The Pro Press - June 2011

JUNE 2011
WWW.LETPROHELP.COM
The PRO Press
Regional Information and a Good Mix of Fun
Welcome to PRO, Inc .
Amy Johnston, BA, RN, CLNC—Northern Virginia NCM
Spring Abney , RN— Roanoke Virginia NCM
Cathie Todd, RN, COHN/CM—North Carolina NCM
Susan Carraway, RN, CCM, QRP– North Carolina
NCM
Mike Kastanek—Account Executive
PRO Upcoming Events
Wise Words...
“He who is not contented
VSIA: Virginia Self Insured June 7th and 8th
MWCEA : Maryland Workers Compensation Conference Sept 18 – 21
th
NC Workers Comp Conference: Oct. 19th – 21
PRO, Inc. Annual Seminar Nov 3rd at New Location – The Westin
st
with what he has,
would not be contented
with what he would like to have.”
~ Socrates
Did You Know ? ...
Injuries sustained by an innocent victim of horseplay at work are compensable under the Virginia Workers’ Compensation Act. For decades, an employee who suffered an injury as a result of a co-workers’ horseplay, jokes, pranks, etc.,
was entitled to benefits under the Virginia Workers’ Compensation Act as long as he or she was the innocent victim of such
antics. It was recognized that such injuries were an actual risk of the employment, as workers, “given what they are – fallible and sometimes playful human beings – will from time to time engage in pranks, some of which are dangerous”. Park Oil
Co. V. Parham, 1 Va. App. 166, 336 S.E.2d 531 (1985). As horseplay was a natural incident of the workplace, injuries resulting from such activities could arise out of the employment. This came to be known as the “horseplay doctrine”.
On January 11, 2008, the Supreme Court of Virginia issued an opinion which was interpreted as preventing an innocent victim of horseplay from being awarded benefits under the Virginia Workers’ Compensation Act. On that date, the
Court issued its opinion in Hilton v. Martin, 275 Va. 176, 654 S.E.2d 572 (2008). Hilton involved a wrongful death action
brought in civil court by the administrator of the estate of Courtney Hilton Rhoton. Courtney worked as an emergency medical provider. On June 1, 2005, she was travelling in an ambulance with several co-workers. Joshua Martin was one of those
co-workers. Martin, who had been known for exhibiting “childish and immature behavior”, turned on the power to a manual
cardiac defibrillator that was in the ambulance, adjusted its energy to 150 joules and picked up the paddles. With the paddles in hand, he turned toward Courtney and told her “I’m going to get you.” Courtney screamed “Get those away from me”
and pushed Martin back. Martin came at her again, touching the paddles to Courtney’s left shoulder and left breast, simultaneously activating the paddles. Courtney subsequently died of electrocution and cardiac arrest.
In the wrongful death action, the defendants argued that Courtney had been the innocent victim of horseplay, and
that her estate’s exclusive remedy was through the Virginia Workers’ Compensation Act. The Virginia Supreme Court disagreed. The Court viewed this case as one involving an assault, holding that it “is immaterial whether the assailant’s subjective motivation is playful, amorous, vindictive or hostile. An injury resulting from an assault arises out of the employment
when it is directed at the victim as an employee.” The Court held that Martin’s assault of Courtney, whether intended to be
playful, flirtatious or otherwise was purely personal to her, and did not, therefore, arise out of her employment.
After the Hilton, decision, workers’ compensation claims of innocent victims of horseplay were routinely denied
when a causal connection could not be found between the injuries they sustained and the conditions under which they were
required to perform their work. On January 13, 2011, however, the tide turned again when the Virginia Supreme Court rendered its opinion in the case of Simms v. Ruby Tuesday, Inc. et al. 281 Va. 114, 704 S.E.2d 359 (2011). Matthew Simms was a
server. Upon entering the kitchen, his coworkers playfully threw ice at him. He lifted his arm to keep the ice from hitting
him, dislocating his shoulder in the process. As a result of the Hilton decision, Simms’ claim for workers’ compensation
benefits was denied, and his claim was subsequently appealed to the Virginia Supreme Court.
The Court distinguished Simms from Hilton, holding that while Simms’ injury was clearly the result of playful horseplay, Courtney’s death was the result of an assault. The Court found that “unlike assault cases where a causal connection
needs to be proven between the assault and the employment, when a fellow employee engages in horseplay by doing something in a playful or joking manner that injures an innocent nonparticipating co-worker, such injury is inherent to the injured
co-worker’s employment or is directed toward the co-worker as an employee.” As a result, such injury arises out of the employment and is compensable under the Virginia Workers’ Compensation Act. As can be seen, although there are certainly
some inconsistencies in the Court’s rulings, the “horseplay doctrine” is, again, alive and well in Virginia.
John T. Cornett, Jr. is a partner in the law firm of Daniel E. Lynch & Associates, P.C. in Richmond, Virginia. Mr.
Cornett concentrates his practice in the area of workers’ compensation defense on behalf of employers and insurance companies.
Marketing/Sales News
As mentioned in the previous page, our
annual seminar is Nov 3rd at a new location
The Westin. Please mark your calendar
for this exciting event.
PRO, Inc. continues to grow our HART program – Hispanic Assistance Resource
Team. We now cover from Central VA to
Pennsylvania onsite and telephonic bilingual case management services. HART is
a service from PRO, Inc. that enables us to
be able to assist with resolving Hispanic
cases by eliminating the cultural and language barriers, which may impede progress. Managing Spanish language cases
can be difficult when a claimant speaks
Spanish only and you are relying on a fam- PRO, Inc.
ily member or bilingual coworker to inter- Referrals can now be sent to e-mail address:
pret important details relevant to medical
[email protected]
recovery and return to work.
We now cover PA, MD, VA, and
NC. Thanks to all our clients!
Or fax # 540-343-6008
P.O. Box 220, Thaxton, VA 24174
Food for Thought...
Chris Boone
VP Sales and Marketing
―You cannot escape responsibility of tomorrow by evading it today‖.
~Abraham Lincoln
The ‗Innocent Victim of Horseplay Doctrine‘ Remains
Alive and Well in Virginia
Earlier this year the Supreme Court of Virginia held that the ‗innocent victim of horseplay doctrine‘ remains alive and well in
Virginia in the case of Simms v. Ruby Tuesday, Inc., Record No. 091762, 2011 VA Wrk. Comp. LEXIS 64 (January 13, 2011). This
decision marked the first occasion that the Supreme Court addressed the issue of the ―horseplay doctrine.‖
In Simms, the injured worker, a server, was injured when his co-workers began throwing ice at him. Simms injured his
shoulder when raising his arm to block the ice, and was not a participant in the exchange. The Commission had held that Simms‘
injuries did not arise out of the employment even though he was the innocent victim of horseplay relying upon Hilton v. Martin, 275
Va. 176 (2008). The Commission reasoned that this was an assault with no connection to the employment. The Court of Appeals of
Virginia agreed with the Commission and affirmed. The matter was taken up by the Supreme Court of Virginia and the Supreme
Court reversed and remanded. The Supreme Court held that ―it was not [their] intention to scuttle the horseplay doctrine, or to impose any additional burden of proof upon claimants found to be the innocent victims of horseplay‖ in its Hilton decision. The Supreme Court in Simms noted that the Virginia courts have followed the ‗innocent victim of horseplay doctrine‘ for nearly 25 years.
Several principals have been clarified in light of the Supreme Court of Virginia‘s Simms decision—

