October 14, 2021

California: Compromise and Release; Mutual Mistake; Medicare Set-Aside

A recent noteworthy panel decision involves C&R, mutual mistake and Medicare set-aside. Here’s our headnote for the Harrison decision: Compromise and Release Agreements—Rescission—Mutual Mistake—WCAB, denying reconsideration, affirmed WCJ’s finding of good cause to set aside 1/8/2020 Order Approving Compromise and Release agreement settling applicant’s claim for cumulative orthopedic injury, based on mutual mistake...

October 10, 2021

California: Expedited Hearings; Dispute in Denied Injury Case Over Selection of Panel QME

The Corado panel decision involves an important procedural matter. Normally, expedited hearings can only be set when liability for an injury is accepted. The exception is when a DOR for an expedited hearing is filed in a dispute over the selection of a panel QME or treating physician under Labor Code section 5502(b)(3). The Appeals Board in Corado makes it clear that Rule 10782 and the Policy and Procedure Manual are...

October 10, 2021

West Virginia: Judge Should Have Appointed EMA to Resolve Conflict in Medical Opinions

While procedural rules are often relaxed in workers’ compensation cases, the six-month statute of limitations provided in W. Va. Code § 23-4-15(a) is jurisdictional, held West Virginia’s Supreme Court of Appeals in a memorandum decision. Where a teacher filed his workers’ compensation claim 11 months after his alleged work-related injury, his filing was untimely under the statute. He argued that extenuating circumstances...

October 10, 2021

Florida: Judge Should Have Appointed EMA to Resolve Conflict in Medical Opinions

Under Florida’s one-time change of physician statute, § 440.13(2)(f), Fla. Stat., a judge of compensation claims was required to appoint an EMA to resolve a conflict in the medical evidence where an injured worker was dissatisfied with the medical opinion of the employer/carrier’s authorized physician and then, when the carrier did not immediately provide an alternate physician, sought medical care on...

October 10, 2021

Wisconsin: Employee’s UIM Carrier May Not Deduct Amounts Paid to Comp Insurer For Subrogation Interest

Where the a deceased worker’s estate initially received $35,798.04 from the employer’s workers’ compensation insurer and then recovered $25,000 from a third-party motor vehicle operator—the liability limits of the third-party’s auto insurance policy—but was required to reimburse the employer’s workers’ compensation insurer the sum of $9,718.73 pursuant to the reimbursement...

October 10, 2021

Ohio: Injury Sustained After Employee Gives Notice of Departure Means No TTD Benefits

A Commission decision awarding an Ohio employee temporary total disability benefits was erroneously entered where the employee gave the employer two-week’s notice that he intended to leave the employment and then sustained a work-related injury four days later, held a state appellate court. Relying upon State ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386...

October 10, 2021

Illinois: No Jurisdiction Where Last Act of Forming Employment Contract was in Indiana

An Illinois county circuit court erred when it confirmed an award of workers’ compensation benefits for an Illinois resident who sustained injuries at her employer’s worksite in Indiana and who completed her employment application in Indiana after reporting to the employer for duty. In a decision not designated for publication, the Illinois appellate court stressed that since the last act necessary to form...

October 04, 2021

Foreword to Workers' Compensation Emerging Issues Analysis, 2021 Edition

By Thomas A. Robinson, J.D., Co-Editor-in-Chief As my colleagues and I prepared this annual volume for production in mid-September, we were reminded just how disruptive the COVID-19 pandemic has been during the past year and one-half. Six months, ago, as we began to sketch out the volume, we’d all been vaccinated. The vaccines were working. “The numbers” were improving. There were fewer hospitalizations and many fewer...

October 03, 2021

South Dakota: Court Uses Going and Coming Rule to Gauge Scope of Employment in Tort Case

The “going and coming” rule, which generally holds that a worker’s commute to and from home is outside the scope of the employment if he or she has a fixed locus of employment and fixed hours, could also be utilized in a negligence action filed by a third-party against the worker’s employer, where the plaintiff and the worker were involved in an automobile accident as the worker drove to his employment. Acknowledging...

October 03, 2021

Iowa: Injured Worker was Not Limited to Scheduled Award

An award to an injured employee could be made on a permanent partial disability basis—he was not limited to a scheduled award—where the employee suffered a torn quadriceps tendon in his lower extremity, but medical evidence indicated that while the worker’s “injury” was limited to his knee and thigh, his impairment extended to his hip, held the Iowa appellate court. The court stressed that injury and impairment were not...

October 03, 2021

Florida: Officer’s Secondary Hypertension as Teen Bars Use of Presumption of Compensability

Florida’s special presumption of compensability [see § 112.18, Fla. Stat.], which favors first responders and other law enforcement employees who pass pre-employment physical examinations and then subsequently suffer from cardiac conditions, could not be used by an officer who had developed “secondary hypertension” during his teen years because he had to take anti-rejection medications for 15 years...

October 03, 2021

Florida: Carrier Did not Lose Right to Designate Physician Where Its Original Choice was More Than 50 Miles from Worker

Where a workers’ compensation carrier supplied the injured worker with a referral physician and appointment options with the five-day period required by § 440.12(2)(f), Fla. Stat., that carrier did not lose its right to designate an alternative physician because the first referral’s office was more than 50 miles from the worker’s residence. The court acknowledged that the worker had designated his...

