Rahla v. Medical Center at Bowling Green: Pre-employment is pre-employment

Rahla v. Medical Center at Bowling Green, No. 2013-CA-001712-WC (Ky.App. 2014):  Injuries sustained by job candidates during pre-employment activities are not compensable.

In Rahla, a Kentucky Court of Appeals decision to be published, the Court considered the case of Michelle Rahla who was injured during a post-job-offer physical examination.  The physical examination included physical activity consisting of lifting weights ranging from 10 to 61 pounds.  Rahla injured her neck during the examination and thereafter officially began her employment with the Medical Center.  She eventually required surgery for the neck injury, but  the claim was denied on the grounds she was not an employee at the time of the injury. The ALJ dismissed the claim and the Workers’ Compensation Board as well as the Court of Appeals affirmed, holding that Rahla was “not in the service of, under any contract of hire with, or performing any service in the trade, business, profession, or occupation of, the Medical Center.”  The Court distinguished the facts of this case from Hubbard v. Henry, 231 S.W.3d 124 (Ky. 2007) where the claimant was injured actually performing work for the employer on a trial basis prior to the official hiring.

When is nonwork-related treatment work-related?

The Associated Press recently reported on an Indiana workers’ compensation case, Boston’s Gourmet Pizza v. Childers,  where an employer was ordered to pay for lap band surgery for an overweight employee who injured his back in an work-related incident and was required to undergo the weight loss surgery before the surgery to correct his back injury could be performed.

In March 2007, Childers, who was then 25 and weighed 340 pounds, was struck in the back by a freezer door at Boston’s The Gourmet Pizza. His physicians recommended surgery to ease his pain, but warned the operation would be unsuccessful unless he underwent surgical weight reduction.

Boston’s agreed to pay for the back surgery, but denied its liability for payment of the weight-loss surgery which ranged in cost from, $20,000 to $25,000, relying on the argument that Childers was obese before he was hurt.

The Indiana Court of Appeals found the surgery compensable because Childers’ weight and the accident had combined to create a “single injury.”  They further noted that Boston’s presented no evidence that Childers’ weight had been a problem before the accident.

The Kentucky Workers’ Compensation Board has adopted a similar theory of compensability.  While not using the Indiana court’s “single injury” language the reasoning and result are essentially the same. Blue Chips Installation, Inc. v. Denniston, Kentucky Workers Compensation Claim No. 02-97692 (2005), involved the compensability of a dental procedure, which treating physicians required the claimant to undergo before performing surgery to treat his work injury.

The Board looked to foreign jurisdictions to formulate their decision.  The lengthy and well researched discussion was as follows:

[W]e do not read the court’s holding in Allstate Insurance Co. v. The Industrial Commission of Arizona, 126 Ariz. 425, 616 P.2d 100 (App. 1980), as limited to emergency situations. Blue Chips apparently interprets the Arizona court’s ruling as limited to instances in which treatment of a nonwork-related condition is necessary in order to address a work-related injury of an urgent nature. From our own review of Allstate, supra, however, it does not appear that the court’s holding or rationale was in any way based upon or limited to emergency work injuries. In fact, the court’s summary of the case indicates that the claimant had been admitted to the hospital for a diagnostic myelogram and possible laminectomy. A routine urinalysis and EKG performed pursuant to the hospital admission revealed an abnormally high protein level and an atrial fibrillation. Perhaps Blue Chips intends to suggest that the nonwork-related condition must be of an emergency nature and necessary to the treatment of a work-related condition (of an emergency nature or not) in order to be found compensable. Again, however, we do not so read the Allstate opinion, which specifically holds as follows:

It is generally accepted that where an industrial injury results in surgery which aggravates a preexisting condition or causes further complications, the entire result is an industrial responsibility.

* * * *

The question then is whether this reasoning should apply to pre-surgery treatment necessary to place the injured employee in a condition to undergo surgery related to an industrial injury. In reviewing the evidence, which we view in a light most favorable to sustaining the award . . . we find that the reasonable inferences from the evidence support the hearing officer’s conclusion that the medical intervention occasioned at the time for the atrial fibrillation and the renal shutdown were related to the procedures undertaken in preparation for the industrially related myelogram and lumbar surgery, and these preexisting conditions would not have required treatment but for the impending surgery.

