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Navigating Workplace Violence Claims Under the North Carolina
Workers’ Compensation Act
By: Elizabeth P. Ligon & Logan H. Shipman
I. Compensability of Workplace Violence Claims
Under the North Carolina Workers’ Compensation Act, there are three conditions antecedent to the right to compensation: (1) that claimant suffered a personal injury by accident; (2) that such injury arose in the course of the employment; and (3) that such injury arose out of the employment. Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907 (1942). These conditions must be satisfied in claims for injuries resulting from violence in the workplace, as with any other work-related injury. The ways in which these conditions apply to such workplace violence claims are discussed below in greater detail.
A. Injury by Accident
The term “accident” is defined under the Act as “an unlooked for and untoward event which is not expected or designed by the injured employee.” Harding v. Thomas & Howard CO., 256 N.C. 427, 428, 124 S.E.2d 109, 110-11 (1962). Although workplace violence, such as an assault, is an intentional act, it may qualify as an accident within the meaning of the Act if the violence is “unexpected and without design on the part of the employee who suffers from it.” Robbins v. Nicholson, 281 N.C. 234, 238, 188 S.E.2d 350, 353 (1972); see also Withers v. Black, 230 N.C. 428, 432, 53 S.E.2d 668, 672 (1949). North Carolina courts have generally held that the mere fact that an injury is the result of the willful or criminal assault of a third person does not prevent the injury from being regarded as an accident. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 273, 153 S.E. 266 (1930).
For example, in Robbins, an unexpected shooting at work was found to constitute an accident. Robbins, 281 N.C. at 238, 188 S.E.2d at 353. Likewise, in Withers, the North Carolina Supreme Court found the claimant sustained an injury by accident when a fellow employee purposefully threw a hod of mortar composed of sand and lime into the claimant’s face, seriously injuring his eyes. Withers, 230 N.C. at 432, 53 S.E.2d at 672. An assault in which an employee kicked the claimant in her leg has also constituted an injury by accident. Daniels v. Swofford, 55 N.C. App 555, 286 S.E.2d 582 (1982). Given most instances of workplace violence are unlooked for and untoward events not expected or designed by the injured employee, the question of whether such incidents constitute “accidents” is rarely at issue in these claims.
B. In the Course of the Employment
The course of the employment refers to the “time, place, and circumstances under which an accidental injury occurs.” Robbins, 281 N.C. at 238, 188 S.E.2d at 353. An injury arises in the course of the employment where evidence demonstrates it “occurred during the hours of the employment and at the place of the employment while the claimant was actually engaged in the performance of the duties of the employment.” Withers, 230 N.C. at 432, 53 S.E.2d at 672. In Withers, the claimant was assaulted by a fellow employee. The Court noted the assault was in the course of the claimant’s employment because the claimant was at work and performing his job duties when his fellow employee hurled the hod of mortar into his face. Id. Since instances of workplace violence tend to, by definition, occur during the hours of employment and at the place of employment, this second element of compensability is rarely contested. Instead, the primary issue in such workplace violence claims typically involves the question of whether the injury arose out of employment.
C. Arising Out of Employment
In claims involving workplace violence, the primary dispute is most often whether the injury arose out of the claimant’s employment. An accident that occurs during the course of employment does not Ipso facto arise out of it. Robbins, 281 N.C. at 238, 188 S.E.2d at 354. The injury suffered as a result of workplace violence must be incidental to some duty of employment. Ashley v. F-W Chevrolet Co., 222 N.C. 25, 21 S.E.2d 834 (1942). The assault arises out of the employment when it is a “natural and probable” consequence or incident of the claimant’s job and a “natural result of one of its risks, so that there is some causal relation between the injury and the performance of some service of the employment.” Robbins, 281 N.C. at 239, 188 S.E.2d at 354. Where a claimant is assaulted by a fellow employee due to a dispute about the manner of work, use of tools, interference, etc. it is inferred that the injury arose out of the employment. Withers, 230 N.C. at 433, 53 S.E.2d at 672-73. The danger which causes the workplace violence must be a risk connected with the employment and has flowed from that employment as a rational consequence. Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977). Furthermore, the danger which causes the assault must be “peculiar to the work and not common to the neighborhood.” Id. at 405, 233 S.E.2d at 533.
The North Carolina Court of Appeals held that the assault inflicted upon the claimant in D’Aquisto v. Mission St. Joseph’s Health Sys., 171 N.C. App. 216, 614 S.E.2d 583 (2005), rev’d in part, 360 N.C. 567, 633 S.E.2d 89 (2006), was a compensable workers’ compensation injury because the claimant’s employment put her at an increased risk of such an assault. The claimant, a hospital employee, was injured by an assailant while she was carrying business records to the hospital’s morgue, where few, if any, people were expected to be in her vicinity. Id. at 224, 614 S.E.2d at 588.
Similarly, the North Carolina Supreme Court in Withers found the injury sustained by the claimant after being assaulted by a fellow employee was compensable because it arose out of his employment. Withers, 230 N.C. at 433, 53 S.E.2d at 672-73. In support of their holding, the Court noted the claimant and assailant did not know each other outside of their employment. Id. at 433, 53 S.E.2d at 672. They got into an argument over the work they were performing for their common employer, and that argument led to the assault and the claimant’s resulting injury. Id. The Court reasoned “where [employees] are working together at the same work disagreements may be expected to arise about the work, the manner of doing it… and occasionally blows and fighting.” Id. at 434, 53 S.E.2d at 673.
