August 03, 2021

North Dakota: Unusual Stress Required to Support Heart Attack Claims

Construing North Dakota’s “heart attack/stroke” statute, N.D.C.C. § 65-01-02(11)(a)(3), which generally requires that unusual stress be at least 50 percent of the cause of injury or disease—as compared with all other contributing factors—a divided Supreme Court of North Dakota reversed an administrative law judge’s determination that the widow of a deceased employee was entitled...

August 03, 2021

New York: Ex Parte Communications Result in Denial of Death Benefits Claim

A WCLJ’s decision to give no weight to medical opinions offered by two medical experts—an independent medical examiner and the deceased employee’s treating physician—because both experts had entered into significant ex parte contact with claimant’s attorney was affirmed by a state appellate court. Without that medical evidence, the Board agreed with the WCLJ that the claimant had failed to...

August 03, 2021

New York: Failure to Disclose Gambling Activity Results in Forfeiture of Benefits

The failure on the part of a workers’ compensation claimant to disclose that he and others had been involved in illegal gambling activities—bookmaking—constituted the sort of misrepresentation that warranted the mandatory penalty rescinding the award of workers’ compensation benefits and a discretionary penalty disqualifying claimant from receiving any future wage replacement benefits, held a New...

August 03, 2021

Florida: Court Reverses $15,000 “Fine” Against Employer’s Carrier

Finding that a Florida circuit court had jurisdiction, pursuant to § 440,23(1), Fla. Stat., to award sanctions to an injured worker who contended the employer’s carrier who failed to provide orthopedic care following the entry of an order by a JCC requiring the carrier to authorize and provide such treatment, the appellate court found nevertheless that the circuit court’s entry of a $15,000 fine against...

August 03, 2021

Pennsylvania: Employee’s Suicide Was Compensable

A decision of Pennsylvania’s Workers’ Compensation Appeal Board awarding death benefits to the surviving spouse and child of an employee who committed suicide was supported by substantial evidence in the record in spite of the fact that the suicide appeared to have been carefully planned and carried out, said a state appellate court. The court observed that the decedent had suffered a work-related lower back injury in...

August 03, 2021

Arkansas: Injuries Sustained in Leap From Burning Building Were Not Compensable

In Arkansas, injuries sustained by an employee at a time when employment services are not being performed are generally not compensable [see Ark. Code Ann. § 11-9-102(4)(B)(iii) (Supp. 2019)]. Construing that rule, a state appellate court affirmed a decision by the state’s Workers’ Compensation Commission that found injuries sustained by an employee who leaped from a second-story window to escape a fire at a horse-racing...

August 03, 2021

New York: College-Educated Claimant Who Worked Eight Years After Injury Found Entitled to 50 percent loss of Wage-Earning Capacity

Where a claimant sustained an injury in August 2008, was examined by the insurer’s medical examiner in November 2018, and found to have reached MMI and to have sustained a permanent impairment to her lumbar spine (class 2, severity A ranking), it was not error for the New York Board to determine that the claimant was capable of performing work involving medium work physical demands and that claimant had sustained a 50...

August 03, 2021

New York: Board Has Broad Discretion in Determining § 114-a Violations

A New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that had found a claimant’s failure to disclose that she had been involved in several prior motor vehicle accidents in which she had claimed to have sustained injuries to her neck and back was not the sort of misrepresentation as to disqualify her from receiving workers’ compensation benefits following a work...

August 03, 2021

Wisconsin: Employee’s Tort Action Against Comp Insurer Barred by Exclusive Remedy

The Supreme Court of Wisconsin, in a split decision, held that an injured employee’s civil action against his employer’s workers’ compensation insurer for damages arising out of its refusal to continue to pay for his antidepressant medication—he contended the insurer’s action led to injuries he sustained in a self-inflicted gunshot incident—was barred by the exclusive remedy provisions of the Wisconsin Workers’ Compensation...

July 28, 2021

New York: Worker Recovers Benefits Under Special "Gray Area" Rule

Construing New York’s so-called “gray area” rule, which allows recovery of workers’ compensation benefits under circumstances that might otherwise be barred by the going and coming rule, a state appellate court affirmed a determination by the Board that awarded benefits to a hospital employee who was struck by a vehicle as he crossed a road near the hospital’s loading dock. Acknowledging that injuries that occur outside...

July 28, 2021

New York: Death Benefits Must be Based Upon Reasonable Medical Opinion, Not Conjecture

Noting that the surviving spouse had the burden of showing a causal connection between his wife’s death and her employment, and stressing that speculative medical evidence was insufficient, a New York appellate court affirmed a decision by the New York Workers’ Compensation Board that denied the surviving spouse’s claim for death benefits. The surviving spouse had testified that his wife had developed depression after...

July 28, 2021

Pennsylvania: 18 Months of Home Remedies Do Not Constitute Medical Treatment

Where an employer’s examining physician opined that the workers’ compensation claimant had fully recovered from her injuries—the physician based his opinion, in large part, on the fact that claimant had not sought medical treatment from any physician for 18 months—the workers’ compensation judge was justified in terminating the claimant’s continuing benefits, held the Commonwealth Court...

