September 25, 2020

California: Is it Time to Question the MSA-based Compromise and Release?

Most California Workers' Compensation practitioners are exceedingly familiar with the term Medicare Set-Aside (MSA). The idea of the MSA is to set aside an amount within a Compromise and Release (C&R) settlement that will be used to pay for medical treatment that would otherwise be covered by Medicare. The idea is that this "set-aside" will serve to protect Medicare's interests. The problem with...

September 25, 2020

California: New Data Show COVID-19 Accounts for 1 in 9 California Workers’ Comp Claims in 2020

Oakland, CA – The California workers’ compensation COVID-19 claim count continued to grow in August, albeit at a much slower rate than in July, with new data showing that as of September 21, the state had recorded 5,130 COVID-19 claims with August injury dates, bringing the total for the year to 41,861 claims, or 11.2% of all California job injury claims reported for accident year (AY) 2020. Those claims included 224...

September 25, 2020

California Compensation Cases September 2020

CALIFORNIA COMPENSATION CASES Vol. 85, No. 9 September 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...

September 18, 2020

Ohio: Abandonment of Workforce Results in Disqualification from Benefits

The Supreme Court of Ohio held that evidence supported a state commission's determination that a worker had abandoned the workforce and, therefore, was not entitled to permanent total disability benefits where the worker testified that he had been receiving federal disability benefits that arose from his former employment with the USPS and he believed that he would lose those benefits if he accepted employment. The...

September 18, 2020

Kansas: Worker's Surviving Spouse Successfully Rebuts Marijuana Presumption

The Supreme Court of Kansas agreed that the widow of a worker who sustained fatal injuries in a fall at work rebutted the presumption of intoxication afforded the employer where two drug tests showed the presence of marijuana in the worker's system, but other evidence, including testimony by a co-worker, indicated the decedent showed no signs of intoxication in the time period immediately prior to the fall. A medical...

September 18, 2020

Colorado: Death Benefits Awarded in Spite of Traveling Employee's Intoxication

An airline pilot's "deviation" ceased when he and a colleague stopped drinking and retired to the colleague's hotel room--the pilot was so inebriated that he could not find his own hotel--held a Colorado appellate court. Accordingly, when the pilot sustained fatal injuries when he was struck by an auto outside the colleague's hotel, his injuries were compensable under Colorado's traveling employee...

September 18, 2020

California: Under State's "Posse" Law, Couple May Not Sue County Sheriff for Misinformation that Lead to Severe Injuries Sustained in Attack

The Supreme Court of California, in a 5-2 decision, held that the state's "posse" law--Cal. Labor Code § 3366--barred a civil action for negligence and misrepresentation filed by two private citizens against a California county and a deputy sheriff following a bizarre circumstance in which the plaintiffs barely escaped with their lives. After the sheriff's office had received word that a neighbor...

September 18, 2020

Connecticut: "New" Heart Received Via Cardiac Transplant is Not a Prosthetic Device

The Supreme Court of Connecticut held that when, under compensable circumstances, an organ of the body is removed, there is no automatic "loss" of the organ if another is transplanted into the body as a replacement. Accordingly, under Conn. Gen. Stat. § 31-308(b), where a police officer sustained a compensable heart disease, giant cell myocarditis, and underwent a successful heart transplant operation,...

September 18, 2020

Connecticut: Employee of Uninsured Roofing Subcontractor May Recover Benefits from City

In a split decision, the Supreme Court of Connecticut held that maintaining and repairing municipality buildings was within the city of Bridgeport's "trade or business," and accordingly, a worker employed by an uninsured roofing subcontractor could recover workers' compensation benefits from the city following his injury at one of the city's facilities. Earlier, a Commissioner determined that the...

September 18, 2020

Delaware: Tort Suit Against Third-Party Administrator May Move Forward

A plaintiff's civil action against a third-party administrator (TPA) for bad faith delay and denial of workers' compensation benefits and intentional infliction of emotional distress may move forward, held a Delaware court as it considered the trial court's denial of the TPA's motion for summary judgment. On the narrow issue of whether a plaintiff may sue a TPA for breach of the duty of good faith and...

September 18, 2020

North Carolina: Employer and Carrier Lose Reimbursement Right Due to Special Endorsement in Employer's Auto Policy

In a divided decision, the Supreme Court of North Carolina held an employer and its carrier could not be reimbursement for the outlay of workers' compensation benefits paid to an insured worker where South Carolina motor vehicle law prohibited such reimbursement and the North Carolina insurance policy contained an endorsement making the policy subject to the South Carolina underinsured motorist law. Moreover, said...

September 18, 2020

Washington: Employee Staffing Firm Not Liable for Safety Violations Where Borrowing Employer Had Control

Applying what it said was the "economic realities test," a Washington appellate court found that a borrowing employer had exercised sufficient control over the borrowed employee that the employee staffing company supplying the worker should not be liable for safety violations at the borrowing employer's facilities. The Department of Labor & Industries had cited the staffing company with three serious...

September 18, 2020

CWCI Finds a Steep Drop in California Workers’ Comp IMR Volume in the First Half of 2020

Oakland –With the pandemic taking a toll on the California economy, statewide unemployment spiking to a record level, and the volume of workers’ comp claims and medical services on the decline, the number of independent medical reviews (IMRs) used to resolve California workers’ compensation medical disputes fell sharply in the first half of 2020 according to the latest tally by the California Workers’ Compensation Institute...