However, there are several instances in which an accident sustained in the course of employment because of the workplace violence does not constitute a compensable injury arising out of the employment. For instance, if a claimant is assaulted by a fellow employee as a result of anger, hatred, revenge, or vindictiveness which is not related to their employment, the injury is attributed to the voluntary act of the assailant and is not considered an incident of the employment. Ashley, 222 N.C. at 25, 21 S.E.2d at 835. This is true even if the claimant was engaged in the performance of his duties at that time. Robbins, 281 N.C. at 240, 188 S.E.2d at 354. Indeed, in cases where the claimant’s employment may have provided a convenient opportunity for workplace violence, the injury does not arise out of the claimant’s employment if there is no basis for a reasonable inference that the nature of the employment created the risk of such an attack. Id. Similarly, an injury stemming from violence at the workplace is not compensable if it is inflicted upon the claimant by a third party because of a personal relationship unrelated to the claimant’s employment.
In Dildy v. MBW Investments, Inc., 152 N.C. App. 65, 566 S.E.2d 759, the claimant sought workers’ compensation benefits after being shot by her former boyfriend while at work. The claimant was employed as a cashier at a gas station, which primarily involved conducting transactions for gasoline and merchandise. Id. at 66, 566 S.E.2d at 761. Outside of work, the claimant was previously involved in an abusive, violent relationship with her former boyfriend, but she never told her fellow employees or supervisors about the relationship. Id. While the employee was engaged in her duties at the cash register, her former boyfriend entered the store and shot her in an attempt to kill her. Id. at 67, 566 S.E.2d at 762. The Court found the claimant’s injuries did not arise out of her employment because the assault was the result of a personal relationship between her and her former boyfriend. It was not related to her employment. Id. at 71-72, 566 S.E.2d at 764. Her work as a cashier did not create the risk of the assault by her former abusive boyfriend, so her claim was denied. Id.
The Court in Robbins likewise found the injury suffered as a result of workplace violence was not compensable under the Act. Robbins, 281 N.C. at 242, 188 S.E.2d at 356. The claimant in Robbins was shot by a fellow employee’s jealous spouse. Id. at 241, 188 S.E.2d at 355. The assault was entirely unrelated to the nature of the claimant’s employment and did not result from the work the claimant was required to do. Id. The North Carolina Supreme Court noted any male employee whose duties required him to work with the female victim would have been equally endangered. Id. The origin of the assault was the assailant’s alcoholism and his personal relationship with his spouse. Id. at 242, 188 S.E.2d at 355. The Court concluded the “risk of murder by a jealous spouse is not one which a rational mind would anticipate as an incident of the employment of both sexes in a business or industry… [it] is a hazard common to the neighborhood that is independent of the relation of master and servant.” Robbins, 281 N.C. at 242, 188 S.E.2d at 356.
II. Practice Pointers and Takeaways
As evidenced by the above, the determination of whether an injury stemming from workplace violence is compensable most often depends on whether the violent act arises out of the claimant’s employment. To make such a determination, it is crucial that practitioners conduct a thorough factual investigation into the claim. Such an investigation should include a deep dive into the personal relationship, if any, between the claimant and the assailant. Do they know each other outside of work? If the assailant is a fellow employee, did he or she work the same shifts as the claimant? Did the conflict arise as a result of the claimant’s employment duties?
The claim is likely to be found compensable if the investigation reveals the reason for the claimant’s assault was related to their employment. Evidence demonstrating the workplace violence was the direct result of an outside, personal conflict or other vendetta may insulate defendants from liability on grounds that the injury did not arise out of the claimant’s employment.
In claims involving an assault on an employee by a non-employed third person, practitioners should investigate whether the claimant’s employment put them at an increased risk for the workplace violence. Is the danger which caused the assault peculiar to the claimant’s work or is it common to the neighborhood? Evidence demonstrating the assault flowed as a rational consequence of the claimant’s employment is likely to be held as a compensable injury by accident.
As you navigate workers’ compensation claims involving workplace violence, it is crucial to fully investigate the facts of the claim to determine whether the incident arose out of the claimant’s employment.
West Virginia Supreme Court of Appeals
Statute of Limitations for filing Occupational Pneumoconiosis claim
Argus Energy, LLC v. Marenko, 887 S.E.2d 223, 225–31 (W.Va., 05/01/2023)
http://www.courtswv.gov/supreme-court/docs/spring2023/21-0209-hutchison-p.pdf
In Argus Energy, LLC v. Marenko, 887 S.E.2d 223, 225–31 (W.Va., 2023), the Court affirmed the Board of Review’s finding that Marenko timely filed his application for occupational pneumoconiosis benefits under W. Va. Code § 23-4-15(b) because it was filed within three years from and after a diagnosed impairment due to occupational pneumoconiosis was made known to the claimant by a physician. Relying on the Supreme Court's ruling in Pennington v. West Virginia Office of the Insurance Commissioner, 241 W.Va. 180, 820 S.E.2d 626 (2018), the Court affirmed the Board of Review’s order that specifically found, “'[o]n the Physician's Report of Occupational Pneumoconiosis, the medical provider said [Mr. Marenko's] capacity for work has been impaired by occupational pneumoconiosis.’” Even though the signature on the Physician's Report of Occupational Pneumoconiosis is not legible, the Court found it “undisputed that the Report was signed by someone and the report form was itself entitled ‘Physician's Report of Occupational Pneumoconiosis[.]’ (emphasis added). Since the form in question was a Physician's Report of Occupational Pneumoconiosis, and since Argus submitted no evidence in rebuttal, we do not believe that the [Board of Review] clearly erred in finding that the pertinent requirements of Pennington were satisfied—that Mr. Marenko filed his Occupational Pneumoconiosis claim within three years from and after a diagnosed impairment due to occupational pneumoconiosis was made known to him by a physician.”
