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Developing Case Law From Across The Country (2002)

Dual Purpose Exception to “Going and Coming” Rule

In Swartz v. McDonald’s Corp., 788 So. 2d 937 (Fla. 2001), the Florida Supreme Court held that workers compensation benefits were payable to an injured worker under the dual-purpose exception to the “going and coming” rule. The worker was employed as a human resources consultant and was transporting a booth to a job fair when she was rear-ended by another car and injured. The court noted that the going-and-coming rule provides that injuries sustained while traveling to or from work do not arise out of and in the course of employment. However, the court delineated several exceptions to the going-and-coming rule, namely the “dual purpose” doctrine and the “special errand or mission” exception found in the Florida statute. The court found that both the special-errand and the dual-purpose exceptions to the going-and-coming rule were interconnected and that the dual-purpose exception clearly applied to the circumstances of the case.

Temporary Total Disability Compensation for Teachers over Summer Vacation

In State ex rel. Crim. v. Ohio Bureau of Workers Compensation, 751 N.E.2d 990 (Ohio 2001), a swim teacher was injured at the end of the school year and, as a result, was unable to work her summer job at the YMCA. The dispute centered on whether a teacher voluntarily abandons her position at the end of the school year and whether she is entitled to temporary total disability (TTD) benefits during the summer break. The Ohio Supreme Court held that a teacher does not voluntarily abandon her position at the end of the school year for purposes of total temporary disability. The court further held that a teacher employed for nine months of the year, but electing to receive prorated compensation over a 12-month period, is not precluded from TTD benefits for summer employment that she is unable to perform because of her work-related injury.

Prenatal Injuries and Application of Exclusive Remedy Rule

In Meyer v. Burger King Corp., 26 P.3d 925 (Wash. 2001), a child brought an action for prenatal or in utero injuries that occurred when her mother was injured at work as a waitress at a restaurant. The Washington Supreme Court held that the child’s action was not barred by the exclusive remedy provision of the Washington workers compensation statute. The court framed the issue in terms of whether the child’s claim was derived from the injuries to the worker (the mother) or from injuries suffered independently. The court concluded that since there was no injury to the mother, but only injuries personal to the child, the child’s injuries were independent, and that the exclusive remedy provisions of the statute did not bar the child’s claim. The Act did not apply to third parties, family, or dependents who themselves suffer an injury not legally dependent on the employee’s injury.

Gynecological Medical Expenses Compensable

In Mettler v. Sibco, Inc., 628 N.W.2d 722 (S.D. 2001), the South Dakota Supreme Court held that medical expenses relating to gynecological tests incurred in the course of diagnosing the cause of the claimant’s work-related injury were compensable. The court relied on a Florida case, which held that whenever the purpose of the test is to determine the cause of the claimant’s symptoms, the cost of the test is compensable — even if it should be later determined that the claimant suffered from both compensable and noncompensable injuries. See Perry v. Ridgecrest Intern., 548 So. 2d 826 (Fla. App. Ct. 1989).

Reasonable Employment

In Sington v. Chrysler Corp, 630 N.W.2d 337 (Mich. Ct. App. 2001), the claimant experienced problems with his shoulders because of his work as an assembler and press operator. The claimant had two surgeries, but returned to work after each under medical restrictions. Later, while on vacation, the claimant suffered a stroke that rendered him permanently and totally disabled. Thereafter, the claimant filed a workers compensation claim for his shoulder injuries.

The dispute centered on the “reasonable employment” provision of the state workers compensation statute. This provision allows an employer to limit potential exposure for workers compensation benefits by offering the employee reasonable employment. If the employee refuses, he or she is considered removed from the work force. But if the employee accepts and subsequently loses the job through no fault of his or her own and for whatever reason, the employee is entitled to benefits.

The court ruled in favor of the claimant, holding that an injured worker’s return to work in a regular position does not mandate the conclusion that he was not engaged in reasonable employment. A court should focus on the duties the work-related injury rendered the employee unable to perform. Furthermore, employees engaged in reasonable employment who lose their jobs are not required to prove that the job loss was causally connected to the work-related injury.

Application of Successive-Injury Doctrine

In Southwest Gas Corp. v. Industrial Commission of Arizona, 25 P.3d 1164 (Ariz. Ct. App. 2001), the court found that the successive-injury doctrine applied to a worker who reinjured his elbow, as there was an organic change in the worker’s condition. Thus, the self-insured employer had to pay workers compensation benefits for the second injury. The court followed two general rules: first, that employers take workers “as is”; second, that under certain circumstances, as between two or more potentially liable parties, the last in the chain is liable for the entire injury.

Agricultural Employee Exemption

In Simons v. Longbranch Farms, Inc., 547 S.E.2d 500 (S.C. Ct. App. 2001), a wrongful death suit, the issue was whether the decedent was an agricultural employee, which would exempt him from coverage under the state workers compensation act. The decedent was injured while operating a forklift for Long Branch Farms, a cattle farm. The court held that the whole character of the decedent’s employment was agricultural in nature and that any incidental activities in which he was involved were associated with the normal routine of running a farm. Besides the operation of the forklift, evidence established that the decedent mowed lawns, fed cattle, cleaned stalls, and drove tractors. The appeals court found that the lower court had incorrectly focused on the nature of the employer’s business instead of the nature of the worker’s employment.

Work as Contributing Factor to Heart Attack

In Phillips Correctional Institute v. Yarbrough, 548 S.E.2d 424 (Ga. Ct. App. 2001), the court held that work was a contributing factor in the heart-related death of the decedent, who worked as a prison guard at a correctional facility. The court recognized the difficulty in determining whether an injury is work-related in heart attack cases. However, the court found evidence, in this case, that job-related stress was a contributing factor to the decedent’s fatal heart injury — and that is all that was needed to establish compensability.

Violation of Specific Safety Requirement

In State ex rel. Edwards v. Industrial Commission of Ohio, 751 N.E.2d 468 (Ohio 2001), an employee was injured at work while repairing a truss that had been installed to support the roof of a building under construction. The employee filed a workers compensation claim, which was accepted as compensable, and applied for additional compensation for the employer’s alleged safety-code violation. The safety code required the use of safety belts when employees were exposed to hazards of falling if the operation being performed was more than 15 feet above the ground or above a floor or platform. However, the court found no violation of the safety requirement, as the employee did not fall from a location that was over 15 feet high. The distance of the fall should have been measured from the ground to the place where the employee was standing immediately prior to the accident.

Effect of Firing on Temporary Total Disability Payments

In State ex rel. McKnabb v. Industrial Commission of Ohio, 752 N.E.2d 254 (Ohio 2001), the claimant suffered a work-related injury, and a workers compensation claim was allowed. However, after the claimant returned to work, he was fired for tardiness. The issue was whether the claimant’s tardiness and subsequent termination constituted voluntary abandonment of the work force, precluding him from collecting benefits. The court recognized that firing could constitute voluntary abandonment in some instances. It also recognized that there is a potential for abuse in allowing an allegation of misconduct to preclude an employee’s collecting workers compensation benefits. However, the court followed an earlier Ohio case and held that a prerequisite to precluding temporary total disability benefits, especially in a postinjury firing, is violation of a written policy or rule. Since the employer did not have a written policy or rule about tardiness, the claimant did not voluntarily abandon his job and was not precluded from receiving benefits.

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.

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April 2002