WORKERS' COMPENSATION

Wyoming Supreme Court rules in favor of three injured employees

What does it mean to "take an employee as you find him"? Does an employee forfeit workers' compensation benefits if he has a preexisting condition? What if he refuses a blood transfusion that could increase his chances of recovery? Can an injured worker recover benefits for loss of earning capacity even when you offer to rehire him at a comparable wage? Read on to find out how your instincts match up against three recent Wyoming Supreme Court opinions on these issues.

Acute aggravation of preexisting condition

Clayton Straube injured his right knee while working as a pipe helper for TIC Industrial in Gillette. He immediately saw a doctor who diagnosed him with an osteochondral defect (i.e., a torn articular cartilage) and a loose fragment lodged between the anterior cruciate ligament and the patellar tendon. Straube underwent surgery to remove the loose fragment. The surgeon noted in his operative report that he believed there was a preexisting lesion that was knocked loose by the work injury.

The Workers' Compensation Division found the injury to be compensable and awarded benefits covering the surgery. The division recognized that Straube suffered from a preexisting knee condition but took the position that he experienced an acute aggravation ― the loose fragment ― as a result of the work incident. Accordingly, it agreed to cover all medical expenses relating to removal of the fragment.

Straube's knee never fully healed, and he was unable to return to work. His new doctor recommended that he undergo osteochondral autograph implant surgery (also known as the Genzyme procedure). Straube asked the division to preapprove the surgery. The division sought medical advice from two orthopedic surgeons who reviewed Straube's medical records and determined that the procedure was necessitated by his preexisting condition, not the acute aggravation he suffered at work. Based on the surgeons' input, the division denied Straube's request for preauthorization of the surgical procedure.

Straube objected to the division's denial, and the case was referred to the Medical Commission for an administrative hearing. At the hearing, the division presented the opinions of the two orthopedic surgeons who had advised against coverage for the Genzyme procedure. Straube presented a letter written by the surgeon who removed the loose fragment that stated the Genzyme procedure wouldn't be necessary if the fragment hadn't detached. Straube also testified that his knee never fully recovered after the work incident and that he'd never had any physical problems with his knee before then.

The Medical Commission upheld the division's denial of benefits, finding that the preexisting condition was the primary reason Straube needed the Genzyme procedure and that his knee would've required surgical repair at some point in the future regardless of the work injury. Straube appealed to the district court, which agreed with the Workers' Compensation Division and the Medical Commission.

The Wyoming Supreme Court then reviewed the decision. The court began by recognizing the well-settled legal principle that an employer "takes an employee as he finds him." In other words, an employee with a preexisting condition may still be entitled to workers' comp benefits if his employment substantially aggravates the condition, even if he is more susceptible to injury than the average person.

In Straube's case, it was undisputed that he had a preexisting condition. It was also undisputed that he suffered a compensable and significant aggravation of the condition when he injured his knee at work. The only question remaining was whether the need for the Genzyme procedure was causally related to the aggravation. After reviewing the evidence, the Wyoming Supreme Court decided it was.

The court found it compelling that Straube's knee never fully recovered after the work injury and that his surgeon believed the additional surgical procedure wouldn't have been necessary if he hadn't been injured on the job. Overruling the decisions of the division, the commission, and the district court, the supreme court ordered that Straube be awarded benefits covering the Genzyme procedure. Straube v. Wyoming Workers' Safety and Compensation Division, 2009 WY 66 (5/20/09).

Jehovah's Witness doesn't forfeit benefits by refusing blood transfusion

While traveling on the interstate as a maintenance technician for Capital City Maintenance, Howard Williams was severely injured in a car accident. He was taken to the emergency room, where the doctor determined he had a ruptured spleen and abdominal bleeding. Williams and his family informed the doctor they were Jehovah's Witnesses and didn't want any blood products used during Williams' treatment.

The doctor decided to perform an emergency splenectomy, explaining to Williams' family that their decision not to allow any blood products might make it difficult to resuscitate Williams. The doctor's operative report stated that Williams had massive internal bleeding and lost five liters of blood. Other than the ruptured spleen, there were no signs of trauma to his abdominal cavity or pelvic area. After surgery, Williams was taken to the intensive care unit, where he later died because of a lack of blood pressure.

Williams' wife filed a claim with the Workers' Compensation Division for death benefits and funeral expenses. The division denied her claim, stating that the cause of Williams' death was his "refusal of reasonable and necessary medical care." Williams' wife objected to the decision and requested a hearing. In response, the division filed a petition for forfeiture of benefits under Wyoming Statute § 27-14-407.

Under the statute, the division or the injured worker's employer can ask the hearing officer to declare that the employee forfeited all rights to workers' comp benefits on the basis that he "knowingly engage[d] or persist[ed] in an unsanitary or injurious practice which tends to imperil or retard his recovery" or "refuse[d] to submit to medical or surgical treatment reasonably essential to promote his recovery."

