April 26, 2020

California Compensation Cases April 2020

CALIFORNIA COMPENSATION CASES Vol. 85 No. 4 April 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...

April 24, 2020

Workers’ Compensation Industry Continuity in the COVID-19 Era: Businesses Battling a Global Pandemic

The first in a series of Out Front Ideas webinars highlighting a variety of COVID-19 challenges which currently confront the workers’ compensation community, focuses on different sectors of the industry and surveys how each is navigating a rapidly evolving landscape. The COVID-19 pandemic has forced many businesses, large and small, into uncharted territory when it comes to strategizing a continuity plan. Workers’ compensation...

April 24, 2020

Texas: Death Benefits Allowed For Deputy's Fatal Accident After Extra-duty Assignment

The Supreme Court of Texas held that a deputy sheriff fatal auto accident, as he traveled home in his assigned patrol car following an extra-duty assignment for a private employer, was nevertheless within the course and scope of the employment and his survivors were entitled to death benefits. The court noted that at the time of the accident the officer was using the patrol car pursuant to specific permission he had been...

April 24, 2020

South Dakota: Death Benefits Awarded Following Fatal Trench Collapse

The Supreme Court of South Dakota affirmed an award of death benefits to the surviving spouse of a municipal employee who died in a work-related trench collapse and criticized the state's Department of Labor for coming "perilously close to the prohibited concept of contributory negligence or fault.” The Court noted that the employer had contended the deceased employee had engaged in willful misconduct in...

April 24, 2020

Mississippi: Employee's Deviation While Traveling Means Injury Claim Is Not Compensable

In a divided decision, the Court of Appeals of Mississippi affirmed a decision by the state's Workers' Compensation Commission that denied workers' compensation benefits to a traveling salesman who suffered severe injuries in an automobile accident and then, one day later, suffered a heart attack. The majority of the court stressed that although the salesman was a traveling employee, as that term is understood...

April 23, 2020

New York: Close Proximity of Time Between Injury and Firing Supports Retaliation Claim

Observing that the state's Workers' Compensation Board had found the claimant's testimony credible, according to which the claimant's supervisor "stormed off" when the claimant advised that he would be filing a workers' compensation claim, and that the supervisor also muttered that the boss would not be "very happy with that," a New York appellate court found substantial evidence...

April 21, 2020

California: Impact on ADLs – That is the Question

Rating permanent disability (PD) in the California workers’ compensation system pairs down to a very simple principle: How does the injured worker’s industrial impairment impact the Activities of Daily Living? That is the principal question for use of the AMA Guides. The AMA Guides in § 1.2, at p. 4, Table 1-2 lists the eight Activities of Daily Living (ADLs) as follows: Self-care, personal hygiene...

April 15, 2020

California: You, Too, Can Successfully Rebut a Scheduled Permanent Disability Rating: PDF for Moreno Decision

The PDF for the Moreno decision is below.

April 15, 2020

California: You, Too, Can Successfully Rebut a Scheduled Permanent Disability Rating

As workers’ compensation practitioners, we know that the 2005 Permanent Disability Rating Schedule (PDRS) is rebuttable (see Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd. (Guzman) (2010) 187 Cal. App. 4th 808 [75 Cal. Comp. Cases 837].). We also accept that the primary method for rebutting the scheduled rating is to demonstrate that the injured employee is not able to benefit from vocational...

April 07, 2020

California: Confused by Subsequent Injuries Benefits Trust Fund Cases?

A recent panel decision simplifies SIBTF. Let’s face it—cases involving a claim against the Subsequent Injuries Benefits Trust Fund (SIBTF) can be intimidating and have confounded even the most experienced practitioner. Just take a look at Labor Code section 4751 , the statute underlying SIBTF. It is hard not to get lost through its verbiage. Daunting as a SIBTF claim may be, there is good news. The recent...

April 01, 2020

Cal. Comp. Cases March 2020

CALIFORNIA COMPENSATION CASES Vol. 85 No. 3 Mar 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...

March 28, 2020

New York: Board Appropriately Ordered Claimant to Be Weaned from High Dose of Opioids

A decision by the New York Board that directed an injured worker to begin a weaning process from his long-term opioid prescription treatment program was supported by substantial evidence, held a state appellate court. The worker’s claim was established for an occupational disease of the back in 2003. He underwent surgery in 2005 and continued to seek medical treatment for chronic pain for many years thereafter. The employer...

March 28, 2020

United States: Modification of Safety Guard May Subject NJ Employer to Tort Liability on Substantially Certain Theory

Where an employee of a New Jersey company alleged that prior to his severe injury, the employer removed an important safety guard on a heavy machine, replacing it with a piece of tape so as to allow for continuous operation, and where the employee also alleged that his employer maintained an unwritten policy of avoiding the machine’s lock-out, tag-out (“LOTO”) safety feature, there was an issue of fact...

