GQ Corner
Q. I have a claim filed by an aide III Life Skills Special Education instructor who has been employed since 2/9/18. While at work, a student grabbed the employee by her shoulders and pushed her causing her to fall into the door behind her. He held her there for approximately 5 seconds and tried to run off but … he still tried to get in her face yelling ‘I did it on purpose’ and ‘you better apologize’.
The claimant has reported that she does not feel safe near the student, or on campus. She states, “I do not feel my incident was handled correctly by the staff. Among other injuries, the treating doctor has diagnosed PTSD. Is this enough evidence to support a PTSD diagnosis?
A. Both the PTSD diagnosis and causation must be supported by reliable medical evidence. The mere listing of a diagnosis does not meet this requirement. You can dispute that condition if there is no causation analysis.
Q. I need to get an opinion on a potential horseplay claim. I have not been able to reach the employer to confirm the facts of how the accident occurred. I have made numerous attempts so the employer’s “accident description” is strictly what was reported on the first report.
Accident Description: the employee was struck in his right knee by a fellow employee. He sustained an as yet unspecified injury to his right knee as a result.
I was able to secure a recorded statement from the employee. This is his description of the events that occurred:
Can you describe how you were injured? He was leaving work and his department is at the back of the building. He was walking out, about halfway through the building near the marketing department. His supervisor at the time, A.S., walked up to him and was on his right side. There were two other associates, Alex Harrington and Nimish (last name unknown), on his left. The claimant was wearing his knee brace like always and Aaron joked that it would be funny if they kicked him in the leg. The two other associates moved out of the claimant’s way because he was walking away to leave and Aaron kicked him in his right knee/shin.
The claimant was wearing a knee brace because he had recently undergone two knee surgeries related to a personal injury. He works a desk job. He also reported that the supervisor was terminated for his conduct.
I don’t think it would fall under horseplay, but wanted to get an opinion on it just to be sure.
A. This would not provide a horseplay defense in my opinion, since under 406.032(2) the employee’s own horseplay must be a producing cause of the injury. Unless he started the horseplay or was otherwise engaged in it when he was kicked in the knee, I don’t see that as a defense.
Q. I have an injured worker who was taken off of work due to a burn, and treatment has been at a hospital (no records received at this time with work status). We are currently paying benefits, however, he has since turned in his resignation and told his employer he was going to work for a family member in another city. I have not been able to reach the injured worker to confirm this.
Legally, am I able to stop benefits based on this information?
A. Even though the claimant indicated that he intends to go work for the family member, I would not recommend suspending TIBs without knowing his earnings, i.e. without proof that he is earning at least the full pre-injury wages. As it currently stands, it sounds like he was earning less than full pre-injury wages because of the compensable injury prior to and contemporaneously with his resignation, so would arguably remain disabled absent a full duty release or returning to work at full wages. I think your safest and best bet under these circumstances would be to pursue a designated doctor exam on MMI/IR and ability to return to work since this may give you a more concrete basis on which to suspend without any compliance concerns and so on.
FOLIO
