June 28, 2020

Texas: High Court Clarifies Texas Version of "Substantially Certain" Test in Intentional Tort Actions Against Employers

The Supreme Court of Texas, providing a clear and exhaustive discussion of the state's special utilization of the so-called "substantially certain" standard to be utilized in intentional tort actions filed by employees against their employers, held that in order for the exception to exclusivity to apply, the employer or its representative must believe its actions are substantially certain to result in a...

June 28, 2020

Utah: Worker Succeeds in Showing Enhanced Burden of Proof Regarding her Preexisting Condition Injury

Workers in Utah with preexisting conditions face an enhanced burden of proof in establishing legal causation. Under the so-called " Allen standard" [see Allen v. Industrial Comm’n , 729 P.2d 15, 25 (Utah 1986)], the injured worker must “show that the employment contributed something substantial to increase the risk already faced in everyday life because of her preexisting condition.” Utilizing...

June 28, 2020

New York: Trucker's Reckless Driving Was Not Willful Intent to Injure Herself

Stressing that reckless conduct, such as operating a motor vehicle well in excess of a safe limit, did not amount to the sort of willful intent to injure oneself, a New York appellate court affirmed a finding by the state's Workers' Compensation Board that awarded benefits to a truck driver who was injured in a roll-over crash as she exited the highway at 67 mph (signs along the exit stated the speed limit was...

June 28, 2020

District of Columbia: Employer Must Use Targeted Evidence to Rebut Presumption of Compensability

The District of Columbia Court of Appeals reversed a decision of the District's Compensation Review Board that denied workers' compensation benefits to a diabetic worker after finding that the employer had adequately rebutted the District's presumption of compensability [see D.C. Code § 32-1521(1)] where the employer's medical expert testified that the dominant factors in causing the claimant's...

June 28, 2020

Connecticut: Worker Suffers Amputation Injury But Fails to Show Intentional Tort

A trial court was correct in finding that a plaintiff-employee had failed to establish an issue of fact in his intentional tort civil action filed against the employer following a serious injury in which the worker's leg was severed above his knee by a mechanical auger. Utilizing Connecticut's version of the "substantial certainty" rule, the appellate court agreed that the plaintiff had failed to raise...

June 28, 2020

Florida: Court Kicks Important One-Time Change in Physician Issue to Supreme Court

Construing Florida's one-time change of physician statute, § 440.13(2)(f), a state appellate court held, in a divided decision, that it is insufficient for an employer or carrier to provide the worker with the name of a new physician within the five-day time frame required within the statute, the E/C must also provide access to that physician by supplying the worker with an actual appointment with the new medical...

June 28, 2020

Maryland: Court Extends Retaliatory Discharge Protections to Retaliatory Non-Renewal of Employment Contract

A Maryland appellate court held that, under an appropriate fact pattern, an employer that declines to renew an employment agreement with an injured worker for which the parties anticipated a reasonable possibility of renewal may be liable for a retaliatory discharge claim. Observing that it was a case of first impression, the appellate court noted that Maryland's courts had heretofore only applied the tort of wrongful...

June 27, 2020

New York: Claimant Fails to Establish Worsening Condition Caused by Surgery

Illustrating the broad powers given to New York's Workers' Compensation Board when it comes to weighing medical evidence, a divided Third Department appellate court affirmed a decision by the Board that a claimant, who earlier had been awarded permanent partial disability benefits and whose condition apparently worsened such that she required additional surgery, had nevertheless failed to establish that her disability...

June 27, 2020

Maryland: Husband's Settlement Release Does Not Bar Non-Signing Spouse From Death Benefits

Stressing that a person who is not a party to a contract is not bound by its terms, a Maryland appellate court held that a widow was not bound by a settlement agreement signed by her husband that purported to release not only the husband's rights to further compensation (upon payment of the settlement funds) but also any future claims for death benefits that might be filed by a dependent. Citing Larson's Workers'...

June 27, 2020

Pennsylvania: Injured Worker's Decision to Stay Home With Children Results in Lost Benefits

Where an injured employee decided to resign from his modified-duty position and stay at home to care for his children while his wife worked outside the home, it was appropriate for a WCJ to suspend the employee's wage loss benefits, finding he had removed himself from the workforce, held a Pennsylvania appellate court. The state's Board should not, therefore, have reversed the WCJ's decision. Here, said the...

June 27, 2020

Washington: Proof of Service Need Not Be Filed Within 30 Days of Board's Decision

While it is clear that Wash. Rev. Code § 51.52.110 requires that the notice of appeal from a decision of the Washington Board of Industrial Insurance Appeals be filed with the clerk of the court and served on all required parties within 30 days, there is nothing in the rule that requires the filing of the proof of service within that same 30-day period, held a Washington appellate court. Where an employee's attorney...

June 27, 2020

United States: Law Firm's Security Officer Could Not Sue Firm in Tort for Alleged "Pain and Suffering" Injuries

A former law firm security officer may not maintain a civil action against his former employer for alleged Title VII discrimination, wrongful termination, and “pain and suffering” injuries allegedly suffered by the plaintiff following an altercation between the security officer and his supervisor, held a federal district court. Since the plaintiff's injuries, if any, arose out of a workplace incident,...

