March 27, 2020

Arkansas: Positive Drug Test Dooms Worker’s Injury Claim

Construing the state’s strong presumption that where a worker tests positive for drugs after a workplace injury, his or her injury was “substantially occasioned” by the use of the illegal drugs [see Ark. Code Ann. § 11-9-102(4)(B)(iv)(a)], an Arkansas appellate court affirmed the denial of benefits to a worker whose right thumb and index finger were crushed in an industrial accident and he subsequently...

March 27, 2020

Georgia: No Change of Physician Allowed Where Effects of Injury Were Resolved

Where a worker’s injury had resolved prior to the date the worker requested a change in her treating physician, it was appropriate for the Georgia Board to deny the request. A trial court committed error, therefore, when it reversed the Board and concluded that the worker could unilaterally change her physician based on its finding that the employer did not provide a valid panel of physicians to her at the time of the...

March 26, 2020

California: A Preliminary Assessment of Potential Workers’ Compensation Liability Related to the Coronavirus (COVID-19)

California Case Law Related to Non-Occupational Diseases and Special Exposure or Special Risk Exceptions-Introduction:  There is no reason to believe that the holdings and related legal principles derived from the key cases discussed hereinafter will not govern and control determinations of whether an alleged work related exposure to the coronavirus (COVID-19) will be found to be compensable as an injury arising out of...

March 19, 2020

California: Say It’s Not True! Apportionment and the Conclusive Presumption of Permanent Total Disability

In a split panel decision issued on March 5, 2020, the WCAB in Fraire v. California Department of Corrections and Rehabilitation/SCIF 2020 Cal.Wrk.Comp. P.D. LEXIS ___ rescinded the WCJ’s three decisions including two separate awards of 100% permanent total disability without apportionment. The WCJ based the two separate awards of PTD on Labor Code section 4662(a)(1), “Loss of both eyes or the sight thereof...

March 12, 2020

California: Residential Employees

Did you know that on January 1, 2017, it became easier to be considered a residential employee? Most workers’ compensation practitioners are aware that for a residential worker to be considered an “employee” under California’s workers’ compensation laws, there are certain wage and hour requirements. Historically, under Labor Code Section 3352(a)(8), the employee had to be employed for at...

March 10, 2020

Arizona: Unusual Stress, Not Unusual Event, Key to Deputy’s Entitlement to PTSD Benefits

An Arizona appellate court reversed a decision of the state’s Industrial Commission that denied a PTSD claim filed by a deputy sheriff, finding the Commission had concentrated on the unusual nature of the event which triggered the deputy’s PTSD instead of concentrating on the unusual nature of the stress itself. Looking to the wording of the statute, Ariz. Rev. Stat. § 23-1043.01(B), which denies coverage...

March 10, 2020

Utah: Worker Entitled to PTD Award in Spite of Return to Work at Higher Income

Where a Utah worker sustained catastrophic work-related injuries, including the amputation of both feet, when he accidentally came into contact with a high voltage power line and yet, after a significant period of recuperation was able to return to full-time employment in a different capacity, only to be laid off later for unrelated reasons, he then qualified for permanent total disability benefits in spite of his return...

March 10, 2020

Ohio: Court Affirmed VSSR Penalty Against Local Fire Department

An Ohio appellate court affirmed the imposition of a penalty for the violation of a specific safety requirement (VSSR) by a local fire department where the Commission found the district violated the maximum 24-inch step-to-ground-level on a district owned fire engine. The court observed that the fire district had received a recommendation in 2009 that it consider — for safety purposes — installing an additional...

March 10, 2020

Florida: Grace Period to Avoid Attorney’s Fees is Not Extended by Weekends or Holidays

The 30-day “grace” period found in § 440.34(3)(b), Fla. Stat., which allows an employer/carrier to avoid the imposition of attorney fees if the the employer/carrier either accepts the claim or provides the requested benefits within 30 days of its receipt of the petition for benefits, is not extended by holidays or weekend days in spite of a general provision — Rule 60Q-6.109 — that would appear...

March 10, 2020

New York: Schedule Loss of Use Awards Are for “Members,” Not Subordinate Parts

Stressing that schedule loss of use (“SLU”) awards under N.Y. Workers’ Comp. Law § 15(3) may be awarded only for a statutorily-enumerated member — e.g. , an arm or leg — and not for subordinate body parts, such as a knee or hip, a claimant who sustained a 2006 injury to both knees and a separate 2009 injury to both hips was entitled to one cumulative SLU award for each leg, not one SLU award to the leg based on the injuries...

March 10, 2020

Illinois: No Penalties for Delay in Authorizing Medical Care

While the Illinois Workers’ Compensation Act provides, under some circumstances, for the imposition of penalties for the delay in paying medical expenses and other benefits, there is no statutory authority for imposing penalties for an alleged delay in authorizing medical treatment, held a state appellate court. An arbitrator found that the employer’s initial refusal to authorize treatment (the decision was...

March 10, 2020

New York: Attorney Fees Are Not to be Based Upon Amount of Recovery

A New York appellate court affirmed a Board decision reducing an attorney’s requested $18,000 fee to $8,000 in spite of the attorney’s contention that 15 percent of the amount awarded to an injured employee was the “customary” fee allowed. The court acknowledged that the employee had received benefits totaling some $117,000 and that $18,000 was approximately 15 percent of that amount. It indicated, however, that in New...

