June 01, 2020

California: CWCI Examines the Integration of COVID-19 Presumptions into California Workers’ Comp

Oakland, CA – As lawmakers debate issues surrounding the COVID-19 pandemic, including the role that workers’ compensation systems in California and elsewhere should play in responding to the virus and the potential impact of COVID-19 presumptions of compensability, the California Workers’ Compensation Institute (CWCI) has issued a white paper that looks at the historic role of workers’ compensation presumptions, the current...

May 20, 2020

Florida: City Successfully Rebuts First Responder Presumption Regarding Heart Disease

A Florida appellate court held a municipality had successfully rebutted the presumption of compensability [see § 112.18(1)(a), Fla. Stat.] regarding a correction officer's claim of cardiac disease (atrial fibrillation), where the evidence suggested that the officer's condition was "triggered" by his strenuous athletic training for an Olympic-type competition and not by any work condition, including...

May 20, 2020

New York: Injury Crossing Public Street Near Work Premises Was Not Compensable

A New York employee who was struck by a car while crossing the street in front of his employer's work premises did not sustain an injury arising out of and in the course of the employment, held a state appellate court, affirming a finding by the state's Board. The employee had sought to utilize New York's so-called "gray area" rule, which holds that where, as here, one approaches his or her place...

May 20, 2020

Washington: Blood Alcohol Test Supports Finding of Intoxication

A Washington jury could appropriately determine that at the time of a worker's injury, he was so intoxicated that he had abandoned his employment, where evidence indicated the worker's blood alcohol level was substantially above the legal limit, held a state appellate court. Other evidence tended to show that the worker had consumed alcohol during his lunch break and had driven a vehicle erratically prior to his...

May 20, 2020

Pennsylvania: WCJ Erred in Awarding Unreasonable Contest Fees Where Employee Never Proved Disability

Where an injured employee sustained a laceration over the eye -- a condition admitted by the employer -- and later sought reinstatement of his disability benefits, the burden was on the employee to establish his entitlement to benefits based on an actual disability; the disability could not be presumed from the earlier admission by the employer. Accordingly, it was error for the WCJ to award unreasonable contest fees...

May 20, 2020

United States: In Retaliatory Discharge Action, Proximity of Firing to Claim Was Insufficient to Establish Issue of Fact

Although proximity in time between the filing of a workers' compensation claim and the firing of the employee can be important in establishing the retaliatory motives of the employer, it is insufficient where the employer comes forward with a valid, non-pretextual reason for the termination, held a federal district court, construing Colorado law. The employer's evidence indicated the terminated employee had become...

May 20, 2020

New York: Employer and Carriers Do Not Waive Right to Cross-Examine Medical Experts Where They Fail to Enforce Subpoenas

Testimony and medical reports prepared by two physicians were properly excluded by a New York WCLJ where the employer's carriers caused multiple subpoenas duces tecum to be served on the physicians and on multiple occasions, the doctors refused to make themselves available for depositions. The WCLJ continued the matter several times because of the difficulty in obtaining the depositions, but eventually proceeded without...

May 20, 2020

New York: Misrepresentations Regarding Claimant's Photography Business Justified Disqualification From Further Benefits

Where a New York claimant testified during a 2015 hearing that she had not worked in any capacity nor had she run any business since her PTD classification, yet during a 2016 disqualification hearing, she admitted that she operated a photography business and took photographs for parties and family events. Claimant also acknowledged that she was paid in cash for taking photographs and, in turn, she pad her employees in...

May 20, 2020

Idaho: Skydiving Instructor's Body is not "Equipment" for Purposes of Determining Employment Relationship

Based on the record evidence, an Idaho skydiving instructor may have been an employee, not an independent contractor, held the state's Supreme Court. The Court said the matter should be remanded for a proper determination since the magistrate court committed error in indicating the instructor's body was "no less a piece of equipment than the airplane that took them up to the appropriate altitude." That...

May 17, 2020

New York: Remote Regular Travel to Worksite is not "a Commute"

Acknowledging that under the standard going and coming rule, an employee's injuries sustained in the ordinary travel from his or her home to a specified worksite did not arise out of and in the course of the employment, a New York appellate court agreed with the state's Board that the going and coming rule did not apply to a situation in which the employee was required by the practical considerations of his remote...

May 17, 2020

New York: Worker's Tort Action Against Co-Worker for Horseplay Injury May Proceed to Trial

In an unusual case involving horseplay, a New York appellate court affirmed a state trial court's decision that had refused to grant summary judgment to a defendant-co-employee who had been sued by a plaintiff/co-worker following that co-worker's injuries at work. The appellate court acknowledged that the plaintiff had recovered workers' compensation benefits for the injuries. It stressed, however, that the...

May 17, 2020

Missouri: Injuries at Doctor’s Office Did Not Arise Out of and in Course of Employment

Finding that the risk of being tripped while at a doctor's office for treatment of a work-related exposure to an insecticide was a risk to which the employee was equally exposed outside her employment, a Missouri appellate court affirmed a decision by the state's LIRC denying workers' compensation benefits for an alleged aggravation claim. The underlying facts were quite bizarre. Following a work-related exposure...

