08 Mar 2019

Larson’s Summary of Recent Developments in Workers’ Compensation (March 2019)

By Thomas A. Robinson, co-author, Larson’s Workers’ Compensation Law

Here are some recent important developments in workers’ compensation as reported in the latest release of Larson’s Workers’ Compensation Law, which is scheduled to ship to customers in June. To subscribe to Larson’s Workers’ Compensation Law, go here. For the Desk Edition version, go here.

Positional and Neutral Risks. Chapters 4 through 9 of the Larson Treatise discuss the sorts of risks faced by a claimant who contends that his or her injury arose out of the employment. Generally speaking, those risks fall within three broad categories:

Risks distinctly associated with the employment,
Risks personal to the claimant, and
“Neutral” risks—i.e., risks having no particular employment or personal character.

Harms from the first are universally compensable. Those from the second are universally noncompensable. It is within the third category that most controversy in modern compensation law occurs. Chapter 7 of the Larson Treatise, which treats positional and neutral risks, has been updated and revised. An increasing number of courts make awards whenever the injury occurred because the employment required the claimant to occupy what turned out to be a place of danger. A few frankly state that causal connection is sufficiently established whenever it brings claimant to the position where he or she is injured. Unexplained falls and deaths occurring in the course of employment are generally held compensable, sometimes on the strength of a presumption, either judicial or statutory, that injury or death occurring in the course of employment also arises out of the employment in the absence of evidence to the contrary. For example, in Griego v. LaSalle, 2018 N.M. App. LEXIS 62 (Oct. 16, 2018), the New Mexico court, citing the Treatise, held that a workers' compensation judge erred in denying a worker compensation under N.M. Stat. Ann. § 52-1-9 (1973) because, while the worker apparently tripped over his own foot, causing him to fall and injure his arm, the facts demonstrated that the worker's injury was the result of an unexplained fall, which constituted a neutral risk that gave rise to a rebuttable presumption that the injury arose out of the worker's employment, and the employer/insurer failed to rebut the presumption with evidence that the worker had any preexisting conditions or infirmities that caused or contributed to his fall—risks that were personal to him [see Larson’s Workers’ Compensation Law, Ch. 7, § 7.04[1][a] Digest n. 2].

Risks Personal to the Employee. Injuries arising out of risks or conditions personal to the claimant do not arise out of the employment unless the employment contributes to the risk or aggravates the injury. This core issue, discussed in Chapter 9 of the Larson Treatise, has also been updated. When the employee has a preexisting physical weakness or disease, this employment contribution may be found either in placing the employee in a position which aggravates the effects of a fall due to the idiopathic condition, or in precipitating the effects of the condition by strain or trauma. In one recent case, Bluml v. Dee Jay's Inc., 2018 Iowa Sup. LEXIS 101 (Nov. 16, 2018), in a divided decision, the Supreme Court of Iowa adopted the minority American rule that all work-related risk factors must be considered in determining the compensability of an idiopathic fall. Citing the Treatise, the court held that the hardness of the floor should be considered in a worker’s idiopathic fall to a level ceramic tile floor, depending upon the facts of the particular case. Accordingly, the majority of the Court reversed a decision of a state district court that (along with the deputy commissioner and the commissioner) had concluded, as a matter of law, that idiopathic falls onto level floors were not compensable [see Larson’s Workers’ Compensation Law, Ch. 9, § 9.01[4][e] n. 54].

Nature and Scope of the Exclusiveness Principle. At the utter core of workers’ compensation law is the principle that the compensation remedy is exclusive of all other remedies by the employee or the employee’s dependents against the employer and insurance carrier for the same injury, if the injury falls within the coverage formula of the act. This discussion, found in Chapter 100, has been updated and revised. Generally speaking, if it does not, the compensation act does not disturb any existing remedy. However, if the injury itself comes within the coverage formula, an action for damages is barred even although the particular element of damage is not compensated for, as in the case of disfigurement in some states, impotency, or pain and suffering. Some of the most interesting cases occur within this area of law. In Baiguen v. Harrah's Las Vegas, 426 P.3d 586 (Nev. 2018), for example, the Supreme Court of Nevada reversed a decision of the state’s court of appeals, holding that a Las Vegas casino employee could not maintain a civil action against his employer to recover damages for its alleged delay in seeking medical treatment following his suffering of a stroke just prior to the beginning of his work shift. His tort action was barred by the exclusive remedy provisions of the Nevada Industrial Insurance Act [see Larson’s Workers’ Compensation Law, Ch. 100, § 100.01[1] Digest n. 2].

