August 03, 2020

California Compensation Cases July 2020

CALIFORNIA COMPENSATION CASES Vol. 85 No. 7 July 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 03, 2020

California: An Ode to the Intellectual Honesty and Integrity of the WCAB: Hom v. City and County of San Francisco, 2020 Cal. Wrk. Comp. P.D. LEXIS 124

I recently reviewed the WCAB’s panel decision in Hom v. City and County of San Francisco , 2020 Cal. Wrk. Comp. P.D. LEXIS 124 ( Hom II ). The case is substantively significant in terms of its interpretation and application of the Labor Code 4664(b) conclusive presumption related to prior awards of permanent disability. However, it was the procedural history in Hom II that caught my attention to the extent that I was...

July 26, 2020

Louisiana: JCC's Credibility Findings Sufficient to Withstand Employer's Fraud Charge

A Louisiana appellate court affirmed a WCJ's finding that an employer had not reasonably controverted a claim in spite of the employer's evidence that the injured worker had a preexisting co-morbid condition -- a congenital single kidney -- that, coupled with medications taken by the worker to promote kidney health, could have caused the worker's syncopal episodes. The worker fainted one day, was taken to...

July 26, 2020

Florida: JCC's Credibility Findings Sufficient to Withstand Employer's Fraud Charge

A JCC's decision finding that a workers' compensation claimant had not knowingly misrepresented her post-injury earnings was affirmed by a state appellate court in spite of considerable evidence that contrary. The claimant sustained a work-related back injury in September 2015. The employer/carrier provided various benefits, including covering the cost of back surgery. In 2019, however, the employer filed petitions...

July 26, 2020

New York: Board Was Empowered to Promulgate Non-Acute Pain Medical Treatment Guidelines

A New York appellate court held that the state's Workers' Compensation Board was empowered with the authority to promulgate the state's Non-Acute Pain Medical Treatment Guidelines (“NAPMTG”), and utilizing the guidelines in the case at bar, the Board was accordingly permitted to order the injured employee be weaned from a long-term opioid pain treatment plan. The worker established a claim for an occupational...

July 26, 2020

Florida: JCC Has No Jurisdiction to Order Reinstatement of Injured Worker's Personal Leave Account with Employer

A JCC's decision to deny claimant's request for temporary disability benefits on the basis that the claimant had received full pay during the period from the claimant's bank of accumulated sick time was error, held a Florida appellate court. The JCC lacked the jurisdiction necessary to require the employer to restore the claimant's personal leave account. Moreover, the burden was upon the party claiming...

July 26, 2020

West Virginia: Supreme Court Says No Support for Board's Medical Findings

In spite of the deference afforded West Virginia's Workers' Compensation Board of Review when it comes to fact-finding, the state's Supreme Court, in a memorandum decision, reversed the Board's decision that awarded benefits for a worker's bilateral rotator cuff tears. Noting that the worker's primary physician had been the only physician to opine that the worker's compensable injury resulted...

July 26, 2020

Alaska: Employer Given Broad Access to Claimant's Mental Health Records

Construing Alaska Stat. §§ 23.30.107 and 23.30.107, the Supreme Court of Alaska held that with regard to an worker who had sought workers' compensation benefits, the employer was entitled to have access to the worker's mental health records reaching back to the worker's childhood in spite of the fact that her claim did not seek benefits for a mental injury. The Court stressed, however, that it was the Compensation...

July 26, 2020

New York: Court Clarifies State's Definition of Occupational Disease

Stressing that in New York, an occupational disease is one "resulting from the nature of employment and contracted therein [see N.Y. Workers' Comp. Law § 2[15]], and not from environmental conditions at the workplace , a state appellate court reversed a Board determination that a claimant who contended his prostate cancer was an occupational disease resulting from maintenance and cleaning of police cars...

July 26, 2020

New York: Apportionment Awarded In Spite of Claimant's Loss in Earlier SLU Claim

Where a New York employer and its carrier successfully argued in a 2013 scheduled loss of use (SLU) claim that any loss of use sustained by claimant had been the result of aging and not the claimed work-related injury, they were not precluded from subsequently arguing in a 2015 SLU claim that the Board should apportion part of claimant's loss of use to claimant's prior disabling condition, held a state appellate...

July 26, 2020

New York: Retail Worker Who Slipped on Wet Surface Near Entrance to Shopping Mall was Denied Benefits

Construing New York's "gray area" rule, which holds that where the risks of street travel merge with the risks attendant with employment, the mere fact that the accident took place on a public road or sidewalk will not ipso facto negate the right to compensation, a state appellate court affirmed a decision by the Board that refused to award benefits to a claimant who slipped on wet pavement while entering...

July 26, 2020

Hawaii: Pointing to Other, "Potential" Causes is Insufficient to Overcome Hawaii's Presumption of Compensability

Hawaii's presumption of compensability cannot be overcome merely by the employer's offer of evidence that some cause, other than the employment, was medically plausible in producing the injured worker's condition or illness, held the Supreme Court of Hawaii. In its decision, the state high court reversed a decision by the state’s Intermediate Court of Appeals that had rejected an “injury-by-disease” claim...

