April 25, 2021

New Jersey: High Court Says Employer May Have to Reimburse Employee for Medical Marijuana

Agreeing that an injured employee had sufficiently shown that medical marijuana represented reasonable and necessary medical treatment under New Jersey’s Workers’ Compensation Act, the Supreme Court of New Jersey affirmed a decision by a lower appellate court that held an employer could be required to reimburse an employee for the substance that is still illegal, even for medicinal purposes at a federal level. The Court...

April 25, 2021

Tennessee: Prescription Period for Statute of Limitations Began to Run When Physician Indicated Work-Relatedness to Claimant’s Attorney

The Special Workers’ Compensation Appeals Panel of the Supreme Court of Tennessee affirmed a trial court’s determination that an employee’s workers’ compensation claim was not timely filed in as much as it had not been filed within one year of the date the employee’s doctor notified the employee’s attorney that the employee’s injuries were likely related to his employment. The employee argued that the one year statute...

April 25, 2021

South Carolina: Using “Bunkhouse Rule,” Court Affirms Award of Death Benefits to Murdered Motel Employee

Applying the so-called “bunkhouse rule,” a South Carolina appellate court affirmed a decision by the Appellate Panel of the South Carolina Court of Appeals that had awarded death benefits to the children of a motel worker who was shot and killed, along with her husband, in an apparent robbery at the motel. Noting that the deceased employee was required to live on the motel’s premises and be subject to...

April 25, 2021

New York: Claimant’s Estate Not Entitled to Lump Sum Award for Posthumous SLU Award

Where a New York workers’ compensation claimant died of causes unrelated to his work injuries, having no surviving spouse, no child under the age of 18, and no otherwise qualifying dependents, his estate was not entitled to recover the full value of a posthumous schedule loss of use award in a lump sum. The estate was entitled only to that portion of the SLU award that would have owed to the claimant prior to his death...

April 22, 2021

California: Mateus Board Panel Decision: Employment Relationship

While the “ Borello ” analysis is certainly important, especially in the present day “gig economy” where so many individuals are classified as independent contractors, we can’t lose sight of the fact that it is the existence of a consensual employment relationship that is key to the WCAB’s jurisdiction over a claim. The recent panel decision, Mateus v. High Sierra Pack Station, 2021 Cal. Wrk. Comp. P.D. LEXIS 5 (Appeals...

April 22, 2021

California Compensation Cases April 2021

CALIFORNIA COMPENSATION CASES Vol. 86, No. 4 April 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...

April 16, 2021

California: Supplemental Job Displacement Benefits Voucher: Two Recent Panel Decisions

The WCAB has recently issued two decisions involving SJDB vouchers: one involving discovery where entitlement to the voucher was not settled, and the other relating to the treating physician’s return to work report that provided the necessary information to show entitlement to the voucher. Here are our headnotes for these decisions. Marisa Singerman v. Nike, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 81 Supplemental...

April 11, 2021

Virginia: For Statute of Limitations Purposes, Pharmacy is “Health Care Provider”

The Court of Appeals of Virginia held that a local pharmacy was a “health care provider” under Va. Code Ann. § 65.2-605.1(F), and as such, it could not seek reimbursement for prescription medication where it waited more than one year after its last reimbursement to seek a payment order through the state Commission. The pharmacy contended that it was not a health care provider and, therefore, it was not...

April 11, 2021

Kentucky: Staffing Company Cannot Be Penalized for Host Company’s Safety Violations

The Supreme Court of Kentucky held that a temporary staffing company could not be made to pay the 30 percent enhancement of workers’ compensation benefits due to the injured worker because of significant safety violations by the host (hiring) company since there was no evidence that it had knowledge of, approved of, directed, or acquiesced in the host company’s actions. The worker was involved in a work-related...

April 11, 2021

United States: Bankruptcy Debtor Fails in Attempt Avoid Paying Med Providers

A U.S. Bankruptcy Court, construing Wisconsin’s property exemptions law, Wisconsin Statute § 102.27, held that the sum of $400,000, which had been paid by the workers’ compensation carrier of the bankruptcy debtor’s employer into the trust account of the debtor’s attorney following the settlement of a contested claim, was held in trust for those that had provided the debtor with medical treatment. As such, the money was...

April 11, 2021

United States: BRB Says LHWCA’s Use of “Most Recent Version” of AMA Guides Is No Improper Delegation of Power

While impairment ratings under the federal Longshore and Harbor Workers’ Compensation Act generally need not be comply with the AMA Guides, such is not the case for claims involving hearing loss and retiree benefits [see 33 U.S.C.S §§ 902(10), 908(c)(13)(E), 908(c)(23)]. In those disputes, impairment must be determined under “the most recent” version of the AMA Guides [33 U.S.C.S. § 902(10)]. In a recent dispute involving...

April 11, 2021

Ohio: Employee’s Failure to Follow Safety Rules—Not His Comp Claim—Caused Termination from Employment

Where an employee suffered an amputation of a finger when his Kevlar glove became entangled in one of the rotating machines at his employer’s facility, in spite of the fact that the employer had a safety rule, which the employee acknowledged he had read, that prohibited the use of such Kevlar gloves near the machinery, and where the employee was terminated shortly after returning to his employment because he again...

April 11, 2021

Florida: Insurance Cancellation Effective in Spite of Insurance Certification

An insurer’s cancellation of coverage related to a workers’ compensation insurance policy was effective in spite of the fact that, prior to the injury in dispute, the carrier’s agent had sent the general contractor a certification that insurance was in force, held a Florida appellate court. The general contractor was, therefore, liable for the injured employee’s workers’ compensation benefits...

