March 11, 2021

California: Sanctions; Cost Petition; Failure to Timely Pay

The WCAB, granting reconsideration, affirmed the imposition of costs against the Defendant payable to Dolores I. Campos Interpreting Services, Inc., of $165.00, but reduced sanctions imposed by the WCJ from $750.00 to $125.00 for untimely payment of Labor Code § 5811 costs of $300.00. Here, the WCJ did provide the Defendant with sufficient notice that its untimely payment of cost petitioner’s invoice was the...

March 07, 2021

Mississippi: Benefits Awarded in Spite of Cautious Medical Testimony

An award of benefits for an employee’s stress fracture in her right foot was appropriate, held a Mississippi appellate court, in spite of the fact that her physician had testified that the employee’s repetitive activity at work was a “possible” cause of her injury. The court stressed that such medical testimony had not stood alone; it was buttressed by other evidence that the stress fracture was...

March 07, 2021

New York: Court Approves Treatment Variance for Medical Marijuana

In a case of first impression, a New York appellate court affirmed an order entered by the state’s Workers’ Compensation Board allowing a medical treatment variance in the form of medical marijuana for an injured worker who suffered from continuing pain after a work-related injury. That order required the workers’ compensation carrier to reimburse the worker for marijuana purchased pursuant to New York’s Compassionate...

March 07, 2021

West Virginia: Robbery at Gunpoint Found Insufficient to Support PTSD Claim

The Supreme Court of Appeals of West Virginia, construing W. Va. Code § 23-4-1f, pursuant to which mental injury claims are generally disqualified from coverage unless caused by physical means, affirmed the denial of a claim filed by a gaming parlor cashier who contended she suffered from PTSD following a robbery at gunpoint at her employer’s facility. The high court split 3-2, with the majority finding the facts of the...

March 07, 2021

Arkansas: Court Clarifies What is Meant by “Objective Medical Findings”

In Arkansas, a workers’ compensation claimant must ordinarily establish his or her injury claim with medical evidence “supported by objective findings” [see Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2019)]. Acknowledging that requirement, a state appellate court held that while the presence of observed muscle spasm could be sufficient to provide the necessary “objective” medical evidence...

March 07, 2021

Colorado: No Recovery from Co-Employee’s Uninsured Motorist Coverage

Colorado’s exclusivity rule is sufficiently broad so as to bar an injured employee from recovering damages via the uninsured motorist/underinsured motorist coverage of a co-employee’s auto policy, held the Supreme Court of Colorado. As long as the allegedly negligent act occurred within the course and scope of the co-employee’s employment, that co-employee enjoyed broad immunity from suit. Allowing recovery under the...

March 07, 2021

Arkansas: No Recovery From Fainting Incident Due to Idiopathic Condition

Stressing that “idiopathic” and “unexplained” were not synonymous, an Arkansas appellate court agreed with an ALJ’s decision denying workers’ compensation benefits to a worker who, after experiencing severe gastrointestinal pain at his employer’s premises, went to a company rest room, fainted, and struck his knee and head on a bathroom fixture. The worker contended that on the day before his injury, he had noticed blood...

March 07, 2021

Alabama: Employer and Employee May Not Confer Jurisdiction Over Claim by Agreement

Emphasizing that an employee may not ordinarily contract away his or her right to seek workers’ compensation benefits under the Alabama Workers’ Compensation Act, and stressing that an employer and employee could not limit the jurisdiction of Alabama courts, a state appellate court, quoting Larson’s Workers’ Compensation Law , held an Alabama resident, who sustained injuries in a work-related vehicular accident in Alabama...

March 07, 2021

New York: Remand Necessary to Determine Potential Liability of Uninsured Employers Fund

Where a New York employer had no active workers’ compensation policy in effect on the date the claimant was determined to have been disabled due to an occupational disease—It appeared to have closed its doors—but such a policy did exist on the date the claimant retired, remand was necessary to determine if the insurer should be responsible for payment of benefits or, alternatively, if those benefits...

March 04, 2021

California: Medical-Legal Evaluations During the Covid-19 Pandemic: Another Twist

Does Harris Contradict Rosenbrook? On February 9, 2021, an Appeals Board panel (panel) affirmed a decision that ordered a comprehensive medical-legal evaluation to be conducted as a telehealth appointment under Emergency Rule 46.2 ( 8 Cal. Code Regs. § 46.2 ). That rule was adopted to promote health and safety concerns arising out of the COVID-19 pandemic. The case is Rosenbrook v. Knight-Swift Transportation Holdings...

March 03, 2021

California: CWCI Announces Webinar on Changes to the Med-Legal Fee Schedule

Oakland – The California Workers’ Compensation Institute (CWCI) will present a live, one-hour webinar on Thursday, March 18 beginning at 9:30 a.m. (Pacific) to introduce workers’ compensation professionals to changes to the California Workers’ Compensation Medical-Legal Fee Schedule (MLFS) that the Division of Workers’ Compensation announced last week have been filed with the Office of Administrative Law. The DWC has...

February 26, 2021

California: WCAB Panel Upholds Telehealth Medical-Legal Evaluation Under Emergency Rule

Workers’ compensation practitioners know that a comprehensive medical-legal evaluation must be performed in-person. Labor Code section 4628 (a) prohibits anyone other than the physician who signs the report from examining the injured employee, except a nurse performing the functions routinely performed by a nurse, such as taking blood pressure. Applicable regulations even prescribe the amount of “face-to-face” time that...

