October 19, 2019

Mississippi: Unwitnessed Death Found to Have Been Compensable

Observing that in Mississippi (as in a number of other states), where a worker is found dead at a place in which her duties required her to be during normal working hours, there is a presumption that the death arose out of and in the course of the employment, a state appellate court affirmed an award of death benefits to the defendants of a hospital technician who was found dead in her office. Although no autopsy was...

October 19, 2019

New York: No Death Benefits Following Apparent Suicide by Police Officer

Substantial evidence supported a determination by New York’s Workers’ Compensation Board that a police officer’s death from what appeared to have been a self-inflicted gunshot wound was not a “line-of-duty” death, held a state appellate court. While it was true that the officer’s body was found in her police vehicle and during a time frame within which she was on duty, videotape evidence pointed to suicide, ordinarily...

October 17, 2019

California: Common Mistakes Physicians Make in Their MMI Reports

By Hon. Robert G. Rassp The opinions expressed in this article are those of the individual author and are not those of the Department of Industrial Relations, Division of Workers’ Compensation or of the WCAB. The following are three examples of reports from treating and evaluating physicians whose conclusions did not constitute substantial medical evidence. Each flawed MMI report resulted in a workers’ compensation...

October 12, 2019

New York: Board Errs in Apportioning Disability to Non-Disabling Multiple Sclerosis

New York’s Workers’ Compensation Board inappropriately apportioned 60 percent a claimant’s disability to his non-disabling and undiagnosed multiple sclerosis, held a state appellate court. Stressing that there was no evidence that the condition had affected the claimant’s ability to perform the duties of his employment and observing that the condition had not even been diagnosed until after his industrial accident, the...

October 12, 2019

New York: $500 Penalty Assessed Against Claimant’s Attorney Affirmed

The state’s Workers’ Compensation Board was within its discretion when it assessed a $500 fine against a New York claimant’s attorney under N.Y. Workers’ Comp. Law § 114-a(3)(ii), after the attorney sought review of a decision by WCLJ denying a late payment penalty under N.Y. Workers’ Comp. Law § 25(3)(f). At the hearing on the claimant’s petition seeking late payment penalties, the carrier argued that it had an additional...

October 12, 2019

United States: Employer Not Liable Under Dual Capacity Theory

An injured employee could not maintain a products liability action against his employer in spite of the fact that the employer, as the surviving entity in a merger with the company that designed and manufactured the allegedly defective product, had assumed all liabilities of the manufacturing company under North Dakota law, held a federal court sitting in North Dakota. Quoting extensively from Larson’s Workers’...

October 12, 2019

North Carolina: Auto Liability Insurer Need not Defend Action Against Co-Employee

An auto liability insurer need not defend a wrongful death action filed against its insured, a corporation that had temporarily borrowed an employee of a separate, but related corporate entity to drive one of its vehicles. Because the borrowed driver was considered the co-employee of an employee of the insured who was killed in a vehicular crash, a provision in the insured’s auto policy, which excluded claims that...

October 08, 2019

California: Medical Treatment and Apportionment Two Years Down the Road: Assessing the WCAB’s Interpretation and Application of Hikida

(Copyright 2019 Raymond F. Correio, Esq. All rights reserved. Reprinted with permission) Brief Refresher on Hikida It’s been over two years since the Court of Appeal issued its decision in Hikida on June 22, 2017. ( Hikida v. Workers’ Comp. Appeals Bd . (2017) 12 Cal.App.5th 1249 , 82 Cal.Comp.Cases 679.) The applicant in Hikida was a long term employee with Costco. She filed a cumulative trauma claim alleging multiple...

October 07, 2019

Sept. 2019 Cal. Comp. Cases Issue

CALIFORNIA COMPENSATION CASES Vol. 84 No. 9 Sept. 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...

October 03, 2019

California: When Is Dependency Examined in Determining DWD’s Entitlement to Benefits?

There are very few circumstances where a claimant’s request for benefits and a defendant’s desire to provide the claimed benefit are fully aligned. One of those circumstances is where there has been a work-related death and a partial dependent is making a claim for death benefits under Labor Code Section 4701 (b). In the case of the partial dependent’s claim, a defendant is motivated to support the claim...

October 02, 2019

Challenges for First Responders (and a Society that Respects Them)

The “Comp World” Mirrors the World Around It As I peer back over my 43 professional years within the world of workers’ compensation law, particularly the most recent 33 years that I’ve spent working on the Larson treatise, I continue to marvel at how societal issues are so quickly reflected in the framework for handling occupational injuries and illnesses. Whether it is the struggle to deal adequately with persons who...

September 27, 2019

Wyoming: Employer and Division of Workers’ Compensation Barred from Utilizing Statute of Limitations Defense

The Supreme Court of Wyoming held that a claimant’s late filing of his claim was excused under the circumstances of the case and both the employer and the Division of Workers’ Compensation were barred from utilizing the statute of limitations defense where their separate actions lulled the claimant into believing he did not have to file his claim within the required time frame. Noting that the doctrine of equitable estoppel...

September 27, 2019

Utah: Worker Awarded Benefits for Unexplained Fall in Parking Lot

Quoting Larson's Workers' Compensation Law , both on the general issue of causation (§ 46.03) and also regarding the doctrine of unexplained falls (§ 7.04), the Supreme Court of Utah affirmed an award of benefits to a worker who sustained serious injuries to her foot in a parking lot fall adjacent to the employer's facility. The employer did not own nor exclusively control the parking lot, although there were...

