September 14, 2019

Maryland: Degenerative Knee Condition is Compensable as Occupational Disease

A divided Maryland appellate court held sufficient evidence existed to support a finding that a paramedic/firefighter had, over time, developed meniscal tears in his right knee and that he, therefore, qualified for benefits for an occupational disease under the state’s Workers’ Compensation Act. Quoting Larson’s Workers’ Compensation Law , agreed that the nature of the claimant’s work included repetitive bending and kneeling...

September 14, 2019

North Dakota: Res Judicata Bars Worker and Parents of Deceased Worker from Tort Recovery Against Purported Employer

Where the parents of a worker killed in an industrial accident and another worker who sustained injuries in the accident submitted applications for workers’ compensation benefits and accepted them, the parties could not later maintain a civil action against the “employer” on the basis that the injured worker and the deceased worker were actually independent contractors, held the Supreme Court of North Dakota. The doctrine...

September 14, 2019

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

Finding that there was sufficient evidence to support a decision by the Ohio Industrial Commission that an injured worker had, without advising the Commission or the employer, knowingly engaged in sustained remunerative employment in the form of exchanging horse-training and grooming services for housing and feeding charges at the stable that sheltered the worker’s horses, the Supreme Court of Ohio affirmed a decision...

September 14, 2019

New Hampshire: Death from Drug Overdose Found Not Compensable

A decision denying death benefits to the surviving spouse of a New Hampshire worker who died from an overdose of oxycodone and heroin was affirmed by the state’s Supreme Court. The worker, who suffered a serious ankle fracture as a result of a work-related accident, underwent multiple surgeries and was prescribed oxycodone for persistent pain. When the worker’s doctors tried to wean the worker from his opioid...

September 09, 2019

California: Borello Withstands the Specter of Dynamex’s “Dynamite” Effect

IMPORTANT NOTICE: Governor Signs AB 5 to Codify Dynamex Decision What does it mean for workers’ compensation cases? As set forth in the commentary below to the Gray panel decision, Dynamex did not specifically overrule Borello or indicate an intent to modify its application in workers’ compensation cases. The language of AB 5 expresses an intent to codify the “ABC” test for determination...

September 06, 2019

August 2019 Issue of California Compensation Cases

CALIFORNIA COMPENSATION CASES Vol. 84 No. 8 Aug 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...

September 05, 2019

California: How Does Labor Code Section 4662(b) “Based on the Fact” Apply in Post 1/1/13 Injuries?

By Hon. Robert G. Rassp The opinions expressed in this article are those of the individual author and are not those of the Calif. Department of Industrial Relations, Division of Workers' Compensation or of the WCAB. In September 2018, the District Court of Appeal, Third Appellate District issued its published decision in Department of Corrections and Rehabilitation v. Workers’ Compensation Appeals Board...

August 31, 2019

South Carolina: Auto Insurer May Not Offset Personal Injury Protection by Workers’ Comp Benefits Received by Policyholder

Auto insurers that provide no-fault personal injury protection (PIP) may not reduce their obligation to a policyholder based upon that policyholder’s receipt of workers’ compensation benefits, held the Supreme Court of South Carolina. In its decision, the Court dealt with an apparent inconsistency between the no-fault insurance law and the workers’ compensation act. The Court stressed that PIP benefits were part of a...

August 31, 2019

Massachusetts: Business Owner’s Fatal Auto Accident Did not Arise Out of Employment

An appellate court in Massachusetts affirmed a determination by the Massachusetts Industrial Accident Reviewing Board that denied death benefits to the family of a business owner who sustained fatal injuries in an automobile accident as he traveled to check on a real estate investment in New Hampshire. The deceased, who was a principal in two separate businesses, one in New Hampshire, which maintained a workers’ compensation...

August 31, 2019

United States: Oklahoma's Subrogation Statute is Constitutional

Construing Oklahoma law, a federal district court ruled that 85A Okla. Stat. § 43, the subrogation provision within Oklahoma’s workers’ compensation law, does not violate Article 23, Section 7 of the state’s Constitution. The federal court acknowledged that language within an earlier decision of the Oklahoma Supreme Court, Updike Advertising Sys. v. State Industrial Comm’n , 1955 OK 19, 282 P.2d 759, had cast some doubt...

August 31, 2019

Tennessee: Worker’s “Restraint” of Patient Was Not Willful Misconduct

Applying the 4-part test described in Larson’s Workers’ Compensation Law , § 34.01, et seq. , a Tennessee appellate court affirmed a state trial court’s determination that an employer failed to show that one of its healthcare workers willfully violated the employer’s physical restraint policy in interacting with a resident at the employer’s therapeutic residential treatment facility...

August 27, 2019

New York: Self-Imposed Limitation Cannot Support Reduced Earnings Award

Where a New York claimant’s reduced earnings were due, not to his established back injury, but to economic conditions unrelated to the injury, the claimant was not entitled to a reduced earnings award, held a New York appellate court. The holding affirmed a divided panel of the state’s Workers’ Compensation Board that found the claimant’s reduced earnings was the result of a self-imposed limitation...