April 11, 2021

New York: Two-Month Delay in Filing Report of Injury with Employer Sinks Worker’s Claim

Where a New York employee’s job responsibilities included controverting workers’ compensation claims, his failure to notify his employer of an alleged work-related injury within the 30-day time period specified in N.Y. Workers’ Comp. Law § 18 was unexcused. The employee’s two-month delay in notifying the employer, coupled with the employee’s failure to produce a relevant medical report, was sufficient to justify the Board...

April 11, 2021

Nebraska: Self-Employed Subcontractor Was Not Statutory Employee

Where a self-employed individual opted not to bring himself within the coverage of the Nebraska Workers’ Compensation Act, he was not an “employee,” as that term is defined in Neb. Rev. Stat. § 48-115. Under those facts, where the self-employed person fell from a roof, suffering serious injuries, he could not successfully contend that the general contractor was his statutory employer and liable for workers’ compensation...

April 11, 2021

Alabama: Unscheduled Award Found Appropriate for Worker With Complex Regional Pain Syndrome

Quoting Larson’s Workers’ Compensation Law , and finding that in addition to an impairment to a worker’s arm, he also suffered from Complex Regional Pain Syndrome, an Alabama court said it was error to limit the worker’s recovery to a 59 percent loss of the upper extremity. Noting that the treating physician had opined that the worker sustained a 59 percent loss of use to his arm, the physician also noted pain in the...

April 11, 2021

Tennessee: Pain Alone Cannot Constitute Second Injury, No Disqualification After Violating Lifting Weight Limits

The failure, on the part of an injured employee, to abide by lifting restrictions could not alone be sufficient to constitute an independent intervening cause that would relieve his or her employer (or carrier) from the responsibility for continued workers’ compensation benefits, held an Appeals Panel of the Tennessee Supreme Court. Quoting Larson’s Workers’ Compensation Law , § 10.01, the Court...

April 11, 2021

Colorado: Physicians Have Flexibility in Setting Impairment Ratings, AMA Guides Are “Starting Point”

Construing Colo. Rev. Stat. Ann. §§ 101(3)(a)(I) and 101(3.7), pursuant to which impairment ratings in workers’ compensation claims must be “based on” the revised third edition of AMA Guides, a Colorado appellate court said that choice of words meant that the AMA Guides should be “the starting point, but not the exclusive fount, of impairment rating methodology” [Opinion, ¶19...

April 11, 2021

New Hampshire: Requiring Reimbursement for Medical Marijuana is Not Aiding and Abetting Federal Crime

The Supreme Court of New Hampshire reversed—for a second time—a decision of the state’s Compensation Appeals Board that had found workers’ compensation carriers for New Hampshire employers could not be required to reimburse an injured worker for the charges associated with medical marijuana. As to whether the federal Controlled Substances Act (CSA), under which even medical marijuana is illegal...

April 08, 2021

California: Medical-Legal Procedure; Qualified Medical Evaluator Panels; Specialty Designation

The recent panel decision in Marquez v. Supercuts serves primarily as a warning to practitioners that candor is required at all times and to take care not to misrepresent and mischaracterize the comments of the QME. Here’s our headnote for the case: Marquez   v. Supercuts, 2020 Cal. Wrk. Comp. P.D. LEXIS 375 .  Medical-Legal Procedure—Qualified Medical Evaluator Panels—Specialty Designation—WCAB affirmed WCJ’s finding...

April 01, 2021

California: Permanent Total Disability; Combining Multiple Impairments; Psychiatric Injury; Catastrophic Injury

The recent Board panel decision in Lund v. Ryko Solutions, Inc. is a “meaty” decision. It discusses Fitzpatric k and Labor Code § 4662(b), addition of impairments versus combination, and a separate PD rating for the psyche injury based on the catastrophic nature of that injury. Here are our headnotes for the Lund decision: Lund   v. Ryko Solutions Inc., 2020 Cal. Wrk. Comp. P.D. LEXIS 373 .  Permanent Disability—Rating...

April 01, 2021

California Compensation Cases March 2021 Issue

CALIFORNIA COMPENSATION CASES Vol. 86, No. 3 March 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...

March 30, 2021

New York Workers’ Compensation: 2020, The Year in Review

By Ronald E. Weiss, Esq., and Ronald Balter, Esq., co-authors of New York Workers' Compensation Handbook , 2021 Edition (LexisNexis) The COVID-19 pandemic has wreaked tragic and overwhelming effects on New York State and the nation. The virus hit New York early, and because of its population density, an insufficient supply of personal protective equipment and only an early understanding about how to contain the...

March 25, 2021

California: Continuances; COVID-19 Restrictions; Due Process

Zaldana is another “Covid-19” panel decision that raises due process considerations when the trial is conducted via video/telephonic means.  Applicant wanted the hearing postponed until such time as live testimony can be safely provided.  The panel applies the Gao standard (significant panel decision), and determined that applicant failed to demonstrate why the trial in this case should be continued.  The decision indicates...

March 18, 2021

California: Psychiatric Injury; Increased Permanent Disability; Violent Acts

The recent split panel opinion in Sturm v. Coronado Unified School District is particularly instructive on the issue of what constitutes a “violent act” under Labor Code § 4660.1(c)(2)(A). The Appeals Board discusses and distinguishes prior cases addressing Labor Code § 4660.1(c)(2)(A) and emphasizes that the mechanism of injury is the focus in evaluating whether an injury falls under the “violent act” exception to the...