September 10, 2021

CWCI Examines California WC COVID-19 Death Claim Trends and Characteristics

Oakland – The number of California workers’ compensation death claims more than doubled last year as the pandemic resulted in 866 COVID death claims, bringing the total number of job-related death claims for the year to 1,563, up from 748 in 2019 according to a new California Workers’ Compensation Institute (CWCI) analysis. The analysis also found that despite a sharp drop in work-related COVID cases from January through...

September 08, 2021

California Employer-Employee Relationship: Conviction in a Criminal Matter Related to Workers’ Compensation Insurance

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board At the heart and center of every workers’ compensation system is the existence of an employment relationship. That isn’t news—it’s a given. Without an employer-employee relationship, workers’ compensation law simply doesn’t apply. We understand that as part of “the compensation bargain,” workers...

August 30, 2021

Delaware: Board, Not Trial Court, Must Decide if COVID-19 is Occupational Disease

A Delaware Superior Court held that it was for the state’s Industrial Accident Board, not the trial court, to determine whether COVID-19 was an occupational disease and, therefore, whether the plaintiff’s action against an employer for alleged negligence in allowing her husband—an employee of the defendant—to contract the disease should be barred by the exclusive remedy provisions of the state Act. Plaintiff contended...

August 30, 2021

Oregon: Eye Injury from Exploding Energy Drink is Compensable

Liberally citing Larson’s Workers’ Compensation Law , § 4.01, et seq., an Oregon appellate court found substantial evidence supported a finding by the state’s Workers’ Compensation Board that awarded benefits to an employee who sustained injuries to his eye when the bottle cap on an energy drink exploded as he was about to consume it during a mandatory paid break from his duties. Agreeing with the Board that the risk...

August 30, 2021

South Dakota: Injured Worker’s Letter Requesting “Review of Benefits” Insufficient to Toll Statute of Limitations

Despite the general informality associated with pleadings, petitions, and other procedural matters related to workers’ compensation claims, a worker’s letter to his employer’s workers’ compensation carrier, with a copy to the South Dakota Department of Labor and Regulation, asking the carrier to “review his benefits” was insufficient to be considered a petition for benefits, held the Supreme Court of South Dakota. The...

August 30, 2021

Minnesota: Injured Employee Fails to Establish Need for Long-term Opioids

The Supreme Court of Minnesota held that an injured worker had failed to establish that his long-term use of Endocet—an opioid—was in line with long-term treatment parameters established pursuant to Minn. R. 5221.6110 (2019). Accordingly, his continued treatment via the opioid was not reasonable and necessary and need not be provided by the employer. The worker sustained his injury in 2002, before the opioid...

August 30, 2021

Delaware: Running Inside Employer’s Facility Results in Denial of Injury Claim

As is the case in a number of other states, Delaware’s Workers’ Compensation Act bars recovery of benefits if the employee’s injury results from “the employee’s deliberate and reckless indifference to danger” [19 Del. C. § 2353(b)]. A Delaware appellate court affirmed a decision by the state Board that denied benefits to an employee who sustained injuries while running inside the employer’s facility in spite of several...

August 30, 2021

Utah: Injured Worker’s Tort Action Against IME Physician Properly Dismissed

There is no physician-patient relationship between an independent medical examiner and a workers’ compensation claimant, held a Utah appellate court. In the absence of such a relationship, the physician did not owe the claimant the sort of duty owed by his or own treating physician and a state trial court appropriately dismissed a civil action filed by a claimant against the IME physician where the former contended the...

August 30, 2021

Virginia: Apportionment Allowed for Pre-Existing Condition

A Virginia appellate court affirmed a finding of the state’s Workers’ Compensation Commission that had apportioned an injured employee’s disability based on her preexisting condition, awarding benefits based upon a 25 percent PPD to the right lower extremity. Analyzing the medical evidence in the record, the court noted that the employee’s physician indicated she had degenerative disc disease in...

August 30, 2021

Virginia: Employee’s Actions Were Not a Violation of Known Safety Rule

Acknowledging that pursuant to Va. Code § 65.2306(A), an injured worker can be disqualified from receiving workers’ compensation benefits if he or she intentionally engages in activity contrary to a known safety rule imposed by the employer, a state appellate court nevertheless affirmed an award of benefits to an employee who sustained a severe hand injury in a forklift accident. The employer had a safety rule...

August 24, 2021

California: Questions Doctors Ask Us

By Hon. Robert G. Rassp Highlighting California law and the AMA Guides Fifth Edition DISCLAIMER: The opinions expressed by the author in this article are those of the author and are not those of the California Department of Industrial Relations, Division of Workers’ Compensation, or the Workers’ Compensation Appeals Board. The author has conducted many continuing medical educa tion programs (CME) over the years...

August 18, 2021

California: When to Add Impairments: The Synergistic Effect Explained

Although the 2005 Permanent Disability Rating Schedule (2005 PDRS) indicates that impairments are generally combined by using a reduction formula, the AMA Guides, upon which the 2005 PDRS is based, describe several different methods that may be used to combine multiple impairments. One method of combining impairments is by simple addition. Appellate Court decisions have accepted that method when expert medical opinion...

