October 29, 2020

California Compensation Cases October 2020

CALIFORNIA COMPENSATION CASES Vol. 85, No. 10 October 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...

October 26, 2020

New York: Board's Abandonment of Labor Market Decision Affirmed in Spite of Medical Evidence of Disability

Stressing that the issue of abandonment of the labor market is an issue for the Board, a New York appellate court affirmed the denial of disability benefits to a worker who sustained a clearly compensable injury--she was struck by falling scaffolding at the employer's work site--and in spite of the fact that her medical expert opined that the worker was temporarily totally disabled. The Board found she had abandoned...

October 26, 2020

Nevada: Post-Retirement Cancer is Compensable for Firefighter

The fact that a retired Nevada firefighter had no actual "wages" to replace, since his diagnosis for prostate cancer came three years after his retirement, did not mean he should not be awarded disability benefits based upon the wages he was earning at the time of that retirement, held the Supreme Court of Nevada. Analyzing two prior decisions, the Court said death benefits were not limited based upon the amount...

October 26, 2020

New York: Widow Fails to Connect Husband's 2016 Death to 2004 Work Injury

The presumption contained in N. Y. Workers' Comp. § 21(a) was insufficient to support an award of death benefits to a widow whose husband suffered an injury by accident in 2004, was awarded PPD in 2007, and who died in 2016, where the only medical evidence tying the death to the original injury was from the decedent's pain management specialists who admitted he had not reviewed any of the medical records maintained...

October 26, 2020

New York: Failure to File Proper Paperwork Results in $1K in Attorney's Fees, Instead of $52K Requested

The New York Workers' Compensation Board acted within its discretion when it awarded counsel fees of $1,000, instead of the $52,000 requested in a memorandum of law filed with the Board, held a state appellate court. The appellate court noted that any request for counsel fees in excess of $1,000 must be accompanied by a completed OC-400.1 application form specifying the dates and description of the services rendered...

October 26, 2020

Oregon: Orientation Session Injury Found Compensable

Where a claimant presented herself at a potential employer's office, after being advised that she needed to attend an unpaid "orientation" session and then be paid for the rest of the day while training, she was entitled to workers' compensation benefits for injuries she sustained when she was struck by a heavy door opened by one of the prospective employer's employees, held an Oregon appellate court...

October 26, 2020

New York: Credit Allowed for Prior SLU Award to Same Member

Where a claimant received a schedule loss of use (SLU) award of 10 percent to the left leg related to a 2015 left hip injury, and the claimant's orthopedist opined that he had sustained a 17.5 percent SLU of the left leg, following a subsequent work-related injury, it was appropriate for the Board to allow the employer a credit for the earlier injury, such that the "new" award was 7.5 percent. There was...

October 26, 2020

New York: Stress Must be Proved According to Objective, Not Subjective Standard

A New York appellate court held that in order to establish a claim for PTSD, it was insufficient for a state correctional officer to show that he had been made to feel threatened--an inmate threatened to do bodily harm to the officer's family--he must instead establish that the stress level he faced was more severe than the stress levels faced by other correctional officers performing similar duties. The court, therefore...

October 26, 2020

Illinois: Injuries Arising From "Common Bodily Movements" May be Compensable

Overruling Adcock v. Illinois Workers’ Compensation Comm’n , 2015 IL App (2d) 130884WC, and its progeny, to the extent that those decisions held injuries attributable to common bodily movements or routine everyday activities, such as bending, twisting, reaching, or standing up from a kneeling position, were not compensable unless a claimant proved work-related exposure to a risk of injury from these common...

October 21, 2020

COVID-19 and the Workplace: Workers' Compensation Emerging Issues Analysis

In April, as we began to contemplate the overall theme for this year’s edition of our Workers’ Compensation Emerging Issues Analysis series, a colleague and I mused that, unlike the situation in past years, when we had debated which of several topics might be our overall theme, the decision for the 2020 edition was easy. Not since World War II has there been such a disruptive factor within the American society and economy...

October 20, 2020

California: A Possible Reconciliation Between Hikida and Justice

One of the hottest topics to hit the workers’ compensation radar during the last six months has been the issue of apportionment. Specifically, parties are struggling with cases in which injured workers have had sustained unsuccessful or failed industrial surgeries. As a result thereof, they qualify for potentially higher levels of permanent disability (PD) because of the suboptimal medical treatment. It has been decided...

October 18, 2020

District of Columbia: Public Sector Employee May Not Recover Schedule Benefits for PTSD

The schedule benefits section of the District of Columbia's public-sector workers' compensation law, D.C. Code § 1-623.07 (2016 Repl.), does not provide for the payment of benefits for a worker's PTSD, held an appellate court, in spite of the worker's claim that she had sustained an injury to the "brain/head." Claimant had been diagnosed with PTSD and a six percent PPD, following a physical...

October 18, 2020

Wyoming: Injury Claim From Flesh-Eating Bacterial Infection Not Barred by Special "Communicable Disease" Limitation

Where a Wyoming employee, after he had completed a shift, injured his knuckle when he struck it on a metal locker in the employee locker room, and the small cut on his finger subsequently became infected with Group A beta-hemolytic streptococcus (Strep A)--more commonly known as flesh-eating bacteria--requiring hospitalization and aggressive treatment for more than a month to control the bacteria, the claim was not barred...

