Category Archives: AOE/COE

The Incredible Hulk? Not so much…

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Do you think the Incredible Hulk had a compensable workers’ compensation claim?  I mean, after all, he was injured in a lab while working with gamma rays and developed noticeable impairment, primarily psychological, which resulted in him being precluded from most available jobs.  After all, the things that would turn Dr. Bruce Banner into the smashing angry beast are the types of things we encounter every day in the Workers’ Compensation world.

Nothing so interesting happened with the applicant in the case of Betty Popoff v. Labcorp.  If Ms. Popoff developed any super powers after her alleged injury, they are likely limited to recovery in the workers’ compensation system after years of treatment on a non-industrial basis.

Applicant was employed by Labcorp and claimed a cumulative trauma injury from July 2009 to July 2010, manifesting mostly as numbness in her hands (bilateral carpal tunnel syndrome).  The workers’ compensation Judge found the injury compensable, and the defense petitioned the Workers’ Compensation Appeals Board for reconsideration.

In denying the defendant’s petition, the WCAB took the position that defendant was making two, mutually exclusive arguments.  The first was the statute of limitations – that the applicant should have known that her injury was industrially caused when she went to see a physician on a non-industrial basis in 2004 for numbness in her hands.  The second was that the injury was not industrially caused.

But in all fairness to the defense, what about the other side of the coin?  If it was industrially caused, then applicant had six years to discover its causation.  Furthermore, after six years of treatment for numbness in hands, no physician had ever explored the possibility that the numbness was industrially caused.  Yet, somehow, the applicant decides, after six years, that the injury must be industrially caused and files an application.

Nor did the applicant tell the employer about the numbness she experienced in her hands, information that could have helped prevent any permanent disability by adjusting her duties in 2004.  After all, the standard is “known or should have known.”

Just thinking about this approach makes your otherwise calm and articulate blogger WANT TO MAKE SMASH!

Jealousy and Death on the Job

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When workplace violence occurs, and when employees are injured, who has to pay?  Well, the answer, often enough, lies not in the “who” but in the “why” – what was the motive for the violence.  As we saw in a previous post, sometimes the motive for a workplace murder remains a mystery, and in those cases the applicant’s surviving dependents can usually recover a death benefit, the workers’ compensation system giving them the benefit of the doubt.

In one recent case, Mariela Paredes (Deceased), Efren Caprio v. Ralph J. Maiello DDS, Inc., applicant’s mother was murdered by her widower when he came to the dental office where she worked and opened fire, shooting four people and killing her.  You may have even seen this one in the news.

The decedent’s widower, the one pulling the trigger, discovered that she had been having an affair with a co-worker, having been informed by family members who worked with the deceased.  His own investigation revealed over 5000 minutes of cell-phone conversation between the two and one nude photo sent by his wife to the man she was having an affair with.

Decedent’s widower made threatening phone calls to the phone number on the cell phone records, and repeatedly made comments to the effect he was going to come to her office and do something.  Decedent persuaded her co-workers that he was not actually going to do anything, but was just blowing off steam with empty talk.

After decedent’s murder, the applicant’s guardian ad litem pursued a claim for death benefits, claiming that the death was sustained in the course of and arising out of employment.

The attorney for the defense argued that the death was not a result of anything work-related, but was purely personal in nature, a position with which the workers’ compensation Judge agreed.

The bottom line in this case is that the connection to the employment was pure coincidental – decedent’s widower had tried to catch her in the act away from work, but was not able to do so.  Because there is no real connection between the injury/death and the employment, other than an accidental stage, the injury itself is non-industrial.

But what about the three other shooting victims?  If they have no connection to decedent’s widower, are their claims industrial? We’ll have to wait until we see those claims come forward.