Larson's Blogworthy Cases of the Week 8/15/2008

Larson's Blogworthy Cases of the Week 8/15/2008

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.

Grinnell College v. Osborn, 2008 Iowa Sup. LEXIS 101 (Aug. 8, 2008). Osborn worked for the college for many years, initially as a custodian and then, when he began to have shoulder problems, he transferred to the grounds department. On August 15, 2000, Osborn worked with other employees to spread three truckloads of pea gravel around some playground equipment.  He subsequently became ill and was eventually diagnosed with a Campylobacter bacterial infection.  Suffering from chronic fatigue syndrome, Osborne has not worked since September 10, 2000.  He sought workers’ compensation benefits for a repetitive injury to his shoulder and from the bacterial infection.  The deputy found Osborn had sustained a cumulative injury to his right shoulder and that his bacterial infection arose out of and in the course of his employment.  The deputy awarded healing period and permanent partial disability benefits for the shoulder injury and additional permanent partial disability benefits based on a finding that Osborn had sustained a forty-percent industrial disability as a result of his bacterial infection and its sequela.  The award was affirmed and the college appealed.  In a per curiam decision, the state supreme court held that there was substantial evidence to support the award. See generally Larson’s Workers’ Compensation Law §§ 51.02, 52.03.

Deschenes v. Transco, Inc., 2008 Conn. LEXIS 305 (August 12, 2008).  Defendants appeal from the decision of the compensation review board (board) affirming the decision of the workers' compensation commissioner, awarding compensation for a 25 percent permanent partial disability in each lung to the plaintiff.  Plaintiff worked until 1985 as an insulator on numerous commercial construction sites for multiple employers, including the defendant employers. During that time, he was exposed to significant amounts of asbestos, with his last exposure occurring in 1985, while he was employed by Transco. Plaintiff was not able to work full-time after 1994, when he was diagnosed with asbestos related pleural lung disease.  Plaintiff began smoking cigarettes at the age of seventeen or eighteen and smoked one and one-half to two packs per day from the age of twenty-five until 1991, when he had a heart attack requiring coronary artery bypass surgery.  As a result of his cigarette smoking, plaintiff developed emphysema.  Plaintiff sought workers’ compensation benefits and received an award determining that he had sustained a 25 percent permanent partial disability to each.  Defendant employers contended that plaintiff’s smoking-related disease should have been taken into consideration in determining plaintiff’s overall level of disability.  Observing that an employer takes an employee as it finds him, the board concluded that the plaintiff's smoking-related emphysema need not be treated separately for the purpose of assigning liability for the lung permanency, even if some doctors had calculated the percentage of the impairment that was caused by asbestos exposure.  Noting that the original findings had not concluded that plaintiff’s emphysema was a pre-existing condition that was aggravated by plaintiff’s employment-related asbestos exposure and that plaintiff’s disability from emphysema developed along-side his asbestos-related pleural condition, the state high court concluded that plaintiff’s award should have been apportioned.  Accordingly, the court reversed and remanded the case for a determination as to how plaintiff’s smoking-related emphysema and his asbestos-related lung condition had interacted.  The court concluded that apportionment of permanent partial disability benefits is appropriate when an employer is able to prove that: (1) a disability has resulted from the combination of two concurrently developing disease processes, one that is nonoccupational, and the other that is work related; and (2) the conditions of the claimant's occupation have no influence on the development of the nonoccupational disease. See generally Larson’s Workers’ Compensation Law §§ 52.06, 90.02.

Kolacki v. Verink, 2008 Ill. App. LEXIS 773 (August 8, 2008).  Plaintiff worker sued defendant owners of a horse facility, seeking damages for injuries suffered when she was kicked in the head by a horse at her job. The Circuit Court granted the owners' motion to dismiss. The worker then moved for reconsideration and sought to add the horse's owner as a party. The trial court denied both motions. The worker appealed. The worker was employed by a veterinary business belonging to one of the horse facility owners. The appellate court found that the action was barred by the exclusive remedy provision of the Workers' Compensation Act (Act), 820 ILCS 305/5(a) (2006). The worker asserted that under the dual-capacity doctrine, the owners were not entitled to the protection of the Act because they were acting in a separate and distinct capacity as owners of the property and as operators of a second business, one that boarded, trained, and sold horses. The appellate court found that the worker failed to show that the dual-capacity doctrine applied. It was clear from the record that only one business was being conducted on the premises, the veterinary business. Although one of the owners initially testified that she was not an employee of the veterinary business, the remainder of her testimony showed otherwise. The duties of the owners as to the property were not so intertwined with their duties as employees and owners of the veterinary business that the two capacities could not have been separated. The trial court did not err by denying worker's request for leave to file a first amended complaint. See generally Larson’s Workers’ Compensation Law § 113.05.

