Larson’s Spotlight on Recent Cases: Clash of Medical Opinions Over Surgery to Correct Injured Worker’s Enlarged Breast Condition

Larson's Spotlight on Conflict of Medical Opinions, Future Medical Payments, Employer's Safety Rules, and Lump-Sum Settlement. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

FL: Comp Judge Improperly Dismisses Expert Medical Advisor Order When Impatient Police Officer Has Surgery to Correct Enlarged Breast Condition

Disagreements between the physician providing treatment to a workers' compensation claimant and "the company doctor" abound. How can a hearing officer or judge, who has no specialized medical background, determine which expert, if any, is correct in his or her assessment. In a number of states, where there is such a disagreement, an additional expert may be employed to advise the Commission or Board with regard to the medical aspects of the claimant's condition. A good example is a Florida provision, § 440.13(9)(c), Fla. Stat., that provides for the appointment of an expert medical advisor (EMA) where there is a conflict in the medical opinions offered in the claims dispute. Since such experts don't grow on trees, it can take some time before a qualified expert can be identified who will agree to take on the case.

In a recent Florida case, an appellate court found the dismissal, by a Judge of Compensation Claims, of a police officer's petition for additional benefits and medical expenses related to his gynecomastia (the abnormal enlargement of male breasts), was premature and in error where the JCC had entered an order appointing an EMA, but because of delay in securing a physician willing to serve, the police officer went ahead and had surgery to correct the condition. After the surgery, the JCC found that the officer, by undergoing surgery, had altered his condition to such a degree that an evaluation by the EMA would have been futile. The JCC held also that because of the surgery, the EMA would not have been able even to determine if the officer suffered from gynecomastia. On appeal, the appellate court found that the officer's decision to move forward with the surgery before the acceptance by a qualified physician of the EMA appointment did not justify, without medical evidence suggesting otherwise, withdrawal of the EMA order. The court added that the JCC's findings were speculative and unsupported by the medical evidence. Nor was dismissal of the petition itself warranted, particularly in light of the JCC's finding that the officer did not willfully disobey an order.

In 2007, the police officer strained his quadriceps tendons bilaterally and the Employer/Carrier (E/C) accepted the claim. As a part of the officer's treatment regimen, he was provided anti-inflammatory medications, and, to combat their side-effects, Zantac. Two years after the admitted injury, the officer sought the additional compensation and treatment for gynecomastia, contending that the condition resulted from the medication his authorized physician had prescribed for the officer's earlier admitted compensable injury. The E/C, after obtaining an independent medical examination, had denied compensability of the gynecomastia. The differing medical opinions set up the need for the EMA.

See Arlotta v. City of West Palm Beach, 2012 Fla. App. LEXIS 4604 (Mar. 26, 2012).

See generally Larson's Workers' Compensation Law, § 94.02.

NY: Future Medical Payments Too Speculative to Support Taxing of Litigation Expenses Against Comp Carrier

In a substantial majority of states, when a third-party suit is brought or recovery effected by the employee, the employer or carrier is obliged to pay a pro-rata portion of the attorney's fees (and other litigation expenses) out of its share. To the extent that the employer or carrier is being reimbursed, via the third-party proceeds, for a past outlay of disability indemnity or medical expenses, that computation is usually rather straightforward. What about a third-party recovery that includes a designated sum-assigned by a jury verdict-for the injured worker's future medical expenses? Absent the third-party recovery, those future expenses would ordinarily be the responsibility of the employer or carrier. Should, therefore, the attorney fees and costs of related to the designated future medical expenses also be deducted from the proceeds that the employer or carrier is to receive?

In a recent decision, the Court of Appeals of New York answered the question in the negative, holding that such future medical expenses were too speculative in nature to support an equitable computation of litigation fees and costs. The New York high court indicated that the jury verdict for future medical expenses was not the proper barometer with which the fund's share of litigation costs could be measured. The carrier was required only pay its equitable share of attorneys' fees and costs incurred once a claimant incurred and paid each medical expense.

See Bissell v. Town of Amherst, 2012 N.Y. LEXIS 547 (Mar. 27, 2012).

See generally Larson's Workers' Compensation Law, § 117.02.

VA: Employer's Failure to Enforce General Safety Rules Regarding Food Slicer Did Not Mean More Specific Rules Could Be Ignored by Employee

An employer's failure to enforce a general rule requiring employees to read a food slicer manual and undergo training prior to operating the slicer did not negate the employer's more specific safety rule requiring employees to unplug the slicer prior to cleaning it, held a Virginia appellate court recently. The court added that while an employer's failure to enforce its rule requiring training before operating a particular piece of equipment might be relevant to determining whether the employee had knowledge of the existence of more specific safety rules applicable to that equipment, which might be critical to determining whether the employee's failure to follow a particular rule was willful, that lack of training did not permit an employee to infer employer's failure to enforce all rules related to that piece of equipment. Quoting Larson's Workers' Compensation Law, § 35.02, the court acknowledged that that if immunity on the part of the employer could be purchased merely at the cost of printing and posting rules, the employer might be tempted to post rules forbidding every conceivable potentially injurious practice. It is not unfair, therefore, to expect the employer to prove, in the light of the disastrous impact of these defenses on the employee, that it did indeed bring the rule to the conscious attention of the employee by something more than the constructive notice that goes with pinning a set of regulations on a bulletin board. Here it appeared that the employee had used the same sort of slicer in his employment with another firm and he admitted that he knew he was supposed to unplug the slicer before cleaning it. Such was sufficient evidence to support the denial of benefits by the Workers' Compensation Commission, held the appellate court.

See Pitt v. Shackleford's Restaurant, 2012 Va. App. LEXIS 94 (Mar. 27, 2012).

See generally Larson's Workers' Compensation Law, § 35.02.

IN: Lump-Sum Settlement Agreement, Silent On Employment Status and Approved By Board, Nevertheless Bars Later Tort Action Claiming Independent Contractor Status

Where the issue of the employment relationship between the worker and the purported employer is not specifically addressed in a settlement agreement, and where the representative of the estate of a deceased worker has filed no document with the Industrial Commission or Board admitting or acknowledging that any such employment relationship existed, may that representative sign settlement documents, have them approved by the Board, accept a $100,000 lump sum payment, and subsequently proceed against the employer in a civil action sounding in negligence, contending at that later moment that the deceased worker was an independent contractor at the time of his death and that the issue of the employment relationship had remained unresolved? A recent decision by an Indiana appellate court says, "No." For additional discussion, see http://www.workcompwriter.com/indiana-after-approval-of-settlement-agreement-by-board-estate-of-deceased-worker-may-not-proceed-against-employer-in-tort-on-basis-of-claimed-status-as-independent-contractor/.

See Estate of Smith v. Stutzman, 2012 Ind. App. LEXIS 124 (Mar. 23, 2012).

See generally Larson's Workers' Compensation Law, § 132.05.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

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