September 27, 2019

Washington: Worker May Not Be Considered Borrowed Employee in Spite of Contract Clause Consenting to Such Designation

Where a worker entered into a contract with a labor broker that specified that the worker would be subject to the control of the firm to which he was assigned, that the firm to which he was assigned would be considered his “special employer,” that he specifically consented to such treatment, and that his sole remedy for any injury would be pursuant to the workers’ compensation laws of the state of Washington...

September 27, 2019

Ohio: Snellen Fraction (20/20 vs. 20/100) May Not Solely Be Used to Determine Vision Loss

Where a workers' compensation claimant’s medical evidence as to his vision loss consisted merely of so-called “Snellen fractions” computed both before and after his industrial injury, the claimant failed to establish his entitlement to permanent partial disability benefits for the alleged loss of vision, held an Ohio appellate court. Notwithstanding that Table 12-2 in the AMA Guides indicated that claimant had suffered...

September 25, 2019

California: Pre-Existing Disability for Purposes of SIBTF Benefits

Labor Code Section 4751 governs eligibility for Subsequent Injury Benefits Trust Fund (SIBTF) benefits. SIBTF provides an important supplemental benefit to regular workers’ compensation benefits for those individuals who suffer a permanent partial disability and then suffer a subsequent industrial injury that results in additional permanent disability. There has been a great deal of litigation surrounding the question...

September 23, 2019

West Virginia: Adult Daughter’s Dependency Claim Fails Due to Absence of Proof as to Support

The Supreme Court of Appeals of West Virginia, in a memorandum decision, affirmed a decision of the state’s Workers’ Compensation Board of Review that denied dependent’s benefits and fatal dependent’s benefits to the daughter of a worker whose death was causally linked to coal workers’ pneumoconiosis. Noting that the daughter had not lived with her father for some 25 years, that other siblings...

September 23, 2019

Colorado: Statute of Limitations is Not Tolled by Employer’s First Report of Injury

Neither the employer’s filing a First Report of Injury, nor its filing of a Notice of Contest tolls the statute of limitations applicable to workers’ compensation claims in Colorado [see Colo. Rev. Stat. § 8-43-103(2)], held a state appellate court. Nor is the statute tolled by an entry of appearance by claimant's attorney, or even the assignment by the state's Division of Workers' Compensation of a claim...

September 23, 2019

New York: Statute Easing Standards Related to Attachment to Labor Market Cannot Be Applied Retroactively

An amendment to N.Y. Workers' Comp. Law, § 15(3)(w) that eased the requirement that those claiming permanent partial disability status must show attachment to the labor market cannot be applied retroactively in every case, held a New York appellate court. Where, as was the situation in the instant case, the state's Workers' Compensation Board had ruled—prior to the effective date of the amendment--that the...

September 23, 2019

Michigan: Commission’s Practice Limiting Overpayment Recovery to Cases of Fraud Nixed by Appellate Court

The Michigan Compensation Appellate Commission’s practice of allowing a recoupment for overpayment of workers’ compensation only where the employer or insurer could show fraud on the part of the injured worker is contrary to statute [see MCL 418.354(9)], held a Michigan appellate court. The statute's clear provisions allowed recoupment for overpayments made during the year prior to the recoupment action; fraud need...

September 17, 2019

California: An Alternative to the PQME Process Madness

There are undeniably many cases where the Panel Qualified Medical Evaluation (PQME) process simply does not work. No question, at least conceptually, the idea of having one doctor evaluate an injured worker instead of two doctors with diametrically opposed opinions seemed like a good idea. However, time and again, cases are proceeding through the worker’ compensation system where there are either extensive delays...

September 16, 2019

United States: Sixth Circuit Chooses to Dodge Federal Immigration Issue In Retaliatory Discharge Action

Reversing a decision of a federal district court that had ruled the retaliatory discharge provision of the Tennessee Workers’ Compensation Act was preempted by the Immigration Reform and Control Act of 1986 (“IRCA”), the Sixth Circuit Court of Appeals held the trial court should have considered the preliminary issue of whether there had actually been any retaliation on the part of the employer. Without...

September 16, 2019

Texas: Company-Supplied Vehicle Insufficient to Bring Worker’s Fatal Accident Within Employment

The fact that an employer provides an employee with a company-owned vehicle is not sufficient, absent additional factors, to bring the employee's travel within the course and scope of the employment, held a Texas appellate court. That the deceased employee may have been driving a friend to meet with the business owner, in hopes that the friend might be offered employment, did not sufficiently tie the travel to the...

September 16, 2019

Washington: Employer Chooses Incorrect Subsection in Rule 12 Motion to Dismiss

A defendant's contention that as an employer it was immune from tort liability in a civil action filed against it by an employee did not speak to the Washington trial court's subject matter jurisdiction, held a state appellate court. Accordingly, its motion to dismiss pursuant to Rule 12(b)(1) was improperly granted by the trial court. Following a lengthy procedural discussion, the appellate court held that the...

September 16, 2019

Texas: Bartering Scenario at Horse Racing Track Disqualifies Claimant from PTD Benefits

Holding that gross negligence, as described in the Texas statute that allows the family of a deceased worker to recovery exemplary damages if the workers’ death was caused by such gross negligence of the employer [see Tex. Lab. Code Ann. § 408.001(b)], a state appellate court reversed a trial court's judgment awarding such damages following a worker's death due to mesothelioma. The court indicated there...