June 02, 2021

California: 6th District COA Endorses Fitzpatrick

The Court of Appeals in the Sixth District has ordered publication of the joint cases in Applied Materials v. Workers’ Compensation Appeals Board (D.C.) and XL Specialty Insurance Company v. Workers’ Compensation Appeals Board (D.C.) [1] In its 74-page opinion, the Court addresses the multiple issues on appeal not only between defendants and applicant but also between defendants over various aspects of liability. The...

May 26, 2021

California Compensation Cases May 2021

CALIFORNIA COMPENSATION CASES Vol. 86, No. 5 May 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...

May 25, 2021

Economic Impact of COVID-19

This seminar, entitled, Economic Impact of COVID-19 , was presented at the WCRI 37th Annual Issues and Research Conference which took place on March 23 and 24, 2021. See https://www.wcrinet.org/ . The moderator, John Ruser, PhD is the CEO of WCRI. The presenter, Katharine Abraham, PhD, is an economist who is the director of the Maryland Center for Economics and Policy, and a professor of survey methodology and economics...

May 24, 2021

California: Appeals Board Review of UR Decisions When Bad Faith Alleged

There should be no question that Independent Medical Review (IMR) is the exclusive mechanism for review of a timely utilization review (UR) determination. That question was laid to rest by the Appeals Board’s decision in Dubon v. World Restoration, Inc . (2014) 79 Cal. Comp. Cases 1298 (Appeals Bd. en banc), and it has been emphatically endorsed ever since by appellate level decisions. (See, for example, King v. Comp...

May 22, 2021

Illinois: Employment Contract’s “Last Act” Supplies Jurisdiction for Out-of-State Injury

A state appellate court affirmed a decision by the Illinois Workers’ Compensation Commission that found it had jurisdiction to consider the injury claim of an operating room nurse hired by an Illinois staffing company who suffered injuries while working in an Indiana hospital. In its unpublished decision, the Illinois court agreed that the last act necessary to give validity to the employment contract had been completed...

May 22, 2021

New York: Decision Must be Limited to Issue Actually Before WCLJ

A finding by New York’s Workers’ Compensation Board that surgery related to an injured employee’s back condition should not be approved was error, held a state appellate court, where the Board’s decision (affirming that of a WCLJ) was based upon two medical reports offered by the employer, but as to which the employee had no opportunity to submit contradictory evidence or even to cross-examine...

May 22, 2021

Pennsylvania: Tow Truck Driver Was Employee of Towing Company

Noting that control of the work and the manner in which the work is accomplished is the key factor in the analysis of whether a particular worker is an employee or an employment relationship, the Commonwealth Court of Pennsylvania agreed with a determination that a tow truck driver who sustained fatal injuries when he became pinned between two vehicles was an employee of the tow truck company. His dependents were, therefore...

May 22, 2021

Arizona: Employee’s Fall Due to Idiopathic Condition is Not Compensable

Quoting liberally from Larson’s Workers’ Compensation Law , an Arizona appellate court affirmed a decision by the state’s Industrial Commission that found an employee’s injuries did not arise out of and occur within the course and scope of the employment because the employee’s injuries stemmed from an idiopathic condition—the employee suffered from an altered gait due to a prior injury. The employee, who worked for a...

May 22, 2021

Kentucky: Worker at Horse Farm Was an “Agricultural” Employee Who Could Not Recover Benefits

Finding that all of the employee’s work for her employer, whether mowing or cleaning, was performed as part of the overall effort of all the employees to restore a farm to its operation as a fully functioning horse farm, the Supreme Court of Kentucky reversed a decision by a divided Court of Appeals that had found the worker was entitled to workers’ compensation benefits following an injury because she was...

May 22, 2021

New York: Record Did not Support Board’s Decision to Bar Claimant Permanently from Indemnity Benefits

Acknowledging that the New York Workers’ Compensation Board had broad latitude in determining whether an employee had violated N.Y. Workers’ Comp. Law § 114-a—for example, by failing to disclose post-injury earnings—but also noting that a decision to bar a claimant permanently from receiving indemnity benefits must be supported by the record, a New York appellate court held a permanent bar...

May 22, 2021

United States: Divided 9th Circuit Panel Reverses District Court’s Injunction Related to California AB-5

A divided panel of the Ninth Circuit Court of Appeals reversed a decision by a federal district court sitting in California that had issued an order temporarily enjoining enforcement of the controversial Assembly Bill 5, which had codified the judge-made “ABC test” for determining if a worker was an independent contractor or an employee. The original injunction action had been successfully argued at the district...

May 22, 2021

United States: Missouri Insurer Allowed to Intervene in Employee’s Third-Party Civil Action

Stressing that allowing a workers’ compensation insurer to intervene in a third-party civil action filed by an injured worker against the purported tortfeasor would not cause delay and would not necessarily cause confusion among potential jurors should the case ever go to trial, a federal district court allowed the requested intervention on discretionary grounds. The court observed that the insurer had not shown that...

May 22, 2021

Illinois: Minor Deviation Results in No Recovery for Trip and Fall Injuries

Where a university employee tripped and fell as she tried to step over a chain barrier outside the university’s personnel department, where she had intended to turn in her semi-weekly timecard, her injury claim was not compensable, held an Illinois appellate court. Noting that the Commission found the employee’s decision to stray from the sidewalk “exposed her to an unnecessary danger entirely separate...

