January 24, 2021

California: State Supreme Court Applies Dynamex Decision Retroactively

The Supreme Court of California held its earlier decision in Dynamex Operations West, Inc. v. Superior Court , (2018) 4 Cal.5th 903, 232 Cal. Rptr. 3d 1, 416 P.3d 1 , should be applied retroactively. That somewhat controversial decision set forth a three-part "ABC" test for determining if a worker was an employee versus an independent contractor. Dynamex was subsequently codified by the state Legislature [see...

January 24, 2021

Mississippi: Increased Wages After Injury Does Not Always Disqualify Worker from Wage Loss Benefits

That an injured worker was receiving wages that exceeded his pre-injury earnings did not, in and of itself, mean he was not entitled to an award of permanent partial benefits for wage loss, held a Mississippi appellate court. The appellate court acknowledged such evidence effectively created a presumption that there had been no wage loss, but the court also agreed that there was sufficient evidence to rebut that presumption...

January 24, 2021

Ohio: “Eggshell Theory” Instruction Ok’d For Trial Court Hearing Appeal of Comp Award

In a trial court proceeding following an employer's appeal of award of benefits awarded by the Ohio Bureau of Workers' Compensation, it was appropriate to instruct the jury on the so-called "eggshell" theory of medical causation since the employer had contended the employee's condition was the result of natural deterioration and not the incident of a work-place accident, held a state appellate court...

January 22, 2021

Examining the Early Impacts of COVID-19 on Workers’ Compensation Claims

New WCRI 27-State Study Provides Evidence of Impact Pandemic Is Having on Number and Types of WC Claims COVID-19 had an enormous impact on the U.S. economy in 2020, both in terms of the loss of jobs and the shifting of many jobs to at-home positions, as well as the direct medical impact of the coronavirus on worker health. As a result, there arise many questions about the impact of this new employment landscape on workers...

January 19, 2021

United States: Detention Officer's Tort Claim Alleging Unsafe Work Conditions Due to COVID-19 Held Barred

Allegations by a former prison detention officer that his former employer was liable in tort for negligent supervision and intentional infliction of emotional distress (IIED) were dismissed by a federal district court sitting in California. The plaintiff contended in relevant part that conditions at the prison were so dangerous, due to the threat of infection from COVID-19, that he had been constructively discharged from...

January 19, 2021

Kansas: 6th Edition of AMA Guides to Impairment Passes Constitutional Muster

The language in Kan. Stat. Ann. 2019 Supp. § 44-510e(a)(2)(B) requiring use of the 6th Edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment should reasonably be interpreted as a "guideline," and not a "mandate," held the Supreme Court of Kansas. Under the statute, the injured employee was nevertheless required to establish his or her level of impairment...

January 19, 2021

Pennsylvania: 120-Day Notice Period Does Not End on Sunday Even if Employer is Open for Business

That an employer operates its business on Sundays and, therefore, would have been able to receive a notice of injury by an injured employee on that day, has no effect on the 120-day notice period found in Section 311 of the Pennsylvania Workers’ Compensation Act [77 P.S. §631], held the state's Commonwealth Court. Accordingly, where the 120-day period for the notice of injury ended on a Sunday, the employee had an...

January 19, 2021

Nevada: State Supreme Court Repeats Rule Protecting Undocumented Workers

An employee's status as an undocumented alien is irrelevant to the worker's entitlement to basic workers' compensation benefits, held the Supreme Court of Nevada. Reiterating a rule earlier laid down in Tarango v. State Indus. Ins. Sys. , 117 Nev. 444, 25 P.3d 175 (2001), the Court stressed that there was nothing in its Tarango decision that would bar an award indemnity benefits. Certainly, under Tarango ...

January 15, 2021

California: Settlements: WCALJ's Role in Determining Adequacy Is More Important Than Ever

In Atkins v. Santa Barbara Metropolitan Transit District , 2020 Cal. Wrk. Comp. P.D. LEXIS 366 , the WCAB, rescinding the WCJ's Joint Order Approving Compromise & Release (OACR), found good cause to set aside the OACR, when parties entered into a Compromise & Release agreement to resolve the issues of injury AOE/COE, temporary disability, permanent disability, and future medical treatment for the sum of $17...

January 08, 2021

California: Top 25 Noteworthy Panel Decisions (July through December 2020)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2020. Particularly topical, are the cases addressing procedural and substantive issues surrounding the COVID-19 pandemic. The Appeals Board recently issued several decisions holding that telephonic hearings necessitated by the COVID-19 shelter-in-place...

January 06, 2021

Cal. Comp. Cases December 2020

CALIFORNIA COMPENSATION CASES Vol. 85, No. 12 December 2020 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 2020 LexisNexis. All rights reserved. LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and...

January 02, 2021

California: Dependency Issues in Death Claims

When an employee sustains an industrial injury that results in death, the employee’s dependents are entitled to certain workers’ compensation benefits, including burial expenses and death benefits. In order to qualify as a dependent, the person must have been totally or partially dependent on the decedent for support on the date of injury (Labor Code § 3502). A dependent must also bear a relationship to the decedent that...

December 26, 2020

New York: Hamstring Tear Can Result in Scheduled Loss of Use Award

A New York appellate court reversed a decision by the state's Workers' Compensation Board that held an injured worker was not entitled to a scheduled loss of use (SLU) award for a severe tear in his hamstring muscle following a work-related accident. The court agreed with the Board that the state's 2018 Workers’ Compensation Guidelines for Determining Impairment (“guidelines”) failed to provide...

