Posts Tagged ‘Arkansas’

Annals of Compensability: These Boots Ain’t Made for Walking…

Friday, November 16th, 2012

John Pearson was diagnosed in his mid-20s with diabetes and was insulin dependent. About fifteen years after the diagnosis, he was working for an Arkansas temporary placement agency, Worksource, which sent him to a steel fabricator. His temporary employer gave him a pair of steel toe boots and assigned him the task of covering warm steel bundles with blankets. The job required a lot of rapid walking across a large field, as the bundles emerged from the plant at odd intervals. In the course of the day he experienced discomfort in his left foot and at the end of the day he found a blister on his left great toe. The next day he requested a wider pair of boots, but none were available. The employer suggested he buy them, but he could not afford to do so before being paid – and payday was still a couple weeks away.
Two weeks later Pearson was diagnosed with “diabetic neuropathy and cellulitis.” Worksource sent him to another doctor, who diagnosed a diabetic ulcer and cellulitis and placed him on light duty, restricting his standing and walking. (The court is silent on how long Pearson continued to work at the steel fabricator.) Ultimately, surgery was performed on the toe, which fortunately did not require amputation, and Pearson was able to begin working again, albeit with (temporary) restrictions. Pearson took a job in a Waffle House, where he was able to resume full time work. In the meantime, he was faced with lost wages and formidable medical bills.
Proving Compensability
Pearson filed a workers comp claim, which at first was accepted and then denied on appeal to the Arkansas Workers Compensation Commission. The denial was based upon an interpretation of state law:

(4)(A) “Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the body
or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or
hearing aids, arising out of and in the course of employment and which requires
medical services or results in disability or death. An injury is “accidental” only if it
is caused by a specific incident and is identifiable by time and place of occurrence;
(ii) An injury causing internal or external physical harm to the body and arising
out of and in the course of employment if it is not caused by a specific incident or is
not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion.
[Arkansas Code Annotated section 11-9-102(4)(A) (Supp. 2011)]

The Arkansas Court of Appeals agreed with the commission that the injury did not meet first criteria: there was no specific incident identifiable by time and place. However, the Court found that the injury was caused by “rapid repetitive motion,” applying a two-pronged test that is stunning in its obviousness: did injury involve “repetition” and did it involve “rapidity”?
The “repetitive” part involved walking itself: Pearson walked up and down the field in tight boots, watching for the steel bundles as they emerged from the plant. The rapid part involved his walking briskly to protect the bundles as they appeared. He walked from bundle to bundle, as fast as he could, performing the job as instructed. In doing so, the boots rubbed his toe continuously over the course of the day, resulting in a blister. For most people, a blister is no big deal. For a diabetic, it could lead directly to amputation.
Lessons for management?
It is difficult to draw conclusions from this unusual case. Because Pearson was a temporary employee, the steel company had no awareness of his diabetes and no reason to be aware of it: he was able to perform the work as assigned. Theoretically, they could have done better on Pearson’s request for wider boots, but they had no reason to anticipate a serious problem beyond a bit of discomfort. Pearson himself was probably unaware of the risks involved in wearing the tight boots. He obviously was feeling pressure to earn money and probably thought the discomfort, while painful, was not a serious matter.
Perhaps the most important aspect of this case is Pearson himself: despite a life-altering health problem, he is strongly motivated to work. In the few months described in the court narrative, he tries hard to do what he’s supposed to do and he keeps working as best he can. Given comfortable footwear, Pearson will do just fine.

