RISKVUE ARCHIVE | INDUSTRY WATCH > WORKERS' COMP

Developing Case Law From Across The Country (2001)

Unavailability of Medical Malpractice Action Against Fellow Employee-Physician

In Hawksby v. DePietro, 754 A.2d 1168 (N.J. 2000), the claimant worked as a pressman. While performing his duties, he fell from a ladder and injured his elbow and leg. The employer operated its own health-care facility that provided medical treatment for his injuries. The claimant initially was given minor treatment by the employer’s nurse and then provided more extensive treatment in the emergency room. He later consulted the full-time physician who worked in the employer’s on-site clinic. The physician continued to treat the claimant for approximately one year. The treatment plan did not resolve the claimant’s persistent severe pain. Ultimately, the claimant was referred to an orthopedic oncologist after a solid lesion was detected in his leg. After a biopsy, a large-grade sarcoma was diagnosed, and the claimant underwent cancer treatment.

The claimant sued the company physician, alleging that he committed medial malpractice. In his related workers compensation claim, there was an agreed order awarding him benefits and stating that the cancer was not causally related to his employment.

The New Jersey Supreme Court held that the physician was immune from malpractice liability where he was employed by the claimant’s employer and had treated the claimant’s work-related condition in the employer’s clinic. Under the facts of the case, the physician did not act in the dual capacity of fellow employee and private physician and, therefore, was entitled to the compensation act tort immunity.

Lump Sum Settlement Bars Death Benefits Claim

In Segers v. Industrial Commission, 732 N.E.2d 488 (Ill. 2000), a coal miner filed a workers compensation claim alleging that he had been injured from inhaling coal and rock dust. The claim was settled with a lump sum payment that was agreed to be in:

full and final settlement of all claims under the Workers' Compensation Act and the Occupational Diseases Act, for any alleged accident exposure or occupational disease arising out of Petitioner’s coal mine employment with Respondent, including any and all lung conditions or injuries and any and all related conditions or injuries incurred, known or unknown, alleged to have been caused by the conditions and hazards of the Petitioner’s employment and more specifically caused by Petitioner’s exposure to coal dust throughout his entire tenure as a coal miner.

After the worker died, his widow filed an Occupational Diseases Act claim seeking death benefits. The employer argued that the lump sum settlement with the worker precluded her recovery of death benefits. The Illinois Supreme Court agreed, holding that the settlement agreement executed by the worker and the employer barred the widow’s subsequent death benefits claim pursuant to the terms of the workers compensation act.

First Employer Held Responsible for Injury Reaggravated Under Second Employer

In State ex rel. Baker v. Industrial Commission of Ohio, 732 N.E.2d 355 (Ohio 2000), the claimant injured his knee during the course of his work as a general laborer for the employer. He was awarded workers compensation benefits for a lateral tear of the meniscus and underwent arthroscopic knee surgeries. After his treating physician released him to return to work with light-duty restrictions, the claimant signed a termination notice on the day of his return, stating that he had accepted other employment. The claimant then started working as a truck mechanic. Two months later, he left this job, allegedly due to the effects of his original injury, and sought temporary total disability benefits from the original employer. The original employer defended the claim on the basis that the claimant had voluntarily terminated his employment with the employer.

The Ohio Supreme Court held that the claimant was entitled to recover temporary total disability benefits upon the reaggravation of the original injury, even though the reaggravation occurred while the claimant was working for a different employer.

Negligence Action Barred Against Supervisor for Workplace Auto Accident

In Collier v. Moore, 21 S.W.3d 858 (Mo. Ct. App. 2000), the claimant and his supervisor were both on duty at the airport. The supervisor received a radio call notifying him that his presence was required at an outside gate. While driving to the gate at a speed of 10 miles per hour, the supervisor’s vehicle struck the claimant’s vehicle, causing the claimant to be ejected from the “baggage tug” he was driving. The claimant filed a negligence action against the supervisor. He also filed a workers compensation claim against his employer.

Where the supervisor was clearly with the scope of his employment at the time of the accident, the Missouri Court of Appeals found that he was entitled to statutory immunity from any negligence. The court also affirmed that the exclusive remedy defense may be properly raised by a motion to dismiss for lack of subject matter jurisdiction.

Borrowed Servant Status Under Longshore and Harbor Workers' Compensation Act

In Patton-Tully Transportation Company v. Douglas, 761 So. 2d 835 (Miss. 2000), the claimant was working for his regular employer on a vessel owned by the defendant. He was a welder and had reported to the vessel after the vessel owner called his employer requesting some iron workers to work on one of the defendant’s barges that had been involved in an accident.