Intermediate Court of Appeals of West Virginia
Compensability of Preexisting Conditions
Blackhawk Mining, LLC v. Argabright, ___ S.E.2d ___, 2023 WL 3167476, (W.Va. App., 05/01/2023)
http://www.courtswv.gov/intermediate-court/docs/Spring2023/22-ICA-262-greear.pdf
The ICA continues to wrestle with the questions of the compensability of preexisting conditions and the impact on more recent workplace injury. The ICA analyzed the Supreme Court decisions in Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016) and Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022). When those two cases are read in unison, they do not render preexisting injuries compensable. According to the ICA in Blackhawk Mining, LLC v. Argabright, compensability of preexisting injuries is limited only to discrete new injuries and disabilities that manifest following the compensable injury.
Harris Argabright, an electrician for Blackhawk Mining, was injured at work on February 26, 2021, when he tightened a strap on a speed reducer and felt something pull in his lower back/pelvis. Mr. Argabright sought medical treatment that day and was diagnosed with a lumbar sprain. X-rays revealed no acute abnormality, mild L3-L4 disc space narrowing, mild L5-S1 disc space narrowing, and bilateral facet arthropathy.
Lumbar spine MRI performed several weeks after the injury showed degenerative disc desiccation and suggestion of mild disc bulge at T11-T12, and minimal to mild disc bulges from L2-L3 through L5-S1. Claimant’s treating physician recommended a referral to a pain specialist, Dr. Patel, due to unresolved pain, and noting an increase of pain, a decrease in range of motion, and a worsening symptoms. In an IME performed on May 11, 2021, Dr. Mukkamala diagnosed lumbar sprain superimposed upon preexisting noncompensable degenerative spondyloarthropathy, and found that Mr. Argabright had reached maximum medical improvement. Dr. Mukkamala recommended an 8% whole person impairment and apportioned 5% to preexisting conditions. Dr. Mukkamala also found there was no indication to refer Mr. Argabright for surgery or any other treatment, as there was no objective evidence of radiculopathy and no spinal instability. Based on this report, the claim administrator issued an order dated May 17, 2021, which denied the request for a referral to Dr. Patel.
On June 21, 2021, Dr. Muscari submitted a diagnosis update requesting that “disc bulge L2, L3, L5, S1” be added as compensable conditions in the claim on the basis that the MRI showed multiple disc bulges. The claim administrator denied this request. Evidence submitted by Mr. Argabright included Dr. Muscari’s explanation that the referral to Dr. Patel was necessary because of Mr. Argabright's continuing symptoms and disability. Dr. Muscari also explained Mr. Argabright was able to work his entire adult life as a coal miner prior to this work-related injury and had no previous lumbar pain.
On January 15, 2022, Michael Brooks, M.D., issued an age of injury analysis upon review of the March 9, 2021, MRI. Dr. Brooks opined that the findings on the MRI were consistent with chronic, degenerative disc disease and facet joint arthrosis.
On May 19, 2022, the Office of Judges reversed the claim administrator's orders, found the disc bulges at L2-L3 through L5-S1 to be compensable, and ordered a referral to Dr. Patel. The OOJ reasoned that Mr. Argabright's preexisting disease or condition was asymptomatic prior to the compensable injury, but after that injury, his symptoms appeared and were continuously manifested. The OOJ found that based on the preponderance of the evidence, Mr. Argabright had shown that the disc bulges at L2-3 through L5-S1 should be held compensable, and that the referral to Dr. Patel was medically related and reasonably required. The Board of Review affirmed the OOJ's decision in its October 21, 2022, order. Blackhawk appealed the BOR’s order but Blackhawk's appeal was limited solely to the issue of compensability of the disc bulges; it did not appeal the referral to Dr. Patel.
On appeal, Blackhawk asserted the BOR committed clear legal error determining that Mr. Argabright's disc bulges at L2-L3 through L5-S1 were compensable. Blackhawk argues that the preponderance of the evidence establishes these conditions were chronic and preexisting and, while aggravated or exacerbated, were not discrete new injuries, and thus, not compensable. Mr. Argabright response argument was twofold. First, he argues that there was a lack of evidence in the record to show the bulging discs existed prior to his compensable injury. Second, he argues compensability under Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022) based on the manifestation of his symptoms after the compensable injury.
The ICA first addressed the sufficiency of the evidence to support a determination that Mr. Argabright's disc bulges were caused by the compensable injury. The March 9, 2021, MRI report revealed degenerative disc desiccation, as well as minimal to mild disc bulges, and the report does not indicate that the injuries were of a traumatic nature. Dr. Mukkamala, after completing an IME of Mr. Argabright and reviewing relevant records, diagnosed Mr. Argabright with lumbar sprain superimposed upon preexisting degenerative spondyloarthropathy. Dr. Mukkamala found that while the lumbar sprain was caused by the compensable injury, the degenerative condition was preexisting. Dr. Brooks authored an age of injury analysis and determined that Mr. Argabright suffered from chronic degenerative disc disease and chronic facet joint arthrosis from L2-3 through L5-S1. The ICA found that the MRI and the reports of Drs. Mukkamala and Brooks support a conclusion that the disc bulges were preexisting.
