The Law Firm of Jordan Coyne & Savits, L.L.P. -- Blog

In Rollins v. Wackenhut Services, No. 10-00047 (D.D.C. Aug. 10, 2011), the court dismissed wrongful death and survival actions brought against an employer and a pharmaceutical company by the mother of a twenty-three year old man who was working as an armed security guard when he committed suicide with his work-issued pistol.

The plaintiff alleged that the employer was negligent for failing to do an adequate background check of the decedent before hiring him to a security guard position in which he would be entrusted with a firearm. The plaintiff also brought a wrongful death claim against a pharmaceutical company for manufacturing and distributing a drug that the decedent was taking for his mental issues, despite the drug's known risks of increasing suicidality in certain patients.

The employer first argued that the district court was without jurisdiction because the D.C. Worker's Compensation Act provided the exclusive remedy for injuries that occur during the course of a worker's employment. However, the Act does not apply "where injury to the employee was occasioned solely by his intoxication or by his willful intention to injury or kill himself or another." D.C. Code sec. 32-1503(d). The Court found that the exception set forth in D.C. Code sec. 32-1503(d) applies and the decedent's suicide was not covered by the Act.

Next, the employer argued that the plaintiff failed to state a claim against it, on the grounds that the general rule in the District of Columbia is that a plaintiff may not recover damages in negligence from the suicide of another. This is because suicide generally is considered to be a deliberate, intentional, and intervening act which precludes a finding that a given defendant is, in fact, responsible for the decedent's death. Or in other words, suicide is an intervening and independent cause of death which breaks the chain of causation. There are two recognized exceptions to this rule: (1) Where the actor's negligent conduct so brings about the delirium or insanity of another as to make the actor liable for it; and (2) where the defendant has a special relationship involving the treatment or custodial control over the deceased that imposes a duty to take reasonable steps to prevent a reasonably foreseeable suicide. Neither exception applied in this case.

The Court also dismissed the product liability claims against the manufacturers of Abilify on the grounds that the complaint failed to state any factual basis for a strict liability claim based on a defective product. The plaintiff did not meet her burden to allege facts showing that Abilify is defective or is not a reasonably safe product.

Posted by David B. Stratton on 09/04/2011 at 08:40 PM
Defenses • District of Columbia • Workers Compensation • Permalink

Virginia Court of Appeals nixes 6 person spa pool as treatment under workers compensation

In Portsmouth School Board v Harris, No. 0026-11-1 (Va. App. July 19, 2011), the Court reversed a decision by the Virginia Workers Compensation Commission, which held that the employer was responsible for paying for a six-person spa pool purchased by the claimant, as physician-ordered treatment which was reasonable, necessary, and related to his work-related injury.

Following a compensable injury to his shoulder, the claimant consulted with Dr. Felix Kirven, an orthopedic surgeon, about ongoing swelling, stiffness, and soreness in his back. Claimant saw a spa pool with massage jets, and mentioned it to Dr. Kirven. Dr. Kirven thereafter wrote a letter indicating that the claimant would benefit from a spa pool. The record did not indicate that the letter was sent to the employer, and there were neither medical reports or progress notes that mentioned the spa pool. However, Dr. Kirven did write the claimant a prescription for a spa pool. The claimant then asked the claims adjuster whether a spa pool would be reimbursed. The adjuster requested documentation from Dr. Kirven, and in response to a fax containing the prescription, inquired whether the claimant could attend therapy at a center that offered whirlpool or aquatic therapy. There was no response to that inquiry.

Five days later, the claimant purchased a six-person spa pool for $5,200. Dr. Kirven had not recommended this particular spa pool.

The Virginia Workers Compensation Commission held that the employer was responsible for payment for the spa pool, noting that Va. Code sec. 65.2-603(A)(1) requires an employer to provide necessary medical treatment for a compensable injury, including any appliances prescribed by the claimant's treating physician. Dr. Kirven had prescribed a spa pool, and there was no medical evidence to the contrary, and no medical evidence that other forms of water therapy would have been equally helpful or available to claimant. The employer then appealed.

