient to satisfy WCAB rules particularly where a denial would impair a party's right to due process. Therefore, it granted the petition for reconsideration.

The en banc decision is a binding precedent on all appeals board panels and all workers compensation administrative judges.

Occupational disease after retirement must include indemnity benefits - Florida

In Michael Guglielmo v. State of Florida Department of Corrections et al, an appeals court reversed a lower court's decision and ruled that a retired corrections officer is entitled to both medical and indemnity benefits for a heart condition that manifested four months after he left his job. The state's "heart-lung statute" provides a presumption that heart disease contracted by certain first responders, including correctional officers, is an occupational hazard.

Four months after retiring due to health concerns, he experienced heart palpitations and was diagnosed with atrial fibrillation. The Department of Corrections (DOC) accepted the claim as compensable under the heart-lung statute, but only authorized medical care, arguing since he was not an active employee on the day his heart condition manifested his average weekly wage was $0.00. A judge of compensation claims agreed, but the appellate court overturned. It noted by accepting compensability based on hazardous exposure in its work environment, it could not assert he was not an employee on the date of his disability.

Appeals court overturns order to pay $153,363 plus interest for unpaid premiums - Georgia

In Preston Building and Renovations, LLC. v. Ace American Insurance Company, a trial court ruled in favor of an insurance company that had initially issued a workers compensation policy priced at $1,500 based on payroll data and months later issued an endorsement, with an updated premium of $193,745. When the policy was cancelled for non-payment, a final audit generated a bill of $154,863.

After being sued, the owner challenged the classification of certain subcontractors and argued that others had their own work comp policies during the project. The Court of Appeals found sufficient evidence to create a jury issue concerning the classification of the subcontractors. Remanding the case, the court wrote that "the trial court erred in disregarding Preston's affidavit in determining whether genuine issues of material fact remain regarding the classification of certain subcontractors and the final premium due under the policy."

Court finds employer's delays led to higher level of impairment, but not bad faith - Indiana

In Arnold v. County Line Landfill Partnership, a Court of Appeals upheld a ruling denying a bulldozer operator's claims for permanent total disability and bad faith/lack of diligence but awarded permanent partial impairment benefits and covered medical expenses. The worker fell from a bulldozer, suffering a concussion and neck and arm pain. The company initially withheld temporary total disability (TTD) benefits while investigating possible pre-existing conditions that could have caused him to faint before his fall.

A year later, the company agreed to pay temporary TTD plus a lump sum for benefits already paid, and medical care. Despite a neuropsychologist's recommendations for aggressive treatment of anxiety and depression, the company did not provide psychological counseling. It later terminated TTD benefits because the worker was "unavailable to work for reasons unrelated to the compensable injury."

Several physicians evaluated the worker, with differing opinions regarding the causation and severity of his injuries: some finding total disability and others assigning a partial permanent impairment rating and some medical treatment. The court noted that the case was complex and that the delays in handling the claim had deleterious effects but did not constitute an "actionable lack of diligence."

An employee's fatality reveals large scale fraud - New York

A 44-year-old worker for Metro Industrial Wrecking & Environmental Construction in Dix Hills died from injuries suffered while using a gas-powered demolition saw to remove signage at a defunct MillerCoors plant in North Carolina. During the investigation it was determined that the owner falsely classified high-risk demolition workers as low-risk employees and claimed they were performing clerical, carpentry, or painting work for workers compensation insurance purposes. He also insured his workers under a network of unrelated companies, effectively shielding his own business from liability while placing workers at risk.

He was sentenced to a year in prison and two years of supervised release and ordered to pay $1.2 million in restitution.

Worker entitled to ongoing electrical shock treatments - Pennsylvania

In Kimberly-Clark Mill v. Moss, a machine operator and firefighter suffered an electric shock injury while vacuuming at work and experienced uncontrollable shaking and tremors in his extremities. The treating physician opined that he could work in a sedentary position but not physical labor. The company contested the claim with testimony from a physician who found his movements were "subjective and effort-dependent" and requested a release of his psychological records.

A workers compensation judge (WCJ) and the Workers Compensation Appeal Board (WCAB) found he was entitled to temporary total disability benefits. Since there was not a claim for a work-related psychological injury, it denied the release of his records, but noted due process was not violated because the company could present evidence that the issues were not work-related but psychological in nature. Upon appeal, the Commonwealth Court affirmed.