In contrast, the ICA found minimal justification to support Dr. Muscari’s request that the disc bulges be made compensable as caused by the compensable injury. The ICA found that to the extent that the Board of Review's order finds that the disc bulges were caused by the compensable injury, that finding is clearly wrong.
Next, Mr. Argabright argued that because his preexisting condition was asymptomatic until the compensable injury, his preexisting disc bulges should be found compensable under the rebuttable presumption announced in Moore. The ICA disagreed and found Mr. Agrabright's argument failed to consider the Moore presumption in unison with the Supreme Court of Appeals of West Virginia's (“SCAWV”) ruling in Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016), which Moore explicitly reaffirmed:
“[a] noncompensable preexisting injury may not be added as a compensable component of a claim for workers’ compensation medical benefits merely because it may have been aggravated by a compensable injury. To the extent that the aggravation of a noncompensable preexisting injury results in a [discrete] new injury, that new injury may be found compensable.” Syl. Pt. 3, Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016).
Syl. Pt. 4, Moore, 247 W. Va. 292, 879 S.E.2d 779 (2022). The Moore Court then expanded on Gill, holding:
A claimant's disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant's preexisting disease or condition was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. There still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.
Syl. Pt. 5, 247 W. Va. 292, 879 S.E. 2d 779 (2022).
The ICA found that Gill unambiguously held that a discrete new injury may be compensable when it arises from an aggravation of a preexisting injury. The preexisting condition itself does not become compensable, only the discrete new injury. Moore reaffirmed and expanded on the holding in Gill and therefore the holdings in both cases must be considered together. When read in unison, Gill and Moore do not render preexisting injuries compensable. Compensability is limited only to discrete new injuries and disabilities that manifest following the compensable injury.
In the case before it, the ICA found that the Board of Review only addressed syllabus point five of Moore and determined the compensability of Mr. Argabright's preexisting disc bulges based on the manifestation of his symptoms following the compensable injury. Because the Board of Review did not consider Moore and Gill together, the ICA reversed the Board of Review's order, in part, and found that it erred in summarily concluding that Mr. Argabright's preexisting disc bulges were compensable.
Even though the disc bulges are not compensable under this analysis, the treatment of the newly symptomatic disability is appropriate, according to the ICA. In Moore, the SCAWV found cervical radiculopathy as a compensable condition, not the preexisting cervical degenerative disc disease that was asymptomatic prior to the compensable injury. It reasoned that the evidence showed the compensable injury caused Mr. Moore to develop cervical radiculopathy, a new distinct injury. In the case before it, the ICA found that Mr. Argabright's preexisting discs and degenerative disc desiccation were asymptomatic prior to the compensable injury. Following the compensable injury, Mr. Argabright developed pain in the areas affected by the preexisting conditions. The ICA found that the treatment of that pain is presumed to flow from the compensable injury, not the preexisting condition. In this matter, Blackhawk did not rebut the presumption, nor did it contest the order for referral to Dr. Patel on appeal. Accordingly, the ICA affirmed the Board of Review's order, in part, with respect to the referral to Dr. Patel at the pain clinic. The ICA reversed, in part, and affirmed, in part, the Board of Review's October 21, 2022, order.
Compensability – Injury Not Resulting From Employment
Kittle v. ACNR Resources, Inc., No. 22-ICA-204, 2023 WL 3167482 (W.Va. App. 05/01/2023)
http://www.courtswv.gov/intermediate-court/docs/Spring2023/22-ICA-204-greear.pdf
Mr. Kittle was injured on September 29, 2021, while employed by ACNR Resources, Inc., (“ACNR”). Mr. Kittle was relocating fans in ACNR's shower house when he felt a popping sensation in his foot followed by immediate foot pain and difficulty walking. Mr. Kittle did not actually have a fan in his hand at the time of injury. Mr. Kittle does not allege that there were any defects in the floor of ACNR's shower house. Mr. Kittle promptly reported his injury to ACNR's safety personnel and was advised to seek medical treatment at the emergency room. However, Mr. Kittle attempted to continue to work despite his injury. On September 30, 2021, Mr. Kittle sought medical treatment at MedExpress. MedExpress ordered non-weight bearing x-rays, which showed no fracture in Mr. Kittle's foot but did show degenerative changes. Mr. Kittle was diagnosed with a left foot sprain. On October 7, 2021, the claim administrator denied Mr. Kittle's claim on the basis that the injury did not result from his employment with ACNR. Mr. Kittle protested this order.
On appeal, Mr. Kittle asserted that the BOR committed
clear legal error in its determination that his foot injury was not a result of
his employment. Mr. Kittle argues that he
was moving large fans from one part of the ACNR shower house to another, a duty
of his employment, when his injury occurred, and that walking is a necessary
required function of his duties. ACNR
argues in response that the BOR did not err in finding that Mr. Kittle was not injured in a manner
“resulting from this employment” as Mr. Kittle
was “simply walking.”
On October 19, 2021, Mr. Kittle was examined by Daniel Fijalkowski, M.D., a podiatrist. Dr. Fijalkowski ordered weightbearing x-rays, which showed a fracture of the fourth metatarsal of Mr. Kittle's left foot. Dr. Fijalkowski diagnosed Mr. Kittle with a fracture, fitted him with a boot to immobilize his foot, and opined that he was unable to work until he could be medically cleared.
On April 1, 2022, the Office of Judges affirmed the claim administrator's order rejecting Mr. Kittle's claim, reasoning that Mr. Kittle's injury was not a result of employment. On September 27, 2022, the Board of Review affirmed the OOJ's order, and Mr. Kittle filed an appeal.