Commonwealth v. Gussler, 2008 Ky. App. LEXIS 251 (August 8, 2008).  Claimant sustained injuries, including facial injuries and skull fractures, brain hemorrhage, right-sided paralysis, vision loss, and other neurological damage, while cutting trees on the employer’s  land.  It was undisputed that 99 percent of claimant’s work on the employer’s property consisted of cutting trees and operating a bulldozer in connection with a logging operation that the employer, a farmer, operated at a profit.  Claimant filed a workers’ compensation claim.  Because the farm/logging operation did not maintain workers’ compensation, the claim came under the province of the state’s uninsured employers fund.  The fund contended claimant’s activities fell within the agricultural exemption of the Kentucky Workers’ Compensation Act (the Act).  The administrative law judge dismissed the claim, finding that the employer’s land was principally used for agriculture, that the logging operation was part of the protected agricultural enterprise, and that it was purely a function of harvesting and farming.  The Board reversed, finding that the logging work performed by claimant did not meet the definition of "agriculture" as that term is defined by the Act.  The appellate court noted that KRS 342.0011(18), a statute found within the Act, did not explicitly mentioned logging in its definition of agriculture, that the two other statutory references to logging within the context of “agriculture” [KRS 246.010(5) and KRS 337.010(2)(b)] were not part of the Act, but included logging within their agricultural definition, and that the omission within the Act must, therefore, have been intentional on the part of the legislature.  The court added that the record indicated that the logging performed by claimant was not incident to farming. Although it occurred on a farm, it is clearly evident from the testimony of all parties that the logging was not connected to the day-to-day operations of the farm itself.   The court concurred that claimant was not engaged in agricultural duties.  His injuries, therefore, were within the province of the Act. See generally Larson’s Workers’ Compensation Law § 75.03.

Plotner v. Family Dollars Stores, 2008 Ohio 4035; 2008 Ohio App. LEXIS 3373 (August 8, 2008). A county court of common pleas entered judgment that an employee was allowed to participate in the workers’ compensation fund as to an aggravation of a preexisting degenerative disc herniation at C5-6 and the employer appealed.  The employer contended the employee’s initial claim was not properly tied to the evidence presented at trial, that it did not receive sufficient notice as to the aggravation claim.  The appellate court disagreed, noting that the employee’s claim was merely an inartfully drafted claim for the condition that was actually proved at trial.  Both the injury that was claimed and the injury that was proved involved aggravation of a previous degenerative disc disease and a herniated disc at C5-6. Further, the employer was not unfairly prejudiced by the employee’s claim as drafted because the orthopedic surgeon’s deposition testimony explaining his findings as related in his letter was available to the employer months before trial. Thus, it could not have reasonably been argued that the employer was "ambushed" by any new theory of causation. See generally Larson’s Workers’ Compensation Law § 124.04.

Anderson v. Westfield Group, 2008 Tenn. LEXIS 532 (August 12, 2008).  Following a 2001 work-related injury to his elbow, the employee and his employer settled the employee's claim for workers' compensation benefits. The settlement obligated the employer to pay future medical bills resulting from the elbow injury. Shortly after undergoing corrective surgery on the injured elbow in 2004, the employee burned his hand while cooking at home. While recuperating from the burn to his hand, he suffered additional injuries to his hand in a fall near his sister's home. The employee filed a petition seeking to recover medical expenses for these two injuries to his hand on the basis that the medical expenses associated with these injuries were the direct and natural consequence of the original work-related injury to his elbow. The trial court found that the medical expenses sought by the employee were the result of intervening causes, namely the employee's own negligence, and denied the petition. The Special Workers' Compensation Appeals Panel reversed, finding that the subsequent injuries were the direct and natural consequence of the original compensable injury and that there were no intervening causes.  Upon further review of the record and applicable law, the Supreme Court of Tennessee held that the injuries to the employee's hand were due to his own negligence, and therefore, the employer was not required to pay the medical bills associated with those injuries. See generally Larson’s Workers’ Compensation Law § 10.04.