The employer appealed, raising the issue whether the commissioner erred in finding that claimant met his burden of proof to show that his purchase of a spa pool was reasonable and necessary, and related to his work injury. The appellate court identified a threshold issue, which was what limits, if any, apply to a non-specific, generalized and generic physician's prescription for treatment.

The Court reversed, finding that the claimant failed to demonstrate that the six-person home spa pool was medically necessary. Nothing in the record indicated that the claimant could not receive similar treatment (water/heat therapy) elsewhere. Dr. Kirven never indicated that claimant was unable to obtain the same treatment at a fitness/health center. Dr. Kirven's prescription did not call for a "home" spa pool, nor did it call for a spa pool capable of seating six. Dr. Kirven did not prescribe this specific appliance.

The appellate court concluded that:

[W]hen a treating physician prescribes an unspecific, generalized, and generic treatment, the claimant must present evidence that such treatment is medically necessary such as evidence that alternative treatment is not adequate, or available medical testimony elaborating on the non-specific prescription, or documentation of the need for the specific treatment obtained by claimant. This list is not exhaustive. Claimant cannot, with unbridled discretion, choose any treatment that falls within the non-specific prescription.

[Ed. Note: Inquiries about Virginia workers compensation issues or claims may be directed to John H. Carstens, Esq., in our Fairfax, Virginia office.]

Posted by David B. Stratton on 09/04/2011 at 01:37 PM
Virginia • Workers Compensation • Permalink

Virginia Court of Appeals denies workers compensation award during work furlough

In Utility Trailer Manufacturing Company and Liberty Insurance Corporation v. Testerman, No. 1484-10-3 (Va. App. July 12, 2011), the Court considered the issue whether a furlough from work of pre-defined and limited duration, applicable to all manufacturing employees, both those with and without restricted work capacity, justifies an award for lost wages to a worker with restricted capacity, in the absence of evidence demonstrating a causal relationship between that restriction and the wage loss. The Court concluded, with a dissent, that such an award under these circumstances is not authorized by the Act.

Due to a work related injury, the claimant was awarded benefits including permanent partial disability. Subsequently, the claimant resumed his work as an hourly employee on the manufacturing line with the same employer, commensurate with his restricted work capacity.

The employer shut down the manufacturing line for one week and furloughed all employees on that line, including the claimant, during an annual inventory count. The claimant then filed an application for workers compensation benefits for the furlough period. The claimant returned to work following the furlough at his same salary.

The Virginia Workers Compensation Commission awarded the claimant benefits during the furlough, awarding lost wage benefits because claimant's ability to compete economically with co-workers attempting to find work during a lay-off is permanently impaired.

In its analysis of the appeal, the Court of Appeals quoted with approval the statement of the rule by Larson, i.e., "Loss of employment should not be deemed due to disability if a worker without the disability would lose employment or suffer a reduction in earnings under the same economic conditions . . . ." The Court identified five factors to determine whether the same economic conditions applied to all workers:

We find they include: (1) the length of any furlough from work; (2) whether that furlough included all employees, restricted or not, of the same class; (3) the reason for the furlough; (4) whether the term of the furlough was pre-determined by the employer; and (5) whether employees were offered employment at the termination of the furlough. These factors address the fundamental issue in these cases: is any wage loss causally related to the injury?

The appellate court essentially agreed that a furlough of one week is simply of insufficient duration to reasonably conclude that the claimant's ability to obtain other light duty work was the result of his disability. The Court held only that during a furlough a condition precedent for an award to a partially incapacitated employee for lost wages (or diminution in earning power) is a causal relationship between that incapacity and that loss. Claimant did not demonstrate that his lost wages were causally related to his injury.

