Arizona Court Says Independent Medical Examiner Owes Duty of Reasonable Care
An Arizona court recently held that even absent a formal doctor-patient relationship, a doctor conducting an independent medical examination owes a duty of reasonable care to his or her patient [Ritchie v. Krasner, 2009 Ariz. App. LEXIS 78 (Ariz. Ct. App. Apr. 21, 2009)]. The Court indicated that an IME doctor has a duty "to conform to the legal standard of reasonable conduct in the light of the apparent risk." Larson’s Workers Compensation Law. See Ch. 112, §
112.02[1][a] n.2.2.
Alabama Claimant Allowed to Sue Doctor For Unauthorized Release of Medical Information
Somewhat similarly, an Alabama court has held that a workers compensation claimant may sue a doctor for unauthorized release of medical information to the employer [Hollander v. Nichols, 2009 Ala. LEXIS 59 (Ala. Mar. 20, 2009)]. (WCxKit)
Plaintiff was terminated from his employment for allegedly asking the doctor to back date a work-release slip related to a workers compensation claim he had filed. In the underlying suit against defendants, he asserted that the doctor breach a duty to him by releasing his medical records to his employer without his permission. The court agreed with plaintiff that the doctor and the clinic failed to demonstrate that they were entitled to the exemption-from-liability provision in Ala. Code § 25-5-77(b) with regard to disclosure of the records as there was no evidence indicating that the employer or plaintiff made a written request for the copies to be provided to the employer. (WCxKit)
Therefore, the trial court erred by granting summary judgment on plaintiff's breach-of-contract claim against those defendants for the alleged unauthorized disclosure of his medical records. The court remanded the case to the trial court for further proceedings. See Larson’s Workers Compensation Law Ch. 112,
§ 12.02 .5.1.http://www.lexisnexis.com/community/workerscompensationlaw/
Copyright 2010 LexisNexis. All rights reserved. This material is excerpted from Larson’s Workers Compensation Law. Reprinted with permission.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
Records indicate the Ohio man, owner of a bear that mauled its caretaker to death, did not have workplace injury insurance to cover the man, an apparent violation of state law.
According to the Associated Press, an Ohio Bureau of Workers Compensation spokesperson stated investigators were looking into whether Sam Mazzola had paid 24-year-old Brent Kendra or other employees since coverage lapsed in late 2005. (WCxKit)
Ohio requires business owners who pay even one employee to carry insurance in the event of injury or death, the spokesperson said.
OSHA, regulator of workplace safety, is also attempting to determine whether Brent Kendra was Mazola’s employee or just a friend who occasionally assisted Mazzola.
Brent Kendra was mauledAugust 19 after opening the bear's cage for a feeding at the home where Mazzola maintains his exotic animal menagerie of bears, tigers, wolves and a lion. Kendra died the next day.
John Kendra indicated his son worked for several of Mazola’s businesses over a number of years, erecting highway guardrails and fences, overseeing petting zoos Mazzola would take to malls, staffing his pair of pet stores or feeding the exotic beasts.
"Basically he was a part-time, fill-in guy. He had just started back after not working for him for a year," John Kendra commented. "He'd work part time on his days off so he didn't collect a paycheck. He'd be paid $20 or $40 in cash on a day off, probably under the table, and Sam would feed him dinner. They were friends."
The Ohio WCB spokesperson said investigators are looking for evidence Brent Kendra worked for Mazzola, like canceled checks, lists of duties or work schedules. (WCxKit)
She added the state was seeking $5,379.78 in unpaid workers comp premiums when Mazzola filed for bankruptcy last year. After he informed the state his business, World Animal Studios, had halted operations in 2005, the state decreased his bill for outstanding premiums to $27.47.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. RShafer@ReduceYourWorkersComp.com or 860-553-6604.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
Observing that since 2002, the riverboat where the employee worked had been moored and stationary — with the exception of rare tests conducted in compliance with federal regulations — that it was connected to the
dock by eight mooring lines, two double-up lines, three fuel hoses, a sewage and water hose, and seven power cables, and that a majority of decisions on the issue had refused to grant vessel in navigation status to moored riverboats, an Indiana appellate court held that the riverboat casino was not a vessel in navigation, that while it was theoretically capable of being in navigation, the actual intention had been to remove the boat from navigation, except in emergency situations [RDI/Caesars Riverboat Casino, Inc. v. Conder, 896 N.E.2d 1172 (Ind. Ct. App. 2008)].