Action Against Employer. Larson Treatise Chapter 102’s discussion of those civil actions that may proceed against the employer in spite of the exclusiveness principle has also been revised and updated. Typically, a covered employer who fails to secure payment of compensation by carrying insurance or qualifying as a self-insurer is subject to civil suit by the injured employee without benefit of the defenses of fellow servant, assumption of risk and contributory negligence.

Who Are “Third Persons”: Types of Statutes. Because “third persons” or third parties generally remain open to common-law actions in state or federal court, the issue of who is—and who is not—a “third person” is an important one. That discussion, found in Chapter 111 of the Larson Treatise, has been revised as well. In many jurisdictions, “third persons” includes all persons other than the injured person’s own employer (it may also include co-employees). It may also include employees not working directly for the injured workers’ employer, but who are working on the same project. Under some fact patterns, physicians may also enjoy immunity. In most situations, an employee assigned by a personnel agency may not sue the “borrowing” employer/ For example, in Jimenez v. Medline Indus., 2018 U.S. Dist. LEXIS 139247 (E.D. Cal. Aug. 15, 2018), a federal district court, construing California law, granted summary judgment to a defendant company that had been sued by a worker who sustained injuries when one of the company’s employees “bumped” a forklift blade into the plaintiff while the two men were working at the defendant company’s facility. The company contended the plaintiff, who had been assigned to work at the company’s facility, was its special employee and that the civil action asserting, inter alia, claims of negligence and negligent hiring were barred by the exclusive remedy provisions of Cal. Labor Law § 3600. The court agreed. While the plaintiff disputed the extent of control that the company’s supervisors exerted over him, he did not dispute the fact that he was significantly subject to their control. The relevant issue was whether the defendant company had the right to control the worker, not whether it exercised that right. Similarly, in a New York decision, James v. Crystal Springs Water, 164 A.D.3d 660, 81 N.Y.S.3d 553 (2d Dept. 2018), where a defendant contracted with Manpower Group US (Manpower) regarding the services of a worker and controlled and directed the manner, details, and ultimate result of the worker’s work, it was the worker’s special employer and, therefore, it was also immune from tort liability where the worker had received workers’ compensation benefits from the general employer, Manpower [see Larson’s Workers’ Compensation Law, Ch. 111, § 111.01 Digest n. 2].

Who Are “Third Persons”: Particular Entities. When compensable injury is the result of a third person’s tortious conduct, all statutes preserve a right of action against the tortfeasor, since the compensation system was not designed to extend immunity to strangers. Chapter 112, which discusses the issues related to recovery over against a number of particular types of entities, has been revised. Authority is mixed on whether an employee of a subsidiary may sue the parent corporation at common law, and likewise on whether the employee of a parent corporation may sue a subsidiary. As to treating physicians, the issues can be quite complex. Typically, unless the physician has special statutory status, actions for malpractice for aggravating a compensable injury will not be barred. , but there is an issue whether the injured worker is entitled to keep the full malpractice award and collect workers’ compensation benefits as well. In one important decision, King v. Comppartners, Inc., 5 Cal. 5th 1039, 423 P.3d 975, 236 Cal. Rptr. 3d 853, 83 Cal. Comp. Cases 1523 (20180, the Supreme Court of California held that an injured worker could not, however, proceed in tort against a physician who examined the worker a part of the state’s utilization review process. The Supreme Court stressed that in performing their statutory functions, utilization reviewers effectively stand in the shoes of employers. As such, reviewers are to be provided with the same immunity from tort liability as employers [see Larson’s Workers’ Compensation Law, Ch. 112, § 112.02[1][a] n. 2.1].

