December 09, 2020

New York: Court Affirms Board's Finding that Claimant Had Withdrawn From Labor Market

Noting the broad latitude afforded New York's Workers' Compensation Board in determining whether a claimant had withdrawn from the labor market, a state appellate court affirmed a Board decision that a substitute teacher, who sustained injuries when she tripped and fell at a school where she was working, had withdrawn from the labor market. Her loss of earnings, therefore, was not connected to her injury, but...

December 09, 2020

Texas: Internet Research Insufficient to Show Plaintiff's Cancer Was Tied to Work-place Conditions

Stressing the importance of expert medical testimony in establishing a connection between cancer and the work environment, an appellate court in Texas affirmed a trial court's order granting a former employer summary judgment in a case in which the former employee contended he contracted prostate cancer and colon cancer through his work-related exposure to toxic chemicals. The plaintiff, who appeared pro se, filed...

December 09, 2020

Nevada: Undocumented Worker Awarded PTD Benefits under "Odd-Lot" Doctrine

Quoting Larson's Workers' Compensation Law , the Supreme Court of Nevada, in an unpublished decision, held that a worker's status as an undocumented worker was not relevant to the issue of whether he qualified for permanent total disability benefits. The Court observed that Nevada’s industrial insurance system covered “every person in the service of an employer … whether lawfully or unlawfully employed,” including...

December 08, 2020

Maryland: High Court Says Tyson Farms Was Not Co-Employer of Local Poultry Farm Worker

Stressing there was a distinction between control over the workplace, on the one hand, and control of the worker, on the other, the Court of Appeals of Maryland reversed a decision of lower appellate court that had concluded Tyson Farms was a co-employer of worker at a Maryland poultry farm who sustained injuries in a work-related accident. The local farm turned out to be uninsured and the state's Uninsured Employers'...

December 08, 2020

Michigan: Part-time Bartender Was Independent Contractor, Not Employee

A Michigan appellate court held that a part-time bartender, who was "paid under the table," and who sustained a serious ankle injury when she tripped while working, was an independent contractor--not an employee of the bar. Accordingly, she could maintain a tort action against the bar owner as a "business invitee." The appellate court noted that the specific issue at state--which of two competing tests...

December 04, 2020

California Workers’ Compensation: 2020 Year in Review

By Julius Young, Esq., Richard Jacobsmeyer, Esq., and Barry Bloom This 2021 edition is the 40th edition of Herlick, California Workers’ Compensation Handbook. [Note: All chapter references below are to Herlick Handbook.] Since the 2020 edition of Herlick Handbook, the California system has seen many changes due to COVID-19. This past year, many workers’ compensation stakeholders have changed their operational models...

November 24, 2020

California: Interpreters and Us

By: Hon. Robert G. Rassp, Presiding Judge, WCAB Los Angeles The opinions expressed in this article are those of the author and are not the opinions of the Department of Industrial Relations, Division of Workers’ Compensation, or the WCAB. Over the last five years, WorkCompCentral has provided all day ethics training for attorneys and non-attorney hearing representatives. Included in the program was a foreign language...

November 21, 2020

United States: Employee's Tort Action Against Non-Conforming Employer May Not be Removed

A Texas injured employee's tort action against a non-subscribing employer arises out of common law--not from the Texas Workers' Compensation Act ("the Act")--held a federal district court sitting in the court's Western District. Accordingly, the tort action was properly removed from the Texas trial court where it had been filed; diversity jurisdiction existed. The court acknowledged that, generally...

November 21, 2020

North Carolina: Two-Year Statute of Limitations is Clear and Unequivocal

A statute of limitations that bars additional compensation for an injured employee if two years passes after the last payment of medical or indemnity benefits [see N.C. Gen. Stat. § 97025.1] is clear and unambiguous, held a North Carolina appellate court. Accordingly, where a medical provider began billing Medicare, instead of the workers' compensation carrier, for treatment associated with a work-related injury,...

November 21, 2020

New York: Equivocal Medical Testimony Sinks Claim for Myocardial Infarction

A New York appellate court held sufficient evidence supported the Board's determination that a worker's myocardial infarction was not causally connected to his employment, where the worker's expert opined that it was "possible" that claimant's work activities "might" have contributed to his myocardial infarction. The expert acknowledged on cross-examination that claimant may have already...

November 21, 2020

Louisiana: Court Reiterates That Employer, Not Employee, Chooses Medication Fulfillment

Citing Burgess v. Sewerage & Water Board of New Orleans , 16-2267 (La. 6/29/17), 225 So.3d 1020, a Louisiana appellate court held an third-party-administrator ("TPA") was not liable for $48,000 in unpaid pharmacy charges incurred for treatment of an employee's injuries where the TPA had earlier advised both the dispensing pharmacy and the employee that it had issued the employee a prescription card that...

November 21, 2020

Ohio: VSSR Settlement Agreement Must Be Equitable and Adequate

Ohio Admin.Code 4121-3-20(F)(1) requires that a staff hearing officer (SHO) review a proposed settlement agreement related to an alleged violation of specific safety requirements ("VSSR") claim for adequacy; a cursory review to determine if the agreement was "structurally sound" was not within the tenor of the Code, held an Ohio appellate court. After a hearing on the VSSR, but before any formal decision...

