Annals of Compensability: A Tick in Time

Monday, April 15, 2013 | 0

Ben Ciccone Inc. is a construction company that confronts formidable risks every working day. They are involved in excavation, site development, bridge construction and, if that isn't risky enough for you, blasting and demolition. Most underwriters would give them a quick pass. So it is ironic that they are dealing with a permanent total disability claim involving a tiny, barely visible tick.

Worrell Bailey was doing some work in the woods back in July 2008 when he was bitten by a deer tick. He contracted Lyme disease. When he began to suffer from upper body muscle weakness, he quit his job. He filed for workers' comp benefits, which were granted. He underwent several courses of antibiotics, but he did not get better.

By June of 2009 his condition had worsened to the point where a judge deemed him permanently and totally disabled. Ben Ciccone appealed, alleging that there was no definitive link between Bailey's progressive deterioration and Lyme disease. The carrier presented the opinions of several neurologists, who could not state "with certainty" that Bailey's Lyme disease was the cause of his motor neuron disease. In other words, Lyme disease might be the cause of Bailey's disability and then again, it might not.

Dueling Doctors

Bailey's doctors were convinced of a causal relationship. His treating physician stated that by March 2009, Bailey suffered from significant muscle atrophy that rendered him totally disabled, which the doctor attributed to Lyme disease. Samuel Koszer, a board-certified neurologist, testified that Bailey's progressive muscle weakness and consequent total disability were causally related to Lyme disease. Finally, Bailey's psychiatrist treating him for anxiety and stress relating to his diagnosis testified that the Lyme disease had prompted an autoimmune reaction that resembled amyotrophic lateral sclerosis (ALS). The psychiatrist went on to criticize the comp carrier for denying benefits, which interrupted the course of treatments and may even have made the situation worse. These strong, unambiguous opinions were, in the language of claims adjusting, not very helpful to the defense.

The award of permanent total benefits was upheld by the Appellate Division of the Supreme Court of New York, 3rd Department. Thus Ben Ciccone Inc, a high-risk operation by any definition, finds itself responsible for a very expensive claim involving the kind of risk we all face when we go for a walk in the woods. Luckily for Ciccone, they appeared to carry conventional insurance, so the impact of the claim on their costs through experience rating has already run its course. For the carrier and its underwriters, however, this little tick will go on ticking for a long, long time.

Jon Coppelman is a principal with Lynch Ryan & Associates, a Massachusetts-based employer consulting firm. This column was reprinted with his permission from the firm's Workers' Comp Insider blog.