Worker Barred From Recovery After Being Assaulted by Co-Worker’s Husband in Company Parking Lot. In a case with bizarre facts, a worker who alleged that he sustained injuries when he was physically assaulted by the husband of a co-worker and then intentionally struck by the husband’s vehicle as the worker tried to block the path of the assailant did not sustain injuries arising out of and in the course of the employment, held an Ohio appellate court. The worker had apparently arrived at the parking lot some ten minutes before check-in time. He could not easily proceed into the lot, however, because the vehicle path was blocked by a stopped vehicle driven by the husband of a co-worker. The husband had dropped off his wife but had not moved his auto. The worker drove around the stopped car and then proceeded to park, where he was accosted by the husband. The worker tried first to call 9-1-1 regarding the assault and then sought to prevent the husband from driving away by standing in front of the vehicle at the exit gate. He was struck by the vehicle, which was moving at perhaps 10 to 15 mph. The appellate court agreed that there was insufficient connection to the employment. The two men had never met, and the worker did not know or work directly with the wife [see Garner v. Bureau of Workers' Comp., 2018-Ohio-3398, 2018 Ohio App. LEXIS 3675 (Aug. 24, 2018), Larson’s Workers’ Compensation Law, Ch. 8, § 8.02[1][a] Digest n. 1].

Oklahoma: Injuries Sustained While Being Treated for Earlier Work-Related Claim Are Also Compensable. Reversing the state’s Court of Civil Appeals, the Supreme Court of Oklahoma reinstated a decision by a three-judge panel of the Workers’ Compensation Court that earlier held a workers’ compensation claimant was entitled to additional compensation following a freakish accident that occurred while the claimant was receiving medical treatment for an earlier work-related injury. The claimant, who sustained a compensable 2008 injury to various body parts, including the left knee and cervical spine, had sought treatment in 2012 for continued cervical discomfort. She traveled to a medical facility, underwent a steroid epidural injection to her cervical spine, and suffered additional injuries when being wheeled into the recovery area. Medical personnel had placed her in a wheelchair without foot rests in spite of the fact that she was still partially under sedation. As they wheeled her to recovery, her feet drug on the floor, her knees went underneath the wheelchair, and she was suddenly thrown forward, causing additional injury to her knee. The employer contended the actions of the medical personnel constituted an intervening action, but the Workers’ Compensation Court—and the Supreme Court—disagreed [see City of Tulsa v. Hodge, 2018 OK 65, 429 P.3d 685 (2018), Larson’s Workers’ Compensation Law, Ch. 10, § 10.07 Digest n. 1].

Deviation to Get Beer/See Girlfriend Sink Farm Worker’s Claim. Matter of Button v Button, 2018 N.Y. App. Div. LEXIS 7753 (3d Dept., Nov. 15, 2018). Where a New York farm worker took a short break to get a beer and see his girlfriend, who was moving her belongings into the worker’s employer-provided residence located across the road from the employer’s farm, that deviation was sufficient to remove the worker from the course and scope of his employment. Accordingly, it was not error for the Board to deny the worker’s claim for benefits in connection with serious injuries he sustained in a vehicular accident that occurred when the worker decided to return to work, crossed back over the road, but failed to yield the right of way to an oncoming vehicle [see Matter of Button v Button, 2018 N.Y. App. Div. LEXIS 7753 (3d Dept., Nov. 15, 2018), Larson’s Workers’ Compensation Law, Ch. 17, § 17.04[1] Digest n. 2].

Failure to Wear Seatbelt Was Willful Misconduct on Part of Bus Driver. The failure of a Virginia bus driver to lock and wear his seat belt upon picking up passengers—he later sustained serious injuries when his vehicle was struck from behind, careened down a guardrail, and then flipped—constituted willful misconduct under Va. Code § 65.2-306, since the evidence showed that he did not sustain the injuries while in the driver’s seat, but only after being ejected from the vehicle, held a state appellate court. The driver acknowledged that he was aware of the employer’s safety policy requiring seat belt use at all times. That acknowledgment, coupled with the fact that the proximate cause of the driver’s injuries was his failure to use the seat belt, meant he was disqualified from receiving workers’ compensation benefits [see Mailloux v. American Transp., 2018 Va. App. LEXIS 260 (Oct. 9, 2018), Larson’s Workers’ Compensation Law, Ch. 34, § 34.03 n. 1.2].

Virginia Court Affirms Commission’s Safety Violation Finding. The appellate court affirmed a finding by the state’s Workers’ Compensation Commission that a truck driver willfully violated known safety rules when he failed to chock the wheel on the employer’s truck during a stop. Accordingly, under Va. Code Ann. § 65.2-306(A), the employee could not recover workers’ compensation benefits for injuries sustained when the truck suddenly rolled forward, causing the employee to fall from the truck bed [see Callahan v. Rappahannock Goodwill, 2018 Va. App. LEXIS 288 (Oct. 23, 2018), Larson’s Workers’ Compensation Law, Ch. 34, § 34.03 n. 1.3].