June 27, 2020

Mississippi: Unpaid Child Support Lien Does Not Attach to Death Benefits Where Deceased "Father" Gave Up Parental Rights

The Supreme Court of Mississippi, in a divided decision, reversed a similarly divided decision by the state's Court of Appeals, and held that where a father's parental rights had been terminated through a properly administered adoption proceeding at a time when the employee owed some $35,000 in unpaid child support, the father’s children ceased to be his dependents. Based on that severance of family status...

June 27, 2020

Pennsylvania: Protz Should Not Be Applied in "Fully Retroactive" Manner

The Pennsylvania Supreme Court's decision in Protz v. Workers’ Compensation Appeal Board (Derry Area School District) , 639 Pa. 645, 161 A.3d 827 (Pa. 2017)](" Protz II ), should be utilized in all cases still pending at the time it was announced by the high court; it was not, however, to be applied in a fully retroactive manner, held the state's Commonwealth Court. Accordingly, where more than three years...

June 27, 2020

North Carolina: Commission's Decision to Dismiss Claim With Prejudice Was not Supported by Record

A North Carolina appellate court reversed a decision by the state's Industrial Commission that had dismissed with prejudice an employee's injury claim for her failure to comply with discovery orders. Finding that there had been no showing that the employer been materially prejudiced, nor had the employer or its carrier come forward with evidence that claimant's delay had impaired their ability to locate witnesses...

June 27, 2020

Virginia: Divided Supreme Court Says Impairment to be Determined Before, Not After, Hip Surgery

An injured employee’s functional loss of use under Va. Code Ann. § 65.2-503, was appropriately computed by measuring the extent of the employee's impairment before undergoing hip replacement surgery, not after the surgery, held a divided Supreme Court of Virginia. The majority agreed with the Commission that, based on the opinion offered by the employee's physician, MMI had been reached before the surgery. According...

June 27, 2020

New York: Claimant's Failure to Serve Carrier's Attorney With Application for Board Review Not Fatal

Observing that under 12 NYCRR 300.13[b][2][iv], an application for administrative review, must include proof of service upon "all necessary parties of interest," and that insurance carriers were included in the list of necessary parties of interest, but not their attorneys , a New York appellate court affirmed the Board's determination that a claimant was entitled to workers' compensation benefits for...

June 27, 2020

Florida: Worker Receives PTD Award More than 17 Years After Retirement

Where a Florida worker sustained work-related injuries to her neck, back, and right shoulder in 2002, and subsequently suffered a psychiatric injury, in the form of depression, as a result of the injury and, prior to reaching MMI status, successfully petitioned for disability retirement via the Florida Retirement System in June 2003 when she was 49 years old, it was error for a judge of compensation claims to deny additional...

June 27, 2020

Virginia: Injured Worker Must Show He or She has Reasonably Marketed Residual Work Capacity

An injured worker's acceptance of the lowest paying of three jobs offered to him following his work-related injury, on the basis that it was a day-shift position and the others were not, meant he could not recover the difference between his post-injury earnings and his earnings prior to the injury, held a Virginia appellate court. The worker had an affirmative duty to produce evidence that he had reasonably marketed...

June 22, 2020

Impact of COVID-19 on Workers’ Compensation: The Experts Weigh In

Rapidly changing regulations and a barrage of new directives issued by states across the country in response to COVID-19 are leaving employers and workers’ compensation professionals with more questions than answers regarding how to handle existing claims, what to expect as new claims are filed, and how to implement safe return-to-work protocols. In the third COVID-19 Out Front Ideas webinar hosted by workers’ compensation...

June 21, 2020

California: Who Bears the Burden for a Faulty Fax?

In the realm of workers’ compensation law, the concept of “burden of proof” rarely floats from one party to the another in a seamless fashion. In fact, it’s often a challenge to keep track of when and if the burden has shifted to the other side. Nowhere is this more evident than when injured workers pursue their requests for medical treatment. The Noteworthy Panel Decision (NPD) discussed below, reminds us of the necessity...

June 09, 2020

California: How to Defeat the Cancer Presumption in Labor Code Section 3212.1

Publisher's Note: This article was corrected on June 22, 2020 to reflect that Subsection(d) of 3212.1 was amended in 2010 to extend the 60-month period to 120 months. Reminder: Blais is a panel decision and not binding precedent. The presumption of compensable injury set forth in Labor Code Sections 3212 et seq. have vexed many a practitioner. There is a general belief that it is next to impossible to rebut one...

June 05, 2020

California Compensation Cases May 2020

CALIFORNIA COMPENSATION CASES Vol. 85 No. 5 May 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 05, 2020

California: Developing Exception to the UR Decides All Rule

In the olden days, it was the WCAB that decided all medical treatment disputes. That changed in 2004 with the enactment of SB 899 and implementation of revised Lab. Code § 4610 . For dates of injury thereafter, the law mandated that all medical treatment requests (Request for Authorization-RFA) were to be submitted by defendant to Utilization Review (UR). The WCAB no longer had jurisdiction over medical treatment disputes...

June 01, 2020

California: Appeals Court Provides Bright Line Limitation to Hikida Application

Since the early days after passage of Senate Bill No. 899 in 2004, the question of the Legislature’s intent in overhauling the statutes governing apportionment of permanent disability (Labor Code §4663 and §4664) and the issue of direct causation and apportionment of permanent disability based on causation have been the subject of multiple decisions of the WCAB and appellate courts. One of the early litigated issues involved...