July 26, 2020

New York: Failure to Disclose "Religious Activity" Was Not a Violation of § 114-a

A decision by the New York Workers' Compensation Board that an injured worker had not violated N.Y. Workers' Comp. Law § 114-a, by failing to disclose her religious activity in her church -- preaching occasional sermons, counseling a small group of parishioners, assisting with Bible studies and baptisms was affirmed by a state appellate court. Such activities, agreed the court, were not the sort of volunteer...

July 26, 2020

Texas: Federal Airline Deregulation Act Does Not Preempt Texas Rules Regarding Air Ambulance Reimbursements

In an opinion at odds with several earlier decisions from federal district courts, a divided Supreme Court of Texas held the state's general standard of fair and reasonable reimbursement, as applied to air ambulance services provided to workers who sustain work-related injuries, was not preempted by the federal Airline Deregulation Act (ADA). Reversing a decision by the state's Court of Appeals, the majority of...

July 26, 2020

New York: Minor's Fatal Injuries Do Not Support Intentional Tort Action Against Farm Owner

The mother of a 14-year-old part-time farm worker, who suffered fatal injuries in an unwitnessed roll-over accident involving a piece of heavy machinery, may not maintain a civil action against the farm owner, held a New York appellate court. Affirming a trial court's decision granting the farm owner summary judgment, the appellate observed that the state's Workers' Compensation Board had already ruled the...

July 26, 2020

United States: Civil Action Under Illinois Biometric Information Privacy Act Not Barred by Exclusivity

An employee's civil action against her employer for alleged violations of the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq. , is not barred by the exclusive remedy provisions of the state's Workers' Compensation Act, held a federal district court. The employer utilized a fingerprint-based computer system that required the employee, as a condition of continued employment, to scan...

July 26, 2020

Georgia: Divided High Court Says Injury During Unpaid Lunch Break Was Compensable

Reversing the state's Court of Appeals, which had affirmed the denial of workers' compensation benefits to an office worker who slipped and fell as she was exited the employer's break room where she had just microwaved her lunch, a divided Supreme Court of Georgia overruled Ocean Acc. & Guar. Corp. v. Farr , 180 Ga. 266 (178 SE 728) (1935), a decision that had stood for more than 85 years, holding that...

July 26, 2020

Massachusetts: Family Court Judge Appropriately Awarded Wife $50,000 of Husband's Workers' Comp Settlement

A decision by a Massachusetts Probate and Family Court judge that allocated $50,000 of an injured worker's remaining workers' compensation settlement proceeds to his wife under the terms of a divorce and marital settlement was appropriate, held a state appellate court. The husband who, prior to the divorce decree, had recovered a workers' compensation settlement of $240,000 in a lump sum, sought to keep the...

July 26, 2020

Virginia: Worker's Crohn's Disease Was Compensable Consequence of Original Injury

Quoting Larson's Workers' Compensation Law , and stressing that all medical consequences and sequelae that flow from the primary injury are compensable as long as there is a direct causal link between the primary injury and the additional injury for which the claimant seeks compensation, a Virginia appellate court -- in a decision not designated for publication -- affirmed an award of benefits in connection with...

July 22, 2020

California: Serious and Willful Misconduct for Failure to Warn Teacher About Student

School District found liable for serious and willful misconduct when it knowingly failed to warn teacher of a student’s propensity for violence. Proving that an employee’s injury was caused by the serious and willful misconduct of the employer is no easy task. The bar is set very high. Not only must the employer’s conduct be more than simple negligence or even gross negligence ( Mercer-Fraser Co. v. Indus. Acc. Com...

July 15, 2020

California: Top Noteworthy Panel Decisions (January through June 2020) (Part Two)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2020. The list highlights two split panel opinions addressing whether Labor Code § 4663 apportionment is permitted in claims involving presumptively compensable permanent disability. The list also includes a rare case in which the UEBTF was permitted to...

July 10, 2020

California: Top Noteworthy Panel Decisions (January through June 2020) (Part One)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2020. The list highlights several cases in which the WCAB interprets new laws limiting California jurisdiction over claims by professional athletes. One of the top panel decisions issued this year holds that parties may take their QME panel specialty disputes...

June 30, 2020

California Compensation Cases June 2020

CALIFORNIA COMPENSATION CASES Vol. 85 No. 6 June 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...

June 30, 2020

California: Todd En Banc Clarifies Method to Determine SIBTF Liability under Labor Code Section 4751

On June 23, 2020, the LEXIS-NEXIS e-Newsletter published the Appeals Board’s decision in Richard Todd v. Subsequent Injuries Benefit Trust Fund (6-23-2020, ADJ7475146)  2020 Cal. Wrk. Comp. LEXIS 35 . The decision is a must read for the entire workers’ compensation community, not simply because it is an en banc decision, which means that it is binding on all Appeals Board panels and workers’ compensation administrative...

June 28, 2020

Utah: Trucker's Leap From Truck to Avoid Potential Fire and Explosion Was Sufficiently Unusual to Support Aggravation Claim

In a case with a rather bizarre fact pattern, a Utah appellate court affirmed a state Commission's decision awarding workers' compensation benefits to a trucker who suffered an aggravated injury to her knee when she leaped from the cabin of her truck because she feared the truck was about to explode. Applying the state's so-called Allen standard [see Allen v. Industrial Comm'n , 729 P.2d 15 (Utah 1986...