Id. at 102. Further support for our interpretation of Allstate, supra, is found in a subsequent decision by the same court, Arrowhead Press, Inc. v. Indus. Comm. of Ariz., 134 Ariz. 21, 653 P.2d 371 (App. 1982).

We believe the circumstances of the case sub judice to be most similar to those before the Arizona court in Arrowhead, supra, where the court summarized the pertinent facts and its rationale as follows:

The evidence presented at the hearing revealed that one of claimant’s physicians, Robert Briggs, M.D., was of the opinion that it was necessary for claimant to be treated for the bronchitis so that she could undergo the anesthesia required for the knee procedures. . . . There was also evidence that claimant would not have been hospitalized if she had suffered only from the bronchitis. Thus, we hold that there was sufficient evidence to support the administrative law judge’s finding that the hospital treatment of the bronchitis was reasonably necessary and was incurred to place claimant in a condition to undergo surgery for her industrial injury. . . . Here, unlike in [Ross v. Industrial Commission, 112 Ariz. 253, 540 P.2d 1234 (1975), overruled on other grounds], the bronchitis treatment was necessary so that the industrial condition could be treated. In Ross, the treatment of the non-industrially injured eye was not undertaken as a precondition to the treatment of the industrially injured eye and thus was not the responsibility of the carrier.

Id. at 373.

The Arizona Court of Appeals later declined to extend its holding in Arrowhead, supra, to a situation involving a nonwork-related condition that would have required treatment notwithstanding the industrial injury at issue. Beasley v. Indus. Comm. of Arizona, 175 Ariz. 521, 858 P.2d 666 (App. 1993). The court distinguished Beasley, supra, from its earlier holdings on grounds that “[i]n neither case would the unrelated condition have required treatment æbut for’ the existence of the industrial injury.” Id. at 668.

The rationale set forth in Arrowhead, supra, was relied on by a Colorado appeals court in Public Serv. Co. of Colo. v. Indus. Claim App. Office, Colo.App., 979 P.2d 584 (1999), also cited by Denniston herein. In Public Serv. Co., supra, the court held that treatment of the claimant’s nonwork-related bipolar disorder was compensable where the evidence supported the finding that such care was a reasonably necessary prerequisite to surgical treatment of his industrial injury. The Colorado court also found support in Professor Larson’s treatise, concluding as follows:

Furthermore, we conclude that ancillary preoperative treatment is a pertinent rationale for reasonably necessary care of a non-industrial disorder, when such must be given in order to achieve the optimum treatment of the compensable injury.’ 5 Larson’s Workers’ Compensation Law, supra, at § 61.13(e).

Id. at 585.

Having reviewed the statutory plan for provision of medical treatment for work-related injuries in Kentucky, and being informed by the foregoing extraterritorial authority, we conclude that the employer may be held liable for the cost of ancillary treatment of a nonwork-related condition that is reasonably required in order to achieve optimum treatment of the compensable injury. The employer is not liable for treatment of a nonwork-related condition that is totally independent of the compensable injury and for which treatment would have been required notwithstanding the compensable injury.

In short, with regard to ancillary treatment, the inquiry at least in Kentucky (and apparently in Indiana as well) appears to be: (1) Is the nonwork-related treatment required in order to achieve optimum treatment of the compensable injury? and (2) Does the nonwork-related condition require treatment notwithstanding the compensable injury? If the answer to prong 1 is yes and the answer two prong 2 is no, the nonwork-related ancillary treatment will most likely be found compensable.

THE OFFICE: Was Stanley’s Heart Attack Work-Related?

NBC’s “The Office” probably drives human resource professionals to insanity. Weekly, Michael Scott (played by Steve Carrell) and/or his assistant Dwight Schrute (played by Rainn Wilson) engage in poor decisions and ridiculous antics that violate most federal and/or state laws against employee discrimination and sexual harassment, not to mention a variety of criminal statutes.