September 10, 2020

California: Is the Justice Court’s Interpretation of Hikida Correct?

What clues can we garner from the panel decision in Durazo? The Court of Appeal decision in Hikida v. Workers’ Compensation Appeals Bd . (2017) 12 Cal. App. 5th 1249 [82 Cal. Comp. Cases 679] ( Hikida ) resolved the issue of the proper application of Labor Code sections 4663 and 4664 when it held that the injured employee was entitled to a non-apportioned award of permanent disability because that permanent disability...

August 30, 2020

California Compensation Cases August 2020

CALIFORNIA COMPENSATION CASES Vol. 85, No. 8 August 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 court...

August 27, 2020

Pennsylvania: Truck Driver May Sue Well Owner and Service Company in Tort -- No Statutory Employer Relationship

A divided Pennsylvania appellate court held a well owner and a separate firm that provided specialized services at the well were not statutory employers of a truck driver who contended he sustained injuries when a faulty storage tank value caused the driver to be sprayed with barite during a delivery. The driver filed a tort action against the well owner and the service company who then countered that they were statutory...

August 27, 2020

Minnesota: Chiropractor's Delay in Intervening Results in No Payment for Medical Services Rendered

Where a Minnesota chiropractor received a notice indicating that he had the right to file an intervention request in a workers' compensation claim -- the chiropractor had provided some $9,000 in medical service to the claimant -- but who took no action to intervene, could not subsequently seek payment from the injured worker's settlement with the employer and its carrier, held the Supreme Court of Minnesota. The...

August 27, 2020

New Jersey: Leased Worker's Tort Action Against Borrowing Employer Barred by Exclusivity

A tort action filed by a worker who had been assigned to a firm that utilized forklifts in its warehouse area cannot proceed since the worker's exclusive remedy was pursuant to the New Jersey Workers' Compensation Act, held a state appellate court. The staffing agreement executed by the staffing company and the borrowing employer indicated the latter assumed control of the activities of the leased employees. The...

August 27, 2020

North Carolina: Insurance Adjuster Fails to Show Stresses of Her Job Were Sufficient to Establish Occupational Disease Claim

Noting that in order to recover benefits for a stress-related condition under North Carolina's definition of occupational disease, it was insufficient merely to show that the employee endured "employment stressors" as a part of her work duties; the employee was required to show that her job placed her at an increased risk of contracting anxiety-related illness and/or depression as opposed to the general...

August 27, 2020

Tennessee: Party's Presentation of Medical Evidence that Disagrees with IME Physician's Opinion is Insufficient to Rebut Presumption of Correctness

Acknowledging that the statutory presumption of correctness afforded the opinion of an independent medical evaluator who had been selected from Tennessee's Medical Impairment Registry ("MIR") could be rebutted by clear and convincing evidence, an appeals panel of the Tennessee Supreme Court nevertheless held that the injured employee had offered no such clear and convincing evidence in the instant case....

August 27, 2020

Nevada: Police Officer's Injuries on Personal Motorcycle Found Compensable

Construing a special "law enforcement" exception to Nevada's going and coming rule, the Supreme Court of Nevada held that a police officer's injuries sustained in a private motorcycle accident as he rode home after being released early one evening arose out of and occurred in the course of his employment. Reviewing what the Court said was the "totality-of-the-circumstances," the Court noted...

August 27, 2020

Florida: Exculpatory Provision in Labor Broker's Employment Agreement Prevents Suit by Injured Worker

Where, prior to his actual employment, a Florida worker signed an agreement with a labor broker in which the worker released the broker's clients from liability for any injury the worker might sustain that was covered by workers' compensation laws, he could not subsequently maintain an action against the client for negligence when he sustained injuries at the client's facility in the course of his work as...

August 27, 2020

New York: Death Benefits Awarded in Spite of Worker's Suicide

A New York appellate court affirmed an award of death benefits to the widow of a workers who committed suicide some two years after he suffered a debilitating work-related injury to the head. The appellate court stressed that it was the Board's duty to resolve conflicting medical evidence -- here there was deep disagreement between the expert offered by the widow and that presented by the employer. In particular,...

August 17, 2020

California: Noteworthy Independent Medical Review (IMR) Decisions (August 2020) (Part Two)

LexisNexis has selected some recently issued noteworthy IMR decisions that illustrate the criteria that must be met to obtain authorization for a variety of different medical treatment modalities. LexisNexis Commentary for each selected IMR is provided below. Many of these IMR decisions were reprinted in California Compensation Cases , which can be accessed on Lexis Advance. MUSCLE RELAXANTS ■ 85 Cal. Comp. Cases...

August 11, 2020

California: Noteworthy Independent Medical Review (IMR) Decisions (August 2020) (Part One)

LexisNexis has selected some recently issued noteworthy IMR decisions that illustrate the criteria that must be met to obtain authorization for a variety of different medical treatment modalities. LexisNexis Commentary for each selected IMR is provided below. Many of these IMR decisions were reprinted in California Compensation Cases , which can be accessed on Lexis Advance. EPIDURAL STEROID INJECTIONS ■ 85 Cal. Comp...