The claimant was instructed by the defendant to lift heavy iron plates and place them on another barge docked next to the barge being worked on. But the deck was slippery due to the presence of oil and bad weather. The claimant complained about the conditions and the need for a crane, but the defendant’s supervisor told the claimant to do the work or the supervisor would find someone else who would. The claimant believed that if he didn’t do as the supervisor asked, he would be sent back to his employer and possibly lose his job.

While the claimant and other workers were lifting the plates, one of the defendant’s employees slipped and the balance of the weight shifted to the claimant, who felt something pull in his back. The claimant completed work that day despite the pain, but was unable to return to work the next day. He informed his employer of the injury and was fired the next day. The claimant had ruptured multiple discs and underwent two surgeries. The defendant argued that the claimant was its borrowed servant and therefore its liability was limited by the Longshore and Harbor Workers’ Compensation Act.

The Mississippi Supreme Court held that there were fact questions precluding a judgment as a matter of law for the employer on the borrowed servant doctrine. The court affirmed the jury verdict awarding the claimant $900,000 and his wife $62,000. The court recognized that fact questions can exist as to the applicability of the doctrine even where the parties have stipulated to all of the facts since the inferences to be drawn from those facts can differ.

Intoxicated Employee Not Automatically Barred from Recovering Benefits

In Husvar v. Engineered Products, Inc., 755 A.2d 498 (Me. 2000), the claimant was a construction laborer who was transported by a company van to work at a specific job site in another city. Once there, the employer provided the claimant with accommodations for the week so that the claimant wouldn’t be required to commute. On the job site, the claimant cut and removed concrete structures.

After the second day at the site, the claimant bought a snack and liquor and returned to his motel room. He and two co-workers stayed in the room drinking until the claimant left to get something to eat. Later, the claimant was found on the ground outside the motel room suffering from a severe concussion and facial injuries. When he was taken to the hospital, he was found to have a blood-alcohol level of 0.118. Due to his concussion, he had no memory of the circumstances of his injury.

In response to a claim for workers compensation benefits, the employer argued that it was not liable due to the so-called intoxication defense, which prohibits recovery for injuries resulting from an employee’s on-duty intoxication.

The Workers’ Compensation Board found that the defense didn’t apply since the claimant wasn’t on duty when the injury occurred and there was no evidence that the intoxication caused the injury. The board went even further, though. It held that because the claimant had been unable to remember his injury he was to be considered “physically and mentally unable to testify” and therefore entitled to a statutory presumption that his injuries arose out of and in the course of employment.

The Maine Supreme Judicial Court disagreed with the board in part, holding that the claimant’s inability to remember the circumstances of the injury did not entitle him to the statutory presumption of his injury’s work-relatedness. In the claimant’s favor, the court did agree with the board that the mere fact that the claimant was intoxicated at the time of the accident did not mean that the intoxication defense was automatically applicable. The defense applies only where the intoxication causes the injury for which workers compensation is sought. Furthermore, causation is an issue that must be proved by the employer seeking to use the employee’s intoxication as an affirmative defense. The court vacated the board’s award and remanded the case for a determination on causation.

Reopening Unscheduled Injury Award

In Mireles v. Labor & Industry Review Commission, 613 N.W.2d 875 (Wis. 2000), the claimant suffered an unscheduled back injury on the job. She ultimately returned to work, but sometime later she suffered a scheduled wrist injury that precluded her from continuing work with her employer. In this case, the Wisconsin Supreme Court was asked to determine whether the claimant was entitled to reopen her back injury claim when a later scheduled injury ended her ability to work. The court also had to determine whether the combination of the two injuries could result in an entitlement to permanent total disability benefits.

The court held that the claimant could potentially obtain permanent total disability benefits upon proof that the combination of the injuries resulted in the greater disability. The unscheduled injury award could potentially be reopened if the claimant could establish that the later injury caused her employment to be terminated. However, the court found that there was an insufficient record to establish whether the claimant had been terminated by the employer or whether the result of her injuries had caused her employment to end. Consequently, the court remanded the case to the Labor and Industry Review Commission.

ABOUT THE AUTHOR

The Journal of Workers Compensation is a quarterly review of risk management and cost containment strategies published by Standard Publishing in Boston, Massachusetts. For more information, please visit our web site, www.standardpublishingcorp.com, or contact the editor at 800-682-5759, extension 222, or subscription services at extension 228.

riskVue | The webzine for risk management profesionals
June 2001