A recent Office episode, “Stress Relief,” which aired after the Super Bowl, posed a compelling workers’ compensation question, and Roland Legal thought it would be fun to address.

The episode revolved around Safety Coordinator and Assistant to the Regional Manager Dwight Schrute being called on the carpet by the corporate brass of the paper company he works for, Dunder Mifflin, for starting a fire at the Scranton, Penn., office. To Dwight’s credit, sort of, he was attempting to test the office’s readiness in the case of a fire. Dwight did not think his officemates had paid close enough attention to his fire safety talk, so in an attempt to test the office’s preparedness, Dwight starts a small fire in a wastebasket — after he had locked off the exits and essentially trapped everyone inside the office. Naturally, chaos ensues and culminates with his colleague Stanley Hudson (Leslie David Baker) having a heart attack. Thus, surfaces our issue: Was Stanley’s heart attack work-related under Kentucky law?

Kentucky law has addressed variations of the issue as statutory provisions and interpretation has evolved. In and of itself, a heart attack has been looked up on as an idiopathic condition. In Jefferson County Public Schools/Jefferson County Board of Education v. Stephens, 208 S.W.3d 862, 864 (Ky. 2006), the Kentucky Supreme Court defined idiopathic “as caused by something personal to the claimant rather than the employment.” Professor Larson gives the following as examples of idiopathic conditions: “a disease, internal weakness, personal behavior, or personal mortal enemy that would have resulted in harm regardless of the employment.” Id. at 866 (citing Larson’s Workers’ Compensation Law (2006)). Kentucky specifically addressed heart attacks as idiopathic conditions in Indian Leasing Co. v. Turbyfill, Ky. App., 577 S.W.2d 24 (1978).

So, was Stanley’s heart attack (and collapse – there could have been a related orthopedic injury) considered idiopathic under Kentucky law and thus not work-related? Much revolves around the definition of injury, which, after the 1996 amendments to the Act, was considered:

 … [A]ny work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. “Injury” does not include the effects of the natural aging process, and does not include any communicable disease unless the risk of contracting the disease is increased by the nature of the employment. “Injury” when used generally, unless the context indicates otherwise, shall include an occupational disease and damage to a prosthetic appliance, but shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury.

(Emphasis added). But did Sidney’s event involve a trauma resulting in a harmful change?  In McCowan v. Matsushita Appliance Co., Ky., 95 S.W.3d 30 (2002) the Court offered an elucidation of what constitutes a traumatic injury:

At its inception, workers’ compensation coverage was limited to traumatic, accidental workplace injuries, and the courts were strict in their construction of the term “traumatic” and contemplated physical trauma. See, Jellico Coal Co. v. Adkins, 197 Ky. 684, 247 S.W. 972 (1923). Over time, however, the term was less strictly construed and came to include injuries that resulted from events of an unusual, unexpected, or undesigned nature. See, Great Atlantic & Pacific Tea Co. v. Sexton, 242 Ky. 266, 46 S.W.2d 87 (1932). It also came to include physical trauma in the form of shock, overexertion, or exposure to the elements. See, North American Refractories Co. v. Jackson, Ky., 346 S.W.2d 10 (1961); Adams v. Bryant, Ky., 274 S.W.2d 791 (1955). Eventually, heart attacks that were precipitated by physical exertion or strain came to be included. See, Hudson v. Owens, Ky., 439 S.W.2d 565 (1969); Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47 (1961); Terry v. Associated Stone, Ky., 334 S.W.2d 926 (1960).

A physical exertion or strain causing a heart attack would constitute an injury, but would mere stress precipitating Stanley’s heart attack constitute a trauma? In other words, would stress, a mental state, fall within the exclusion of KRS 342.0011 (1) excluding psychological, psychiatric or stress related changes?

The McCowan court determined that the goal of the 1996 amendment to the definition of injury “was to prevent compensation for so-called ‘mental-mental’ claims. The legislature attempted to do so in 1994, and we are persuaded that its goal in 1996 was to do so more effectively by preventing compensation for all mental changes that resulted from mental stress or trauma, including those that resulted from a physical change.” Id.

