Tennessee Lineman...Becareful

Tennessee Court Decision on Electrical Shock is Somewhat Shocking
By Robert Wilson 10/05/2012 09:56:00

This is just a quick test, to see if you have been paying attention. I am going to quickly review three separate workers’ comp claims. Your job is to tell which received benefits, and which ones, if any, were denied:

1.A woman in Australia, traveling on business, meets up with a male friend and takes him back to her motel room to have sex. During the festivities, a light fixture is knocked from the wall and hits her in the face, injuring her.


2.A Tennessee lineman repairing an electrical line on a pole removes his safety gloves in order to more easily hammer a metal staple. The wire he is holding brushes a power line several feet below and he recieves a 7200 volt electrical shock, causing severe burns to his hands and side.



3.A roofer in Virginia falls off a roof he is working on. The injury leaves him wheelchair bound with severe brain injuries.
Which one was awarded benefits? If you said, number 1, the Australian woman having sex in her motel room, you would be correct. The other two were denied.

And we thought the Australian was the only one getting screwed.

Seriously though, there is something severely wrong with this picture.

Tennessee - Not America at its Best
The Tennessee lineman case, which was reported here yesterday, involved a decision of that states Supreme Court that determined that the worker, by removing his gloves, engaged in a “willful” act of disregard for established safety policies. They reversed an earlier court’s decision and ordered that he be denied benefits.

Silly me. And here I thought that workers’ comp was a no fault system.

While this decision might be a short term victory for employers and perhaps a strong reinforcement of safety protocol, I am concerned that it fundamentally undermines the notion of workers' comp at its core, and ultimately threatens the benefits offered those same employers; namely the concept of exclusive remedy. Employers cannot have their cake and eat it too.

The employee made a mistake. That is quite often how these accidents happen. While there are exceptions for horseplay, drug use and extreme negligence in some jurisdictions, largely comp pays these claims, because quite frankly, that was the deal. This company has other avenues with which to deal with this if it so chooses. It can document, demote, even terminate the employee for failing to follow required procedures. But by refusing to pay his claim, and successfully getting the courts to agree, the door is open for any accident, any "willful" mistake to be used in the denial of all claims. That might be logical on the surface, but it is entirely contradictory to the no fault precept that workers' comp is based on. It threatens the future of comp as it was envisioned and followed. Once the "blame game" begins, employers may not have to wait long to find that it is a two edged sword.

Yes Virginia, There Is a Memory Clause
The Virginia decision is even more ludicrous. Despite a recent reform intended to remedy a loophole that required claimants to be able to testify to their accident, inadvertently shafting brain injury victims who have no such memory, the state Commission recently denied benefits to our unfortunate roofer. This was based on the fact that at his hearing, he could testify to his name and age, but not to the accident itself. The reform simply states that there should be a presumption that the accident was work related if a worker is "physically or mentally unable to testify" because of his injuries. The moronic decision was based on a Virginia Commissioners determination that, in the absence of case law telling him what to think, the legislative intent was only for those in a coma or dead, and since this man could speak his name, he clearly was not either. So, despite a coworker who was present when he fell (but had his back turned, so did not "see" him fall), and incontrovertible injuries from the fall, the ruling in Virginia is that this was not a compensable accident.

Behind the complete lack of common sense in the decision itself, lies the uncomfortable fact that a carrier pursued a denial to this point in the first place. This was not a dubious case. These were not "soft tissue" injuries. Exploiting an unintended loophole to simply avoid paying out a claim gives a black eye to us all, and again places the industry on a slippery slope towards ambiguous policy and risk.

So, the lesson for today is simple. Follow the rules to a "T", don't hit your head and make sure your every move is witnessed, or you could be SOL on benefits. However, if traveling in Australia and are worried about coverage during sexual intercourse, don't. Knock yourself out. Literally. You're good.


http://www.workerscompensation.com/compnewsnetwork/from-bobs-cluttered-desk/14325-tennessee-court-decision-on-electrocution-is-somewhat-shocking.html

the Employee and his crew were replacing a forty-foot power pole with a new pole
forty-five feet in height. While the Employee was in a bucket lift near the top of the new
pole preparing to attach a lightning arrestor, a copper ground wire that he held in his bare
hands came into contact with a transformer on the older, charged pole some five feet below.
The Employee received an electrical shock of approximately 7,200 volts. Other members of
the crew were able to return the bucket (also referred to as a cradle) to ground level where
first responders rendered aid. The Employee was initially transported to a hospital in
Huntsville, Tennessee. Because of the severity of his injuries, however, he was transferred
to Vanderbilt Medical Center’s burn unit where he was treated, primarily by orthopaedic
surgeon Dr. Jeffry Watson.
Dr. Watson found that the most significant injuries were to the first webspaces of each
hand—the area between the thumbs and the index fingers. Dr. Watson described the injuries
as “full-thickness loss of his skin down into his muscle . . . as well as into the nerves that go
to the fingers or the index finger on the right side and more into the thumb on the left side.”
Dr. Watson performed a total of eight surgeries—five on the left hand and three on the right.
These procedures included cleaning the wounds, cutting away dead tissue, and removing
healthy skin from the Employee’s forearms and upper arm to suture into the hands.
Following these surgeries, Dr. Watson ordered physical and occupational therapy over a tenmonth
period in an effort to reduce the swelling in the Employee’s hands and increase
strength and flexibility. Dr. Watson also treated the Employee for adhesive 1 capsulitis in his
shoulder—a condition where the shoulder becomes stiff and painful because of limitations
in movement during a recovery period. Another physician treated the burn injuries to the
Employee’s side. Just over one year after the accident, the Employee was able to return to
work in the same position he held at the time of the accident.
The Employee was thirty-six years old at the time of trial, had a high school education,
and had previously worked as a cook, furnace technician, electrical apprentice, and electrical
foreman. Certified as a general lineman, the Employee had worked for the Employer for
over nine years. While having a satisfactory recovery based on the severity of his injuries,
he continued to experience some numbness in his right index finger, a lack of strength in his
grip, and “streak pain”—shooting pains through the arms that can last anywhere from five
minutes to one hour. The injury to his side continued to cause some discomfort. The
Employee was not taking any medications and had completed his physical therapy by the
time of trial.
1 Dr. Watson opined that the Employee had impairment ratings of 15% to the right upper extremity,
31% to the left upper extremity, and 26% to the body as a whole. When Dr. Watson released the Employee
to return to work in January of 2010, he did so without any work restrictions. He stated that he did not
foresee the Employee requiring any future medical care in regard to his injuries.
-2-
While conceding that the injury was employment-related, the Employer denied
workers’ compensation benefits because the Employee, while in the bucket lift, had removed
his protective gloves before attempting to install metal staples in the crossarm of the pole,
a violation of the Employer’s safety policy. A benefit review conference 2 did not produce
a settlement, and afterward, the Employee filed suit. In response, the Employer asserted as
a defense the Employee’s willful misconduct and, more particularly, his willful failure to use
a safety appliance, as defined by Tennessee Code Annotated section 50-6-110(a) (2008).

http://www.tennesseeattorneysmemo.com/documents/37-TAM-20-1.pdf

Tennessee Supreme Court denies workers compensation benefits to electrical lineman who did not use his rubber gloves.
May 9th, 2012 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.

http://www.thehamiltonfirm.com/hf-blog/