May 17, 2020

New York: Amendment of Regulation Regarding RB-89 Cannot Be Retroactively Applied

In another decision dealing with New York's Form RB-89 (Application for Board Review), a state appellate court found the Board had abused its discretion in denying a carrier's Application for Board Review on the basis that the carrier had failed, within its answer to Question 15, to specify the date of the hearing at which the carrier had interposed its objection. The appellate court observed that at the time...

May 17, 2020

Nebraska: Truck Driver Awarded Permanent Total Disability Benefits After Ankle Fracture

In a decision not designated for publication, a Nebraska court affirmed a finding by the state's Workers' Compensation Court that a truck driver had sustained permanent total disability due to an ankle fracture. The court noted the deep conflict in the evidence. For example, the employer was able to show that after a recuperative period, the truck driver was capable of driving an automobile from Tennessee to California...

May 17, 2020

North Carolina: Court Construes "Traveling Employee" Rule Narrowly

A North Carolina appellate court, construing the "traveling employee" rule more narrowly than in most states, affirmed a finding by the state's Industrial Commission that denied benefits to an employee who sustained injuries in a slip and fall accident in a California hotel lobby, as the employee was on his way to do personal laundry. The appellate court skirted closely to allocating fault to the injured...

May 17, 2020

Georgia: Temporary Employee May Not Sue "Regular" Employee of Borrowing Employer in Tort

A borrowed servant may not recover in tort against the "regular" employees of the borrowing employer, held a Georgia appellate court. Accordingly, a state trial court erred when it refused to grant summary judgment in favor of a defendant-employee of a borrowing employer in an action filed by a temporary worker assigned to work nearby. The appellate court found that the record clearly established that the plaintiff...

May 17, 2020

Virginia: Sudden Gust of Wind Was Act of God, No Work-Related Injury

A Virginia appellate court affirmed a determination by the state's Workers' Compensation Commission denying workers' compensation benefits to a public school security officer who sustained injuries in a fall on school property during a windy day in March 2018. The court continued to follow Virginia's "actual risk test," noting that the sudden gust of wind that the officer claimed caused a metal...

May 14, 2020

California: Noteworthy Independent Medical Review (IMR) Decisions (5/2020)

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. Lexis Advance subscribers can access those...

May 07, 2020

California: Don’t Expect 5814 Penalties for Mishaps During Utilization Review

When there is an unreasonable delay in the provision of medical treatment to an industrially injured worker, applicant attorneys aren’t hesitant to raise the possibility of a Labor Code section 5814 penalty. Section 5814 exists both as a remedial and penal measure to insure that injured workers promptly obtain the cure or relief to which they are entitled under the law without unreasonable delay by compelling they employer...

May 04, 2020

Pain Management and Wellbeing During the COVID-19 Pandemic and Beyond

Treating individuals with chronic pain, who often have co-existing physical and mental health conditions, has long posed a unique set of challenges for healthcare providers both inside and outside the workers’ compensation industry. With COVID-19 now creating a myriad of additional obstacles, providers must implement new ways to help their patients cope with pain and strive to achieve a sense of wellbeing given limited...

April 29, 2020

Coronavirus 2019 and California Workers’ Compensation Liability: Legislative Measures Are Likely

Although the California State Legislature is in recess until May 4, 2020, that hasn’t stopped legislative activity in Sacramento regarding coronavirus 2019 (COVID-19) and workers’ compensation. In fact, one could say that Sacramento is abuzz with concern about the impact of COVID-19 upon essential frontline employees and their employers and potential workers’ compensation liability. A recent analysis...

April 27, 2020

Arkansas: Carrier's Requirement that Premiums Be Based on Worker's Earnings Did Not Mean He Was an Employee

An Arkansas appellate court held that while the payment (and collection) of workers' compensation insurance premiums based upon a particular worker's earnings was one factor to be considered in determining whether that worker was an employee or an independent contractor, it was not the determining factor. Accordingly, the court said the Arkansas Commission did not err when it denied a serious injury claim on the...

April 27, 2020

South Carolina: Commission's Credibility Determinations as to Claimant Cannot Justify Ignoring Objective Medical Evidence of Injury

Acknowledging the broad discretion allowed to South Carolina's Workers' Compensation Commission when it comes to credibility determinations, the Supreme Court of South Carolina nevertheless reversed a Commission decision denying an employee's hearing loss claim on credibility grounds. The Court stressed that the Commission had erred in failing to explain how its credibility findings could justify the Commission's...

April 27, 2020

California: Court Affirms $2.9 Million Judgment Against Employer For Mishandling Immigration Case

In an unusual case in which a California court entered a $2.9 million judgment against a former employer who mishandled the green card application process of one of its employees, which resulted in the forced return of the employee and his family to England, a state appellate court held that the civil action against the employer was not barred, in whole or in part, by the exclusive remedy rule in spite of the employer's...

April 27, 2020

South Dakota: Department of Labor Construed State's "No Progress" Rule Too Narrowly

In a case of first impression, the Supreme Court of South Dakota held that the state's Department of Labor had erred when it determined that there had been no activity in the record of a case for more than one year, such that the claim could be dismissed pursuant to S.D. Admin. R. 47:03:01:09, South Dakota's "no progress" rule. The high court noted that the record was clear that the claimant had engaged...