Videotape Evidence Sinks Claimant’s Claim; Disqualification under § 114-a. A workers’ compensation claimant was appropriately disqualified from receiving benefits under N.Y. Workers' Comp. Law § 114-a(1) where claimant represented to his treating physician and the carrier's medical expert that he was in constant pain, required use of a cane or knee brace on a daily basis, and was severely impacted in his ability to stand and walk, but where reports prepared by an investigator showed otherwise. In the surveillance videos, claimant was observed walking without a limp, standing and driving for extended periods of time, bending over to do repair work under the hood of a vehicle, and lifting items, such as a car battery, a floor jack and an automobile tire, from the bed of his truck. The only time during the surveillance period that claimant was observed using a cane or knee brace was during a medical appointment. Later that same day, however, claimant was observed walking normally without any assistive device [see Matter of Santangelo v. Seaford U.F.S.D., 165 A.D.3d 1358, 85 N.Y.S.3d 265 (3d Dept. 2018), Larson’s Workers’ Compensation Law, Ch. 39, § 39.03 Digest n. 5].

Videotape and Social Media Evidence Torpedo Worker’s Claim for Benefits. Where a workers’ compensation claimant represented to an independent medical examiner that he could not sit upright or stand without head support, that he became dizzy from time to time, could not engage in play or other activities with his son, could engage in no social activities and was sensitive to light and noise, and yet videotape surveillance footage during the relevant time frame showed the claimant working outside on a project that required lifting and carrying wood, engaging in recreational activities with a child—presumably his son—and carrying firewood and placing it into a pit, the New York Board was entitled to find that the claimant had made material misrepresentations in violation of N.Y. Workers’ Comp. Law § 114-a [see Matter of Papadakis v Fresh Meadow Power NE LLC, 2018 N.Y. App. Div. LEXIS 8673 (3d Dept. Dec. 20, 2018), Larson’s Workers’ Compensation Law, Ch. 39, § 39.03 Digest n. 10].

Repetitive Trauma Generally Cannot Support Comp Claim in Virginia. A Virginia appellate court reiterated the general rule that in order to recover under the state’s Worker’ Compensation Act, a claimant must demonstrate an “identifiable incident” or “sudden precipitating event” that results in an “obvious sudden mechanical or structural change in the body.” Accordingly, the Court held that the Commission appropriately found that a claimant failed to prove his shoulder injuries were compensable where his testimony showed that on the day of the alleged injury, he repeated the same combination of movements to rotate and move 14 smart boards, each weighing between 28 and 48 pounds, back and forth from two sides of a room. Adding that in Virginia, a gradually incurred injury usually cannot be “an injury by accident” within the meaning of the Act, the Court affirmed a denial of the claim [see Daggett v. Old Dominion Univ., 2018 Va. App. LEXIS 243 (Sept. 25, 2018), Larson’s Workers’ Compensation Law, Ch. 50, § 50.01 n. 40].

Claimant Established Claim for PTSD Due to Threatening Calls and Threats Received from Co-workers. Substantial evidence supported the Board's decision that the claimant's psychiatric condition was an accidental injury caused by the psychological trauma and stress experienced at work where the employer adopted an internal policy regarding its treatment of workers’ compensation claims that arose from motor vehicles, claimant worked as a workers’ compensation adjuster for the employer and bore the brunt of the employer’s unpopular policy, receiving dozens of threatening calls from employee drivers. After receiving the calls for three months, claimant testified that he began mental health treatment, was prescribed with a antidepressant, experienced sweating and had chest pains and feelings of doom and continuing panic. Substantial evidence supported the Board's determination that the claimant sustained a compensable work-related psychiatric injury in the form of PTSD [see Matter of Kraus v. Wegmans Food Mkts., Inc., 156 A.D.3d 1132, 67 N.Y.S.3d 702 (3d Dept. 2017), Larson’s Workers’ Compensation Law, Ch. 56, § 56.04[5][b] n. 70].