November 21, 2020

Virginia: Employer Liable for All Medical Consequences of Original Injury

Stressing that an injured employee is entitled to recovery for all medical consequences and sequelae that flow from the primary injury, as long as there is a direct, causal link between the primary compensable injury and the additional injury for which benefits are sought, a Virginia court affirmed an award of additional benefits made by the state's Workers' Compensation Commission in a case in which the employee...

November 21, 2020

Ohio: Spoliation of Evidence Claim Against Employer Barred by Board VSSR Settlement Agreement

A broad release contained within a settlement of a violation of specific safety requirements ("VSSR") claim, signed by an injured employee represented by counsel at the time, barred a later civil action filed by the employee against the employer for spoliation of evidence, held an Ohio appellate court. Acknowledging that releases from future tortious activity were disfavored, the court noted that the workplace...

November 21, 2020

Georgia: Res Judicata No Bar to Re-Thinking Medical Treatment

A Georgia appellate court held the doctrine of res judicata could not be utilized by the employer to block consideration of whether an injured employee should be potentially treated with a spinal cord stimulator in spite of an earlier ruling by an ALJ that the evidence did not establish that such a stimulator was medically reasonable for the employee. Observing that the course of medical treatment in workers' compensation...

November 21, 2020

Massachusetts: Court Adopts "Sufficient Significant Contacts" Test for Out-of-State Injuries

The Supreme Judicial Court of Massachusetts, in a case of first impression, adopted the "sufficient significant contacts" test for determining whether the Commonwealth had jurisdiction over an extra-territorial work-related injury. It held the test that had been utilized by the Department of Industrial Accidents was too narrow. Accordingly, the Court said the Department had jurisdiction over a claim in which...

November 21, 2020

Louisiana: Borrowed Employee May Not Sue Borrowing Employer in Tort

Observing that at least eight of the ten factual inquiries as to borrowed employee status pointed toward an employment relationship between the plaintiff, who sustained injuries within two hours of first reporting for work, and the defendant, which had contracted with an employment staffing agency to provide staffing at the defendant's facility, a Louisiana appellate court reversed a decision by a state trial court...

November 21, 2020

Massachusetts: Insurer Need Not Reimburse Injured Worker for Medical Marijuana

The Supreme Judicial Court of Massachusetts held a workers' compensation insurer need not reimburse an injured employee for the costs of medical marijuana in spite of the fact that the worker was evaluated for, and was issued, a certification to enroll in Massachusetts’s medical marijuana program. Quoting Larson's Workers' Compensation Law , the Court said its decision was in line with most other states that...

November 21, 2020

New York: Board Errs in Utilizing "Novel" Standard for Employees Working From Home

The New York appellate court held the state's Board erred when it employed a "novel" standard for work-connectedness in determining the compensability of a claim filed by a claims examiner who worked from home. The employee contended he sustained injuries when he attempted to carry newly purchased office equipment upstairs during his lunch break. The Board affirmed a denial of the claim by the WCLJ, but...

November 21, 2020

Ohio: Compensability of "Flow-Through" Injury Does Not Depend Upon its Foreseeability

In determining whether a "flow-through" or consequential injury is compensable, the claimant need not show that the second injury was foreseeable, given the nature of the first, held an Ohio appellate court. While a claimant was required to show that the earlier injury was the proximate cause of the new injury, the trial court erred in conflating the standard for proximate causation in a workers’ compensation...

November 21, 2020

Virginia: No Compensable "Injury" Unless There is "Mechanical or Structural Change" in Body Part

Virginia's "sudden mechanical or structural change" element serves two functions, held the state's Supreme Court. On the one hand, its purpose was to require that an injury arise from an "accident," and not merely arise as a gradual onset of symptoms. Moreover, however, it was utilized to define "injury." Unless there had been a "mechanical or structural change" in the relevant...

November 21, 2020

United States: Settlement Proceeds Lose Exempt Status in NC When Used to Purchase Land and Mobile Home

Construing North Carolina exemptions law, a federal bankruptcy court held that a Chapter 13 debtor could not claim an exemption in land and a mobile home that he purchased with the proceeds of a workers' compensation settlement agreement. The court noted that the Chapter 13 debtor settled her workers' compensation claim for $200,000 and that she used a portion of the settlement to purchase the land and mobile...

November 21, 2020

Florida: Maintenance Worker Was not the Statutory Employee of Public Utility

While the provision of electricity to its Florida customers required that a Florida utility company maintain its equipment, a company with whom the utility contracted for maintenance work did not do so on the basis of any subletting of the utility's "contract work," held a state appellate court. Accordingly, where two employees of the maintenance company sued the utility for injuries sustained at the utility's...

November 11, 2020

California: COVID-19 Infection and the AMA Guides Fifth Edition

By Robert G. Rassp, author, The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (LexisNexis) DISCLAIMER: The following discussion is based on independent research by the author including sources from the Centers for Disease Control and Prevention and the Johns Hopkins School of Medicine and School of Public Health. The discussion is not connected to or associated with the State of California Department...

November 01, 2020

California: Summaries of WCAB En Banc COVID-19 Decisions

By Hon. Robert G. Rassp, Presiding Judge, Los Angeles District Office On January 21, 2020, the first American was diagnosed with COVID-19 infection in Washington State. By March 4, 2020, the pandemic had arrived in California and began to disrupt everyone’s daily routine. On March 18, 2020, Governor Newsom issued the first of many Executive Orders (the first one being EO-N-33-20 stay-at-home order), eventually including...