February 05, 2020

California Compensation Cases January 2020 Issue

CALIFORNIA COMPENSATION CASES Vol. 85 No. 1 Jan. 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...

February 04, 2020

California: Sending Medical Records to the PQME

Do You Have to Give Your Opposing Party the Chance to Object to Medical Records You Want to Send to the PQME? In 2005, the process for obtaining Qualified Medical Evaluators (QME’s) in a workers’ compensation case was fundamentally changed. Instead of going to “battling QME’s”, the parties had to go through a process in which the State would send them a list of three Panel QME’s (PQME’s) and the parties, in a represented...

February 02, 2020

Arkansas: Employee Fails to Overcome Presumption of Impairment Following Positive Drug Test

An Arkansas appellate court affirmed a decision by the state’s Workers’ Compensation Commission that a worker who suffered a partial traumatic amputation of a finger as she tried to dislodge material from a jammed cutting machine, and who subsequently tested positive for marijuana at a hospital emergency department, failed to rebut the presumption that her injury was “substantially occasioned” by her use of the illegal...

February 02, 2020

Florida: Employer Who Denies Claim Not Always Estopped From Later Defending Tort Action on Exclusivity Grounds

Distinguishing several earlier Florida decisions, in which an employer had been barred from asserting immunity from tort liability on exclusive remedy grounds after it had denied the employee’s workers’ compensation claim on grounds that the injury did not arise out of and in the course of the employment, a Florida appellate court held that the employer (and a co-employee of the plaintiff) were not estopped...

February 02, 2020

Florida: Employee Fired Before Actual Filing of Claim May Still Pursue Retaliatory Discharge Action

Where an injured employee was fired less than two weeks after sustaining an injury and before he had actually filed a workers’ compensation claim, he could nevertheless pursue a retaliatory discharge action, held a Florida appellate court. The court noted that the employee had taken steps to collect a workers’ compensation claim even though he had not yet filed it. The court stressed that under the trial court’s...

January 30, 2020

United States: Court Finds Choice of Law Provision in Contract Unenforceable

Finding a choice of law provision in a contract of sale between two businesses was unenforceable because Pennsylvania, the state where the fatal work-related injury occurred, had a “materially greater” connection to the matter than did Texas — the state whose law had been chosen in the contract— a federal district court accordingly applied Pennsylvania’s more restrictive law on employer indemnification and found that...

January 30, 2020

United States: Awareness of Danger Does Not Equal Intent to Injure under TN Law

Applying Tennessee law and citing Larson’s Workers’ Compensation Law , the Sixth Circuit Court of Appeals, in a divided decision, agreed that a Tennessee employer could not be liable for an intentional tort in connection with horrific injuries sustained by the plaintiff in a work-related incident involving a 200-ton Bliss press. The plaintiff had contended the employer was well aware of the dangers associated with the...

January 30, 2020

Virginia: Injuries Occurring Two Years Apart Can Still Be from “Same Accident”

A decision by Virginia’s Workers’ Compensation Commission that held a claimant was entitled to permanent total disability benefits (as opposed to PPD benefits) for the loss of two limbs “in the same accident” [see Va. Code Ann. § 65.2-503(C)], was not erroneous in spite of the fact that the underlying injuries to the limbs were separated by two years, held a state appellate court. Utilizing the “compensable consequence...

January 30, 2020

Iowa: Worker Entitled to Alternate Care in Spite of Refusal to Attend IME

An Iowa workers’ compensation claimant was entitled to alternate medical care under Iowa Code § 85.27, in spite of his refusal to attend an independent medical examination (IME) proposed by the employer to determine if the additional treatment was related to the original injury, held a state appellate court. The court stressed the two statutes, § 85.27 related to alternate care and Iowa Code § 85.39(1), which generally...

January 30, 2020

New Jersey: Court Affirms Order Requiring Employer to Reimburse Employee for Medical Marijuana Costs

The Appellate Division of the Superior Court of New Jersey, in a case of first impression, affirmed a workers’ compensation judge’s finding that an employer was required to reimburse its employee for the employee’s use of medical marijuana dispensed under the state’s Compassionate Use Medical Marijuana Act (MMA). The appellate court found there was no conflict between the MMA and federal law in the form of the Controlled...

January 28, 2020

California: Dismissals With Prejudice: Not As Final As You May Think

(Note: Lexis Advance online subscribers can access the links below.) There is a widespread belief that once a party is dismissed with prejudice they are immune or insulated from rejoinder and the case can be closed forever. In the majority of cases this is probably true. But as demonstrated in the case of Noble v. Washington Redskins; Dallas Cowboys; San Francisco 49ers et al. , 2018 Cal. Wrk. Comp. P.D. LEXIS 631 ...

January 23, 2020

California: Competency of the Labor Code Section 4903.8(D) Declarant

Over six years ago, the legislature enacted Labor Code section 4903.8 in furtherance of its goal to curb the proliferation of medical treatment liens in workers’ compensation matters. Subsection (d) of the statute requires medical treatment liens to be filed with supportive documentation including one or more declarations under penalty of perjury by a person competent to testify that the services or products described...