August 05, 2021

California: Apportionment under Labor Code Section 4664(c)(1)(g)

The 100% Lifetime Cap, Overlap, and Rebuttal of the Scheduled Rating Labor Code section 4664 , as enacted by Senate Bill 899 (Stats. 2004, ch. 34, § 35), makes the employer liable only for permanent disability directly caused by the industrial injury. If an injured employee has a prior award of permanent disability, section 4664 creates a presumption that such prior permanent disability still exists at the time of any...

August 05, 2021

California Compensation Cases July 2021

CALIFORNIA COMPENSATION CASES Vol. 86, No. 7 July 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...

August 03, 2021

New York: Claim Fails Where Employee Died Before Adequate Record Could be Established

The properly disallowed an employee’s claim for benefits under N.Y. Workers’ Comp. Law § 15(4) because the claim abated upon the employee’s death since the record was undeveloped. The court noted that the employee had not testified or undergone an independent medical examination despite diligent efforts by the carrier to secure both before the worker’s death. While the record was thereafter...

August 03, 2021

New York: Videotape Shows Significant Discrepancy Between Claimant’s Claimed Condition of Disability and Reality

The claimant violated N.Y. Workers’ Comp. Law § 114-a by knowingly making a material misrepresentation, which disqualified him from receiving future indemnity benefits, where surveillance videos showed him stooped over and walking very slowly, using a cane and wearing a back brace, and struggling to get into an automobile when walking into a doctor’s and the Board’s offices, but showed him walking...

August 03, 2021

South Carolina: “Self-Employed” Roofer May Have Been Employee of Other Firm

Reversing, in relevant part, an appellate panel’s determination that an injured roofer was an independent contractor, and not an employee of a roofing contractor for whom he was providing services, a South Carolina appellate court held that while indeed some factors pointed toward an independent contractor relationship, others pointed to an employment relationship between the roofer and the company. The court remanded...

August 03, 2021

Mississippi: Evidence Supports Commission’s Decision to Deny Quadriplegic’s Settlement Agreement

Stressing the discretion allowed the Mississippi Workers’ Compensation Commission in granting—or denying—an injured worker’s petition to settle and close out the medical portion of his workers’ compensation claim, a state appellate court affirmed the Commission’s decision that refused to approve a settlement tendered to it for approval. The appellate court acknowledged that there had been no hearing on the petition and...

August 03, 2021

Colorado: Hospital’s Act of Invoicing Injured Employee Results in Fine, But Not as a “Continuing” Offense

Where a hospital sent an injured worker eight separate invoices for charges related to his work-related injuries and, on two additional occasions, send invoices to a collection agency in an effort to collect monies owed for the worker’s treatment, it was liable for a $750 penalty for each instance, held a Colorado appellate court. The hospital could not, however, be fined the $750 on a daily basis as an ongoing, “continuing...

August 03, 2021

New York: Court Sends $52K Fee Request Back to Board for Reconsideration

Vacating its earlier decision (reported at 187 A.D.3d 1297, 132 N.Y.S.3d 454 (2020), in which the New York appellate court had held the Board did not abuse its discretion in awarding attorney’s fees of $1,000, instead of the $52,000 amount originally requested by claimant’s attorney, based upon the Board’s determination that the attorney had failed to file an OC-400.1 fee application with the WCLJ, the court said its...

August 03, 2021

New York: Grave Digger’s IIED Claim Barred by Exclusive Remedy Rule

A grave digger’s allegations that he had sustained emotional distress injuries resulting from the fact that, as part of his employment duties, he was sometimes required to step onto the top of caskets during the burial process was insufficient to establish the sort of intentional injury that would support a tort action against his employer, held the New York appellate court. Acknowledging that an intentional tort committed...

August 03, 2021

New York: Court Carves Out Narrow Exception for Retroactive Application of Indemnification Agreement Against Employer

Ordinarily, where a New York employer executes an indemnification agreement after its employee sustains a work-related injury, a third party sued in tort by the injured employee may not raise the existence of the indemnification agreement to shield it from a damage assessment. Here, however, a state appellate court held that there was an issue of fact as to whether the employer had intended the agreement to have retroactive...

August 03, 2021

New York: Construction Worker Fails to Show that Plaintiff’s Employer Was a Borrowing or Special Employer

A New York appellate court held there was conflicting evidence as to whether the plaintiff’s employer had the right to exercise control over a construction worker who was performing sheetrock work at the employer’s premises. Accordingly, the trial court did not err when it refused to grant a summary judgment motion filed by the defendant sheetrock worker who had been sued by the plaintiff for injuries she sustained when...

August 03, 2021

New Jersey: Exclusive Remedy Rule Does Not Bar Tort Action under State Discrimination Law

Where a teacher filed a tort claim against her employer alleging violations of New Jersey’s Law Against Discrimination (LAD), contending that the employer had failed to accommodate her pre-existing disability, her action was not barred by the exclusive remedy provisions of the state’s Workers’ Compensation Act. This was the case in spite of the fact that the teacher had sought and recovered workers’ compensation benefits...

August 03, 2021

Alabama: Substantially Certain Tort Claim Fails Against Co-Employees

Utilizing the co-employee “intentional injury” exception to Alabama’s exclusive remedy rule [see Ala. Code § 25-5-11(b)], the Supreme Court of Alabama affirmed a trial court’s decision to grant summary judgment in favor of two co-employee/defendants in a civil action filed against them by an injured worker. The worker sustained severe burns when the employer began using a process of mixing...