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...

November 07, 2019

Georgia: Estate of Employee Shot and Killed in Abortive Robbery in Parking Lot May Sue Employer

A Georgia trial court erred when it granted summary judgment in favor of an employer in a civil action filed against it (and others) following the fatal shooting of an employee in a parking lot adjacent to the employer’s grocery store, when the employee worked. Noting that at the time of the shooting, which occurred during an abortive armed robbery, the deceased employee had clocked out and left the store’s premises,...

November 07, 2019

United States: Injured Worker May Proceed Against Employer’s Commercial Vehicle Policy

The Fourth Circuit Court of Appeals, construing West Virginia law, held that an injured employee could try to recover pursuant to his employer’s commercial vehicle liability insurance policy, since the owner of his employer, a construction company, had directed a homeowner, upon whose property the employee and others were working, to move one of the company vehicles that was blocking the homeowner’s driveway. In moving...

November 07, 2019

Florida: Undocumented Worker Denied Medical Care Following Injury

Affirming a decision by a state Judge of Compensation Claims, a Florida appellate court has agreed that an undocumented worker who sustained injuries in a work-related accident can be denied benefits on the basis that he used someone else’s Social Security Number (SSN) when completing an intake form at a medical provider. The medical care “registration” form indicated the claim could be denied if the...

November 07, 2019

Nebraska: Blood Clot in Sinus Cavity Not Connected to Claimant’s DVT

A Nebraska appeals court recently affirmed a decision by the state’s Workers’ Compensation Court that had denied workers’ compensation benefits to a worker who sustained a serious blood clod in his sinus cavity after earlier suffering a deep venous thrombosis (DVT) in his thigh, as well as a pulmonary embolism, brought about by knee surgery for a work-related injury. Acknowledging that the medical experts had been quite...

November 06, 2019

Illinois: Commission and Trial Court Sometimes Enjoy Concurrent Jurisdiction over Workers’ Compensation Disputes

While workers’ compensation issues generally are to be determined exclusively by the Illinois Industrial Commission under 820 ILCS 305/18, nevertheless, that statutory provision does not divest the circuit court of jurisdiction of all issues involving workers’ compensation, held an Illinois appellate court. In some circumstances, a trial court must determine whether the issue in contention is reserved exclusively...

November 06, 2019

United States: Subrogation Interest of Employer/Carrier Does Not Prevent Removal to Federal Court

Acknowledging that an action that arises under the workers’ compensation laws of a state is a “nonremovable action” under 28 U.S.C.S. § 1445(c), a U.S. District Court in California recently held that the fact that a California employer and its workers’ compensation insurance carrier had a subrogation interest in the proceeds of any recovery in a third-party negligence/product liability action...

November 06, 2019

Virginia: Perfunctory Award of Home Health Care to Spouse is Reversed

When considering whether a family member, in this case a spouse, can be paid for providing home health care services to an injured worker, it isn’t enough, said a Virginia appellate court, for the Commission to find that the care is medically necessary; the Commission must also determine that the services provided by the family member actually constituted such care and were not merely the sort of services provided by...

November 06, 2019

New York: Board Must Provide Basis for AWW Computations

Signaling that if the New York Workers’ Compensation Board fails to use N.Y. Workers’ Comp. Law § 14(1) to compute an injured worker’s average weekly wage, it must either use § 14(2), which computes the AWW for a six-day worker by multiplying his or her daily wage by 300, or provide an explanation as to why that subsection could not be used; it may not merely move on to § 14(3), which utilizes a 200-multiplier, held a...

November 06, 2019

California: Permanent Disability Rebuttal Post-Fitzpatrick

I. Labor Code   § 4660 Is the Sole Method for Determining 100% PTD The 3rd District Court of Appeal (DCA) threw the whole workers’ compensation community for a loop recently when it issued their decision in Department of Corrections and Rehabilitation v. WCAB (Fitzpatrick) (2018) 27 Cal. App. 5th 607 [238 Cal. Rptr. 3d 224, 83 Cal. Comp. Cases 1680]. Essentially, the 3rd DCA held that the Labor Code § 4662 “in accordance...

October 31, 2019

California Workers’ Compensation Legal Developments 2019

By Julius Young, Esq., Richard M. Jacobsmeyer, Esq., Barry D. Bloom Welcome to the forthcoming 2020 edition of Herlick, California Workers’ Compensation Handbook . The transition from 2018 to 2019 marked the transition from the Brown Administration to a new Governor, Gavin Newsom. Since the publication of the 2019 edition of Herlick Handbook, there have been three new appointments to the W.C.A.B. Outgoing Governor...

October 24, 2019

Texas Workers' Compensation Legal Developments 2019

Heading into the 2019 Texas Legislature, conventional wisdom was few workers’ compensation related bills would be filed or eventually passed during the session. System participants anticipated much of the legislature’s attention would be focused on first responder benefit issues. Ultimately, the legislature considered nearly 60 workers’ compensation related bills and as expected very few passed. Of those that passed,...