The ICA held that in order to satisfy the direct causal connection required in workers’ compensation claims, a claimant has the burden of establishing, by a preponderance of the evidence, that the injury complained of was caused by or contributed to some condition or aspect of employment that created an increased risk of injury. Failure to establish an employment specific element that increased the risk of injury will bar recovery.
The ICA found that it is undisputed that Mr. Kittle did not have a fan in his hand at the time of injury and did not allege any defects in the floor of the shower house. Had Mr. Kittle been carrying an industrial fan at the time of his injury, then he may have been able to meet his burden. Similarly, if Mr. Kittle had been walking down a steep incline or on an uneven surface, a different result may have been compelled. Mr. Kittle's injury clearly occurred during an activity (walking) that did not present an increased risk of injury. Thus, the injury in question was received “in the course of” Mr. Kittle's employment, but was not “resulting from” that employment.
Compensability – Injury Resulted After Deviation from Employment
West Virginia Heating & Plumbing Company v. Carroll, No. 22-ICA-167, 2023 WL 3579092 (W.Va. App. 05/22/2023)
http://www.courtswv.gov/intermediate-court/docs/Spring2023/22-ICA-167_so.pdf
Claimant Tyler J. Carroll was a passenger in a company van driven by his supervisor Mr. Bragg. They were employees of West Virginia Heating and Plumbing Company (“WVHP”), and were returning to Charleston from a job assignment in Pittsburgh. The van stopped at the scene of an accident on Interstate 79. Mr. Carroll suffered serious injuries after exiting the van in an attempt to render aid to the driver of a truck that had just been involved in the accident. WVHP appealed the decision of the Office of Judges which reversed the claim administrator's order rejecting Mr. Carroll's application for benefits. The OOJ decision held Mr. Carroll's claim compensable, stating that his injuries were sustained in the course of and as a result of his employment. WVHP argued on appeal that the OOJ's decision was clearly wrong because the evidence shows Mr. Carroll's injury did not occur as a result of his employment. Specifically, WVHP argued Mr. Carroll was not injured as a result of his employment because prior to his injury, he left and deviated from his duties of employment when he exited the company van and crossed I-79 to render aid to a driver of a truck that had just crashed. WVHP argues that Mr. Carroll was injured as a result of this deviation from his employment, and therefore, Mr. Carroll was not injured as a result of his employment.
On appeal, the ICA analyzed WHCP’s assignments of error with respect to the OOJ’s findings on the legal principles of the “Going and Coming Rule”, Erin’s Law, and the Good Samaritan and positional risk doctrines. The ICA reversed and remanded the OOJ’s decision to the Board of Review for a proper analysis under the applicable West Virginia law in accordance with the ICA’s opinion.
After a lengthy discussion of the “well established” jurisprudence of the “going and coming rule” in West Virginia, the ICA acknowledged the parties conceded Mr. Carroll was in the course of employment at the time of his injury. The ICA found the issues of the “going and coming rule” not dispositive of the ultimate issue in the case whether Mr. Carroll was injured as a result of his employment, and therefore the ICA did not further address the rule.
The ICA examined the OOJ’s interpretation of West Virginia Code §§ 17C-4-1(a) and 17C-4-3(b), known as Erin’s Law. The OOJ found that Mr. Carroll was legally obligated to stop and render aid under the statute. Erin’s Law requires individuals who are “involved in a crash” to stay at the scene, provide information, and render “reasonable assistance” to an injured person “if physically able to do so.” §§ 17C-4-1(a), 17C-4-3(b). In regard to Erin's Law, the ICA found that Carroll’s need to take evasive action to avoid the out of control truck did not make him “involved in a crash” such that he had a statutory duty to remain at the scene and render aid placing his rescue within the scope of employment. The ICA found Carroll not to be involved in the accident since he was able to avoid involvement in the accident, and there is no evidence that he caused the accident. The ICA found the OOJ erred in finding that Carroll had a statutory duty under W. Va. Code § 17C-4-1(a) and §17C-4-3(b) to undertake rescue.
The ICA noted that applying the Good Samaritan, rescue, and the positional risk doctrines in the workers’ compensation context is a matter of first impression in West Virginia. The ICA’s opinion relied on Professor Larson’s discussion of these topics and noted:
Each legal doctrine is understood as a separate concept in Larson's treatise on workers’ compensation. See 3 Arthur Larson & Lex K. Larson, Larson's Workers’ Compensation Law § 27.02[2][a], § 28.01[1] (2022).
West Virginia Heating & Plumbing Company v. Carroll, 2023 WL 3579092, at *6 (W.Va.App., 2023).
With respect to the Good Samaritan doctrine, the ICA noted “Larson discusses the Good Samaritan doctrine in the context of employees performing small favors and generating goodwill among the public; however, the act must still confer a benefit of some kind to the employer. [Larson's Workers’ Compensation Law] § 27.02[2][a].” (Footnote omitted.) The ICA disagreed with the OOJ that WVHP benefitted by Carroll’s actions in rescuing the truck driver because he had a statutory duty to stop and render aid. Because Erin’s Law does not apply, Carroll’s actions did not benefit the employer according to the ICA. Also, the benefit of Carroll returning WVHP’s tools in the company van to Charleston has no connection with leaving the work van to render aid on a public road. Therefore, the ICA found the OOJ erred in concluding Claimant was injured in the course of and resulting from his employment.
