Thursday, July 12, 2012

Yes Florida, A Brain Injury Can Occur At Work

A recent Florida case is not unlike a situation I blogged about not too log ago that occurred in Virginia.

If you recall I was critical of Erie Insurance for denying a claim for benefits where the injured worker fell off a ladder and suffered a head injury impairing his ability to testify about how the fall occurred. Erie asserted a wrinkle in Virginia law that was intended to provide a presumption in favor of injured workers who can't testify about how their injury occurred.

In Florida the 1st District Court of Appeals (DCA) reversed a Judge of Compensation Claims (JCC) decision that denied the claim of a worker who fell from a ladder and could not testify about how the fall happened.

In Caputo v. ABC Fine Wine & Spirits, No. 1D11-4962, 07/11/2012, Michael Caputo, an electrician for ABC Fine Wine & Spirits fell from a ladder and hit his head on the floor while using a saw to cut down shelving on March 3, 2010.

Doctors diagnosed him with a left temporal hemorrhage, seizure disorder possibly secondary to the left temporal hemorrhage and toxic encephalopathy secondary to the left temporal hemorrhage.

Caputo filed a petition for benefits, but his employer denied his claim. ABC argued that Caputo's fall resulted either from a pre-existing or idiopathic condition.

Although Caputo testified that he remembered working on the day of his accident, he said he had no recollection of how his fall happened.

His independent medical examiner, Dr. Ira Goodman, opined that Caputo's head injuries were the result of his head impacting the floor, not a seizure or a fainting spell. Goodman was, however, unable to state within a reasonable degree of medical certainty whether any factor related to Caputo's employment caused the fall.

ABC's independent medical examiner, Dr. Anthony Shydohub, also opined that the blow to Caputo's head from the floor, and not the fall, caused his brain to hemorrhage.

Caputo's medical records indicated Caputo had fallen in the shower – resulting in a 10-second loss of consciousness, head trauma and concussion – two years before his fall at work.

The JCC said that Caputo had no pre-existing conditions which may have caused his fall, but that there was also no objective medical evidence to support a finding that his work caused his fall either. Somehow the defense convinced the JCC that there was no evidence Caputo's injuries arose out of employment (the AOE part of AOE/COE - there was no dispute that the injuries were incurred in the course of employment).

The DCA got it right - how could there be medical evidence that work caused the fall - why would a doctor have any opinion about that? That is not a medical question, it is a causation question and the fact that Caputo was at work, fell off a ladder at work, hit is head at work and required medical treatment because he fell off a ladder and hit his head at work should be sufficient.

The DCA said that Caputo established a sufficient connection between his work and his injury by producing evidence that he was performing one of his job duties at the place of his employment.

Now, let's move on to the decision by ABC to deny Caputo's claim in the first place because this is something that I find particularly offensive.

The decision by ABC to fight Caputo strikes me as irresponsible employer behavior. This is not a case where someone is trying to take advantage of a system or of the employer - the guy fell off a ladder and that is, based on the JCC's review of the evidence, undisputed.

It is also undisputed by the medical evidence that at least some of Caputo's impairment was the product of hitting his head on the floor.

To me, that is where the analysis should have stopped and the claim admitted. The medical evidence was clear that a brain hemorrhage arose out of the fact that Caputo hit his head on the floor at work.

In my opinion ABC can't complain later on about its experience modification factor. The delay in denying the claim will impact quite negatively that calculation. ABC would have done much better had it owned up to its responsibilities, admitted the claim, and provided benefits.

The case title includes Alternative Service Concepts (ASC) - a third party administrator. Apparently ASC was responsible for managing the claim. I can not tell whether there was a carrier providing the insurance, or whether ABC was self-insured. It is unclear from the DCA opinion who was steering the ship on this claim.

Regardless, this was not a case for denial.

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