The innocent nonparticipating victim of horseplay (playful or joking actions) is entitled to workers‘ compensation benefits.
 Those injured due to their own horseplay (when not the innocent victim) are not entitled to workers‘ compensation
benefits.
 Those injured due to assault, when horseplay in not involved, may be entitled to benefits under the Act. To be entitled
to benefits, the injured worker must show a causal connection between the assault and the employment. The Commission will address the motive of the attacker; specifically whether the attack was directed at the injured worker because
of the employment. If so, the injured worker will be entitled to workers‘ compensation benefits.
Scott Ford is a partner at the law firm of McCandlish Holton, P.C. in Richmond, Virginia. He leads the firm‘s
Workers‘ Compensation Practice Group and serves as its president.
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FCEs...
Functional Capacity Evaluations (FCEs) are an evaluation process that has gained increasing popularity as Occupational Medicine
strives to manage work related injuries. An FCE includes special processes, evaluations and techniques to deal with the unique needs
of the person who has sustained a job related injury. It has been estimated that one out of every twenty workers in manual labor jobs
will experience an overexertion injury each year and approximately 60% of these injuries are caused by lifting and another 20% are
the result of pushing or pulling activities. Of those overexertion injuries, 60% will be low back injuries. In fact, back injuries represent
the single most common type of work related disability. This fact is complicated by the fact that only 50% of workers off for greater
than 6 months ever return to work and at a year that number drops to 25%. There are a number of factors that make successful management of work related injuries so difficult. The literature on this subject cites a number of factors. I have included a few here for you
to ponder:
1.
WC injuries are less likely to have an established diagnosis and objective findings.
2.
WC injuries are more likely to attribute their complaints to an event at work and be involved in litigation.
3.
WC injuries have a higher prevalence of and more severe psychological disturbances and underlying poor health.
4.
WC injuries are less likely to respond favorably to conservative and/or surgical interventions.
These are but a few of the factors that have begged for some sort of objective functional measure. FCE’s provide this information.
They are give insight into some of the issues that may be delaying recovery as well as the validity of a worker to put forth their
maximal effort. Such testing is of paramount importance as statistics show that only 12% of workers put out on permanent disability had an impairment that warranted the disability and ~88% of that same group could have been working at some level. Hence,
the need is there- Functional Capacity Evaluations are designed to meet these needs.
The FCE process is a series of evaluation procedures, tests, questionnaires, and observation regarding the worker’s physical ability to
perform work. The Physical Demand Levels of Work (PDL) is a general classification defined by the U.S. Department of Labor. FCE’s
classify a worker on this scale from Sedentary to Very Heavy work. The Dictionary of Occupational titles is used to compare the job
classification with the worker’s capabilities in the absence of a job description. Job descriptions are most ideal as they give more specifics of the actual job, however, they need to be quantitative fully outlining the levels, frequency and weight variances of the job. Job
descriptions that are narrative only really give very little objective data.
In summary, you are probably questioning who should get an FCE and when they
should be ordered. Injured workers who have progressed to MMI or who are failing to
progress are excellent candidates for an objective evaluation of their vocational function. Workers who’s shear diagnosis make returning to their pre-injury job impossible
should be evaluated with an FCE before assuming total disability as often here are a
number of jobs these workers can still perform or be trained to perform. Don’t let
FCE’s intimidate you. Realize they are a powerful and useful tool!
HART—Hispanic Assistance Resource Team
Can you guess the year?