Trainee/Apprentice May Not Sue Independent Contractor/Truck Driver. In a case involving an unusual fact pattern, the Eighth Circuit Court of Appeals, construing Iowa law, affirmed a federal district court’s decision granting summary judgment to an independent contractor/truck driver in a negligence action filed against him by a trainee/apprentice who sustained serious injuries in a vehicle crash. The Court held that the defendant driver, who had agreed with a trucking company to serve as a “mentor” for one of its trainee/apprentices, was the latter’s joint employer. Accordingly, he was immune from tort liability under the exclusive remedy provisions of the Iowa Workers’ Compensation Act [see Quiles v. Johnson, 906 F.3d 735 (8th Cir. 2018), Larson’s Workers’ Compensation Law, Ch. 68, § 68.02 n. 6].

To Gain Relief from Subsequent Injury Fund, Employer Need Not Prove It Had Specific Knowledge of Condition. A Nevada employer need not show that it had knowledge of an employee’s specific medical diagnosis in order to receive reimbursement from the state’s Subsequent Injury Fund (“the Fund”). It must, however, prove that it had some sort of knowledge of a preexisting physical impairment that would support an impairment rating of at least six percent of the whole person, held the state’s Supreme Court. Here, the employee worked for more than 20 years as a paramedic/firefighter without any documented history of injury. Thereafter, he did sustain back injuries in the course of his employment and, following an examination by a medical expert hired by the employer/carrier, the doctor indicated the employee had a preexisting condition: spondylolisthesis. The Board found that there could be no reimbursement from the Fund since the employer could not show it had specific knowledge of the spondylolisthesis. The court held that was too much of a burden, but that the employee's preexisting permanent physical impairment must indeed be fairly and reasonably inferred from the written record. The case was remanded for such a determination [see North Lake Tahoe Fire Prot. Dist. v. Board of Admin., 2018 Nev. LEXIS 107 (Dec. 6, 2018), Larson’s Workers’ Compensation Law, Ch. 91, § 91.03[3] n. 17.1].

Supreme Court Says State’s IME Process Does Not Violate Due Process. Mont. Code Ann. § 39-71-605, which permits workers’ compensation insurers to obtain multiple medical examinations of a claimant, does not permit the State Fund (which had insured the risk and was administering the claim in the instant case) to act in contravention to the rights of privacy, substantive due process, and against unreasonable searches embodied in the Montana Constitution, held the Supreme Court of Montana. Stressing that the statute provided parameters on the IME process, the IME process was clearly related to the government's concern for effectively administering the workers' compensation process and was reasonably related to the legitimate government objective of promoting efficiency and self-reliance in the workers' compensation process, the Court held the IME process did not undermine a claimant's rights in his or her medical information. Moreover, the IME was obtained pursuant to a claimant's waiver of confidentiality for purposes of the administration of her claim [see Robinson v. State Comp. Mut. Ins. Fund, 2018 MT 259, 393 Mont. 178, 430 P.3d 69 (2018), Larson’s Workers’ Compensation Law, Ch. 94, § 94.02[1] Digest n. 1].

Cost of “Alternative” Spinal Surgery in Germany Need Not be Paid by Employer/Carrier. For workers’ compensation purposes, approval of a medical device or treatment by the U.S. Food and Drug Administration (FDA) is not required to establish that it was reasonable and necessary; but the Wyoming Workers’ Compensation Division may nevertheless require a claimant requesting a non-FDA-approved medical device or treatment to produce reliable documentation of its safety and effectiveness against her specific medical condition. The Supreme Court of Wyoming held, therefore, that while implantation of non-FDA-approved artificial discs at adjacent levels of the injured worker’s lumbar spine was not an “off-label” use of medical services, substantial evidence supported the Medical Commission’s determination that the worker failed to provide sufficient documentation of the procedure’s safety and effectiveness, thus rendering it “alternative medicine” for which workers’ compensation benefits were properly denied. Here, the worker traveled to Germany to have spinal surgery because the procedure had not been approved in the United States [see In re Worker's Comp. Claim v. State ex rel. Dep't of Workforce Servs., 2018 WY 99, 424 P.3d 1261 (2018), Larson’s Workers’ Compensation Law, Ch. 94, § 94.03[1] n. 2.2].