In its analysis of the positional risk doctrine, the ICA noted it is an extension of the traditional rescue doctrine but does not require that an employee’s act confer a benefit to the employer, citing Larson § 28.02[3]. In the case before the ICA, the ICA found that the requirements and performance of Carroll’s employment thrust him into contact with an emergency situation. His employment brought him to a place where it was probable that he and his co-worker and driver of the van would have a natural reaction to help the injured truck driver. However, in the absence of any West Virginia legislation or controlling authority by the West Virginia Supreme Court providing for the adoption of the positional risk doctrine in a workers’ compensation setting, the OOJ erred in applying it to this case. The ICA was not prepared on its own to adopt the positional risk doctrine in workers’ compensation law. The ICA found that based on the applicable law in West Virginia, the OOJ committed error applying a doctrine not yet recognized in West Virginia workers’ compensation jurisprudence:
Although Mr. Carroll's
acts are clearly a laudable, selfless response, this Court is not prepared on
its own to adopt the positional risk doctrine in workers’ compensation law.
Based on the applicable law before the OOJ, it was error to apply a doctrine
not yet recognized in West Virginia's workers’ compensation jurisprudence.
West Virginia Heating & Plumbing Company v. Carroll, 2023 WL 3579092, at *7 (W.Va.App., 2023).
The ICA concluded that the Legislature or the West Virginia Supreme Court of Appeals must recognize the positional risk doctrine. Thus, absent such law, Carroll’s injuries are not compensable because they did not occur as a result of his employment under the doctrines discussed in the ICA’s opinion. The ICA found that a question remains as to why Carroll temporarily stepped outside his employment when he exited the company van on the interstate to render aid to a driver injured in an accident in which he was not involved, whether any company policies or procedures caused him to do so, or whether he reacted to the statements and/or actions of his supervisor, which amount to express or implied authorization to engage in such conduct. The ICA remanded the case for consideration by the Board of Review of evidence related to these issues.
Payment of Permanent Partial Disability Benefits
Thompson v. Western Construction, Inc., ___ W. Va. ___, 889 S.E.2d 300 (W.Va. App. 6/15/2023)
http://www.courtswv.gov/intermediate-court/docs/Spring2023/23-ICA-26%20Signed%20Opinion.pdf
In Thompson v. Western Construction, Inc., ___ W. Va. ___, 889 S.E.2d 300 (W.Va. App. 6/15/2023), the ICA addressed the question of whether a claimant was entitled to compensation under West Virginia Code § 23-4-6(e)(2) (2005) at the rate of six weeks for each percent of disability because he was not employed by Western Construction when he was released to return to work. The claim administrator granted Mr. Thompson a 7% permanent partial disability award, and the 7% permanent partial disability award was paid out at a benefit rate of four weeks for each percent of disability pursuant to West Virginia Code § 23-4-6(e)(1). The claim administrator based its decision Mr. Thompson was entitled to compensation at the rate of four weeks for each percent of disability because he was terminated from his job in January of 2020, and was not a current employee at the time the award was paid because Mr. Thompson was not released to return to work until September 14, 2021. The Board of Review affirmed the decision and Mr. Thompson appealed. The Court of Appeals held that Mr. Thompson did not have to be a current employee to recover six weeks of compensation for each percent of disability.
West Virginia Code § 23-4-6 states that:
Where compensation is due an employee under the provisions of this chapter for personal injury, the compensation shall be as provided in the following schedule:
. . . .
(e)(1) For all awards made on or after the effective date of the amendment and reenactment of this section during the year two thousand three, if the injury causes permanent disability less than permanent total disability, the percentage of disability to total disability shall be determined and the award computed on the basis of four weeks' compensation for each percent of disability. . . .
(2) If a claimant is released by his or her treating physician to return to work at the job he or she held before the occupational injury occurred and if the claimant's preinjury employer does not offer the preinjury job or a comparable job to the employee when a position is available to be offered, the award for the percentage of partial disability shall be computed on the basis of six weeks of compensation for each percent of disability.
West Virginia Code § 23-4-6(e)(1) requires a four-week benefit rate for each percent of disability. Under West Virginia Code § 23-4-6(e)(2), the benefit rate increases to six weeks when the employer fails to reinstate the employee in his or her preinjury job or offer a similar position. Mr. Thompson claimed the 7% permanent partial disability should have been paid at a benefit rate of six weeks, as opposed to four weeks, because Western Construction did not offer a preinjury position or a comparable position.
The ICA found that the definition of “employees” under § 23-4-6(e)(2) is not limited to current employees, and Mr. Thompson’s permanent partial disability award was to be paid at the six-week benefit rate rather than the four-week benefit rate.
W. Va. Code § 23-4-6 uses the word “employee,” but it is not limited to claimants who are currently employed based on the language of the statute. The word “shall” in § 23-4-6(e)(2) is used to afford a mandatory connotation that the claimant must be paid at the six week rate if the employer did not offer a preinjury job or a similar position. Additionally, the statute does not state that the claimant must be a current employee to be entitled to the six-week benefit rate – the relevant factor is that the claimant was an employee at the time of the injury. W. Va. Code § 23-4-6(e)(2) only requires (1) a claimant; (2) be released by a physician to return to work at the job he held before the occupational injury occurred, and (3) that the employer does not reinstate the preinjury job or a comparable position. All conditions were met in this case.
The ICA found that a claimant does not have to be a current employee under W. Va. Code § 23-4-6(e)(2) because the statute does not expressly state this requirement. The ICA reversed the Board of Review’s order and instructed Mr. Thompson to be paid his permanent partial disability award at the six-week benefit rate.