A dealer on a riverboat casino filed a Jones Act claim, contending that she sustained repeated flea bites while working on defendant's gambling casino riverboat, that she was required to take large doses of steroids for the flea bites, and that the steroids caused her to suffer a heart attack. At issue was whether the riverboat casino was a "vessel in navigation" for purposes of the Jones Act. ( (WCxKit)
The dealer contended that the riverboat casino was, in fact, a vessel in navigation, pointing out that it was registered with and regularly inspected by the United States Coast Guard, and had its own engines and machinery, as well as navigation, lifesaving, and firefighting equipment. As noted, the court disagreed. See
Larson’s Workers Compensation Law Ch. 146, § 146.02[2][b] n.16. Visit the Workers Comp Law Community at LexisNexis: http://www.lexisnexis.com/community/workerscompensationlaw/
Copyright 2010 LexisNexis. All rights reserved. This material is excerpted from Larson’s Workers Compensation Law. Reprinted with permission.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
Continuing a line of cases that generally allow for the recovery of medical benefits where a worker is exposed to blood and other body fluids, yet where there is no actual proof of harm, a Kentucky court recently awarded $700 in medical benefits to a health care worker who was splattered in the face and eye with blood and saline while flushing a patient's I.V. line [Kentucky Employers Safety Assoc., v. Lexington Diagnostic Center, 2009 Ky. LEXIS 80 (Ky. May 21, 2009)].
The worker sought immediate medical attention, at which point the applicable post-exposure protocol required by OSHA was initiated. That protocol required a series of five office visits that included tests for blood borne pathogens, for a total cost of about $700.00. While the carrier paid for the first two visits, and part of the third, it resisted further payment, taking the position that an exposure has the potential to harm but does not constitute an injury until such time as objective medical findings showed it had produced a harmful change in the human organism. (WCxKit)
The Supreme Court of Kentucky held that being splattered in the face and eye with foreign blood or other potentially infectious material was a traumatic event for the purposes of KRS 342.0011(1) and that the presence of blood in the eye constituted an exposure as defined in 29 CFR 1910.1030(b), which describes a harmful change in the human organism as, among other things, the introduction of foreign blood or potentially infectious material into the worker's body. See Larson's Workers' Compensation Law, Ch. 29, § 29.03.
© Copyright 2010 LexisNexis. All rights reserved. This material is excerpted from Larson’s Workers’ Compensation Law. Reprinted with permission.
FREE IQ Test: http://www.workerscompkit.com/intro/
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
A Reader Asks:
If an employer is in a non-monopolistic state and the employee’s residence is in a non-monopolistic state, but may work from time to time in a monopolistic state, what state should work hours be reported in?
Workers Comp Kit Blog Replies:
Normally, the state where the employee is domiciled is where the employee is counted for workers comp purposes.
If the employee is traveling on business in a monopolistic state, and if the employee is not there long enough to qualify to pay that state’s income tax, then the workers comp premium is based on the employee’s home state. (WCxKit)
On of our claims experts is in Kentucky this week and next week doing an audit for a for a large pool. Kentucky is not a monopoistic state. To be an employer subject to WC laws,. you must have two or more employees who work 20 weeks or more during the year. While each state sets their own requirements, the casual worker (like our consultant) here for two weeks would not require an employer to purchase wc coverage.
All four of the monopolistic states have a "help line" to answer such questions, but they will, of course, want the employer’s identity so the state can decide whether or not to assess a premium. To find those help line go to
http://reduceyourworkerscomp.com/workers-compensation-state-laws-and-regulations.phpNote: Our answer is a generalization. Do not rely on the above! Call your broker and ask someone well acquainted with your circumstances.
\ Author Rebecca Shafer, J.D./ Consultant, President, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Worker Injured Attempting to Retrieve a Bag of Chips Stuck in Vending Machine Receives Award of Benefits
In Circuit City Stores, Inc. v. Illinois Workers' Comp. Comm'n, 2009 Ill. App. LEXIS 278 (Ill. App. Ct. May 21, 2009), cert. denied, 2009 Ill. App. LEXIS 655 (Ill. App. Ct. July 9, 2009), the court affirmed an award to young male worker, with a preexisting hip condition associated with a baseball injury, who suffered a displaced fracture through the right femoral neck when he attempted to dislodge a bag of Fritos stuck in a vending machine on the employer's premises. The chips were not for his own consumption, but rather had been purchased by a co-worker. Applying the personal comfort doctrine, the arbitrator found a compensable accident and the Commission affirmed, with one member dissenting. (WCxKit)
The Illinois appellate court affirmed the award of benefits, but on other grounds. Agreeing with the dissenting commissioner who had argued that the personal comfort doctrine should not apply since the worker was not on break nor seeking his own comfort, the appellate court found that the Commission's finding that the worker's injuries arose out of the employment was not contrary to law, at least on other theories. Tracking a line of cases in which the employment had been expanded so as to encompass an employee's actions in aiding others in emergencies, the court indicated that "[w]hat the instant case lacks in urgency, it makes up for in familiarity and collegiality." The court concluded that the Commission could reasonably have found that the worker's manner of assisting the other worker did not cross the line of employment. (WCxKit) See
Larson’s Workers Compensation Law, Ch. 21, § 21.08[1] n1.1.
