January 05, 2020

Alabama: Post-Injury Actions May Lead to Employer Liability in Tort

Where an employee alleged post-injury tortious conduct on the part of a co-employee in the form of, inter alia , failure to notify an on-site emergency response team of the employee’s injury and further failure to call an ambulance in a timely fashion, the employee stated a cause of action that potentially outside the course and scope of the employment. It was appropriate, therefore, for the trial court to refuse to grant...

January 05, 2020

New York: Injured Worker Need Not Always Show Attachment to Labor Market

Stressing that a New York claimant’s obligation to demonstrate attachment to the labor market was predicated upon a finding of PPD, a state appellate court held it was inappropriate for a WCLJ to require a showing of labor market attachment where the judge made no finding as to permanency. The court also noted that while there was a conflict in the medical evidence on the issue of permanent injury, nothing in the record...

January 05, 2020

Florida: Heightened Burden Sinks Claim for Fungal Meningitis

A Florida appellate court held that a Judge of Compensation Claims erred in awarding workers’ compensation benefits to a claimant for an alleged toxic exposure claim in the form of fungal meningitis in as much as the statutes in question—§ 440.02(1), Fla. Stat. and § 440.09(1), Fla. Stat.—required the the worker establish his or her claim by clear and convincing proof that the condition was...

January 05, 2020

Minnesota: Employer Cannot Be Severally Liable With Third Party Defendant

The Minnesota rule that an employer may not be considered “severally liable” along with a defendant, third-party was unaffected by a 2003 amendment to Minn. Stat. § 604.02, subs. 1, held the state’s Supreme Court. Under the clear terms of the statute, the third-party defendant’s liability to the injured worker was not reduced by the measure, if any, of the employer’s fault. The Supreme Court agreed with the trial court...

January 05, 2020

Iowa: Court Overturns $7 Million Verdict Against Co-Employee

An Iowa appellate court, following the “narrow” exception to co-employee immunity established in Thompson v. Bohlken , 312 N.W.2d 501, 505 (Iowa 1981), held that a state trial court was correct when it granted a defendant/co-employee a judgment notwithstanding the verdict in as much as there was nothing in the record that suggested the co-employee had “knowledge” that his actions would make an...

December 19, 2019

Virginia: Injury “On the Clock” is Alone Insufficient to Establish Compensable Claim

Two core concepts of the Virginia Workers’ Compensation Act: the “arising out of” requirement and the “in the course of employment” requirement are not synonymous. Both conditions must be proved in order to justify the award of benefits, held a state appellate court. Accordingly, the court affirmed the denial of a claim filed by a limousine driver regarding injuries he allegedly received in a single car collision because...

December 19, 2019

United States: West Virginia Retaliatory Discharge Action May Not Be Removed to Federal Court

Because a retaliatory discharge action was “integrally related” to the West Virginia Workers’ Compensation Act, it could not be removed to federal court under 28 U.S.C.S. § 1445(c), held the U.S. District Court for the Southern District of West Virginia. The defendant former employer contended that the retaliatory discharge action was similar to a deliberate intent, Mandolidis -type of dispute,...

December 19, 2019

Maryland: Poultry Producer Deemed to be Co-Employer of Chicken Farm Worker

Where Tyson Farms contracted with a chick farm owner, who actually knew nothing about raising chickens, to raise chickens exclusively for Tyson according to strict guidelines and controls, Tyson could be deemed a co-employer of a worker at the farm who sustained injuries, particularly in light of the fact that the owner of the farm failed to provide workers’ compensation coverage for the worker, held a Maryland...

December 19, 2019

Pennsylvania: High Court Continues Broad Definition of Employer’s “Premises”

The Supreme Court of Pennsylvania continued to define an employer’s “premises” broadly, indicating the term must be understood to include any area that is integral to an employer’s business operations, including reasonable means of ingress or egress from the employee’s workplace. Accordingly, the Court affirmed a decision by the state’s Commonwealth Court that had approved of workers’ compensation benefits to an airline...

December 19, 2019

Florida: Division’s Payment of Annual COLA Tolls Statute of Limitations

Payment of cost-of-living adjustments (COLA) by the Division of Workers’ Compensation are the sort of “compensation” outlined in § 440.15(1)(f), held the Supreme Court of Florida. Accordingly, where an employer inexplicably stopped paying an injured worker permanent total disability payments in 1987, but the Division continued to pay him small sums based an annual COLA computations, it was error...

December 19, 2019

New Mexico: Supreme Court Expands “Health Care Provider” Definition

The Supreme Court of New Mexico indicated the use of the independent medical examination (IME) statute contained in the state’s Workers’ Compensation Act in death benefit cases in spite of a lack of clarity in the statutes. The case involved a relatively complex fact pattern in which the deceased employee’s representative attempted to have admitted into evidence the report of a physician who had treated the employee for...

December 19, 2019

Florida: JCC Must Be Careful in Making Findings Contrary to EMA’s Opinion

Where a Florida expert medical advisor (EMA) wavered slightly in answering a hypothetical question offered to the doctor on cross-examination, but clearly indicated in the EMA’s report that the injured worker had reached MMI, it was error for the Judge of Compensation Claims to disregard the EMA’s opinion on the basis that the EMA had been equivocal, held a state appellate court. The court acknowledged earlier...