Article prepared by:
H. Dill Battle III, Esquire
Spilman Thomas & Battle, PLLC
300 Kanawha Blvd, East
Charleston, West Virginia 25301
304-340-3800
After serving the Nebraska Workers’ Compensation Court for 27 years, Judge Fitzgerald retired on May 31, 2023. In a fond farewell to a nearly three-decade long history of serving the bench, it’s fitting that Judge Fitzgerald’s last decision involved one of the most disputed and complex injuries in the workers’ compensation setting: complex regional pain syndrome (“CRPS”).
On May 26, 2023, Judge Fitzgerald authored an Award in Howell v. Transit Authority of the City of Omaha. The central dispute in the case was whether the employee had CRPS. At trial, the employer offered the live testimony of Dr. Massey. During direct examination, Dr. Massey pointed to the AMA Guides to the Evaluation of Permanent Impairment which he noted comprised the diagnostic criteria for CRPS. Dr. Massey testified that the employee did not have the necessary criteria to be diagnosed with CRPS. In contrast, the employee offered the deposition testimony and report of Dr. Carlo Ponti. Dr. Ponti alternatively found that the employee did have CRPS as a result of her work-related accident and injuries.
Before discussing Judge Fitzgerald’s ultimate decision, it’s important to note that CRPS, also known as reflex sympathetic dystrophy syndrome, is one of the most litigated injuries in workers’ compensation cases across the country, not just Nebraska. The difficulty usually lies in attempting to separate a true CRPS diagnosis from malingering. In the last five years alone, over 21 different cases have been decided by the Nebraska Workers’ Compensation Court involving CRPS. It is evident in these cases that the judges demand persuasive reports from medical providers that detail and explain the expert’s underlying rationale for believing that an employee’s condition is or is not CRPS. Unlike a fracture or disc bulge, CRPS isn’t typically confirmed or contradicted by objective imaging. It is therefore imperative in a disputed CRPS case to develop strong, persuasive evidence to present to the judge.
In case you’re still wondering about Judge Fitzgerald’s decision, he ultimately disregarded Dr. Massey’s opinion writing that “all patients do not read by the book.” Having found the employee suffered from CRPS, Judge Fitzgerald likewise held that she was entitled to ketamine as it had previously helped improve her function.
With Judge Fitzgerald’s retirement and the passage of LB 799, the number of Nebraska Workers’ Compensation Court judges has been reduced from seven to six. CPW Law wishes Judge Fitzgerald the best in his retirement and thanks him for his years of service.
If you have questions about a case involving CRPS, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.
Written by: Lindsay Underwood
Every few years, a Pleasant claim makes its way to the Court of Appeals and almost always serves as a reminder that the facts must be particularly egregious to warrant such a claim. As a reminder, if an employee is injured on the job, filing a workers’ compensation claim is typically the exclusive remedy for recovery. In most cases, the employee cannot file a separate personal injury claim against the employer. However, there is an exception to that rule. The Pleasant case from 1985 established an exception to the exclusivity provision of the workers’ compensation system that allows employees injured by the willful, wanton, and reckless negligence of a co-employee to sue that co-employee or employer directly. For a Pleasant claim to survive a 12(b)(6) Motion to Dismiss, there must be evidence of wanton and reckless behavior equivalent to an intentional act. The burden of proof is on the plaintiff to show that the behavior is “so gross as to be equivalent in spirit to actual intent.” Our courts have held that even unquestionably negligent behavior rarely meets the high standard of “willful, wanton or reckless’ negligence.” Thus, the plaintiff faces a high standard and a difficult burden in these claims.
The most recent case from the Court of Appeals revisiting the Pleasant standard is Estate of Rodney Baker v. David W. Reinhart and Randy Reinhardt. In this case, the plaintiff worked as a bandsaw operator. On March 17, 2020, Plaintiff, without direction or instruction from the employer, was cleaning around a machine when he stepped into a partially enclosed area. After entering this area, an OSHA report later revealed that Plaintiff “was crushed between the Machine’s lower table arm and a steel support structure on the side of the building, suffering trauma to his chest.” Plaintiff sustained significant injuries, and ultimately passed away from his injuries. During OSHA’s investigation, other employees reported they were aware of the dangers of stepping into that specific area, were aware of the machine’s guarding hazard, and knew they could not be in the area where Plaintiff was found when the machine was running. OSHA cited the employer with a serious violation for failing to provide “one or more methods of machine guarding” which could have prevented the accident.
Plaintiff argued that the plant manager knew of the hazard, admitted in the past that the area would result in life-threatening harm, and claimed to be too busy to complete the necessary fencing that could have prevented injury. The claim against the plant manager was ultimately dismissed, and the Court of Appeals upheld the dismissal. The Court looked to the employer’s award-wining safety program, quarterly briefings, and well-documented and explicit instructions to turn machines off and come to a complete stop before bending over and cleaning around the machine. The Court also noted that in the 15 years of operation, all of which occurred during Plaintiff’s employment, (1) nobody was injured on the machine or its predecessor; (2) OSHA issued no violations related to the same; and (3) Defendant-Employer received no safety complaints from staff about the machines. Further, the defendants did not request or direct the plaintiff to clean around the machine.
