Each week I'll be blogging about recent, interesting workers' compensation cases.

I invite everyone to share their thoughts about these cases.

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© Copyrighted 2008 by Matthew Bender & Co., Inc., part of the LexisNexis Group. All rights reserved.

Thompson v. Colsa Corp., 2008 Ala. Civ. App. LEXIS 590 (September 26, 2008).  An employee filed a complaint against her employer seeking workers' compensation benefits. The parties entered into a settlement, but the employee later sought to withdraw from the settlement. Following an earlier appeal and remand, the Madison Circuit Court ( Alabama ) approved the settlement. The employee appealed.  On the date set for the trial of the claim, the parties orally submitted their settlement agreement to the trial court. However, the trial court did not enter any written determination until after a hearing over five months later. The employee claimed that the settlement should not have been enforced because her condition had worsened in the interim period and that she required additional surgery. The appellate court found that the trial court misapprehended its remand order. Pursuant to Ala. Code § 25-5-56, the settlement agreement was not actually approved until the second hearing. On remand, contrary to the findings of the trial court, it was not limited to a consideration of the evidence as it existed on the date when the parties submitted the oral settlement agreement. Rather, the trial court was to consider whether, as of the date of the second hearing, based on all the evidence before it at that time, the employee had reached maximum medical improvement and whether the settlement was in the employee's best interest.  The judgment was reversed and the case was remanded for reconsideration of the ruling based on all the relevant evidence.  See generally Larson’s Workers’ Compensation Law § 132.06.

Protocol Communs., Inc. v. Andrews, 2008 Fla. App. LEXIS 14680 (September 26, 2008).  An employer challenged a workers' compensation order entered by the Florida Judge of Compensation Claims, which awarded medical and temporary disability benefits to a workers' compensation claimant.  The appellate court held that the employer's tacit agreement to the claimant's treating doctor being an independent medical examiner, that doctor's prior and continuing treatment could be awarded under § 440.13(5)(a), Fla. Stat. The employer was aware of and did not challenge or otherwise contest the doctor's examiner status. Section 440.13(5)(a) allowed the doctor to also provide treatment. Further, the employer was not furnishing the necessary treatment under § 440.13(2) and the claimant was entitled to obtain the medical care on her own in accordance with § 440.13(2)(c). The subsequent designation of the doctor as the claimant's independent medical examiner did not negate his status as the treating doctor. While treatment generally involved the provision of care for an injury or disease, an independent medical examination was typically performed for the purpose of resolving a dispute between the employer and the claimant. The doctor properly served in both capacities, and the employer did not show error in the award for the doctor's prior and continuing treatment.  The order was affirmed.  See generally Larson’s Workers’ Compensation Law § 94.02.

Eady’s Case, 2008 Mass. App. LEXIS 982 (September 29, 2008).  Employee appealed a decision by the Suffolk Industrial Accident Reviewing Board (Massachusetts) that summarily affirmed an administrative judge's decision that found him partially disabled and awarded him weekly benefits; the employee claimed, inter alia, that, pursuant to Mass. Gen. Laws ch. 30A, § 14(7)(f)-(g), the administrative judge's assignment of a $ 975 weekly earning capacity was unwarranted by the facts.  After the employee injured his back, the insurer voluntarily began payment of temporary total disability benefits under Mass. Gen. Laws ch. 152, § 34. But after conciliation and conference, an administrative judge ordered discontinuation of the § 34 benefits, and ordered the insurer to pay partial disability benefits under Mass. Gen. Laws ch. 152, § 35, based upon the employee's earning capacity of $ 975. The administrative judge refused to credit the employee's testimony as to the extent of his back pain and inability to perform any work, finding that the employee had general knowledge of construction, was able to operate a motor vehicle, and was able to perform tasks with his hands. The administrative judge then concluded that the employee was capable of light duty employment. The court found, inter alia, that the administrative judge's decision was wholly silent with respect to what the employee might reasonably command as a salary in the marketplace. Because the finding of a $ 975 weekly earning capacity was not grounded in specific subsidiary findings sufficient to enable the court to discern any basis, pursuant to § 14(7)(g) it was purely arbitrary.  The amount of the partial disability award was vacated, and the matter was remanded for a reasoned computation of the amount, including a reference to the factual source(s) for the monetary figure; in all other respects, the decision was affirmed.  See generally Larson’s Workers’ Compensation Law § 130.04.