August 27, 2019

Virginia: “Two-Cause” Rule Fails to Aid Worker Who Was Disabled Due to Preex-isting Kidney Disease

Quoting Larson’s Workers’ Compensation Law , and reiterating the usual, “two-cause” rule: that where a work-related disability combines with a nonwork-related disability to prevent the injured worker from continuing to work, the employer is responsible for the entire disability, the Supreme Court of Virginia held that nevertheless, under the facts of the case, the injured worker was not entitled to total disability benefits...

August 27, 2019

Maryland: Employee’s Broad Release Does Not Bar Subsequent Death Benefits Claim by Surviving Spouse

Citing Larson’s Workers’ Compensation Law , and stressing that a surviving spouse’s death benefits claim is not derivative of the injured worker’s claim, a Maryland appellate court found that a settlement agreement and full release, signed only by the injured worker and not the spouse, could not operate so as to bar her subsequent death benefits claim. The court added that in the workers’ compensation case that had been...

August 27, 2019

United States: “Perception Theory” May Not be Utilized in Retaliatory Discharge Action Against Former Employer

A federal district court, construing Pennsylvania law, held that in order for a discharged worker to maintain a civil action against a former employer for retaliatory discharge, it is insufficient for a discharged worker to show that the former employer believed the worker was going to seek workers’ compensation. The employee must either have actually filed a claim for benefits or at least expressed his intent to...

August 23, 2019

California: When Deferral of Utilization Review Not Allowed

Those of you who have been involved in California’s workers’ compensation system for the past 15 years or less probably don’t have much of a sense of how medical treatment disputes used to be resolved. Those were the days prior to Utilization Review (UR). Even for the more “seasoned” comp practitioners (i.e., “old timers”), life before UR is but a distant memory. Before the legislative...

August 16, 2019

Human Trafficking and Implications for Workers’ Compensation

Survival Tactics for Healthcare Professionals on the Front Lines of Tragedy By Karen C. Yotis, Esq. The trafficking of humans—both for labor and for sex—is a twisted version of the #metoo behavior template, with serious and far-reaching implications for the workers’ compensation community—especially healthcare workers and first responders who are often the only outsiders to glimpse the every-day horrors of a resource...

August 14, 2019

California: Proving a Labor Code Section 132a Violation Is No Longer an Impossible Task

On April 12, 2019, a unanimous panel clarified the standard for making a prima facie showing of illegal discrimination as enunciated by the Supreme Court in Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (Lauher) (2003) 30 Cal. 4th 1281 [68 Cal. Comp. Cases 831] (See, Franco v. MV Transportation, Inc. (April 12, 2019) 2019 Cal. Wrk. Comp. P.D. LEXIS 120 ). The Franco panel held that injured workers may...

August 08, 2019

California: Noteworthy Independent Medical Review (IMR) Decisions (8/1/2019)

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. Many of these IMR decisions were reprinted in California Compensation Cases , which can be accessed on Lexis Advance. Lexis Advance subscribers can access those...

August 05, 2019

California Compensation Cases July 2019 Issue

CALIFORNIA COMPENSATION CASES Vol. 84 No. 7 July 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...

August 02, 2019

New York: Worker’s Failure to Give Statutory Notice of Injury Was Not Excused

New York’s Workers’ Compensation Board acted within its statutory powers when it found that a worker failed to provide the employer with the required notice under N.Y. Workers’ Comp. § 18, held a state appellate court. While the court noted that the worker was not proficient in English, the court said that was not a sufficient reason to excuse compliance with the notice statute. The employer acknowledged that the worker...

August 01, 2019

California: Qualifying for SIBTF Benefits

Should the Subsequent Non-Compensable Aspect of an Injury Be Considered in Qualifying for SIBTF Benefits? The Subsequent Injuries Benefits Trust Fund (SIBTF) was created in 1945 and was intended to help compensate already disabled employees who suffered a subsequent industrial injury. In order to qualify for SIBTF benefits, the employee must meet certain requirements. Although there are several requirements, one of...

July 31, 2019

New York: Interaction Between Hair Salon Owner and Difficult Customers Insufficient to Establish Heart Attack Claim

Stressing the important role that the state’s Workers’ Compensation Board plays in the weighing of all evidence, even that offered by medical experts, a New York appellate court affirmed the Board’s determination that a hair salon owner, who sustained a heart attack minutes after she had been involved in encounters with difficult customers, did not sustain injuries arising out of and in the course of...

July 31, 2019

Iowa: Claimant Fails to Establish Causal Connection Between Legionnaires’ Disease and His Employment

Noting that a workers’ compensation claimant’s expert medical witnesses appeared to be completely unaware of the prophylactic measures taken by the employer to prevent contamination of its internal water system and that the employer’s experts detailed those measures and opined that the claimant’s Legionnaires’ disease could not be attributed to exposure to water at his employment, an Iowa appellate court affirmed a commissioner...

July 31, 2019

Iowa: Modest Deviation from Ordinary Route Was Insufficient to Remove In-Home Healthcare Nurse From Her Employment

Where a registered nurse provided in-home health care services and sustained injuries in an automobile accident as she traveled to her first patient of the day, her injuries arose out of and in the course of the employment, held an Iowa appellate court. The fact that the nurse had made a slight deviation in her route in order that she could pick up her car from her mother’s house was not such a radical departure...