This case continues to demonstrate that a plaintiff has a high burden to meet to survive a Motion to Dismiss when it comes to asserting a Pleasant claim. Even with the high standard and burden for plaintiffs, it is worthwhile to note some of the factors the Court considered in this claim. Specifically, employers should document and analyze any concerns regarding dangerous areas, machines that need safety improvements, or other hazards. Employers should then take the necessary steps to educate employees on the areas or machines at issue, provide PPE/remedy areas of concern, and provide sufficient ongoing trainings. The Court will also examine the employer/co-worker’s knowledge of the level of danger of the activity, whether the employer/co-worker was present at the time of such injury, and/or whether the employer/co-worker directed the employee to engage in the dangerous activity. The Court will also take past OSHA violations and safety records into account. Out of the above, it appears the most persuasive is the employers willingness to provide ongoing training/experience.
A three-judge panel at the State Office of Administrative Hearings (SOAH)
rejected numerous allegations made by DWC that the City of Baytown (a
self-insured governmental entity) violated the law when it denied two first
responder cancer claims.
DWC sought to fine Baytown $80,000 based on charges that it failed to
adequately investigate and process claims by two firefighters diagnosed with
cancer while working for Baytown. However, in a 66-page decision
the three judges found that Baytown committed no violations.
The decision bears a close read by system participants for the guidance it
provides about what the law does and does not require when handling not only
cancer claims but all claims. Hopefully, DWC will consider the judges’
guidance in future cases.
Among the ALJs’ conclusions:
The ALJs also
expressed concerns with DWC’s $80,000 penalty stating that “no evidence was
presented to prove how Staff’s proposed penalty was calculated or allocated
among the claims.” The ALJs stated that, as such, “imposition of an
administrative penalty based on Staff’s proposed sanction may result in an
arbitrary decision.” DWC’s unwillingness to explain, in any meaningful
fashion, how it arrives at its proposed fine amounts has been a source of ongoing
criticism from system participants for many years.
Although DWC’s allegations focused on Baytown’s actions during the initial
fifteen-day investigation period, Baytown’s denials seem to have been borne out
by the fact that in the first claim, the employee and his family never
challenged Baytown’s denials, and in the second claim, the employee signed an
agreed judgment finding that his claim was not compensable.
First responders are often accorded special treatment in the workers’
compensation system and that was likely a factor in DWC’s decision to prosecute
what seems like a questionable case based on the ALJs’ decision. DWC’s
enforcement action was also likely intended to serve as a “reminder” to
carriers to be very cautious about denying first responder claims.
The ALJs’ decision highlights the lack of DWC guidance regarding elements of
the law Baytown allegedly violated. Advisories and bulletins are often a
better tool for communicating agency policy to system participants than
enforcement actions. However, DWC has made little use of such tools in
recent years.
Copyright 2023, Stone Loughlin & Swanson, LLP
Every so often DWC gets around to looking into medical treatments which may or
may not be effective. That is to see if Texas injured workers can benefit
or could be harmed, and to evaluate the economic benefits to certain
physicians. Case in point is DWC’s recently announced intent to audit the use of spinal cord stimulators to
determine the appropriateness of a physician’s decision to install one into the
body of an injured worker, and the effectiveness of the device once installed.
The review will be part of and conducted under the auspices of the DWC’s
Medical Quality Review Process. We mention here that these devices require
preauthorization under Rule 134.600 so that medical necessity is evaluated by
qualified Utilization Review Agent (URA) physicians. It is unclear
whether the audit will scrutinize URAs, the information requesting doctors send
to the URA to justify medical necessity, the treatment guidelines criteria for
stimulators, or all of the above. Apparently even our friends “down
under” are taking a look at this issue: To hell and back: Devices meant to ease pain are
causing trauma.
Copyright 2023, Stone Loughlin & Swanson, LLP
DWC has for years hosted a conference for stakeholders. This year the
conference came around again on the August calendar in Austin. There was
something a little different and refreshing this year– the tone and focus of
one of the more memorable presentations. The WorkCompCollege presenters
went well beyond comp basics, calling for a paradigm shift in the way we view
the role of workers’ compensation by suggesting the focus should shift from
only compensating injured workers to focusing on helping them recover. A
new name could be the Workers’ Recovery System (this writer’s suggestion, not
theirs).
Their panel discussion addressed what a whole person recovery mind set can look
like. From rebranding to reflect the higher purpose of comp, to looking
beyond the physical to consider psychosocial issues, to choosing words and
attitudes carefully, the discussions included suggestions on best practices to
enable this change in approach to take hold. Perhaps if it does, less
regulation would result and injured workers would be better served. Maybe the
lawyers would be out of business. Definitely something to think about! If you
want to know more about this new idea, contact Mark Pew at mpew@workcompcollege.com. Mark has a
great work sheet he can send you called Establishing a Whole Person Recovery
Mindset in Workers’ Compensation.
Copyright 2023, Stone Loughlin & Swanson, LLP
We couldn’t help but state the obvious. Stay cool, and plan on supporting Kids’ Chance of Texas by coming to the Annual Kids’ Chance Golf Tournament in DFW. We can’t guarantee cool weather on October 23rd, but we can guarantee that it will feel good to support our Kids! Register NOW here. All levels of players are welcome!
Copyright 2023, Stone Loughlin & Swanson, LLP
EDI is thankfully something most of us never have to think about. But if you are into compliance issues (as in, avoiding TDI/DWC penalties) you want to know the Implementation Schedule for Claims Electronic Data Interchange Release 3.1.4. There are lots of DWC forms that have to be sent by way of EDI to DWC that give DWC a way to monitor insurance carrier performance and the delivery of benefits. We put this in the newsletter so that you can’t say we didn’t warn you. For more info, check out the implementation guide here.
Copyright 2023, Stone Loughlin & Swanson, LLP