However, the Court went on to note there was no indication that the legislature “intended to preclude compensation for “mental-physical” claims as well, as would seem to apply to Stanley’s circumstance.

As such, the McCowan Court determined that even though a claimant might experience an emotional trauma rather than a physical one, a harmful change resulting from the emotional trauma (such as a heart attack in the case of McCowan and in the case of Stanley) the harmful change would constitute a compensable injury and the last sentence of KRS 342.0011(1) would not apply to such claims.

Based on the law and reasoning set forth above, we conclude Stanley’s heart attack was indeed work-related as the harmful change (the heart attack) flowed from the stress of the false alarm fire.  An argument could also be made that, mental stress aside, the exertion and strain of attempting to escape the fire would have been sufficient to justify a trauma under the Act and the law referenced above.

Dunder Mifflin might attempt to argue that the fire was not a foreseeable incident of or a hazard peculiar to Stanley’s employment as a paper salesman, but this rule of law as set forth in the case of Lexington Ry. System v. True, Ky., 124 S.W.2d 467 (1939), was overturned in Corken v. Corken Steel Products, Inc., Ky., 384 SW2d 949 (1964), where the Kentucky Supreme Court, relying on a variety of authorities, concluded “that causal connection is sufficient if the exposure results from the employment.” Id. (citations omitted). Under the facts of Corken, the claimant’s employment (as with Stanley) was the reason for his presence at what turned out to be a place of danger.” Add to this the circumstance that a Dunder Mifflin safety supervisor (Dwight), was conducting a safety drill (albeit a very unsafe safety drill), Stanley’s participation in the drill would provide an even more direct causal connection, again making the heart attack work-related.

Don’t agree? Give us your comments.

You can view highlights of the episode “Stress Relief” at: http://www.nbc.com/The_Office/video/clips/stress-relief/982442/

Parkinson's — Can it be work-related?

The Lexington Herald-Leader reports today of a Berea man alleging he developed work-related Parkinson’s Disease after being exposed to a common industrial solvent:

“BEREA — When the University of Kentucky published new research in 2008 suggesting that exposure to a common industrial solvent might increase the risk for Parkinson’s disease, the moment was a source of satisfaction to Ed Abney, a 53-year-old former tool-and-die worker.

Abney, now sidelined by Parkinson’s, had spent more than two decades up to his elbows in a drum of the solvent, trichloroethylene, while he cleaned metal piping at a now-shuttered Dresser Industries plant here.”

Click here to read the rest of the story.

Breast Implants . . . Work-related?

The typical workers’ compensation claim most often involves a neck, low-back or shoulder injury. There’s also the occasional knee injury, psychiatric claim or repetitive trauma. But work injuries are not always that mundane as exemplified by a recent story reported at WorkersCompInsider.com, the blog of Lynch, Ryan & Associates.

According to the blog, the North Carolina Industrial Commission recently heard the workers’ compensation claim of Penny Rumple Richardson, who was injured in a work-related motor vehicle accident. Her injuries were not the expected ones but rather involved damage to a prosthetic device, specifically —brace yourselves —her breast implants.

At the lower level, the NCIC deemed the damage and the replacement of both implants compensable. On appeal, the insurance company argued that the medical testimony established the implant to her right breast was ruptured in the accident, but the implant on the left breast showed only signs of “rippling,” which was, according to the medical testimony, more indicative of its having been under-filled, therefore rendering only the damage to the right implant compensable.

The court of appeals noted that under North Carolina workers’ compensation law, damage to breast implants would be covered as would work-related damage to any other prosthetic device “that functions as part of the body,” but the court agreed with the defense that medical testimony established only one implant was damaged as a result of Richardson’s accident. It found that replacement of the left implant to merely achieve body “balance” was not compensable.

In a dissenting opinion, Judge James Wynn Jr. argued for coverage of both implants for aesthetic reasons. Wynn noted that replacement of both implants was necessitated so that they would be “symmetrical and evenly matched.”

For the full blog post, visit WorkersCompInsider.com,

For the full opinion of the North Carolina Court of Appeals, visit http://www.aoc.state.nc.us/www/public/coa/opinions/2008/060875-1.htm.