Chiropractic Treatment
In Petty v. Zayre Shoppers City (WCCA 2/2/09) the Court provided that the compensation judge had failed to consider, any of the factors set forth in Horst v. Perkins Restaurant, that the chiropractic care at issue was reasonable and necessary.
The WCCA has identified factors in the Horst case which should be considered in determining whether chiropractic treatment is reasonable and necessary:
- documentation of the details of the treatment, including evidence of a reasonable treatment program;
- frequency and duration of treatment, showing treatment on an as needed basis instead of a on a set schedule;
- degree and duration of the relief obtained;
- appropriate referral to other providers;
- the effect of the treatment on the employee’s employability; and
- the cost of the treatment in light of the relief provided.
Entitlement to TPD Benefits
In Hyke v. Cemstone Products (WCCA 2/12/09) the court found that the employee’s loss of earning capacity was causally related to his work injury and was not due to economic conditions only. The employer and insurer were denying benefits on the basis that the wage loss was due to economic conditions, specifically, the lack of available work in the construction industry, and not his work injury.
The employer and insurer argued that the employee was able to work as a cement truck driver at the time that he was laid off from his position for the employer in September 2007 and that he was still capable of working in that capacity, and therefore the wage loss after September 7, 2007, was caused by the economic conditions of the construction business.
The court noted that an award of temporary partial disability benefits is not precluded just because of a layoff. In this case, the employee was still subject to physical restrictions related to his work injury. The court went on to state that although the employee lost his post-injury job for reasons unrelated to his injury, and that he remained physically able to perform such a job, none of these reasons were relevant to the question of whether the employee’s actual loss of earning capacity was causally related to the work injury.
The employer and insurer had failed to rebutt the presumption that the employee’s actual wages were representative of his loss of earning capacity.
Job Search | Temporary Total Disability Benefits
In Kuester v. Mr. Paving & Excavating (WCCA 1/20/09) the court held that where the employee had a reasonable expectation of a return to his seasonal job with the employer, and where the judge reasonably concluded that the employee was physically restricted by his work injury during a brief lapse in his formal medical restrictions, that he was still entitled to benefits despite the lack of a sufficient job search or for the absence of formal restrictions.
The Employer and Insurer in this case argued under Lohrke v. First Student (W.C.C.A. Jan. 31, 2008), that the employee did not have an expectation of returning to work with the employer and thus did not have a reasonable reason to excuse him from his obligation to search for work. The Employer and Insure argued that for an employee to have a reasonable expectation of a return to work with the date of injury employer, there must be some action on the part of the employee, which demonstrates the alleged belief of a continuing employment relationship.
They argued that the employee made no effort to contact the employer regarding a return to work, he made no attempt to refer his restriction slips to his employer. They argued further that he offered the employer no opportunity in December of 2006 to meet his light duty restrictions, opting instead to simply collect his unemployment compensation. Moreover, they argued, the employee’s collecting of unemployment by itself was an indication that the employee had no ongoing employment relationship with the employer.
The WCCA went on to distinguish the present case from Lohrke by noting that the employee’s inaction to job search was for about twelve months, from September 1 of one year to August 29 of the next, whereas the alleged inaction of the employee in the present case was only about a third that duration, from November of 2006 to March or April of 2007 . They went on to state that it would not be unreasonable for the compensation judge to find it reasonable for the employee to delay contacting the employer with his restrictions until the beginning of the season of his normal employment. This was another factor distinguishing the present case from the facts in Lohrke, in which the employee did not check in with the employer even during the season in which he normally worked, as well as from other cases where the job search delay at issue may perhaps have been shorter than it was in this case. Nor do the employer and insurer explain or offer any evidentiary support for their argument that the employee=s collecting of unemployment compensation during the normal period of his layoff was by itself an indication that the employee had no ongoing employment relationship with the employer.