Continued Short-Term Med Approved in Spite of Passage of 16 Years. A New York appellate court recently affirmed the Board's decision that claimant’s continued use of Amrix—a muscle relaxant—was medically necessary in spite of the employer/carrier’s argument that the Board's Non-Acute Pain Management Guidelines recommended only short-term use of the medication and claimant’s back, right shoulder and left hip injury occurred in 2000, sixteen years before the carrier filed its objection. The court observed that claimant's treating physician testified that the effects of the drug vary on a patient-to-patient basis and that the continued use of Amrix had been successful in treating claimant's muscle spasms and related pain. Specifically, the physician testified that continued use of Amrix had allowed claimant to perform the activities of daily living and to continue working as a nurse. In light of the foregoing, the court concluded substantial evidence supported the Board’s finding that continued use was medically necessary [see Matter of Byrnes v New Is. Hosp., 2018 N.Y. App. Div. LEXIS 8314 (3d Dept., Dec. 6, 2018). Larson’s Workers’ Compensation Law, Ch. 94, § 94.03[1] n. 1.1].

Out-of-State Medical Treatment Must Comply With State’s Medical Guidelines. Where the worker’s motivation to move from New York to Nevada was not medical necessity, but rather personal lifestyle choice, the worker was entitled to reasonable and adequate medical treatment in his or her new location. That treatment, however, remained subject to New York’s Medical Treatment Guidelines. Accordingly, it was appropriate for the state’s Workers’ Compensation Board to find that claimant’s Nevada prescriptions for LidoPro ointment (a compounded pain medication) and Terocin patches had not prescribed in accordance with the guidelines and, therefore, the employer and carrier were not obligated to pay for them [see Matter of Gasparro v. Hospice of Dutchess County, 2018 N.Y. App. Div. LEXIS 7783 (Nov. 15, 2018), Larson’s Workers’ Compensation Law, Ch. 94, § 94.03[2][b] n. 50.1].

Shipyard Owed Duty of Care Not to Expose Worker’s Family Members to Asbestos Fibers on Worker’s Clothing. Answering a restated certified question from the U.S. District Court (Eastern District of Virginia), the Supreme Court of Virginia, in a deeply divided 4-3 decision, held that an employer owed a duty of care to an employee's family member who alleged exposure to asbestos from the work clothes of the employee, where the family member alleged the employer's negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee's home. The majority indicated that the workers had not been informed of the dangers of the asbestos dust, and absent such knowledge, the workers were simply a means of dispersal yielding various foreseeable and unforeseeable routes of exposure to the hazard created by the employer shipyard's conduct in engaging in industrial practices that created asbestos dust. Because of the shipyard owed the duty to the family members, it was susceptible to tort liability to family members of the employee [see Quisenberry v. Record No. 171494 Huntington Ingalls, Inc., 818 S.E.2d 805 (Va. 2018), Larson’s Workers’ Compensation Law, Ch. 101, § 101.03 n. 4.3].

Supreme Court Sticks to Earlier Decision—“Substantial Certainty” Rule May Not Be Used in Intentional Tort Cases. The Supreme Court of Vermont again refused to adopt the “substantial certainty” rule for intentional tort cases filed by an injured employee against an employer. Citing its earlier decision in Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980), the Court indicated that nothing short of actual intent to injure could support an injured employee’s intentional tort claim against the employer. Here the worker was injured when he fell from a roof. He contended that the employer had failed to maintain a personal-fall-arrest system (PFAS) that was required not only by the employer’s safety rules, but also by federal (OSHA) and state (VOSHA) laws. Kittell remained the standard, said the court. Taking the plaintiff/employee’s allegations on their face, there still was no evidence that the employer acted deliberately to harm the employee [see Martel v. Connor Contr., 2018 VT 107, 2018 VT 107 (Oct. 12, 2018), Larson’s Workers’ Compensation Law, Ch. 103, § 103.03 Digest n. 2].

Employer May Not Retaliate Against Worker Filing Third-Party Tort Action Against It. It is axiomatic in Massachusetts—and the significant majority of other American jurisdictions—that an employer may not retaliate against an employee who sustains a work-related injury. The protections afforded under the Bay State’s retaliatory discharge statute [Mass. Gen. Laws ch. 152, § 75B(2)] go even further than similar statutes in other states, at least according to a recent decision by a state appellate court. Not only may an employer not retaliate against a worker because he or she filed a workers' compensation claim, it may not retaliate against a worker who has filed a third-party tort action against the employer. The court reasoned that the right to sue the employer was not grounded so much in common law as it was in the state's Workers' Compensation Act [see Bermudez v. Dielectrics, Inc., 94 Mass. App. Ct. 491 (Nov. 16, 2018), Larson’s Workers’ Compensation Law, Ch. 104, § 104.07[1] n. 2].

