During a hearing, the vocational expert will sometimes testify as to matters not covered by the Dictionary of Occupational Titles (DOT) and/or at variance with the DOT. An ALJ is required to ensure that the vocational expert’s testimony is consistent with the DOT, and if not, such conflicts must be resolved. SSR 00-4p “emphasizes that before relying upon VE…evidence to support a disability determination or decision, our adjudicators must identify and obtain a reasonable explanation for any conflicts between occupational evidence by VEs…and information in the DOT…and explain in the…decision how any conflict that has been identified was resolved.”
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In an important decision from the Tennessee Supreme Court issued yesterday, the Court re-affirmed the “discovery rule” in Tennessee Workers’ Compensation cases. According to the Court: “The statute of limitations commences to run ‘at that time when the employee, by a reasonable exercise of diligence and care, would have discovered that a compensable injury had been sustained.’ Bellard v. Baptist Hosp., Inc., 559 S.W.2d 788, 789-90 (Tenn. 1978) (construing section 203). The question of whether a plaintiff has exercised reasonable diligence and care in discovering that he has a cause of action, however, is a question of fact.” Ameristeel, Inc. v. Ratliff, (Tenn. June 7, 2012).
The case of Buttrey v. Altria Group Inc., (Tenn. W.C. Panel 4/24/2012), is a good example of an important rule of law in Tennessee Workers’ Compensation cases. In Buttrey, the employee injured her neck while working in 2001. She treated conservatively and didn’t miss any work. In 2005, she again experienced neck pain with radiculopathy, but didn’t miss any work. In April of 2009, the employee was performing lifting activities at work and began to experience excruciating neck pain. An MRI revealed degenerative changes in the neck and a surgery was performed in August of 2009. The treating doctor testified that the employee had pre-existing degenerative disc disease that was exacerbated by her work activities in April of 2009. The employer hired a doctor who testified that there was no evidence of a work related injury or exacerbation. The Court ruled in favor of the employee (plaintiff), noting that lay testimony in conjunction with medical evidence was sufficient to establish the the employee’s work activities advanced the severity of her pre-existing degenerative disc disease in April 2009.
Employee sustained compensable back injury that was treated with prescription medication. Five weeks after his injury, the employee died from hypovolemic shock due to gastrointestinal bleeding. The employee’s spouse file for workers’ compensation death benefits alleging that the employee’s death was caused by the prescription medication. An expert witness testified that the employee’s use of Naprosyn “precipitated the peptic ulcer and contributed to the bleeding”, but the court found that there was not a sufficient causal link between the medication and the death. The Court indicated that the fatal gastrointestinal bleed was caused by esophageal varices resulting from alcoholic cirrhosis of the liver. Marine Accessories Corp. v. Woods, 37 TAM 23-4, 5/3/2012 (Tenn.W.C. Panel).
In TROY MITCHELL v. FAYETTEVILLE PUBLIC UTILITIES, the trial court awarded workers’ compensation benefits to an injured lineman who had violated a rule requiring the use of protective gloves while in a bucket lift. The employer appealed, contending that the statutory defenses of willful misconduct and, more particularly, the willful failure or refusal to use a safety appliance or device precluded recovery. The appeal was referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with T.C.A. Sec. 50-6-225(e)(3) (2008). After oral argument before the Panel, but before the Panel filed its opinion, the case was transferred to the full Court. Because the evidence established that the employee admitted his knowledge of a regularly enforced safety rule, understood the rationale for the rule, and willfully (rather than negligently or recklessly) failed to comply, the injuries he suffered because of the rule violation were found not compensable by the Supreme Court. The judgment of the trial court was reversed and the case was dismissed. This is another scary decision from the Supreme Court on this issue. We fear it will only encourage more claims of wilfull violation of safety rules by employers, who frequently pressure employees to take short cuts while maintaining a facade of written safety rules.
US Transportation Secretary Ray LaHood is pushing for a national law banning the use of cell phones while driving. While speaking at an anti-distracted driving summit, in San Antonio,which was attended by medical personnel, government officials, and safety advocates, LaHood characterized distracted driving as a “national epidemic” and said that a federal ban would be the way to prevent it. LaHood said that he doesn’t think other distracting behavior, such as eating or applying make-up, should be banned by the federal government since “not everyone does that.” LaHood added, “But everyone has a cell phone and too many of us think it is OK to talk on our phones while we are driving.”