December 19, 2019

Ohio: Refusing Rehab Services Does Not Result in Loss of PTD Benefits

An Ohio appellate court held that where medical factors alone precluded an injured worker from enjoying sustained remunerative employment, there was no practical purpose for the Commission to consider non-medical factors such as vocational rehabilitation or the worker’s refusal of such rehabilitation services. Agreeing with the employer that under some circumstances, the worker’s refusal of vocational rehabilitation...

December 16, 2019

California: Overall Combined Disabilities: Addition or Combined Values Chart

Bookout applied by panel to determine overall combined disabilities of prior and subsequent injuries through addition rather than use of the combined values chart. The intent of Labor Code section 4751 is clear: to provide employees with preexisting disabilities the opportunity to become employed without the employer becoming responsible should the employee incur a subsequent industrial injury that results in additional...

December 10, 2019

California: Stressful Working Conditions and Psychiatric Injuries

A New Look at What Constitutes a Personnel Action Workers’ compensation practitioners are well aware of the challenges a worker faces in bringing a successful claim of psychiatric industrial injury. Labor Code section 3208.3 imposes a high threshold with stringent requirements of predominant cause and substantiality. Subsection (h) of the statute acts as a complete bar to an employee’s claim of an industrial psychiatric...

December 04, 2019

California: Reconsideration or Removal and the Hybrid Decision

Decisions issued by workers’ compensation administrative law judges (WCJ) typically involve rulings that are considered “threshold” (i.e., fundamental to workers’ compensation liability like jurisdiction or the existence of an employment relationship) as well as “interlocutory” (i.e., procedural or evidentiary matters). Decisions that contain both threshold and interlocutory resolutions are in keeping with our constitutional...

December 02, 2019

November 2019 California Compensation Cases

CALIFORNIA COMPENSATION CASES Vol. 84 No. 11 Nov 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...

November 20, 2019

Arkansas: Worker Injured While Retrieving Lunch is Denied Benefits

Employing the restrictive rule in Arkansas, which excludes workers’ compensation benefits for injuries “inflicted upon the employee at a time when employment services were not being performed” [see Ark. Code Ann. § 11-9-102(4)(B)(iii)], a state appellate court affirmed a Commission decision that had denied the claim of a housekeeping worker who was injured when she slipped and fell on a wet floor in the lobby of her employer...

November 20, 2019

Missouri: Appellate Court Agrees No Causal Connection Between Tinnitus and Work-Related Fight

In spite of what the Missouri appellate court said was a “poorly written” opinion by an ALJ (adopted and incorporated by the state’s Labor & Industrial Relations Commission), a state appellate court panel held there was still more than sufficient evidence to affirm the denial of workers’ compensation benefits to a worker who claimed his tinnitus condition was causally connected to a work-related...

November 20, 2019

Louisiana: Worker’s Tort Suit Related to Pre-Work Elevator Incident Barred by Exclusivity

A Louisiana appellate court affirmed a trial court’s decision granting summary judgment to an employer in a civil action filed by a worker who sustained injuries in an elevator incident on the employer’s premises approximately one-half hour before beginning her workday. The plaintiff/worker contended the injuries did not occur within the course and scope of the employment since she had not yet “clocked in.” The trial...

November 20, 2019

Pennsylvania: Suit by Borrowed Employee Against Borrowing Employer Barred

A Pennsylvania appellate court affirmed a trial court’s decision granting summary judgment to the defendant corporation on the basis of the state’s application of the so-called “borrowed employee” doctrine since the plaintiff had been employed by a recruiting agency which, in turn, furnished plaintiff to the defendant corporation. Stressing that the issue turned upon whether the borrowing employer...

November 20, 2019

Mississippi: Eight-Day Delay in Filing Review Request is Fatal to Claim

A Mississippi appellate court affirmed the dismissal of a claimant’s appeal of an administrative judge’s adverse decision where the claimant filed her request for Commission review 28 days after it had been rendered—eight days beyond the 20-day period set forth in Miss. Code Ann. § § 71-3-47 (Rev. 2011). Noting that the AJ’s ruling became final twenty days after it had been issued, the court said the claimant had interposed...

November 20, 2019

Texas: Gratuitous Provision of Company Vehicle Insufficient to Bring Commute Within Employment

Where an employer gratuitously provided a company vehicle to an employee to aid in his daily travel from his residence to a large tract of fenced ranch land containing a gas lease where the employee worked, it did not automatically bring the travel within the course and scope of the employment, held a Texas appellate court. Accordingly, when the employee sustained fatal injuries in a crash as he drove to the work site...

November 20, 2019

Georgia: Repeated Lifting Against Employer’s Direction Results in Firing for Insubordination

Where a restaurant worker initially sustained a back injury as he moved a heavy pot of chili and he was subsequently advised in writing not to lift anything without the restaurant owner’s express direction, his repeated unauthorized actions of lifting and stacking boxes and other items at the restaurant constituted insubordination, held a Georgia appellate court. Accordingly, where the employer fired him, he could not...

November 20, 2019

West Virginia: Carpal Tunnel Claim Denied for Funeral Home Worker

The Supreme Court of Appeals of West Virginia affirmed a decision by the state’s Workers’ Compensation Board of Review that had denied workers’ compensation benefits to a funeral home apprentice director/embalmer who contended his carpal tunnel syndrome condition (“CTS”) was causally connected to repetitive duties in his employment. Repeating the familiar rule that it is up to the Board of Review, not the appellate courts...