Social Media as Evidence: Good Times Yield Bad Results

Monday, February 6th, 2012

ABC news has picked up a story out of Arkansas: Zack Clement suffered a hernia while moving a refrigerator for his employer, Johnson’s Warehouse Showroom. He underwent multiple surgeries, but the pain lingered, so he filed for a continuation of benefits. Among the pieces of evidence at his trial were party photos posted on his Facebook page, which show Clement drinking (and little else). When his claim for reinstatement was denied, Clement appealed, citing the unfairness of the Facebook evidence.
ABC wrote as follows:

In an opinion, written by Judge David M. Glover, the Arkansas Court of Appeals states: “We find no abuse of discretion in the allowance of photographs. Clement contended that he was in excruciating pain, but these pictures show him drinking and partying.”
“Certainly these pictures could have a bearing on a Clement’s credibility, albeit a negative effect that Clement might not wish to be demonstrated to the ALJ or the Commission, ” Glover continues. “We hold that there was not an abuse of discretion in allowing the photographs.”

Justice in the Details
At first glance, the judge’s comments might be cause for alarm. An injured worker suffering from chronic pain might well be capable of having a few drinks with friends. (One can only hope that the alcohol does not interfere with any prescribed -or unprescribed – pain medications.) If the photos were the primary evidence of Clement’s condition and the basis for denying the claim, Clement would have good reason to object. However, this is not the case.
In the course of his carefully reasoned findings, Judge Glover reviews in detail the medical history of Clement’s claim. Even after multiple surgeries and several changes in treating doctors, Clement complained of ongoing pain. Extensive medical testing revealed no abnormalities and no evidence for the pain itself. He has been released to full duty. It is this detailed history and the lack of medical evidence that lead Glover to conclude that any further treatment would fall outside of the workers comp system. The Facebook photos are by no means the foundation of his findings. Nonetheless, he decides that the photos are a legitimate piece of the case file and admissable as evidence.
In my limited experience, Facebook seems to be a platform for superficial news and, for the most part, images of the good times. It is difficult to imagine that Clement would have used this public forum to post pictures of himself suffering excrutiating pain. If he had chosen to do so, this might have provided evidence in his favor. However, his friends would likely have chided him for being such a downer and even then, the court might have dismissed the images as theatrical exaggeration.
Facebook may now be the preferred means of presenting our personal narratives, but it is unlikely to help us make our case in a court of law.

News roundup: workplace cancers, medical costs, SC reform, ergonomics, photo of the week

Monday, April 30th, 2007

Workplace cancer – According to the World Health Organization, at least 200,000 workers die each year from cancers related to work exposures, such as asbestos, benzene, and second-hand smoke. Nearly half of those deaths – or 90,000 each year, are related to asbestos. Think that asbestos exposure is no longer a problem here in the U.S.? Think again.
Chlorine exposure – The Arkansas Court of Appeals reversed a denial of benefits for a city water department worker who had died after exposure to chlorine gas. Jerry Slaughter died one month after being spewed in the face by chlorine that escaped from a cracked cylinder. A doctor retained by the city suggested that his death was related to a parasitical infection commonly associated with HIV, so the state Workers’ Compensation Commission found that chemical exposure was “but one factor” contributing to Slaughter’s death, not the major cause. The Appeals Court found Slaughter’s treating physician to be compelling and sided with his opinion that the exposure was “the major precipitation event.”
Implants and pharma costs – Joe Paduda has a few interesting posts related to cost items that can add to a claim’s medical bill. First, he looks at the often all-too-cozy relationship between physicians and big pharma. In another post, he suggest taking another look at the invoice for implants used in spine surgery, bone and joint surgery. The price tag can be hefty – adding 11-33% to hospital bills in California.
South Carolina – does it seem like workers comp reform in South Carolina has been in the offing for an awfully long time? In the light of a recent NCCI recommendation that the loss cost level be increased by 23.7 percent, the Property Casualty Insurers Association of America is speaking out.
Shavers cramp – as the nature of the work we do changes, so do the risks. Jobs have changed considerably since 1923. Check out some of the occupational ergonomic maladies of yesteryear. (Thanks to Ergonomics in the News for the pointer.)
Photo of the week – from the Naval Safety Center – Eyewash Yikes and Eyewash Yuk.