Larson’s Spotlight on Recent Cases: Undocumented Worker’s Permanent Loss of Earning Capacity

Larson's Spotlight on Undocumented Worker, Employee Status, Borrowing Employer, and Tort Action Against Third Party. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

NE: Undocumented Worker May Receive Award for Permanent Loss of Earning Capacity In Spite of His Return to Community of Origin Where No Data Exists to Support Lost Capacity Claim

Citing Larson's Workers' Compensation Law, the Supreme Court of Nebraska recently held that an employee's illegal residence or work status does not bar an award for permanent loss of earning capacity, even when the worker relocates to the community of his origin where no data exists to support a finding as to the worker's post-injury earning capacity.  The court reasoned that for purposes of asserting his or her claim for permanent indemnity, when an employee relocates to a different community after being injured, the employee is not required to prove loss of earning capacity in two locations; he or she may show loss of earning capacity in the location to which the employee moved or, alternatively, if there is a lack of reliable and competent data available regarding the location to which the employee moved, the employee may use the location where the injury occurred.

See Visoso v. Cargill Meat Solutions, 285 Neb. 272, 2013 Neb. LEXIS 28 (Feb. 22, 2013).

See generally Larson's Workers' Compensation Law, § 66.03.

SC: Participant in Alternative Educational, Vocational Program to Avoid Incarceration Was Not Employee; Claim Denied

Participation in a program offered by a residential, non-profit organization, in which former substance abusers, ex-convicts, and homeless adults were provided with educational and vocational opportunities, did not amount to employment under S.C. Code Ann. § 42-1-130, held a South Carolina appellate court recently.  The court indicated the participant was performing services as a volunteer in a rehabilitative program to improve his skills and avoid incarceration.  Accordingly, the volunteer could not recover workers' compensation benefits following an injury resulting from a thirty-foot fall from a roof.

See Simmons v. SC Strong, 2013 S.C. App. LEXIS 44 (Feb. 20, 2013).

See generally Larson's Workers' Compensation Law, § 64.01.

OH: Borrowing Employer Immune From Tort Action Where It Provided Day-to-Day Supervision of Lent Employee

An Ohio appellate court recently affirmed summary judgment that had been granted by a trial court in favor of the defendant corporation in a civil action filed by a temporary worker who had been supplied to the defendant corporation by a temporary employment agency.  Observing that the contract between the defendant and the lending employment agency called for the defendant to manage and control the day-to-day activities of the plaintiff worker, the court, relying upon Daniels v. MacGregor, 2 Ohio St.2d 89, 206 N.E.2d 554 (1965), held that the worker's exclusive remedy was within the workers' compensation scheme.  That the lending agency retained the right to assign the worker to other duties and had the right to fire him did not alter the fact that the defendant corporation had assumed basic control over his duties and, therefore, enjoyed immunity.

See Cowan v. Interdyne Corp., 2013 Ohio 642, 2013 Ohio App. LEXIS 572 (Feb. 25, 2013).

See generally Larson's Workers' Compensation Law, § 111.04.

US: Truck Driver Injured on Loading Dock May Proceed in Tort Against Third Party

Reversing a decision by a federal district court, the Sixth Circuit Court of Appeals recently held that a corporation and its subsidiary were not immune from tort liability under the exclusive remedy provisions of the Kentucky Workers' Compensation Act since the entities were not "contractors." They did not produce evidence that established that the work the employee performed at the time of his injury was the type of work that they or similar businesses would be expected to perform with their own employees. Plaintiff was a truck driver for a trucking firm that had been contracted by the defendant corporation to provide transportation services.  Plaintiff's duties did not include unloading the freight.  While plaintiff was standing on defendant's loading dock, one of defendant's employees ran over plaintiff's foot with a forklift.  Plaintiff received workers' compensation benefits from his own employer and sued the defendant corporations who defended on exclusivity grounds.

See Black v. Dixie Consumer Prods., LLC, 2013 U.S. App. LEXIS 3805 (6^th Cir., Feb. 22, 2013).

See generally Larson's Workers' Compensation Law, § 111.04.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

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