October 24, 2019

Florida: Court Clarifies Level of Expertise Required for IMEs

An independent medical examiner (IME) offered by the employer to opine on whether there was a sufficient causal connection between an employee’s lung condition and his employment need not be a board-certified pulmonologist, held a Florida appellate court recently. The physician, who was board-certified in occupational medicine, testified that he had extensive experience in exposure cases leading to pulmonary problems...

October 24, 2019

New York: Court Issues First Opinion Re: Medical Marijuana

Signaling that at least in some cases, an employer and/or workers’ compensation carrier might be required to reimburse an injured worker for the cost of medical marijuana provided under New York’s version of the Compassionate Care Act, a state appellate court held that while it was appropriate for the state’s Board to deny an injured employee’s medical care variance request for medical marijuana that had already been...

October 24, 2019

Florida: Injured Worker May Sue Medical Providers for Alleged Improper Collection Activity

A Florida trial court’s determination that it lacked jurisdiction to hear a civil action filed by an injured worker against her workers’ compensation medical providers under the state’s Consumer Collection Practices Act was error, held a state appellate court recently, in a divided decision. The trial court found that § 440.13(11)(c), Fla. Stat., granted exclusive jurisdiction to the state’s Department of Financial Services...

October 24, 2019

Nebraska: Profit from Small Business Does not Equate to “Wages” for AWW Pur-poses

Quoting Larson’s Workers’ Compensation Law , the Supreme Court of Nebraska reversed a finding by a lower appellate court that had set the average weekly wage (AWW) of a business owner at $1,399.45, entitling the owner to the maximum compensation rate of $728 per week. It stressed that the net profits of the business were not the equivalent of wages earned—the business employed some 15 employees and had a net income during...

October 24, 2019

Pennsylvania: “Protz Fix” Passes Constitutional Muster

Pennsylvania’s “ Protz Fix,” which amended the state’s Workers’ Compensation Act so as to require a physician’s use of the Sixth Edition of the AMA Guides to determine the respective level of impairment for an injured worker [see 77 Pa. Stat. § 511.3], was not an act improperly delegating legislative authority, held the state’s Commonwealth Court recently. The General Assembly had appropriately adopted existing standards...

October 24, 2019

United States: California’s Guaranty Fund For Insolvent Carriers Need Not Reim-burse CMS

Reversing a decision by a federal district court sitting in California, the Ninth Circuit Court of Appeals found that the California Insurance Guarantee Association (“CIGA”) need not reimburse Medicare for conditional payments Medicare had expended on behalf of various individuals whose workers’ compensation benefits CIGA was administering. The Court reasoned that CIGA was not a “workmen’s...

October 24, 2019

New York: No Recovery for Charity Work Without Actual Employment

Where a Red Cross volunteer sustained injuries as she loaded her private auto with volunteer materials, there could be no recovery for workers’ compensation benefits since there was no actual employer-employee relationship between the volunteer and the charity. The New York court acknowledged that the charity exercised some measure of control over the volunteer’s activities, but held that was insufficient to establish...

October 24, 2019

New York: Two-Year Delay in Filing Sinks Claim

Where a claimant waited for almost two years to notify the workers’ compensation carrier that he had sustained an alleged injury to his shoulder, the New York Board was within its discretion to deny the claim under N.Y. Workers’ Comp. Law § 18, held a state appellate court. The Court acknowledged that the Board was empowered to ignore the delay where it found there had been no prejudice to the employer or carrier. The...

October 24, 2019

Louisiana: Non-Verified Drug Test Wholly Inadmissible

Where a post-injury drug test could not be offered as evidence because it had not been verified according to the requirements described in La. Rev. Stat. § 23:1081, it would also be improper to allow the use of the test to establish a fraud defense under La. Rev. Stat. § 23:1208, held a Louisiana appellate court. The court said it would be illogical to prohibit the unconfirmed drug test to be used to deny benefits under...

October 24, 2019

California: Noteworthy Independent Medical Review (IMR) Decisions (October 2019)

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. Some of these IMR decisions were reprinted in California Compensation Cases , which can be accessed on Lexis Advance. The list includes how physicians should best...

October 19, 2019

South Carolina: Workers’ Comp Commissioner Should Have Recused Herself

Indicating it was “deeply concerned” with a state Commissioner’s conduct in a case, the Supreme Court of South Carolina, reversing a decision by the state’s Court of Appeals, said the Commissioner should have recused herself in a workers’ compensation case. According to an affidavit filed by the claimant’s attorney (and substantiated by counsel for the employer in oral arguments before the Supreme Court), the Commissioner...

October 19, 2019

Illinois: Trial Court Wrong to Have Converted PPD Award to Lump Sum

Observing that the Illinois Legislature had indicated a strong preference for period payments, rather than lump sum awards, a state appellate court recently held it was error for a state trial court to order immediate payment, in a lump sum, of all PPD benefits that a workers’ compensation claimant might ever collect for the injury. Stressing that the nature of workers’ compensation benefits was to provide a substitute...