Posted by David B. Stratton on 07/15/2011 at 02:45 PM
Virginia • Workers Compensation • Permalink

Virginia Supreme Court reaffirms innocent victim of horseplay doctrine in workers compensation law

In Simms v. Ruby Tuesday, Inc., No. 091762 (Va. Jan. 13, 2011), the Court considered the issue whether the actual risk test analysis articulated in Hilton v. Martin materially changed the "innocent victim of horseplay" doctrine under Virginia's workers compensation law. After reviewing the history and policy of the horseplay doctrine, the Court held that the doctrine had not been changed by Hilton v. Martin.

In Hilton v. Martin, the claimant was severely injured when a co-worker turned on the power to a manual cardiac defibrillator, adjusted its energy to 150 joules, and touched the defibrillator paddles to her left shoulder and left breast, while simultaneously activating them. The claimant died of electrocution and cardiac arrest. This was not horseplay in the Court's view. Rather, Hilton v. Martin was analyzed as a workplace assault.

In Simms, the claimant had been pelted with ice particles in a playful manner, and dislocated his shoulder when he raised his arm to block the ice. The Court adopted the reasoning of Judge Cardozo in Leonbruno v. Champlain Silk Mills, and distinguished horseplay encountered in the workplace from an assault.

In deciding Hilton, it was not our intention to scuttle the horseplay doctrine, or to impose any additional burden of proof upon claimants found to be the innocent victims of workplace horseplay. The analysis stated in Hilton, regarding the actual risk test, is applicable in worker's compensation matters concerning an assault, not those involving an innocent victim of horseplay.

Posted by David B. Stratton on 01/21/2011 at 02:43 AM
Virginia • Workers Compensation • Permalink

Undocumented Workers Are Covered by D.C. Workers Compensation Act

In Asylum co. v. D.C. Depart. of Employment Services, No. 08-AA-1158 (D.C. Dec. 23, 2010), the Court of Appeals considered an issue of first impression in D.C.: whether a worker who is an undocumented alien is covered under the District of Columbia Workers' Compensation Act.

The Court affirmed the Compensation Review Board's judgment that based on the plain meaning of the language of the Act and the legislative intent, an undocumented or illegal alien is an "employee" as defined in the Act. The Court observed that:

we have little difficulty agreeing with the CRB's conclusion. It is consistent with the language of the Act, specifically, D.C. Code ? 32-1501 (9) (2001), which excepts certain specified categories of workers from the definition of "employee," but otherwise sets out a broad definition that neither excludes undocumented aliens nor makes a worker's immigration status relevant. See Report on Bill 3-106 at 10 (referring to the legislation's "all[-]inclusive delineation of coverage"). As the CRB recognized, the Council has made repeated amendments to the definitional section of the Act, including amendments to the provision defining the term "employee."

The Court followed the reasoning of precedent from Connecticut, which stated that:

declining to treat contracts of employment with undocumented aliens as "contracts" within the meaning of the workers' compensation statute would provide unscrupulous employers with a financial incentive to hire undocumented workers, while "including employment agreements between illegal aliens and their employers within the purview of `contracts of service' . . . would accord with, rather than contravene, the public policy Congress espoused when [IRCA] was enacted."

The Court also considered and rejected the argument that IRCA preempted the D.C. Workers Compensation Act.

In reaching its decision, the Court in a footnote acknowledged a pragmatic reason for according undocumented workers rights under the Workers Compensation Act: if the undocumented workers cannot recover under the Act, then they would be able to file tort suits to recover damages. Among other authorities, the Court cited to a leading treatise on this point:

Larson's Workers' Compensation Law, supra, ? 66.03[3][c] ("Given that illegal aliens are entitled to access to the courts and have the ability to file both contract and tort claims, it would seem illogical to bar illegal alien workers from seeking compensation benefits long considered a substitute for damages").