Gibson v. Precision Strip, Inc., 2008 Ohio 4958; 2008 Ohio App. LEXIS 4152 (September 29, 2008).  Appellant employee sought review of the judgment of the Butler County Court of Common Pleas ( Ohio ), which granted summary judgment to appellee employer in the employee's employer intentional tort action.  The employee suffered severe injuries when the arms of a machine he was working on came behind him and pinned him against a steel coil. The court held that the trial court properly granted summary judgment to the employer on the employer intentional tort claim. Reasonable minds could only come to the conclusion that the employer did not know that, by operating the machine, harm to the employee would be a substantial certainty. While the employer knew that there was a pinch point hazard between a coil and the machine's arms when the machine was moving and that an employee could come into contact with the arms, this was only mere knowledge and appreciation of the risk, not substantial certainty. Though the employee's expert witness, an expert in machine guarding and safety, testified that the training on the machine offered by the employer was deficient and that there should have been a guard on the machine, the facts of the case did not demonstrate a substantial certainty that the accident would occur. Even if a guard should have been in place and even if the employee's training was inadequate, these deficiencies constituted negligence or recklessness, not substantial certainty.  The court affirmed the judgment of the trial court.  See generally Larson’s Workers’ Compensation Law § 103.04.

Callahan v. P&G, 2008 Ohio 4954; 2008 Ohio App. LEXIS 4135 (September 29, 2008).  Appellant employee sought review of the judgment of the Court of Common Pleas, Allen County, Ohio, which granted summary judgment to appellee employer and dismissed the employee's appeal from the decision of the state industrial commission denying her claim for workers' compensation. The employee challenged the trial court's finding under R.C. 4123.01(C) that her injury was not sustained in the scope of, and did not arise out of, her employment.  The employee traveled to New Orleans to attend a conference for work. After a reception hosted by a vendor, the employee met with one of the vendor's representatives for drinks. While standing outside the club, the employee was run into a man who worked as a bouncer for the club. The employee's subsequent request for workers' compensation was denied. The court held that the trial court properly granted summary judgment to the employer in the employee's appeal from the denial of benefits because the evidence established that the employee's injury did not occur within the scope of her employment. According to the court, the scene of the accident was well outside of the control of the employer or the conference organizers. Moreover, there was only a tenuous relationship between the trip to the area of the club and the employer's interest. The fact that business may have been briefly discussed at the club did not give rise to any genuine issue as to whether the employees, who were receiving drinks from the vendor's representative, were within the scope of their employment for the benefit of the employer.  The court affirmed the judgment of the trial court.  See generally Larson’s Workers’ Compensation Law §§ 14.07, 22.02, 25.03.

Medrano v. Workers' Comp. Appeals Bd., 2008 Cal. App. LEXIS 1462 (September 25, 2008).  A workers' compensation judge and respondent California Workers' Compensation Appeals Board determined that petitioner employee, who suffered an industrial injury, was entitled to full vocational rehabilitation services. The Board, however, determined that the amount of his earnings from subsequent employment had to be subtracted from the vocational rehabilitation maintenance allowance (VRMA) to which he was entitled. The employee sought review.  The court held that VRMA was not a wage replacement benefit, and therefore there should have been no credit against the employee's VRMA payments for wages earned during the same period that he was awarded VRMA payments. There was no double recovery when, as in the instant case, a worker was awarded VRMA during the period of time that he or she also had earnings, because VRMA was merely one of the array of benefits available for vocational rehabilitation services. The vocational rehabilitation unit, the workers' compensation judge, and the Board determined that respondent State Compensation Insurance Fund, the employer's insurer, had not made a bona fide offer of vocational rehabilitation services. The offer of modified/alternative work did not comply adequately with Lab. Code, former § 4644, in a number of respects. Thus, the employee did not receive VRMA. The award of retroactive VRMA covered, inter alia, the period of time spent in connection with the dispute over the entitlement to benefits. The employee was not receiving the disputed amounts. Thus, the employee should not have been penalized for obtaining work to provide him with compensation under the circumstances.  The court annulled the Board's decision and reinstated the workers' compensation judge's decision. See generally Larson’s Workers’ Compensation Law § 82.01.

Pavese v. Cleaning Solutions, 2008 Ind. App. LEXIS 2120 (September 30, 2008). After the Supreme Court of Indiana , in Milledge v. The Oaks, 784 N.E.2d 926 (Ind. 2003), adopted the positional risk doctrine that placed the burden of proof on employers in cases involving neutral risks, the Indiana General Assembly amended Indiana Code § 22-3-2-2(a) to place the burden of proof on employees throughout the proceedings. In this case, Pavese fell on the job and received medical treatment for a head injury. Her employer refused to pay her medical bills. Pavese appealed the decision of the full Worker's Compensation Board affirming the decision of a hearing member, who concluded that she experienced a personal event on the job that was not covered by the Worker's Compensation Act. On appeal, Pavese contended that the amendment to Indiana Code § 22-3-2-2(a) was unconstitutional as applied to her because it placed on her the burden of proving a negative, that is, that her injury was not the result of a personal health condition. Concluding that Pavese had not met her burden of proving that the amendment to Indiana Code § 22-3-2-2(a) was unconstitutional and that she also had not met her burden of proving that her injury arose out of her employment, the Indiana appellate court affirmed.  See generally Larson’s Workers’ Compensation Law § 4.03.