The 'Long Tail' of On-the-Job Injuries

The Wyoming Supreme Court ruled that a man's former employer is responsible for a 2007 medical condition because it was related to treatment for a 1993 workplace injury. While that already is the situation in some states, it is not in others -- although their courts or regulatory agencies may start seeing claims with such arguments popping up.

By Maura C. Ciccarelli

The Wyoming Supreme Court recently ruled that the medical costs of a man's current injury were the responsibility of his former employer, where he became disabled 15 years earlier.

The court overturned an earlier ruling that the man's hernia -- caused by a malfunctioning electrical spinal-cord stimulator -- did not qualify as a compensable injury because it did not occur "during the course of the employment."

Some states already have rules or laws that mandate that secondary injuries such as this are covered by workers' compensation, but those that do not may face the prospect of a longer tail on some workers' comp claims, experts say. For HR managers in charge of workers' comp programs, it's good to be aware of the potential long-term costs, no matter how remote they may initially seem.

Injured workers in those states without specific legislation may opt "to make the same argument" for coverage of secondary injuries that can be linked back to the original job-related medical injury, says James E. Pocius, a shareholder at Marshall, Dennehey, Warner, Coleman & Goggin, based in Scranton, Pa.

Proximate cause is the balancing test, he says: "It's more a matter of public policy as we move ourselves further and further away from the original accident. The conclusion is that you'll have a long tail in workers' comp cases in Wyoming."

That could lead to increased premiums and insurance costs and an impact on Medicare set-asides related to permanent disability cases, he adds.

Some states already categorize secondary injuries as the Wyoming courts interpreted it, says Steven P. Kronenberg, a workers' comp defense attorney and senior partner and founding member of Kelley Kronenberg, in the Miami/Fort Lauderdale area.

"Under Florida's workers' compensation law, if you sustain an injury in the course of treatment for a workers comp injury, it's compensable. In fact, if you sustain an injury on your way to treatment for a workers' comp injury, that is also compensable."

For HR professionals who manage their company's workers' comp program, it's important to know that such extensions of coverage are not unusual, says Rebecca Shafer, president of Amaxx Risk Solutions and a leading workers' comp cost-containment consultant and attorney based in Hartford, Conn.

"It surprises HR managers working on workers' comp because it doesn't seem like original injury," she says, "and why should be charged for that?"

Shafer points out that paying attention to such longer-term claims can control costs.

"There's a huge subrogation issue on this claim because it seems to be a faulty device," she says. "The HR manager should ask the insurance company if they are going to [try to recover the legal and medical costs] against the device manufacturer. A lot of times it's the employer that ends up paying for these types of things."

Following claims closely and checking with the insurer about recovering costs is an extra step that involves a lot of work, but in the end, it will control workers' comp costs, Shafer says.

The Sept. 22 Wyoming decision concerned James L. Ball, who became permanently disabled after slipping at work in 1993, injuring his shoulder, neck, back and right leg. Among his treatments for pain was an implanted electrical spinal-cord stimulator. In 2006, the unit was replaced and it periodically malfunctioned, giving him "good jolts," according to court records

In 2007, 15 years after the first workers' comp injury, the stimulator gave him a "shocking sensation" that caused muscle cramps like a big "charley horse" in his right leg; he stood up quickly and then fell, according to court records. After that, he experienced pain in his left groin that doctors determined was a hernia.

Ball sought coverage for the hernia surgery and was initially approved by the state's Office of Administrative Hearings, but, in a subsequent ruling by the Laramie County District Court, the decision was overturned.

Ball then took the case to the Supreme Court, which upheld the original decision in September and approved the medical benefits.

At issue was the interpretation of the state's regulations concerning compensable injuries.

In the original hearing conducted by the state's Office of Administrative Hearings, the Wyoming Workers' Safety and Compensation Division contended that the hernia treatment was "not related to Ball's original 1993 injury to his back," according to the court documents.

Ball disagreed, contending he was entitled to coverage because the hernia was "causally related to his original work-related injury ... his fall was caused by a malfunction in his electrical stimulator, which was prescribed and implanted to treat his chronic low-back pain."

The hearing examiner agreed the hernia was compensable as a second injury, but on appeal, the district court reversed the decision, ruling the hernia was not compensable as a second injury unless the original injury itself was a hernia -- which it was not.

The Supreme Court reversed yet again, determining that the hernia occurred "in the course of employment" because it was related to treatment for the original workers' comp injury.

"It's also a good illustration for getting management commitment to get a zero accident program," Shafer says.

Also, she adds, it's wise to stay in periodic contact with an employee to see how things are going, either through the HR office or a medical director.

"If they had been in touch," she says, "surely the employee would have mentioned the side effects" and the hernia injury may have been avoided.