January 20, 2020

New York: Hearsay Evidence Relied Upon to Show Employee Fraud

Illustrating the point that formal rules of evidence can sometimes be relaxed within the context of workers’ compensation claims, a New York appellate court affirmed a finding by the state Board that an injured employee violated the state’s employee fraud provision—N.Y. Workers’ Comp. Law § 114-a—in spite of the fact that the employer’s primary evidence for the claimant’s alleged misrepresentations, was hearsay. Claimant...

January 20, 2020

New York: Substantial Evidence Required to Rebut § 21 Presumption of Compensability

In order to rebut the presumption of compensability found in N.Y. Workers’ Comp. Law § 21, an employer must come forward with “substantial” evidence, not just some evidence, to the contrary, held a state appellate court. Accordingly, where an employee sustained an unwitnessed fall while at work that caused a serious traumatic brain injury, which also resulted in his total loss of memory regarding the event, it was not...

January 20, 2020

Idaho: Split Supreme Court Adopts Reckless Standard in Intentional Tort Cases

In a decision that is likely to have broad and long-reaching ramifications, a divided Supreme Court of Idaho, following a rehearing in a case decided one year earlier, threw out its earlier decision and adopted a rule that allows an injured employee to sue his or her employer in tort for reckless conduct. Reversing the state trial court, which had granted summary judgment in favor of the employer on grounds that the civil...

January 20, 2020

New York: Court Applies Ex Parte Rules Strictly

Illustrating the strictness of New York’s rules forbidding ex parte communications between attorneys and examining physicians in workers’ compensation cases, a state appellate court affirmed a decision by the New York Workers’ Compensation Board that had excluded a medical report and testimony by a physician who failed to turn over to the Board a letter the doctor had received from a claimant’s attorney—the doctor also...

January 20, 2020

Rhode Island: Split High Court Says Firefighters Do Not Enjoy Conclusive Presumption Regarding Cancer

In a split decision, the Supreme Court of Rhode Island held that R.I. Gen. Laws § 45-19.1-1 does not create a conclusive presumption that a firefighter’s cancer arises out of and in the course of his or her employment. Stressing that no express language within the statute granted either a conclusive or rebuttable presumption that a diagnosis of cancer among firefighters, the majority added that legislative...

January 20, 2020

Nevada: Traveling Employee Generally Protected Portal-to-Portal

Quoting Larson’s Workers’ Compensation Law , § 25.01, the Supreme Court of Nevada adopted the “Larson” rule that traveling employees remain within the course of their employment continuously during the travel, except in instances in which there is a distinct personal errand. Noting that this was a case of first impression, the Court vacated a lower court’s denial of benefits to the survivors of a traveling employee who...

January 20, 2020

United States: Exclusive Remedy Rule Does Not Bar Suit Under Illinois Biometric Information Privacy Act

The putative class action filed by an employee against his employer alleging its use of a fingerprint timekeeping system violated the Illinois Biometric Information Privacy Act (“BIPA”) was not barred by the exclusive remedy provisions of the Illinois Workers’ Compensation Act, held a federal district court. Stressing that the plaintiff had not alleged any sort of physical or mental injury that resulted from the employer...

January 20, 2020

New York: Retaliation Charge Unsuccessful in Spite of Proximity of Termination to Filing of Claim

In maintaining a retaliatory discharge claim against the former employer, it is not enough, held a New York appellate court, to show close proximity between the filing of a workers’ compensation claim and the termination of employment where the employer offered evidence that the termination was not pretextual. Accordingly, it was appropriate for the Board to find there had been no retaliation where the claimant...

January 09, 2020

California: Top 25 Noteworthy Panel Decisions (July through December 2019)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2019. The list includes one of the many new “hybrid” decisions issued by the WCAB involving rulings on both interlocutory and threshold issues. In this case, and the others, the WCAB holds that a petition for reconsideration is the appropriate mechanism...

January 09, 2020

California Compensation Cases December 2019

CALIFORNIA COMPENSATION CASES Vol. 84 No. 12 Dec 2019 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 2019 LexisNexis. All rights reserved. LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court...

January 05, 2020

New York: 8-Page Brief Rule Struck Down (as Currently Written)

Acknowledging that the New York Workers’ Compensation Board had broad discretion in setting rules regarding the content and formatting of an application for Board review (form RB-89), a state appellate court nevertheless held the rules, as written, failed to provide a “safety valve” allowing an applicant to seek permission to file a lengthier brief without jeopardizing the appeal. Accordingly, the rules were invalid....

January 05, 2020

Florida: Injuries Sustained During Employer-Sponsored Bowling Event Are Compensable

Injuries sustained by a Florida employee during an employer-sponsored bowling event arose out of and in the course of the employee’s employment since the event was not a “recreational activity” as defined in § 440.092(2), held a divided state appellate court. The majority observed that the bowling outing took place during regular work hours and those attending were fully paid for the time. The majority...

January 05, 2020

Nebraska: Employee Need Not Provide Long-Term Out-of-State Opioid Meds to Worker Who Relocates

Where an injured Nebraska employee relocated to Florida and there sought long-term opioid medications, combined with benzodiazepines, and muscle relaxants that had been prescribed by a Florida physician, the employer was not required to pay for the treatment since they had not been prescribed by a “Form 50” physician under the state’s physician selection rules, held the Supreme Court of Nebraska. The Court acknowledged...