May 22, 2021

West Virginia: Nurse’s Fall on Level, Unobstructed Floor Found to be Compensable

A hospital nurse’s unexplained fall while walking to lunch in a level, unobstructed hospital tunnel was compensable, held the Supreme Court of Appeals of West Virginia in a memorandum decision. The Court’s decision follows that of the majority of American jurisdictions. Here, there was no question that the injury occurred in the course of the nurse’s employment. She was, after all, on her employer’s premises when it happened...

May 22, 2021

United States: Sixth Circuit Affirms Punitive Damage Award in favor of Undocumented Worker

Stressing that non-backpay damages flowing directly from an employer’s illegal act —here the firing of an undocumented worker for filing a claim for workers’ compensation under Tennessee law—did not relate to a plaintiff’s immigration status, the Sixth Circuit Court of appeals affirmed a federal district court’s award of $1,000 in compensatory damages for emotional distress, and a further...

May 22, 2021

Missouri: Nondependent Parents Fail to Show Worker’s Death Was Due to Idiopathic Condition

A Missouri appellate court affirmed a decision by the state’s Labor and industrial Relations Commission that held a worker’s death from a heat stroke was a compensable accident, thus barring a tort action filed by the worker’s nondependent parents against the worker’s employer. In this relatively rare, “upside-down” case, the parents had sought to avoid Mo. Rev. Stat. § 287.240, pursuant to which, as nondependent relatives...

May 22, 2021

North Carolina: No Sanctions Against Girlfriend Who Tried to Overturn Existing Law

The North Carolina Industrial Commission has broad discretion in refusing to order sanctions for allegedly “stubborn, unfounded litigiousness,” reiterated a state appellate court. Accordingly, it was within the province of the Commission to refuse to impose sanctions against the girlfriend of an employee who filed a claim seeking death benefits following the death of an employee with whom she lived, but to whom she was...

May 20, 2021

California: Permanent Disability; Rebuttal of Scheduled Rating and Vocational Rehabilitation Evidence

Arturo Diaz v. E&F Demolition, 2021 Cal. Wrk. Comp. P.D. LEXIS 82 (Board Panel Decision). Lexis Advance/Lexis+ subscribers can link on that cite. All others can view the PDF below. Applicant in this case sought to rebut the scheduled permanent disability rating of 21 percent for her foot/toe injury and obtain an award of 50 percent permanent disability based on vocational expert evidence. However, the evidence established...

May 14, 2021

California: Third-Party Actions; Employer’s Claim for Credit; Application of MICRA

In an interesting panel decision, the WCAB held that defendant was barred from obtaining a third-party credit pursuant to Medical Injury Comprehensive Reform Act of 1975 (MICRA). Lexis Advance users: Read the Quintanilla panel decision online . Here’s our headnote for the Quintanilla panel decision: Third-Party Actions—Employer’s Claim for Credit—Application of Medical Injury Comprehensive Reform Act as Bar to Credit...

May 04, 2021

Book Review of Wounded Workers: Tales from a Working Man's Shrink

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board A must read for those interested in workplace injuries Springtime is here bringing us warmer weather, longer days and pleasant thoughts of fast-approaching summer. Summer—that magical, carefree time when we can toss our worries aside, if only for a while, and bask in the glowing sun with a...

April 29, 2021

California: Navigating the SIBTF Minefield of Burden of Proof

The recent WCAB Noteworthy Panel Decision (NPD) of Harris v. Numac Company; SIBTF , 2020 Cal. Wrk. Comp. P.D. LEXIS 46 , provides an excellent roadmap for navigating through the SIBTF minefield of burden of proof. That case dealt with a repairman who had sustained a series of impairments over the years. Subsequent Injuries Benefits Trust Fund—Threshold Requirements for Entitlement to Benefits—Combining Multiple Disabilities...

April 25, 2021

Iowa: Almost any Written Document Can Serve as Notice of Injury to Employer

Acknowledging that pursuant to Iowa Code § 85.23, an employee ordinarily must provide a written notice of injury to the employer, but also stressing that the notice need not take any particular form, an Iowa appellate court affirmed a trial court’s determination that appropriate notice was provided to the employer where the employee completed a “Near Miss Report” indicating that he had struck his head while working. The...

April 25, 2021

New York: Court Says Employee Withdrew From Labor Market

A New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that found a claimant had withdrawn from the labor market and, therefore, was not entitled to additional indemnity benefits where the Board found that the claimant failed to maintain contact with her employer following the claimed injury, failed to return to an employer-provided healthcare facility for follow-up, and failed to provide...

April 25, 2021

New York: No § 114-a Violation Claimant’s Inexperience With PCs Explained Inconsistencies in Online Job Applications

A decision by the New York Workers’ Compensation Board that found a claimant had made the sort of misrepresentations under N.Y. Workers’ Comp. Law § 114-a that would justify termination of her workers’ compensation benefits was supported by competent evidence, held a state appellate court, where evidence suggested the claimant had minimal computing skills. In some instances, she thought she was...

April 25, 2021

Colorado: Comp Carrier’s Settlement With Third Party Tortfeasor Nixes Employee’s Attempt to Introduce Medical Bills in Tort Action

In a deeply divided decision, the Supreme Court of Colorado reversed, in pertinent part, a decision by a divided division of the state’s Court of Appeals and held that a workers’ compensation carrier’s settlement with a third-party tortfeasor for all past medical expenses paid pursuant to the injured employee’s workers’ compensation claim operated to extinguish the employee’s claim against that same third-party for all...