http://www.lexisnexis.com/Community/workerscompensationlaw/
© Copyright 2010 LexisNexis. All rights reserved. This material is excerpted from Larson’s Workers Compensation Law. Reprinted with permission.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
In Iowa Case Burden of Proof is Upon Injured Worker to Show that Greeting a Co-worker By "Wiggling His Butt" Was Not Disqualifying Horseplay
Here’s what Tom Robinson, J.D., writer for Lexis Nexis Workers Comp Law Center reports.
Here's What Happened
Vegors worked as a machine inspector for the water district, a company that installed rural water lines. He was injured at work when a pickup truck being driven by Byrd, a co-employee, struck him. The evidence indicated that at the time of injury Vegors had his hands full and gestured a greeting by "wiggling his butt" at Byrd. Byrd intended to "bump" Vegors with the mirror of the truck, but instead, hit him with the truck bed. Employees later testified that on a number of other occasions the two had gestured to each other in unusual ways when their hands were full. On one occasion, for example, one of the men had "waved" the boom of a track hoe at the other.
Vegors sought workers' compensation and the water district contested the claim, arguing that Vegors was barred from recovery because his horseplay removed the incident from the employment. The water district also pled the affirmative defense of willful injury. The deputy commission held that the water district had the burden of proving the defense of horseplay and found that Vegors intended to shake his hind end as a means of communication and not to initiate, instigate, or participate in the horseplay that led to the injury. Recovery of workers' compensation benefits was not, therefore, barred. The commissioner affirmed but, upon further appeal, the district court reversed, holding that Vegors was barred from recovery. Vegors then appealed. (WCxKit)
Here's What The Court Decided
In Xenia Rural Water Dist. v. Vegors, 2010 Iowa Sup. LEXIS 83 (July 23, 2010), the Supreme Court of Iowa reiterated the rule that the injured worker had the burden of showing that the injury arose out of and in the course of the employment. It indicated further that when an employer contended that a claimant's injury was caused by horseplay, and not the employment, the burden of proof did not shift away from the claimant; he or she retained the burden of showing the claim was compensable.
Quoting Larson's Workers' Compensation Law, § 23.07[3], the supreme court observed, however, that not all instances of horseplay barred recovery. Only where it was determined that the claimant had substantially deviated from the line of duty so that his or her actions were foreign to the (WCxKit) employer's work should recovery be denied. The court concluded, in relevant part, that in the instant case the deputy commission had incorrectly applied the burden of proof. The matter was, therefore, remanded for appropriate findings. See generally Larson's Workers' Compensation Law, §§ 51.01, 51.02, 51.03.
Tom Robinson, J.D. is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
A borrowed employee filed a retaliatory discharge action against the borrowing employer, contending that one day after she testified, under threat of subpoena, in a workers' compensation proceeding filed by one of defendant's employees, the borrowing employer told her that her services were no longer needed.
Defendant contended that plaintiff could not maintain a retaliatory discharge cause of action since she was not defendant's employee, that plaintiff had never been on defendant's payroll, that she had not been fired by defendant and was free to work for her employer at any time and at any work. (WCxKit)
The appellate court observed that all rights and remedies of the Workers Compensation Act applied to borrowed employees, that a borrowing employer is primarily liable for the payment of a borrowed employee's workers' compensation claim, and that the public policy considerations which led to recognition of an action for retaliatory discharge equally applied to a claim by a borrowed employee against a borrowing employer. (WCxKit)
Moreover, defendant's argument ignored the nature of a borrowed-employee relationship. In the context of that relationship, the most severe sanction a borrowing employer could impose was to refuse all further work. In that context, the sanction was tantamount to a discharge [Hester v. Gilster-Mary Lee Corporation, 386 Ill. App. 3d 1104, 899 N.E.2d 589 (2008)]. See Larson’s Workers Compensation Law: Ch. 104, § 104.07[1] n.19.1. To read more at
Workers Compensation Law Community .