February 19, 2021

New York: Videotape Establishes That Injured Worker Exaggerated Symptoms to Influence Medical Opinions

Where videotape surveillance indicated an injured employee was capable of activities that were substantially more strenuous than those that she told her treating physician that she was capable of performing, the Board was justified in finding the employee had violated N.Y. Workers’ Comp. Law § 114-a, held a state appellate court. Moreover, there was substantial evidence supporting the Board’s decision not only to impose...

February 19, 2021

New Jersey: Cook’s Injury at Employer’s “Family Fun Day” Was Compensable

Because an employee’s duties at her employer’s “Family Fun Day” were essentially the same as her normal duties—she was a cook—her workers’ compensation claim for injuries sustained when she stepped in a small pothole, injuring her ankle, was not barred by a New Jersey statute that excludes from coverage those injuries sustained during social and recreational activities [see N.J.S.A. 34:15-7, s ], held the Supreme Court...

February 16, 2021

California: A Critical Assessment of “Vocational Apportionment”

By Raymond F. Correio, Workers’ Compensation Judge (retired) © 2021 All Rights Reserved Introduction. It is important at the outset to acknowledge that the use of vocational evidence in the workers’ compensation system is essential in determining permanent disability, consideration being given to an employee’s diminished future earning capacity. (see Labor Code §4660 and Cal. Code Regs §10865 , “Vocational Experts...

February 08, 2021

New York: Home Health Attendant's Short Visit to Physician's Office was not Disqualifying Deviation

Reversing the state's Workers' Compensation Board, a New York appellate court said the Board's decision that a live-in home health attendant--who provided comprehensive care to one client, 24 hours a day, seven days per week--was engaged in a personal deviation at the time of her injury was not supported by substantial evidence. Evidence indicated the attendant generally took her wheelchair-bound client on...

February 08, 2021

United States: Remoteness of Time Between Claim and Firing Defeats Retaliatory Discharge Action

A federal district court, construing Illinois law, held in relevant part that a plaintiff had failed to make out a prima facie case of retaliatory discharge where her firing occurred some four years after she had filed her workers' compensation claim and where the proferred reason for the firing was the plaintiff's tardiness for work, disruptive behavior, and failure to follow other employer protocols. Plaintiff...

February 08, 2021

Virginia: Plumber's Injuries in Step from Work Van Not Compensable

An experienced plumber, who sustained a knee injury when he stepped from the rear door of his service van did not sustain an injury arising out of and in the course of the employment, held a Virginia appellate court. Applying the state's "actual risk" rule, the court indicated there was nothing particularly unusual in the event that could support a finding that his risk of injury arose from the employment...

February 08, 2021

New Jersey: Township Librarian May Sue in Tort For Parking Lot Injuries

A New Jersey appellate court held that a parking lot that was owned by a township and adjacent to a township library was nevertheless not part of the library's "premises," for purposes of a civil action filed by a township librarian and her husband after they were struck in the parking lot by a township employee who was operating a snowplow. Since the lot was not considered part of the premises, the librarian's...

February 08, 2021

Pennsylvania: Person Held in Jail Awaiting Trial is not Incarcerated for Purposes of Disqualification

While Pennsylvania law authorizes termination of workers' compensation indemnity benefits during periods of incarceration after conviction [see Section 306(a.1) of the state’s Workers’ Compensation Act, 77 P.S. § 511.1], that provision cannot be used to allow an employer a credit or offset for weekly benefits paid to an injured employee who spent 525 in jail before trial because he could not make...

February 08, 2021

Iowa: Tort Action Alleging Co-Employee Gross Negligence is Unsuccessful

An Iowa appellate court affirmed a trial court's decision that granted summary judgment to five co-employees of a plaintiff who had been sued under the state's special "gross negligence" exception to co-employee immunity. The plaintiff had sustained severe injuries while operating a truck-mounted drill and auger. He collected workers' compensation benefits, but sued five co-employees, contending...

February 04, 2021

California Compensation Cases January 2021

CALIFORNIA COMPENSATION CASES Vol. 86, No. 1 January 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...

February 02, 2021

California: Need for Further Medical Treatment; Assisted Living Facility

In a recent panel decision, the WCAB, denying reconsideration, affirmed the WCJ’s decision that the Applicant, who was previously awarded 100% permanent disability with the need for further medical treatment, was entitled to further medical treatment in the form of continued interdisciplinary post-acute rehabilitation at an assisted living facility absent any change in circumstances. In this case, the Defendant...

January 30, 2021

United States: SC Plaintiff Must Show More Than Mere Proximity in Time to Support Retalia-tory Discharge Claim

Construing South Carolina law, a federal district court held that a plaintiff's mere showing of proximity in time between her injury and her termination was insufficient to support a claim of retaliatory discharge. Interpreting S.C. Code Ann. § 41-1-80, and examining relevant South Carolina case law, the court acknowledged that an injured employee need not have actually filed a workers' compensation claim...

January 29, 2021

California: Settlement of Civil Claims Against Employer; Release of Workers’ Comp Claims; Labor Code § 132a

In a recent Board panel decision, the WCAB affirmed the WCJ’s finding that applicant’s Labor Code § 132a claim was not included in a valid civil settlement agreement between applicant and his employer, nor were any remedies associated with the Labor Code § 132a claim precluded or invalidated by the civil settlement agreement. The parties’ civil settlement made no mention of applicant’s...