March 28, 2020

Pennsylvania: Settlement of Claim Precludes Subsequent Civil Action Against Employer

The execution of a settlement agreement, in which the employee, a residential counselor at a Pennsylvania inpatient psychiatric facility, received a $40,000 lump sum from the employer in connection with injuries the counselor sustained when she was attacked by a resident patient, constituted an admission on the part of the counselor that the incident occurred in the course and scope of her employment, held a state appellate...

March 28, 2020

Virginia: Court Agrees Failure to Wear Seatbelt is Willful Misconduct

A Virginia appellate court affirmed a decision by the state’s Workers’ Compensation Commission that had denied benefits to a truck driver who sustained serious injuries in a vehicle crash on the basis that he had engaged in willful misconduct in violation of Va. Code § 65.2-306(A)(4) when he failed to fasten his seatbelt before driving the vehicle. The court stressed that in the driver’s testimony...

March 28, 2020

Virginia: Brown Recluse Spider Bite Found Compensable

A claimant’s testimony that she had seen several spiders near her desk before she felt a bite on her foot, along with her identification of the particular species — emergency room staff where she sought treatment showed her a number of photos of various types of spiders — coupled further with other evidence that construction work in a boiler room area beneath the claimant’s office may have disturbed insects and spiders...

March 28, 2020

Georgia: Right to Control, Not the Exercise of That Control, Determines Employment Relationship

Where the plaintiff and her husband contracted to drive a semi-truck for a trucking company, were both subject to termination by the company, and were not free to drive for other trucking companies, there was sufficient evidence of control to characterize them as employees, and not independent contractors, held a Georgia appellate court. Accordingly, where the plaintiff sustained injuries in a vehicle crash in which her...

March 28, 2020

United States: IRS Employee May Not Sue for Stress Associated With Filing Injury Claim

A federal district court dismissed a civil action filed by an IRS employee who sought money damages from the Service and from its Workers’ Compensation Branch for “undue work and stress” associated with pulling together the records and other physical evidence she needed to pursue her work-related injury claim. The court determined that her sole remedy was under the Federal Employees’ Compensation Act. The court added...

March 28, 2020

South Carolina: No Death Benefits Where Girlfriend Fails to Show Adequate Reliance Upon Deceased Employee

The Supreme Court of South Carolina held a deceased employee’s girlfriend — early in the litigation, she had contended she was his common law wife — could not recover workers’ compensation death benefits because she had failed to show that she relied upon the deceased employee for “reasonable necessities of life.” The single commissioner had held that the girlfriend could not recover since she was involved in an “illicit...

March 27, 2020

Virginia: Knowledge of Police Officer Presumption of Compensability For Heart-Lung Conditions Does Not Trigger Statute of Limitations

That a Virginia police officer was specifically aware of the state’s special heart-lung presumption of compensability in favor of police officers and certain other types of workers did not mean the two-year statute of limitations for his cardiac condition [see Va. Code § 65.2-406(A)(6)] began to run on the date he received his initial diagnosis that he had an irregular heartbeat and other cardiac conditions...

March 27, 2020

New York: Worker Entitled to Schedule Loss of Use Award in Spite of Return to Work

A New York appellate court held it was error for the Board to find that an injured worker was not entitled to a schedule loss of use (SLU) award for injuries to her ankle, hand and finger, where she had returned to work at her preinjury wages and, therefore, was not entitled to a nonschedule award under N.Y. Workers’ Comp. Law § 15(3) for injuries to her cervical and lumbar spine. The court disapproved of what it called...

March 27, 2020

New York: “Grave Injury” Defense in § 11 is Unavailable for Uninsured Employer

In New York, where an injured employee seeks to recover from a third party for that party’s alleged negligence in causing the employee’s injuries, the third party may not seek indemnification and/or contribution from the employer, on the basis of the employer’s own alleged negligence unless the employee suffered “grave injury,” as defined by N.Y. Workers’ Comp. Law § 11. That immunity is not, however, available to an...

March 27, 2020

Michigan: Appellate Court Clarifies Exceptions to the State’s Going and Coming Rule

A state appellate court reversed a decision by the Michigan Compensation Appellate Commission that had denied workers’ compensation benefits to a company auditor who suffered injuries in an auto crash as he drove from his home to a manufacturing plant owned by his employer where he was to perform audit work. The court found that in as much as the auditor’s job entailed travel to various employer facilities...

March 27, 2020

New York: Injured Employee May Not Sue Management Services Company in Tort

Where a management services company provided training and some supervision to a hospital’s housekeeping staff, but the hospital continued to pay the housekeepers, hire and fire them, and subject them to employment rules according to hospital policies, those housekeepers remained the hospital’s employees and were not the employees of the management services company, held a New York appellate court. Accordingly, where a...

March 27, 2020

Missouri: Special “Enhanced Benefit” for Worker’s Mesothelioma Does Not Apply Ex Post Facto

A special provision in the Missouri Act that provides for an additional amount of compensation equal to 300 percent of the state’s average weekly wage for 200 weeks if the employer has elected to accept liability for mesothelioma did not apply to the claim of a deceased employee where the employer ceased business in 1984, 16 years before the Missouri Legislature created the benefit, held a state appellate court...