October 18, 2020

Kentucky: Death Following Surgery is Compensable in Spite of Passage of 10 Years

Where an injured worker died from complications following surgery to treat a medical condition that was tied to a work-related injury that had occurred ten years earlier, his widow was entitled to statutory income benefits under Ky. Rev. Stat. § 342.750(1)(a), held the Supreme Court of Kentucky. The Court said the widow could not recover, however, the statutory $50,000 lump-sum death benefit because the worker's...

October 18, 2020

Oklahoma: Supreme Court Says Non-Dependent Parents May Sue Employer in Tort

Finding a person's common law rights could be limited, but not eliminated, the Supreme Court of Oklahoma held a provision in the state's Workers' Compensation Act [12 O.S. 2011 §§1053A] that allowed death benefits only to a spouse, child, or legal guardian--if the guardian was dependent on the employee-- and which, therefore, barred the claim of a non-dependent parent of an adult, unmarried, and childless...

October 18, 2020

Illinois: Civil Action for Violation of Biometric Information Privacy Act Not Barred by Exclusive Remedy Rule

An Illinois appellate court, rendering a decision that is consistent with earlier federal court decisions on the same subject, held that an employee's civil action claim for statutory, liquidated damages against her employer for alleged violations of the state's Biometric Information Privacy Act is not barred by the exclusive remedy provisions of the Illinois Workers' Compensation Act. The court noted that...

October 18, 2020

Michigan: Massage Therapy Services Found Not Compensable

Massage therapy services are not the sort of services for which an employer must pay to an injured employee unless the services are (a) prescribed by health care professionals specified in Michigan's Workers' Compensation Act and (b) performed by a licensed physical therapist or physical therapist assistant under the supervision of a licensed physical therapist, held a state appellate court, reversing a decision...

October 18, 2020

New York: Medical Evidence Must Show More than Possible Connection Between Injury and Employment

Where claimant's physician testified that it was "difficult to determine" when claimant's meniscus tear occurred and that there was "a strong possibility" that something which happened at work could have exacerbated claimant's chronic condition, such medical testimony was too tenuous to support an award. Claimant had to show more than a mere possibility; there had to be some showing of...

October 18, 2020

Utah: Worker Loses Knee Injury Claim Because of Preexisting Condition

Applying the "heightened standard" rule, since claimant suffered from a preexisting knee condition, a Utah appellate court denied a claim for a meniscus tear, finding that there had been an insufficient showing that anything unusual or extraordinary had happened at work to trigger the injury. In as much as the injury just as easily could have occurred in the worker's ordinary life, he could not recover workers'...

October 18, 2020

United States: Exclusive Remedy Rule Bars IIED Claim For Failure to Provide Adequate COVID-19 Protections

Construing California law, a federal district court held a plaintiff's IIED tort action filed against her former employer for failure to provide adequate COVID-19 protocols is barred by the exclusive remedy of California's workers' compensation law. The court dismissed the IIED claim and a negligent supervision claim as well. It allowed a constructive discharge claim to move forward, however. As to the employer's...

October 18, 2020

Pennsylvania: Failure to Award Attorney's Fees Was Erroneous Where Employer Failed to File Notice of Compensation Payable in Timely Manner

Observing that the issue of whether an employer had reasonably contested a claim was a question of law fully reviewable by the appellate court, a Pennsylvania appellate court reversed a decision of the Appeals Board that rule an employer's contest was reasonable. Stressing that the employer had paid the injured employee's medical bills and had provided on-site medical services after the injury, but did not file...

October 18, 2020

Ohio: Intentional Injury Claim After Fatal Trench Cave-In Denied

Where an employee was killed in a trench collapse accident, his estate could not maintain an intentional tort action against the employer where the evidence indicated the employer ceased all work on the trench when the employer's supervisors became aware of potential danger. At the time of the accident, the representative and a city supervisor had left the trench site to secure a trench box. There was no explanation...

October 18, 2020

New York: Claimant Must Always Establish Causal Connection Between Employment and Medical Condition

Where claimant's description of the circumstances of her injury differed sharply from what she told emergency medical personnel in the moments following her accident, the Board could find that the claimant had failed to establish the required causal connection between her employment and her claimed medical condition. That the employer failed to file a timely notice of controversy did not remove her burden of establishing...

October 03, 2020

California: Interview with Chief Judge Paige Levy, Division of Workers’ Compensation

Current judicial system procedures during the COVID-19 pandemic LexisNexis: Judge Levy, thank you for taking the time to update the workers’ compensation community on California’s workers’ compensation judicial system during the COVID-19 pandemic. Almost every aspect of workers’ compensation practice has changed because of the pandemic. I can’t underscore the magnitude of the challenges you have faced in the continued...

September 27, 2020

California: Applicant Entitled to Payment of TTD Benefits During COVID-19 Stay-at-Home Orders

In the era of the COVID-19 pandemic, it is no surprise that case law is beginning to emerge that began as a routine legal issue that is complicated by an outside force. The context of the peri-pandemic cases begins with Governor Newsom’s stay-at-home order on March 18, 2020 in EO-N-33-20. The question presented in the recent Noteworthy Panel Decision of Corona v. California Walls, Inc., 2020 Cal. Wrk. Comp. P...