New survey finds distracted driving a growing problem. WRC-TV Washington (4/26, Wilkins) reported on its website, “New statistics from the NTSB show just how big of a problem distracted driving in work zones really is in the Washington region.” A new survey released “by Transurban-Fluor, in partnership with AAA Mid-Atlantic, shows that 40 percent of drivers in work zones use their cell phones.” NTSB Chairman Deborah Hersman commented, “NTSB issued a recommendation last December recommending to states that they ban talking or texting on the phone while behind a wheel, except for emergency situations.”
The Washington Post (4/26, Halsey) reports, “With miles of highway construction underway in Northern Virginia, the region’s police officers say work-zone accidents have increased dramatically because drivers are using mobile devices to talk or text.” A new survey by AAA and Transurban “of 409 police officers who patrol Northern Virginia’s roadways, found that cellphone use was to blame in one in three work-zone accidents.” Approximately “80 percent said banning cellphone use behind the wheel would dramatically reduce road accidents.” The article also notes last year’s recommended ban on all cellphone use while driving from the NTSB.
In a recent decision from the Tennessee Workers Compensation Panel, Keith v. Western Express (2/16/12) , a truck driver who says he was ordered to deliver a load in California by a certain time was denied workers compensation benefits because he violated Federal Motor Carrier Safety Regulations governing hours-of-service while trying to get there on time. He apparently went to sleep at the wheel and wrecked his truck in New Mexico. The driver presented the case as an example of damned if you do and damned if you don’t. The driver felt that he would have been fired or disciplined for being late. But, it was clearly impossible for him to have made the delivery deadline and not violated the hours-of-service rules. When the wreck occurred, he had driven over 36 hours without a 10 hour break, according to the on-board Qualcomm system.
There is no excuse for a truck driver falling asleep at the wheel of a loaded tractor-trailer, and now Tennessee may deny workers compensation benefits to drivers who are injured while violating Federal Motor Carrier Regulations, provided there is a causal connection between the violation and the injury.
On March 1, 2012, a Hamilton County jury returned a verdict of $40,651.78 in Circuit Court in favor of Plaintiffs, Phyllis and Rick Bradley. Phyllis had been struck in the head by a falling stroller at the Toys R Us store on Highway 153 in Chattanooga on September 2, 2008. Toy R Us admitted liablity but contested the nature and extent of injury. She suffered from head pain and burning on her head, with electrical like zaps. The medical term for these conditions is posttraumatic injury to the nerve, scalp region which is resulting in the abnormal dysesthesias, paresthesias, with characteristics of complex regional pain syndrome, according to Dr. David Rankine. Hu Hamilton and Patrick Cruise represented the Plaintiffs in Phyllis A. Bradley and Richard Bradley v. Toys “R” Us – Delaware, Inc. 09C957.
The Omnibus Transportation Employee Testing Act of 1991 requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries. Mandatory drug testing is required for five specific categories of drugs (referred to as the SAMHSA 5, previously called the NIDA-5):
1. Cannabinoids (marijuana, hash)
2. Cocaine (cocaine, crack, benzoylecognine)
3. Amphetamines (amphetamines, methamphetamines, speed)
4. Opiates (heroin, opium, codeine, morphine)
5. Phencyclidine (PCP)
There is an emerging trend with some of the more safety orriented trucking companies like JB Hunt, Schneider, C.R. England, Roehl Transport, Gordon Trucking, that have replaced the DOT required urine test with the radioimmuneassay of hair (RIAH) test, commonly known as hair testing.
Hair testing is more expensive, so why are some companies using it? Hair testing reveals 12 times more positive tests, or failures, than urine testing. Experts report that illegal drugs can be detected in hair for upwards of 90 days. Not only does hair testing give a longer window of detection, detecting drug users who abstain for a short period of time, but there is an inability to tamper with the test, unlike mandatory urine testing. Currently, there are no known adulterants for hair tests. Since hair tests analyze the drugs inside the hairshaft, external contaminants/chemicals have no effect.
The small percentage of carriers utilizing hair testing are more readily and accurately identifying illegal drug users. In the long run, they are probably saving millions of dollars and keeping drug users out of their trucks, thereby reducing the number of catastrophic wrecks on our highways.
TCA 50-6-204(g)(2)(B) allows a Department of Labor Specialist to award attorney fees on post-settlement/judgment medical issues under the Tennessee Workers’ Compensation Act. Last month, the Davidson County Chancery Court found that judicial review of such awards, provided for by TCA 50-6-204(g)(2)(D)(ii), violates Due Process, and is therefore void. The ramification of this decision is to essentially strip the Department of Labor of the ability to dispose of post-settlement/judgment medical issues in workers’ compensation cases. Workers’ compensation practitioners would be wise to avoid using the TNDOL process to handle post-settlement/judgment medical issues.