December 26, 2020

Mississippi: Fatal Shooting During Firearms Training Session Does Not Support Tort Action Against Employer

A Mississippi appellate court affirmed a state trial court's decision granting summary judgment to the state, as employer, on workers' compensation exclusive remedy grounds following the fatal shooting of a state Gaming Commission employee during a firearms training exercise. During the exercise, the deceased worker took on the role of "an aggressor" and came toward the highly trained instructor, who...

December 26, 2020

Iowa: $1 Million Lump Sum Approved by Court

An Iowa appellate court affirmed a decision by the workers' compensation commissioner allowing the commutation of a claimant's future permanent total disability benefits for a lump sum slightly in excess of one million dollars. Construing Iowa Code § 85.45(1)(b) (2016), the court agreed that the lump sum payment was in the best interests of the injured worker. Noting that the 68-year-old worker and his spouse...

December 26, 2020

Florida: 52-Week Filing Requirement for First Responder PTSD Claim Runs From Qualifying Event

The 52-week filing requirement related to first responder PTSD claims in § 112.1815(5)(d), Fla. Stat., runs from the date of the qualifying event specified in the statute and not from the date the first responder manifests PTSD symptoms, held a Florida appellate court. Accordingly, under the facts of the case, where the first responder witnessed an adolescent's drowning in 2015, but did not manifest PTSD symptoms...

December 26, 2020

New York: Court Reverses Board's Decision Disqualifying Undocumented Worker From Benefits

A decision by the New York Workers' Compensation Board disqualifying an undocumented worker from additional benefits on its determination that the worker had failed to establish a connection to the labor market was error, held a state appellate court in a divided decision (3-2). Noting that the evidence suggested that the worker had applied for some 62 positions in New York City following his injury in spite of his...

December 26, 2020

New York: Related Entity is Not Employer's Alter Ego; Tort Suit May Continue

Acknowledging that if one business entity was the alter ego of another, the former could not be sued in tort for injuries sustained by an employee of the "alter ego" entity, a New York appellate court found the defendant-business entity failed to establish that it was either (a) part of a single integrated entity or (b) that one of the two business entities controlled the day-to-day operations of the other....

December 26, 2020

Mississippi: Commission's Sanctions Order Against Employer for Appealing ALJ's Decision Was Inappropriate

The Mississippi Workers' Compensation Commission should not have entered an order that required an employer/carrier to pay $4,000 in attorney's fees as a section for appealing an ALJ's order requiring the employer to pay for the replacement of a paraplegic claimant's HVAC and septic tank systems where the appellate court found the employer and carrier had a colorable legal argument in supports of the appeal...

December 26, 2020

Texas: Exclusive Remedy Defense Bars Worker's Suit Against Employer for Dog Bite at Work

A Texas appellate court affirmed a trial court's decision granting summary judgment to an employer in a tort suit filed against it by a plaintiff-employee who alleged a co-employee brought a dog to work and the dog bit the plaintiff during the workday. The plaintiff contended her civil action was not barred by the exclusivity defense since she contended the co-employee's action of bring the dog to work was not...

December 09, 2020

COVID-19: Leave of Absence, Return to Work and Access to Medical Care During the Pandemic and Beyond

By Marianne Tancor, J.D. In their fourth Out Front Ideas COVID-19 briefing, workers’ compensation specialists Kimberly George and Mark Walls discuss with a panel of experts the challenges faced by employers as COVID-19 restrictions are gradually lifted and workers around the country return to work. Topics include new leave of absence laws and safety concerns employers must consider in developing return-to-work strategies...

December 09, 2020

California: Hearsay in Workers’ Compensation Cases

One of the first things that new workers’ compensation attorneys discover is that the rules of evidence that they studied in law school don’t necessary apply in workers’ compensation trials. A prime example of this is the Hearsay Rule which prohibits the admission into the trial record of hearsay evidence unless certain exceptions apply. The Hearsay Rule and its exceptions have been codified in California in Evidence...

December 09, 2020

District of Columbia: Hearings Department Has Jurisdiction to Decide Which of Two Contractors Should Modify Residence of Quadriplegic

The District of Columbia's Compensation Review Board ("CRB") committed error when it agreed with the District's Adjudication and Hearings Department ("AHD") that the latter did not have sufficient jurisdiction to determine which of two building contractors should be awarded a contract to modify an injured worker's residence (located in Florida) to accommodate specialized physical therapy...

December 09, 2020

United States: Hazardous Exposure Suit Barred by Exclusive Remedy Defense

Construing Louisiana law, the Fifth Circuit Court of Appeals, in an unpublished decision, agreed with a federal district court that a former employee could not maintain a civil action against two former employers based on his theory that work-related exposure to hazardous chemicals had caused the employee to contract cancer and pulmonary embolisms. The Fifth Circuit also affirmed the district court's decision not...

December 09, 2020

Illinois: Intervening Insurer is Not a Party to Injured Worker's Third-Party Tort Suit

Under section 5(b) of the Illinois Workers’ Compensation Act [820 ILCS 305/5(b)], an employer or insurer who intervenes in a civil action filed by the injured employee against a third-party is only allowed to play a limited role in such litigation, held a state appellate court. The employer or insurer does not become a “party” to the underlying litigation by intervening to protect its lien. It was error...