Posted by David B. Stratton on 01/14/2011 at 01:45 PM
District of Columbia • Workers Compensation • Permalink

In Maryland workers’ compensation claim, employer must show actual prejudice from late notice

In Melody Elste v. ISG Sparrows Point, LLC et al., ___Md. App.___, ___A.2d___(2009), Maryland's intermediate appellate court examined when an employer is "prejudiced" by an employee's failure to provide notice of an accidental injury within ten days of the injury's occurrence as required by Md. Code (2008 Repl. Vol., 2009 Supp.), secs. 9-704 and 9-706 of the Labor and Employment Article. The court determined that prejudice is established when an employer produces concrete evidence that indicates that the employee's failure to provide notice of his or her injury within ten days of the injury's occurrence caused actual harm to the employer's legal interests.

Melody J. Elste twisted her right knee on July 27, 2006 while working a safety shift at ISG Sparrows Point ("Sparrows Point"). Ms. Elste did not report her injury to Sparrows Point until 19 days later, on August 14, 2006, upon returning from a one week camping vacation. On September 9, 2006, Ms. Elste underwent knee surgery and on October 10, 2006, she filed a claim for workers compensation benefits.

The Workers Compensation Commission awarded Ms. Elste temporary total disability benefits. Sparrows Point sought judicial review of the Commission?s award in the Circuit Court for Baltimore City. During the jury trial for the matter, Ms. Elste moved for judgment at the close of Sparrows Point's case, and again at the close of all evidence, arguing that Sparrows Point had produced "no evidence whatsoever" that it was prejudiced by her failure to provide it with notice of her injury within ten days of the injury's occurrence. The circuit court judge denied the motions and the jury concluded that Ms. Elste had not given Sparrows Point timely notice of her injury. Ms. Elste filed a motion for JNOV, which was also denied. An appeal to the Court of Special Appeals ensued.

Before the Court of Special Appeals, Sparrows Point argued that it was prejudiced by Ms. Elste's failure to notify it of her injury within ten days of her accident because it was denied the opportunity to timely investigate the accident and to evaluate Ms. Elste's pre-vacation condition. The Court of Special Appeals rejected these arguments, holding that "an employee?s mere participation in [an] intervening activity, or an employer's inability to conduct an immediate investigation, cannot, by themselves, constitute prejudice." The court emphasized that under secs. 9-704 and 9-706 of the Labor and Employment Article, prejudice is established only when an employer offers specific evidence regarding how an employee's failure to provide notice of an injury harmed the employer's legal interests. The court noted that, in this case, such evidence could have included that a change had occurred in Ms. Elste's condition, the scene of the accident, or the memory of one of the witnesses. Due to the lack of such evidence, the Court of Special Appeals held that the trial court erred in denying Ms. Elste's motion for judgment and her motion for JNOV.

Posted by Mandy Wolfe on 11/02/2009 at 08:29 PM
Maryland • Workers Compensation • Permalink

Award of Permanent Partial Impairment by Virginia Commission Is Voided On Appeal

In Hitt Construction v. Pratt, 53 Va. App. 423, 672 S.E.2d 904 (Va. App. Feb. 17, 2009), the Court held that for the Virginia Workers Compensation Commission to exercise its review authority under the Act, when that authority is timely challenged, it must be composed of three statutorily authorized members. As a result, a decision that had concluded that claimant suffered permanent impairment was remanded for review by a properly constituted commission.

The majority of the commissions had appointed a deputy to serve as the third commissioner. However, the Court noted that no statute grants that authority.

The Court emphasized that the commission's decision in this case was "voidable", not void. The authority of the commission to exercise its subject matter jurisdiction was compromised by its composition -- a composition not authorized by statute. While a challenge to the authority of the commission was subject to being waived, that challenge was not here waived. Rather, it was specifically raised to the commission by the employer's motion to reconsider and vacate award. Therefore, the case was reversed and remanded to the commission.

John H. Carstens, Esq. of Jordan Coyne & Savits, LLP represented the employer.

Posted by David B. Stratton on 04/10/2009 at 03:41 AM
Virginia • Workers Compensation • Permalink

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