March 10, 2020

New York: No Apportionment Where Preexisting Condition Did Not Affect Job Performance

Illustrating that apportionment between a preexisting condition and a work-related injury is a legal determination involves broader issues than merely examining the medical findings, a New York appellate court affirmed a decision by the state’s Board that refused to apportion a worker’s disability based upon a preexisting, noncompensable lung cancer condition and a subsequent work-related injury to his right...

March 09, 2020

California Compensation Cases February 2020

CALIFORNIA COMPENSATION CASES Vol. 85 No. 2 Feb 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 05, 2020

California: The Latest on QME Panel Medical Specialty Disputes

The Roles and Authority of the Medical Unit and the WCAB Qualified Medical Evaluator (QME) panel specialty disputes have been a source of enormous frustration to practitioners. It is not uncommon for parties to wait prolonged periods of time for the Medical Unit, through its Medical Director, to issue a decision on a specialty dispute, which may delay ultimate case resolution. Similarly, many practitioners have expressed...

February 27, 2020

California: The Death of a Settlement

Settlement is a highly sought-after form of resolution of any given conflict. This is especially true in workers’ compensation cases. Litigators negotiate diligently to agree on terms that can be construed as a “win-win” for all. Thereafter, with a sigh of relief, they present their hard work, usually in the form of a Compromise and Release (C&R) or Stipulations With Request for Award to a conference judge or a “walk...

February 19, 2020

California: Noteworthy Independent Medical Review (IMR) Decisions (February 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...

February 09, 2020

Maryland: No Subrogation Lien Allowed Against Worker's Medical Malpractice Settlement

Stressing that under the facts of the case, the employer was not entitled to a subrogation lien against a medical malpractice settlement concerning treatment that an injured employee received following a work-related injury since the employer was required to pay for the medical care associated with the injury in any event, a Maryland appellate court affirmed a county circuit court’s decision that barred the employer from...

February 09, 2020

New Hampshire: Court Says Board Used Wrong Standard in Judging Unexplained Fall Case

Finding that the New Hampshire Compensation Appeals Board (CAB) had erred in its application of the so-called “increased risk” test in an unexplained fall case before it, a state appellate court reversed and remanded the dispute in order that further findings of fact could be made. The claimant, an elementary school speech assistant, sustained injuries in a fall on an unobstructed level floor. According to the CAB, the...

February 09, 2020

Pennsylvania: For AWW Purposes, NFL Player is Not “Seasonal”

Acknowledging that in two earlier decisions, the Pennsylvania appellate court had held that NFL players are “seasonal” employees for purposes of competing their average weekly wage following a work-related injury, the appellate court said the circumstances in the instant case were different, allowing it to find that the NFL player’s AWW should be computing using 77 Pa. Stat. Ann. § 582(c), as opposed...

February 09, 2020

Washington: No Occupational Disease Award Available for PTSD

Acknowledging that in Washington there were some circumstances in which an employee could recover for post-traumatic stress disorder (PTSD), e.g., if it had been caused by a sudden and tangible happening, and had occurred “from without,” [see Wash. Rev. Code § 51.08.100], a Washington appellate court held there could be no recovery for PTSD on occupational disease grounds [see Wash. Rev. Code § 51.08.100). Accordingly...

February 09, 2020

Arkansas: Employer Cannot Be Joint Tortfeasor for Purposes of Apportionment of Fault

Construing the state’s version of the Uniform Contribution Among Tortfeasors Act [see Ark. Code Ann. §§ 16-61-201, et seq. (UCATA)], an Arkansas appellate court held an employer immune from tort liability under the state’s Workers’ Compensation Act could not be a “party” against whom fault could be apportioned. Accordingly, a defendant could not reduce its “share” of fault, and therefore, its share of liability pursuant...

February 09, 2020

United States: Insurer Required to Defend in Spite of Workers’ Compensation Exclusion Clause

Construing Maine law, in spite of a provision in a general liability insurance policy excluding workers’ compensation matters from coverage, a federal district court held that a company’s general liability insurance carrier was required to defend it in a negligence action filed against the company and several of the plaintiff’s co-employees by a plaintiff-employee who alleged he had sustained injuries due to the actions...

February 09, 2020

United States: District Court Says Termination Was Tied to Injury, Not Immigrant Status

Construing Tennessee law, a federal district court held that an employer violated the state’s retaliatory discharge law when it fired an injured worker shortly after an encounter between the worker and two supervisors in which the supervisors berated the worker with profanity and other harsh language (recorded surreptitiously by the worker) for his decision to hire an attorney to handle his injury claim. Quoting...

February 09, 2020

Illinois: Medical Care Providers May Not Reach Workers’ Compensation Settlement Proceeds

Enactment by the Illinois Legislature of the 2005 amendments to the state’s Workers’ Compensation Act, specifically 820 ILCS 305/8, and the enactment of a new section 8.2 did not alter the important underlying policy in Illinois — that workers’ compensation benefits are beyond the reach of creditors. Accordingly, responding to a question certified to it by the Seventh Circuit Court of Appeals, the Illinois Supreme Court...