The Dallas Cowboys win their fourth
Super Bowl title, 30-13 over the Buffalo Bills in Super Bowl XXVIII.

Seattle grunge band Nirvana play their
last show in Munich, Germany

One of the biggest tornado outbreaks
in recent memory hits the Southeastern United States. One tornado slams
into a church in Piedmont, Alabama
during Palm Sunday services killing 20
and injuring 90.

Nelson Mandela is inaugurated as
South Africa's first black president.

The New York Rangers win the
Stanley Cup over the Vancouver Canucks 3-2 in Game 7, breaking a 54year drought.

Following a televised highway chase
and a failed attempt at suicide, O. J.
Simpson is arrested for the murders
of his wife, Nicole Brown Simpson, and
her friend Ronald Goldman.
PRO, Inc. introduces a new available service to our clients
throughout the Mid-Atlantic.
The tremendous growth in the need for Bilingual Services is creating many
challenges for claims handlers. Pro, Inc. has developed its newest service
HART – Hispanic Assistance Resource Team. Whether bilingual case management services or translation needs for recorded statements, we can provide the right service for the right need to create cost effective solutions on
challenging claims.
HART
HART is a service from PRO, Inc. that enables us to be able to assist with
resolving Hispanic cases by eliminating the cultural and language barriers,
which may impede progress. Managing Spanish language cases can be difficult when a claimant speaks Spanish only and you are relying on a family
member or bilingual coworker to interpret important details relevant to medical
recovery and return to work.
Spanish Language Service Products
Bilingual Telephonic and Field Medical Case Management
Bilingual Vocational Case Management
Recorded Statements
Any communication needed between claims adjuster and claimant
+++ first e-mail with correct answer gets
$25 gift card from
PRO, Inc.
Page 3
PO Box 220, Thaxton, VA 24174
The customer is are reason for being here!
Mixed Berry Spoon Cake
4 pint(s) strawberries (2 pounds), hulled and quartered
2 pint(s) blackberries (12 ounces)
2 pint(s) raspberries (12 ounces)
3/4 cup(s) sugar, for the filling
2 tablespoon(s) cornstarch
1 1/2 cup(s) all-purpose flour
1 cup(s) sugar, for the batter
2 teaspoon(s) finely grated lemon zest
1 1/2 teaspoon(s) baking powder
1 teaspoon(s) kosher salt
2 eggs
1/2 cup(s) milk
1 teaspoon(s) pure vanilla extract
1 1/2 stick(s) unsalted butter, melted
1.
2.
Make the filling: In a bowl, toss the berries with the sugar and cornstarch and let stand for 10 minutes.
Meanwhile, make the batter: Preheat the oven to 375°. In a medium bowl, whisk the flour with the sugar, lemon zest, baking
powder, and salt. In a small bowl, whisk the eggs with the milk and vanilla. Whisk the liquid into the dry ingredients until
evenly moistened, then whisk in the melted butter until smooth.
3. Spread the filling in a 9-by-13-inch baking dish. Spoon the batter on top, leaving small gaps. Bake in the center of the oven
for 1 hour, until the fruit is bubbling and a toothpick inserted into the topping comes out clean. Let cool for 1 hour before
serving.
Yield: Up to 10 servings
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