Daily Editors' Notes

This unfavorable worker's comp ruling is a real Croc

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John O'Connor
John O'Connor

We're hearing a lot lately about mandatory drug testing in the workplace. It appears that the Tennessee Supreme Court might be a good place to put such a requirement in place.

The state's highest court recently upheld a bizarre worker's comp claim against a skilled care operator that defies logic, common sense, and perhaps even the law.

But first some background:

Memphis-based Allenbrooke Nursing and Rehabilitation Center has a strict policy prohibiting employees from wearing Croc-type shoes. These plastic shoes enjoyed temporary fad status about a half decade ago. They may be fine for a carefree day at the beach. But they really have no place on the feet of healthcare professionals during work hours.

When a worker at Allenbrooke is seen wearing these plastic shoes, the person is sent home with orders to change into more appropriate footwear. Employees who repeatedly violate the policy can face disciplinary action.

So what happens when a nurse violates the policy, falls and gets injured? If you guessed that the person gets to learn a valuable lesson about the importance of following rules, you really don't understand Tennessee-style justice.

In fact, the state's highest court recently upheld a lower court's compensation award to a nurse who sustained injuries when she fell at the facility, fracturing her right shoulder. And oh yes, she was wearing Crocs at the time.

Here's the payout to the nurse whose lawyers argued that rules are apparently for other people: Worker benefits based upon an 18% permanent partial disability to the body as a whole, plus temporary total disability benefits, past medical expenses, future medical benefits and discretionary expenses. Let's just hope she learned her lesson.

At least one of the state's Supreme Court justices seems to appreciate the folly here. In a dissenting opinion that would seem to state the obvious, William R. Koch Jr. wrote:

"Here, even taking the trial court's credibility determinations into account, there is no escaping the fact that [the nurse] failed to prove that an 'employment hazard' caused her to fall," Koch wrote.

"Without this evidence, [the employee] has failed to prove that her injuries arose out of her work," he added.

But in writing for the majority, Justice Janice M. Holder explained that, "although [the nurse's] witnesses testified that they carefully inspected the area where [the worker] had fallen and found no substance on the floor or any irregularity in the floor that might have caused her to fall, the trial court concluded that the nursing staff could have tracked away whatever substance was present on the floor. We must give deference to the trial court's determination of credibility."

So even though an employee willfully disobeyed a policy and injured herself, the facility is responsible? Even if there is no evidence that anything other than prohibited footwear caused an injury? This, because it's possible she might have tripped on something that nobody saw? Amazing.

The message to plaintiffs in Tennessee should be clear: It's open season on nursing homes. So lawyer up and see what kind of loot you can cadge. It hardly matters if you don't have a leg to stand on.

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Daily Editors' Notes

McKnight's Daily Editor's Notes features commentary on the latest in long-term care news. Entries are written by Editorial Director John O'Connor on Monday and Friday; Staff Writer Tim Mullaney on Tuesday, Editor James M. Berklan on Wednesday and Senior Editor Elizabeth Newman on Thursday.

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