Workers Compensation News Spring 2015
Recent Rothman Gordon Successes
By John W. Zatkos, Jr. Esq.
Repetitive injury is compensable for medical benefits and wage loss
We recently represented a worker in the energy industry who suffered cumulative shoulder injuries caused by the physical and repetitive nature of his employment. The Workers’ Compensation Judge (WCJ) carefully considered the testimony of the treating physician and our client. Our medical expert provided a medical opinion that within reasonable degree of medical certainty our client (his patient) suffered from significant repetitive overuse injuries as a result of his employment over the past 30 years. The employer’s medical expert opined that the repetitive injuries resulting in rotator cuff damage could have been caused by activity at work or by activity at home.
The WCJ carefully reviewed the evidence that we submitted on behalf of our client, including his job description and work logs. He chose to rely on the testimony of the injured worker’s treating doctor, finding that there “was nothing in the record to hint at, let alone establish, that the claimant has similar overhead activities at home.”
The WCJ granted the claim petition and awarded not only medical benefits, which included reimbursement of his health insurance, but also wage loss benefits for the time he was off work recovering from his work related shoulder surgeries brought on by his employment activities.
“Coming and Going Rule” merits further consideration
We recently represented a worker who was injured in a motor vehicle accident on the way to work. On the way, she stopped at a fast food restaurant and had a motor vehicle accident. The WCJ unfortunately found that because she was on a personal errand, she was not in the scope and course of her employment. Our office filed an appeal to this unfavorable decision issued by the WCJ.
Normally, under the “coming and going rule,” injuries received going to and from work are NOT compensable. However, the exceptions to this rule are: 1) the employee has no fixed place of work; 2) the employment contract included transportation to and from work, 3) the employee is on a special mission for the employer or 4) special circumstances are such that the employee was furthering the business of the employer.
In this instance, the Workers’ Compensation Appeals Board (WCAB), noted that the only exception to the coming and going rule at issue was whether the injured worker’s contract of employment included transportation to and from work. The WCAB also noted that when a claimant proved the injury falls within any one of the four exceptions, the claimant is not required to show she was engaged in furtherance of the employers business. The WCAB found that the WCJ did not use the facts presented to establish if the injured worker met one of the four exceptions. Therefore, the WCAB remanded the case to the WCJ for further determination on the facts presented.