An injury that occurred when an injured worker's dog pulled away from him, causing his shoulder surgery to fail, is compensable, because it was a direct and natural consequence of the original work injury, the Tennessee Supreme Court, Special Workers' Compensation Appeals Panel ruled in Kirby v. Memphis Jewish Nursing Home, W2010-02261-WC-R3-WC, 12/01/2011.
David Kirby was employed as a heating, ventilation and air conditioning technician for the Memphis Jewish Nursing Home. He injured his shoulder on Sept. 24, 2008, when he slipped on some stairs while climbing down from a roof.
Kirby underwent surgery to repair a torn labrum and biceps tendon. He underwent physical therapy after the surgery and was progressing well until late September 2009, when he returned home and found one of his dogs off the leash and loose. Kirby grabbed the dog's collar, but the dog tried to run away, pulling on his shoulder. Kirby felt pain immediately and visited his doctor.
The dog's pull had caused Kirby's tendon to tear again, creating what orthopedists call a "Popeye" deformity to the biceps. Kirby and his doctor decided it was best not to perform any additional surgery. Kirby applied for workers' compensation benefits.
I find the Kirby case analogous to drug overdose cases that I had been highlighting recently.
A couple of days ago a reader challenged my opinion that a court was correct in finding compensable a worker's death due to drug overdose.
Change the facts in the above case a little to read that every time the worker felt pain due to his shoulder injury he popped another Oxycontin - and finally ingested enough to overdose.
How is taking medication prescribed by a treating physician - albeit outside of prescribed dosage - different than exceeding the physical limits of a freshly repaired body part?
One could argue that taking too much medication is voluntary - but then again grabbing a dog's collar is also voluntary. One could argue that taking too much medication is known to cause death and/or further disability - but then again it is reasonably foreseeable (one of those terms you learn as a first year law student) that grabbing a dog's collar after surgical correction could also lead to further injury of the shoulder.
In the Kirby case, the employer argued that Kirby's negligence had caused the second injury, breaking the chain of causation.
The appellate court's opinion noted that Kirby's physician had encouraged Kirby to "push past his limits" in order to improve his range of motion. The doctor had not advised Kirby to avoid walking his dog and had testified that failure is one of the risks of shoulder surgery. The court determined that the second injury was, therefore, a direct and natural consequence of the original injury.
In drug overdose cases, particularly the couple that I have observed in the past few posts, the employer argues that taking too much medication is outside the employer's control and is purely voluntary on the part of the employee.
Where do you draw the line on control? The employee's physicians had provided prescriptions for narcotics for pain. The physicians, per the prescriptions, had placed a limit on the quantity of drugs to be taken. One of the risks of these drugs is death if taken in excessive quantities or mixed with other drugs or alcohol. I'm reasonably sure that there are warnings on the labels of these drugs per FDA regulation.
I think it is helpful to think of workers' compensation as the first real universal health care system, albeit applicable only to people that are employed. You get hurt at work, your medical is covered. If one thinks of workers' compensation in those terms then compensable consequence cases are easier to understand.
In the Kirby case, a not yet completely healed should injury was still the responsibility of the employer even though the re-injury was due to a non-employment event because the universal health care rationale of workers' compensation dictates that result.
In drug overdose cases, a not yet completely healed worker is still the responsibility of the employer even though excess pharmaceutical intake is a non-employment event because the universal health care rationale dictates that result.
I don't like this result, but I have a hard time arguing against it until we change our culture of surgery and drugs as the cure of all that ills us.workers compensation, work comp, injured worker