Larson's Blogworthy Cases of the Week 9/5/2008

Larson's Blogworthy Cases of the Week 9/5/2008

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.

Hill v. Greyhound Lines, Inc., 2008 Fla. App. LEXIS 12909 (August 29, 2008).  Appellant worker sought benefits for injuries suffered in a workplace accident. The Judge of Compensation Claims ( Florida ) entered an order granting a motion for sanctions filed by appellee employer and dismissing the worker's pending petitions for benefits with prejudice. The worker appealed.  The employer's motion for sanctions alleged that the worker violated the mediation confidentiality requirements of § 440.25(3), Fla. Stat. (2004) by revealing to his treating physician comments made by the employer's counsel. The employer's counsel had stated at the mediation that the physician had provided inconsistent treatment recommendations. The employer alleged that it was "potentially" prejudiced by this disclosure because it was "feasible" for the physician to be biased against the employer. The appellate court found that the Judge of Compensation Claims (JCC) failed to make the necessary express finding that the worker willfully or deliberately violated mediation confidentiality requirements to support the sanction of dismissal with prejudice. The employer also failed to provide competent substantial evidence that it was meaningfully prejudiced by the disclosure. Nothing in the note or the record indicated bias or animosity by the physician against the employer. Thus, the JCC abused his discretion in imposing the severe sanction of dismissing the worker's petitions for benefits with prejudice.  The order dismissing the worker's petitions for benefits was reversed and the case was remanded for further proceedings. See generally Larson’s Workers’ Compensation Law §§ 34.01, 125.04.

Speed v. Securitas , 2008 Fla. App. LEXIS 12669 (August 27, 2008).  Appellant claimant sought review of an order of a Florida Judge of Compensation Claims (JCC), which found that his heart attack was not a compensable injury pursuant to § 440.093(1), Fla. Stat. (2003). Claimant argued that the JCC should have instead applied § 440.09(1), Fla. Stat. (2003).  The claimant worked as a security guard for appellee employer and was assigned on the date of the incident to secure one of the employer's facilities.  The elevator in which the claimant was riding malfunctioned, resulting in a series of "drop and catch" episodes. The claimant suffered what he described as a panic attack and reported to a colleague that he felt chest pain. After the chest pain persisted, the claimant went to the hospital and was diagnosed with a minor heart attack. The claimant's independent medical examiner (IME) testified that the major contributing cause of the heart attack was the elevator incident. The employer and appellee carrier denied the claim under § 440.093(1). The JCC agreed on the basis of the claimant's description of experiencing a panic attack, an allegedly mental or nervous injury. However, the court reversed, agreeing with the claimant that § 440.09(1) applied instead, as the IME's testimony was undisputed that the elevator incident, a workplace accident, was the cause of the heart attack. No expert testimony was presented that the claimant was diagnosed with a mental or nervous injury.  The court reversed the JCC's order and remanded for further proceedings consistent with its opinion. See generally Larson’s Workers’ Compensation Law § 55.02, 56.02, 56.04.

Christopher R. Brown, D.D.S., Inc. v. Decatur County Mem. Hosp., 2008 Ind. LEXIS 771 (August 27, 2008).  The state supreme court held that the Worker's Compensation Board may not award interest on past due medical bills, as there was no express statutory authority allowing the practice.  Acknowledging that Indiana law had long recognized the time value of money and generally provided for the collection of interest upon sums due from a patient for unpaid hospital bills, such authorities fell outside of Indiana's Worker's Compensation Act, which was silent on the question of whether interest may be awarded on past due benefits.  The court indicated that if a policy consideration suggested that interest on worker's compensation awards should be allowed, then the legislature and not the courts should implement such a policy.  The Worker's Compensation Board, therefore, properly denied the doctor’s request for interest on unpaid medical bills.  See generally Larson’s Workers’ Compensation Law § 134.04.