Employer Did Not Violate Safety Rule Where Compliance Was “Impossible.” Acknowledging that it was possible for an employer to establish impossibility as an affirmative defense to an application for an additional award for a violation of a specific safety requirement (“VSSR”), the Supreme Court of Ohio held that in order to take advantage of such a defense, the employer must show (1) that it would have been impossible to comply with the specific safety requirement or that compliance would have precluded performance of the work and (2) that no alternative means of employee protection existed or were available. Here, an industrial electrician was injured while in the process of reinstalling a heavy flywheel in a cutoff machine. A crane held the suspended flywheel in a sling as the electrician and a coworker worked beneath it, trying to move the flywheel into position. The sling broke, dropping the flywheel onto the electrician, breaking both his legs. His workers' compensation claim was allowed for bilateral femur fracture and right femoral shaft nonunion. The electrician contended that there were alternative means that could have been utilized to move and reinstall the flywheel. The employer indicated there were no such alternatives, but the Commission agreed with the electrician and found that it was possible for the employer to comply with the SSR. The high court disagreed, noting that there was no evidence to support the commission’s decision. The electrician’s “evidence” was speculative. The employer had established the “impossibility” defense [see State ex rel. Jackson Tube Serv. v. Indus. Comm'n of Ohio, 2018-Ohio-3892, 2018 Ohio LEXIS 2330 (Sept. 27, 2018), Larson’s Workers’ Compensation Law, Ch. 105, § 105.06 n. 4.11].

Attorney’s Short Text Message to Physician Was Not Improper. A short text message sent only to a physician, and not to opposing counsel, notifying the doctor that his upcoming deposition would address claimant’s schedule loss of use, was not the sort of ex parte communication that gave the appearance of impropriety or improper interference on the part of the “offending” attorney. Accordingly, it was error for the New York Board to bar the introduction of the physician’s report and testimony at a later hearing, indicated a divided state appellate court. The majority said the message was only “ministerial in nature” and did not reflect an effort to influence the physician’s testimony or opinion [see Matter of Knapp v. Bette & Cring LLC, 2018 N.Y. App. Div. LEXIS 8159 (Nov. 29, 2018), Larson’s Workers’ Compensation Law, Ch. 127, § 127.05[4] Digest n. 19].

Massive Stroke Unrelated to Injury Does Not Change Claimant’s PTD Status. In a case from Nebraska, the fact that a permanently disabled claimant subsequently suffered a massive stroke that was unrelated to her workplace injury and which left her completely incapacitated and unable to care for herself did not alter the fact that she was still permanently disabled under the state’s Workers’ Compensation Act. Casting aside the employer’s argument that the employee’s continuing disability was the result of her stroke, and not her injury, the Court stressed that the claimant’s work-related disability had not ceased. The fact that the employee suffered a subsequent stroke that was neither medically nor causally related, did not relieve the employer of its obligation to pay PTD benefits under the Nebraska Workers’ Compensation Act [see Krause v. Five Star Quality Care, 301 Neb. 612, 919 N.W.2d 514 (2018), Larson’s Workers’ Compensation Law, Ch. 131, § 131.03[1][b] n. 16.1].

Improper Cancellation Leaves Employer With Two Policies; Insurers Split Cost of Claim. In a recent case, where a Missouri husband and wife operated a local bakery and each separately procured policies of workers’ compensation insurance for the business, cancellation of one of the policies nevertheless had to be in conformity with state law, held the Eighth Circuit Court of Appeals. Since the so-called cancellation did not follow the statutory guidelines, the business was protected by two policies and, following a work-related death by one of the bakery employees in an auto accident, both insurers were responsible for one-half the claims costs (including death benefits). The Court added that there was no mutual mistake of fact as between the business and the insurance company who disputed that it owed one half the loss [see Employers Preferred Ins. Co. v. Hartford Accident and Indem. Co., 2019 U.S. App. LEXIS 851 (8th Cir., Jan. 10, 2019), Larson’s Workers’ Compensation Law, Ch. 150, § 150.03[1] n. 8.2].