The emergency room doctor testified that although a blood transfusion likely would have increased Williams' chances of survival, he might still have died because of the severity of his injuries. Based on that testimony, the hearing officer decided that the lacerated spleen ― not Williams' refusal to accept blood products ― was ultimately the cause of his massive blood loss and subsequent death. Since Williams suffered the spleen injury in the course of his employment, the injury was compensable under workers' comp laws.

But the case didn't end there. The hearing officer next found that despite the compensability of the injury, Williams' wife couldn't recover any benefits because Williams had forfeited all rights to workers' comp protection by refusing reasonably necessary medical treatment (i.e., a blood transfusion).

On appeal, the Wyoming Supreme Court began by examining the history of the forfeiture statute and noted that it was intended to prevent compensation for injuries resulting from an employee's unreasonable conduct. To warrant forfeiture, there must be more than a mere possibility that the employee's actions inhibited his recovery. Based on the emergency room doctor's testimony, the court couldn't conclude that Williams contributed to his own death by refusing reasonably essential medical treatment.

While the doctor testified that Williams' chances of survival would have been better had he accepted the transfusion, she was unable to quantify the difference the transfusion would have made. Instead, she repeatedly testified that she couldn't say whether Williams would have survived if the transfusion had been given. Since Williams had already lost a lot of blood before arriving at the hospital and his survival wasn't guaranteed even with the use of blood products, he didn't forfeit his workers' comp benefits. Williams v. Wyoming Workers' Safety and Compensation Division, 2009 WY 57 (4/21/09).

Illusory job offer doesn't preclude employee from recovering benefits

An injured employee is entitled to permanent partial disability (PPD) benefits if, because of a work-related injury, there are no suitable job openings in the state that would pay at least 95 percent of the wage the employee was earning when the injury occurred. David Block was working for Tennyson-Ankeny Construction when he suffered a compensable injury to his back and neck while moving a heavy beam. A doctor assessed Block as having a seven percent whole-body permanent partial impairment.

Block's medical restrictions precluded him from obtaining most physically demanding jobs, so he applied for PPD benefits, claiming he couldn't find a job paying at least 95 percent of his previous wage of $12 per hour. Indeed, a labor market survey indicated there were no available jobs in Wyoming that could accommodate Block's physical limitations that paid at least $11.40 per hour.

After receiving Block's application for PPD benefits, the Workers' Compensation Division claims analyst contacted Tennyson-Ankeny's office manager to see if the company would be willing to rehire Block at 95 percent of his previous wage. The office manager later testified that her conversation with the claims analyst didn't leave her with a clear understanding of Block's physical restrictions. For example, she wasn't aware of his seven percent whole-body impairment or that he was limited to performing medium-duty work.

Nevertheless, the company agreed to rehire Block, and the office manager sent him a letter offering him a position within his work restrictions. On the basis that a suitable job was available to Block, the division denied his request for PPD benefits.

Block never responded to Tennyson-Ankeny's job offer. Instead, he objected to the division's denial of his PPD application. After an administrative hearing on the matter, the hearing officer agreed with the division's decision to deny PPD benefits based on Tennyson-Ankeny's sincere offer of comparable employment. On appeal, the district court concurred with the hearing officer.

The Wyoming Supreme Court, however, saw things differently. The only reason the division denied Block's PPD application was because it found one suitable job for him ― the job offered by Tennyson-Ankeny. The real question was whether the Tennyson-Ankeny offer was a bona fide offer of employment. In other words, would the company have maintained its job offer to Block after learning the true extent of his work restrictions?

Given the mistaken assumptions underlying the company's job offer, the Wyoming Supreme Court believed the offer was contingent at best. Block therefore couldn't be faulted for choosing to ignore the company's offer letter, and he was entitled to PPD benefits compensating him for his loss of earning capacity. Block v. Wyoming Workers' Safety and Compensation Division, 2009 WY 34 (3/10/09).

Bottom line

Workers' comp coverage extends further than you might expect. Unfortunately, there's no easy way to predict how a hearing officer or judge will view a particular claim because the outcome of each case depends so much on the specific circumstances involved. Nonetheless, there are some general lessons to be learned from the three cases we've covered.

First, the testimony of medical experts is very important. If you object to a claim, be prepared to consult with a doctor who is knowledgeable about the medical issues you're facing. Next, make sure you're well informed about the nature and extent of an employee's injury and restrictions. That will not only assist you in deciding how to handle the workers' comp claim, but it will also help you ensure you comply with the Americans with Disabilities Act and the Family and Medical Leave Act.

Copyright 2009 M. Lee Smith Publishers LLC

WYOMING EMPLOYMENT LAW LETTER is intended only to inform, but not to provide legal advice, and recipients should seek professional advice with regard to specific applications of the information.