Fitzgerald v. Steel, 2008 Ind. App. LEXIS 1938 (August 27, 2008).  On December 21, 1999, Fitzgerald, an employee of U.S. Steel ("USS"), sustained an injury arising out of and in the course of his employment. On December 28, 1999, USS and Fitzgerald came to a written agreement, called "Agreement to Compensation of Employee and Employer," in which USS agreed to pay Fitzgerald temporary total disability. This agreement was filed with the Board. Fitzgerald received temporary total disability benefits from December 22, 1999, through February 7, 2001, totaling $ 28,863.68. Thereafter, Fitzgerald went back to work. After returning to work, USS paid Fitzgerald's medical and dental bills caused by the injury because he had not reached maximum medical improvement. On February 9, 2004, approximately three years after Fitzgerald's temporary total disability payments had ceased, Fitzgerald underwent a permanent partial impairment evaluation with a physician who indicated that Fitzgerald had reached maximum medical improvement and sustained a five percent ($ 4500.00) whole person permanent impairment rating. On February 19, 2004, Fitzgerald filed his application for adjustment of claim in which he alleged that he was "entitled to T.T.D. [temporary total disability], P.P.I. [permanent partial impairment], future treatment and payment of bills."  USS defended, contending the claim was time barred.  The Board agreed and dismissed Fitzgerald’s application for adjustment of claim.   Concluding that Fitzgerald's application was time-barred under Indiana Code § 22-3-3-27 (1998), that the reimbursed wages he received from U.S. Steel ("USS") did not constitute "compensation," that the date of maximum medical improvement or the date his permanent partial impairment rating was issued was not the starting date for calculating the statute of limitations under the facts of this case, that USS did not make fraudulent misrepresentations to Fitzgerald, and that USS did not breach any legal duties owed to him, the appellate court affirmed.  See generally Larson’s Workers’ Compensation Law § 126.10.

Masden v. CCI Supply, Inc., 2008 Ohio 4396; 2008 Ohio App. LEXIS 3703 (August 29, 2008).  Appellant employer sought review of the judgment of the Montgomery County Common Pleas Court ( Ohio), which permitted appellee worker's compensation claimant to participate in the Worker's Compensation Fund for the condition of right shoulder rotator cuff tear. The employer challenged the trial court's finding that the claimant's injury arose of out and in the course of his employment under R.C. 4123.01(C).  The claimant was sent to work at an out-of-state construction site. While lodging at an inn, he was injured when he tried to disarm a knife-wielding lodger at the motel. The court held that the trial court properly permitted the claimant to participate in the Fund. The claimant's injuries were sustained in the course of his employment as the claimant was a traveling employee. The injury sustained had its origin in a risk created by the necessity of sleeping away from home. Further, the claimant's injuries arose out of his employment as the place of the incident was a proximate distance from the work site, the employer paid for the claimant to stay at this particular motel, and the employer received a benefit by having the claimant present at the motel, in that the claimant could be reimbursed for lodging only if he stayed at the motel due to the employer losing money on the project. Finally, while a fight was involved in the case, the trial court did not err in refusing to instruct the jury on whether assaults by third parties were compensable since such an instruction was likely to confuse the jurors and did not completely fit to the particular facts of the case. See generally Larson’s Workers’ Compensation Law § 25.02. 

Nat'l Fiberstock Corp. v. Workers' Comp. Appeal Bd. (Grahl), 2008 Pa. Commw. LEXIS 388 (August 29, 2008).  Respondent employer sought review of an adjudication of the Workers' Compensation Appeal Board ( Pennsylvania), which reinstated petitioner claimant's disability benefits and imposed penalties on the employer for failure to comply with a prior order to pay penalties for failure to timely pay for a medical bill.  The claimant, who worked a machine operator, suffered a work-related injury in 1992. A termination petition filed in 1997 by the employer was granted. In 2000, the claimant underwent a repeat carpal syndrome release on her right wrist; a penalty was imposed based on the employer's 42-month delay in making payment on the medical bill in violation of 77 Pa. Stat. Ann. § 971(b). The claimant filed a reinstatement petition in 2005 and another penalty petition. On appeal, the court affirmed. The reinstatement was not barred by res judicata as the medical evidence indicated that the claimant's physical condition had changed since the termination petition; the claimant had testified that by 2004, she experienced even more pain, numbness, and tingling in four of the five fingers on both hands. The claimant's medical expert could assume that the claimant had fully recovered in 1997 and presented objective evidence of a physical change in the claimant's condition in the form of muscle wasting and in the diagnostic tests. Because the employer failed to pay the 50% statutory penalty under 77 Pa. Stat. Ann. § 991(d)(i) plus interest in a timely manner, a new 50% penalty was properly imposed.  The court affirmed the order of the Board.  See generally Larson’s Workers’ Compensation Law § 131.03.