© Copyright 2010 LexisNexis.All rights reserved. This material is excerpted from Larson’s Workers’ Compensation Law. Reprinted with permission.
Work Comp Calculator: http://www.LowerWC.com/calculator.php
RTW Calculator: http://www.LowerWC.com/transitional-duty-cost-calculator.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
A minority of jurisdictions make awards whenever the injury occurred because the employment required the worker to occupy what turned out to be a place of danger. Under this "positional" risk, or "but-for" test, the need to establish a causal relationship between in employment and the injury is relaxed or even eliminated. The majority rule, however, is that the employment must in some sense increase the worker's risk of injury.
Representative of other cases where courts have refused to follow the positional risk rule, but have nevertheless found an increased risk of injury is the case of Restaurant Dev. Group v. Oh, 2009 Ill. App. LEXIS 407 (June 16, 2009), in which a bartender working near the front of a restaurant's large glass window sustained gunshot wounds during a gang shootout. Evidence that the restaurant was located in a high crime area, that the bartender worked late at night, and that there had been a history of gunfire in the neighborhood was sufficient to establish that the bartender faced an increased risk of injury. See Larson's Workers' Compensation Law Ch. 7, § 7.01[3] n.38.2.
Unexplained deaths can be particularly problematic for the courts. Many states employ some sort of presumption, that unwitnessed deaths (or injuries) are presumed to have arisen from the employment. That presumption can be rebutted, however, as was the case in a recent New York decision, Matter of Ruper v. Transportation Sys. of W. N.Y., 58 A.D.3d 930, 870 N.Y.S.2d 623 (2009). Claimant's husband, a tractor-trailer driver, had arrived for work at approximately 11:30 A.M. and was assigned to drive an empty trailer to West Virginia. Hours passed and no one heard from him. A search ensued and decedent's body was found slumped against a flatbed trailer in the employer's parking lot at approximately 4:45 P.M. A Workers' Compensation Law Judge awarded benefits, finding that the death was unwitnessed and the employer did not sufficiently rebut the presumption contained in N.Y. Workers' Comp. Law § 21.
On review, the Workers' Compensation Board reversed, based on its determination that the employer had rebutted the presumption. Claimant appealed. The appellate court noted that the employer presented decedent's death certificate and the results of an autopsy, both of which attributed his death solely to arteriosclerotic coronary artery disease. The employer also submitted the report and testimony of a cardiologist who concluded that decedent's death was not work related but due to a preexisting heart condition. Inasmuch as the record evidence supported the Board's determination that decedent's death was not work related, the appellate court could not disturb it. See Larson's Workers' Compensation Law Ch. 7, § 7.04[2] (Digest) n.38.
© Copyright 2010 LexisNexis. All rights reserved. This material is excerpted from Larson’s Workers’ Compensation Law. Reprinted with permission.
\
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
A North Dakota bank employee is seeking workers comp more than a year after a robbery left her handcuffed and held at gunpoint. According to the Jamestown Sun, the bank teller wants the workers comp from the state related to her diagnosis of post-traumatic stress disorder.
Workforce Safety & Insurance (WSI) turned down the 56-year-old woman’s claim in a letter two months ago, stating state law permits benefits only for physical injuries incurred at work. The claimant’s attorney claims the state changed the reason for denial a week prior to a May appeals hearing and is simply attempting to avoid paying the claim totaling less than $1,000 in medical costs.
The newspaper reports the attorney is accusing WSI of changing “the rules in the middle of the game” to include pre-existing conditions as a portion of the agency’s denial and seeking two decades worth of Johnson’s medical records.
State law prevents WSI officials from discussing specific cases, but speaking generally director Bryan Klipfel claims reasons for turning down such requests as this one are clearly defined by North Dakota statutes. WCxKit
“There is no provision in North Dakota law that would provide benefits to a worker (who) does not have a physical injury that occurred at work,” Klipfel commented to the newspaper.
The woman’s claim stems from last year’s robbery of more than $50,000 from Gilby’s Bremer Bank.
After the robbery, Johnson’s physician diagnosed her with PTSD, and she eventually had to leave her teller job, according to her attorney. WCxKit
A district judge in Grand Forks will make a decision in the next month on the charges that WSI changed the reason for denial prior to going to an appeal.
\
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Posted in