July 28, 2021

New York: No Recovery for Claimed Lyme Disease Claim

A safety and security officer, who filed a claim seeking to recover workers’ compensation benefits for alleged Lyme disease almost six years after he filed a report with his employer indicating he had suffered two tick bites, failed to establish a causal connection between his alleged condition and the workplace, held an appellate court in New York. Noting that the officer had tested negative for Lyme disease on...

July 28, 2021

Ohio: Home Health Aide’s Slip and Fall Outside Client’s Residence is Not Compensable

A home health care aide, who sustained injuries when she slipped and fell on wet grass outside her client’s residence, did not sustain an accidental injury arising out of and in the course of her employment, held a state appellate court. Noting that the aide was “off the clock” and had walked to the side of the residence to check on a loud noise that she had heard, the court agreed with the Industrial Commission that...

July 28, 2021

Virginia: “Actual Risk” Rule Bars Employee’s Claim for Slip and Fall on Workplace Steps

Again indicating that Virginia’s “actual risk” doctrine results in the denial of claims in which an employee sustains injuries in a fall in an unobstructed hallway or on steps located in the employer’s premises unless the claimant can show some defect or special hazard, a state appellate court affirmed a decision by the state’s Workers’ Compensation Commission that had denied the compensability...

July 28, 2021

Arizona: Police Officer’s PTSD Claim is Not Compensable

In a divided decision, an Arizona appellate court affirmed the denial of a police officer’s PTSD claim, agreeing with the state’s Industrial Commission that the officer had failed to show that he had been subjected to “unexpected, unusual or extraordinary” stress [see A.R.S. § 23-1043.01(B)]. The officer had been called to the scene of a barricaded man. He watched a live videotape feed and, after the gunshots were heard...

July 28, 2021

Pennsylvania: Janitor’s Injury Near Building’s Entrance Not Barred by Going and Coming Rule

Applying the three-prong Slaugenhaupt test [see Slaugenhaupt v. United States Steel Corp. , 31 Pa. Commw. 329, 376 A.2d 271 (1977), the Commonwealth Court of Pennsylvania found that a janitor’s claim was not barred by the going and coming rule when he slipped and fell exiting a shuttle van near the front entrance of the building within which he had been assigned. Noting that the janitor typically commuted via public transportation...

July 28, 2021

Illinois: In “Lent Worker” Scenario, Both Lender and Borrower May Utilize Exclusive Remedy Defense

An Illinois appellate court held that where a temporary staffing agency assigns or loans a worker to a borrowing company, both the “lender” and the “borrower” are immune from tort liability under the exclusive remedy provisions of the Illinois Workers’ Compensation Act. Accordingly, where a lent employee was exclusively supervised by an employee of the borrowing firm, working the same hours...

July 27, 2021

Workers’ Compensation Medical Treatment in the COVID-19 Era

A new study examines the impact COVID-19 had on the timing and prevalence of medical treatment for non-COVID injuries under workers’ compensation in 2020 Now that more than a year has passed since the onset of the COVID-19 pandemic, researchers have had the time to assemble and analyze some data on the impact of the pandemic on workers, worker injuries, and treatment for those injuries. One new WCRI study, “The Early...

July 22, 2021

Recreational Marijuana Laws and the Workers' Compensation Implications for Older Adults: Analysis of NBER Study

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board Today an overwhelming majority of Americans support the legalization of marijuana, either for recreational use or medical use or both. (Pew Research Center, April 16, 2021, https://pewrsr.ch/3doCMAq) Federal law, however, has prohibited possession, importation, cultivation and/or distribution...

July 11, 2021

California: PANEL WARS!

By: Hon. Robert G. Rassp DISCLAIMER: The opinions expressed by the author in this article are those of the author and are not those of the CA Department of Industrial Relations, Division of Workers’ Compensation, or the Workers’ Compensation Appeals Board. I. Introduction Who can request a panel QME first? Do you need an objection letter first? What if a party does not like the medical specialty that is being requested...

July 06, 2021

California: Top 25 Noteworthy Panel Decisions (January through June 2021)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through July 2021. Several of these cases address new rules and guidelines instituted in response to the COVID-19 pandemic. There are also a number of decisions regarding supplemental job displacement benefits. They include a case in which the WCAB panel found that...

June 28, 2021

California Compensation Cases June 2021

CALIFORNIA COMPENSATION CASES Vol. 86, No. 6 June 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...

June 14, 2021

California’s New Medical-Legal Fee Schedule

By: Hon. Robert G. Rassp, June 11, 2021 DISCLAIMER: The opinions expressed in this article are the opinions of the author and are not the opinions of the State of California Department of Industrial Relations, Division of Workers’ Compensation, or the Workers’ Compensation Appeals Board. The California Office of Administrative Law approved the new medical-legal fee schedule for workers’ compensation cases on March...

June 14, 2021

California: Insurance Coverage Disputes Made Simple

Whether or not a workers’ compensation insurance policy covers a particular employee on the date of alleged injury should be a very straightforward matter because all workers’ compensation insurance policies provide coverage to all of an employer’s employees unless certain employees are specifically excluded from coverage. Nonetheless, “coverage disputes” continue to be vigorously litigated. A recent example is Nevarez...