The Liability of a Company Nurse and the Cost of Winning a Workers' Comp Defense; You Can't Hide Behind That Which Was Denied
This is a story of a workers' comp claim denied, followed by what appears to be a herculean effort to seek protections under the same legal pretense that was previously refused. It is a lesson that we should be careful what you wish for; you just might end up getting what you deserve.
It is also a lesson that, outside the protections offered by workers' compensation, an onsite nurse or medical clinic could be a significant liability.
A North Carolina man has sued his employer and the company nurse they employ alleging she misdiagnosed him after he suffered a stroke at work, and that he failed to receive timely treatment as a result. The company requested that the lawsuit be thrown out. They claimed that this was a workers' compensation case, protected by exclusive remedy. It appears the court did not agree with their assessment.
In hindsight they probably shouldn't have contested his claim and successfully had it denied.
The man worked as a grinding machine operator when he experienced what was later determined to be a stroke. He originally sought workers' compensation benefits. The North Carolina Industrial Commission denied his claim, concluding he that he did not “suffer an injury by accident arising out of and in the course of employment.” In the article that originally detailed this case, what went unsaid was that, for the North Carolina Industrial Commission to deny him benefits, someone had to actively work to contest this man's claim. They probably did not expect his response.
He did not appeal. He instead chose to sue his employer and their nurse, claiming she had misdiagnosed his stroke, and the resulting delay in medical care left him with permanent injury.
The company attempted to have the suit dismissed, claiming that this was really a workers' comp case after all, and they were protected by exclusive remedy as a result. The trial court denied that request, citing the Industrial Commission's opinion that the injuries their employee suffered from his stroke didn't arise out of the course and scope of work.
The company then made a similar argument before the North Carolina Court of Appeals, with what appears to be an interesting twist. On appeal they still tried to use an exclusive remedy defense but appear to have claimed that the nurse's mistaken diagnosis was now the workers' compensation accident for which they deserved protection. So, to clarify, the man received no benefits as his illness did not result out of the course and scope of employment. Neither did he receive benefits because he was “injured” by the nurse's “accidental” misdiagnosis. But this was, in the company's view, still workers' comp and therefore they had no tort liability.
I'm surprised someone didn't pull a groin muscle coming up with that one. Ironically, that would have likely been compensable had they done so.
The appeals court agreed with the lower court, saying that North Carolina's workers' comp law does not cover injuries that occur at work but are not the result of an accident arising out of and in the course of employment. They also said that the nurse's alleged failure to properly diagnose and treat the worker could not be recognized as an “accident” under current workers' comp law. They stated in their decision:
“That injury, although caused by a co-worker, does not spring from his employment as a grinding machine operator for [employer] because it is not a natural or probable consequence of the nature of [employee's] employment.”
The lawsuit is proceeding, and there are lessons in this story.
First, I am not aware that nurses are even authorized to diagnose any medical condition. To the best of my (rudimentary) knowledge, they can assess and refer for further treatment, but cannot diagnose conditions or prescribe medication for anybody. If this nurse made a “diagnosis” as alleged, the company is not in a good position to defend this lawsuit. Second, outside of the workers' compensation protections so desperately sought by this company, there is potential liability for employers offering onsite medical services. If the illness or injury they are dealing with is not work related or deemed to be not a result of the actual job, they could be open to medical malpractice liabilities. The third lesson, of course, is that they may have been better off not fighting the workers' comp claim in the first place. If their nurse actually did make an error or exceed her medical authority it would have been a much less expensive route.
In other words, don't fight the wearing of a skirt that you intend to hide behind.
Employers certainly do a lot of complaining about workers' compensation. Many of them simply do not appreciate the protection it can provide. This employer seems to understand those provisions and the benefits of the system. It's just that they don't seem to understand that you actually have to use the system in order to benefit from it. And that may just be the biggest lesson of all. You cannot hide using that which was previously denied.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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