October 03, 2021

New York: Service of Application for Board Review on TPA Was Not Service on Carrier Itself

Where a workers’ compensation claimant served an application for Board review upon the insurance carrier’s third-party administrator—but not the carrier itself—such service was defective and New York’s Workers’ Compensation Board was within its discretion to deny the application on that basis, held a state appellate court. The court acknowledged that from the initial stages of the case, the TPA had been clearly identified...

October 03, 2021

New York: WCLJ’s Factual Finding is Binding in Subsequent Third-Party Tort Action

A decision by a New York trial court granting defendants’ motion for summary judgment in a tort action filed against them was affirmed by a state appellate court where the essential issues related to potential liability had already been determined in a prior workers’ compensation proceeding. Noting that collateral estopped—sometimes known as “issue preclusion”—did not apply if the issue at stake in the second action was...

October 03, 2021

Kentucky: Res Judicata is no Defense to Change in Condition Petition

An injured employee could reopen her claim based upon an alleged change of condition—her petition was not barred by the doctrine of res judicata—where the core issue was the employee’s contention that her degree of disability was to be reviewed as of two different dates, held a Kentucky appellate court. Quoting Larson’s Workers’ Compensation Law , the court acknowledged that the doctrine of res judicata generally applied...

October 03, 2021

South Carolina: Commission Was Not Liable for Failing to Notify Fired Attorney of Settlement Hearing

Where a South Carolina law firm negotiated a mediated $120,000 settlement on behalf of an injured worker, was fired one day after the successful mediation, and sent as many as four communications to the state’s Workers’ Compensation Commission advising that it claimed an interest in the settlement proceeds, yet received no notice of a hearing at which Commission approved the agreement—without providing for any award of...

October 03, 2021

Virginia: Injuries Sustained in Ducking Under Closing Garage Door Are Compensable

Evidence that an auto dealership employee’s movements were “unusual and awkward” as he attempted to duck under a garage door that was in the process of closing supported the Commission’s findings that he was entitled to workers’ compensation benefits, held a Virginia appellate court in a decision not designated for publication. Acknowledging that in Virginia, an employee generally may not...

October 03, 2021

Kentucky: Amended Statute Terminating Benefits at Age 70 Passes Constitutional Muster

A 2018 amendment to Kentucky’s Workers’ Compensation Act that terminates an injured worker’s right to indemnity compensation when the worker reaches the age of 70, or four years from the date of injury or last injurious exposure, whichever event occurs last [see Ky. Rev. Stat. § 342.740(4)] is constitutional, held the state’s Supreme Court. The amendment had been in reaction to the Court’s...

October 03, 2021

Georgia: Second Fall at Home Broke Chain of Causation Related to Earlier Injury

Emphasizing that it was for Georgia’s State Board of Workers’ Compensation to resolve a conflict in the evidence and not for the superior court, which initially reviewed the Board’s decision, a state appellate court reversed and remanded a case in which the Board had found that a worker’s slip and fall at his home was not causally connected to an earlier work-related injury because the worker had...

September 27, 2021

California: The Privette Doctrine Revisited After Nearly Thirty Years: Is It Here to Stay?

Nearly three decades ago our Supreme Court tackled the thorny intersection between workers’ compensation law and tort law when it addressed whether the tort doctrine of “peculiar risk” affords a basis for an employee of an independent contractor who sustains injuries while performing hazardous work to seek recovery of tort damages from the person who hired the independent contractor but did not cause the injuries. In...

September 27, 2021

California: CWCI Finds IMR Volume Continued to Decline Through the First Half of 2021

Oakland –The number of independent medical reviews (IMRs) used to resolve California workers’ comp medical disputes hit a record low in the first half of 2021 as statewide unemployment remained stubbornly high, non-COVID job injury claims stayed below pre-pandemic levels, millions of Californians continued to work from home, and efforts to reduce prescription drug disputes appear to be paying off, according to a new analysis...

September 27, 2021

California Compensation Cases September 2021

CALIFORNIA COMPENSATION CASES Vol. 86, No. 9 September 2021 A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review CONTENTS OF THIS ISSUE © Copyright 2021 LexisNexis. All rights reserved. LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and...

September 24, 2021

California: Panel Wars: Physician Bias

The Agamao case has something for everyone in the continuing “Panel Wars.” The perception of bias was not enough to prove bias in this case. The Applicant may have felt hostility by the doctor’s staff member, but there was no evidence the doctor himself expressed or implied bias against the Applicant. In addition, kicking out the representative of the attorney’s office was improper and against...

September 20, 2021

WCRI Study Shows State Policy Changes Result in Reduced Use of Opioids

By Thomas A. Robinson, co-author, Larson’s Workers’ Compensation Law A July 2021 study published by Workers’ Compensation Research Institute (WCRI) suggests that relatively recent implementation by some states of (1) must-access prescription drug monitoring programs (PDMPs) related to opioids, and (2) policies setting limits on initial opioid prescriptions, have contributed to declines overall in opioid utilization...

September 15, 2021

August 2021 Cal. Comp. Cases

CALIFORNIA COMPENSATION CASES Vol. 86, No. 8 August 2021 A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review CONTENTS OF THIS ISSUE © Copyright 2021 LexisNexis. All rights reserved. LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court...