Police officer wins claim for PTSD four years after settling comp claim - Pennsylvania

In Lewis v. City of Philadelphia (WCAB), a Philadelphia police officer was severely beaten during a 2017 robbery call. The city accepted responsibility for his physical injuries, including concussion, headaches, balance and vision problems. He never returned to work and later retired.

In 2021, he sought to amend his claim to include post-traumatic stress disorder (PTSD) and depression, conditions he said developed after the incident. The city opposed, arguing the claim was barred under res judicata, since his case had been resolved. A WCJ disagreed, but the WCAB reversed, finding the issue should have been raised earlier.

Upon appeal, the Commonwealth Court reversed and awarded benefits. It noted the officer was embarrassed to seek treatment and did not recognize depression as a compensable injury. The court emphasized that unlike physical injuries, psychological conditions are harder for injured workers to recognize without professional evaluation. When his condition worsened, leading to suicidal thoughts and flashbacks, he sought regular treatment in 2021, and his psychologist diagnosed him with major depressive disorder linked to the 2017 assault. The court found the evidence did not suggest that he or his doctor understood his psychological injury to the point that he "should have litigated" it earlier.

High court appeals panel overturns denial of benefits for injuries from medical travel - Tennessee

In Ronald C. Wade v. State of Tennessee, a University of Tennessee police officer suffered serious neck and back injuries in a work-related car accident, leading to multiple surgeries and eventual disability retirement. His settlement preserved his right to future medical treatment. While returning from authorized medical appointments, he was in another car accident that worsened his pre-existing conditions. His treating physician recommended Botox injections, but a utilization review denied coverage, finding the treatment not medically necessary.

The Claims Commission denied his motion for benefits on two grounds: (1) the accident was an intervening cause unrelated to employment, and (2) he failed to rebut the utilization review findings. The Supreme Court Special Workers Compensation Appeals Panel reversed the denial for two reasons.

First, precedent shows injuries sustained while traveling to or from medical treatment for a compensable injury are generally covered. Second, the utilization review's analysis was inadequate to rebut the presumption that treatment by an authorized physician is medically necessary. The medical records documented muscle spasms consistent with the recommended treatment, which the review overlooked, and the state failed to provide contrary evidence. The case was remanded for further proceedings.

Clarification when exacerbation is compensable - Virginia

In April Thrift v Hanover County Virginia Risk Sharing Association, a firefighter had suffered three compensable injuries to her left knee. Then she injured her knee when cleaning a bathtub at home. A year later, during an in-service training exercise she experienced considerable pain and fell, causing bruising and swelling in her knee. She was diagnosed with a left knee sprain and contusion and advised to avoid activities that worsened her pain. When conservative treatment failed, she had arthroscopic surgery, physical therapy, and more treatments.

An IME determined the surgery, physical therapy, and periods of disability were unrelated to the work accident and another doctor concluded that chronic conditions and not traumatic injury necessitated the treatment. Her treating physician disagreed, and a Deputy Commissioner awarded benefits.

The company requested review, arguing she did not suffer a structural or mechanical change to her knee, as required for compensability. If an injury accelerates or aggravates a preexisting condition, the employer can be held liable for treatment of the exacerbation and any resulting inability to work. Still, it must result from "an obvious sudden mechanical or structural change in the body." The Commission affirmed the benefits, giving considerable weight to the opinion of her treating physician and the timing of her treatment relative to her injury.

Court addresses benefits for mental injury with no physical injury - Virginia

In Inova Health Systems vs. Nguyen, a male patient persisted in making sexual advances to an ultrasound technician. After she rebuffed him, he suddenly exposed his genitalia. The technician reported the incident to her supervisor and the human resources department, sought treatment from her primary care doctor and a therapist, and did not work for several weeks. She filed a claim, seeking wage-replacement benefits for the period she did not work.

To prevail on a mental injury with no physical impact in Virginia requires that the worker establish a "sudden shock or fright." A Deputy Commissioner found that the patient's behavior was not "out of the ordinary in terms of the injured employee's work duties and so dramatic or frightening as to shock the conscience." A divided Workers' Compensation Commission reversed, finding that the exposure "in the manner at issue was unexpected and shocking."

The Court of Appeals affirmed, noting to be compensable, a psychological injury "must arise out of the employment, while the triggering event of a sudden shock or fright causing the injury must occur in the course of employment." It is a factual determination for the Commission to make and there was no evidence to find that the Commission erred.

Note: this is an unpublished decision (no precedential value).