July 31, 2019

New Jersey: Residential Status Alone Insufficient to Confer Jurisdiction for Claim Involving Extraterritorial Injury

A New Jersey appellate court held that while residential status may certainly be considered in determining whether the Garden State has a sufficient interest in a worker’s claim regarding an extraterritorial injury, it is insufficient on its own to confer jurisdiction. Quoting Larson’s Workers’ Compensation Law , § 142.01, et seq. , the court added that under the facts of the case, the employer’s “localized interest”...

July 25, 2019

New Jersey: Attorney’s Fees in Death Benefits Case Should be Based on Mortality Tables for Surviving Spouse

A New Jersey appellate court affirmed a final judgment entered by the Division of Workers’ Compensation awarding fees to counsel for the surviving spouse of a worker who succumbed to an occupational disease based on the surviving spouse’s expected lifetime, as determined from mortality tables published in the New Jersey Rules of Court, as opposed to what the employer contended was the “long-accepted” basis for such calculation...

July 25, 2019

New York: Fox 5 Makeup Artist Loses Bid to Establish Bartonella bacteria Claim

A New York court affirmed the denial of two airborne illness claims filed by a makeup artist for Fox 5-TV, on the basis that she failed to show the required causal connection between her work and her illnesses. In her first claim, filed in December 2013, she asserted that, while at work, she had sustained multiple injuries from exposure to toxins and irritants, specifically, certain cleaning products. In her second claim...

July 25, 2019

Montana: Security Guard’s Quick Notes Regarding Assault by Unruly Patient Was Insufficient Notice to Employer of Claim

The Supreme Court of Montana held that a hospital security guard failed to provide sufficient notice of injury to his employer when he made sketchy notations in a daily log book that he had been hit in the nose by an unruly psychiatric patient that he and others were attempting to restrain. The Court also observed that while Mont. Code Ann. § 39-71-601 provided for a tolling of the statute of limitations for up to three...

July 25, 2019

California: Ex Parte Communication: The Important Distinction Between Violations of Labor Code Sections 4062.3(b) and 4062.3(e)

The question of providing information to a Panel Qualified Medical Evaluator (PQME) or Agreed Medical Evaluator (AME) is a frequent source of litigation before the Workers’ Compensation Appeals Board (WCAB). In fact, the WCAB has issued Maxham v. California Department of Corrections and Rehabilitation (2017) 82 Cal. Comp. Cases 136 (Appeals Board en banc) and Suon v. California Dairies (2018) 83 Cal. Comp. Cases...

July 23, 2019

State-by-State Use of AMA Guides

Origins and Development of AMA Guides Ever since humans were nomadic hunter-gatherers, some members of the tribes inevitably would be injured or disabled from accidents, battles, or diseases. Surely many were left for dead, but one element that separated humans from all other species was the emergence of a moral imperative to care for the sick and wounded, and an evolving sense of social justice. Over the millennia...

July 19, 2019

Minnesota: Supreme Court Gives Guidance Regarding Evidentiary Requirements of State’s PTSD Provisions

Prior to a 2013 amendment to Minn. Stat. § 176.011, subd. 16, Minnesota provided no workers’ compensation coverage for mental injuries that had a mental stimulus as their origin. Since then, however, coverage has been provided to those employees diagnosed with PTSD by a licensed psychologist or psychiatrist, as long as the diagnosis conforms to the latest edition of the Diagnostic and Statistical Manual of...

July 19, 2019

Kansas: Unexplained Falls by Hospital’s Housekeeping Employee Found Compensable

A Kansas appellate court affirmed an award of workers’ compensation benefits to a Topeka hospital housekeeping employee who sustained injuries in two separate unexplained falls. The court was not persuaded by the employer’s argument that following a 2011 amendment to Kan. Stat. Ann. § 44-508(f)(3)(A), injuries that arise from all neutral risks, such as unexplained accidents, are no longer compensable. Finding the facts...

July 19, 2019

California: Top 25 Noteworthy Panel Decisions (January through June 2019)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2019. The list features panel decisions addressing the exchange of information and ex parte communications with medical evaluators, including a case illustrating how the WCAB will apply the recent decision in Suon v. California Dairies (2018) 83 Cal. Comp...

July 17, 2019

Texas: Family of Deceased Worker Fails to Maintain Gross Negligence Action Against Employer

Construing the special exception to the Texas version of the exclusive remedy rule—that the survivors of an employee may maintain a wrongful death action against the employer if the employee's death was caused by an intentional act or omission of the employer or by the employer's gross negligence, a Texas appellate court affirmed a trial court’s order granting summary judgment to an employer following...

July 17, 2019

New Jersey: Former Pharmaceutical Employee May Not Proceed in Tort Against Employer for Alleged Injuries Due to Unapproved Nasal Spray

Construing New Jersey’s “substantially certain” rule, as applied to intentional tort claims filed against employers and co-employees, a state appellate court held that a former employee of a pharmaceutical company could not move forward against the employer based on allegations that the employer forced him to use a nasal spray that the firm was developing, but which had not received clearance from the...

July 14, 2019

California: Is There Any Limit to What Will Constitute an Acceptable Petition to Re-open?

In California Workers’ Compensation, it is well established that some sort of petition must be filed in order for an employee to “re-open” his or her claim. Pursuant to Labor Code Sections 5803, 5804 and 5410, in order to alter or amend a previously issued order, decision or award of the Workers’ Compensation Appeals Board (WCAB), a petition must be filed within five years from the date of injury...

July 14, 2019

Virginia: Claimant Establishes Right Knee Condition More Than a Decade After Injury to Left Knee

Stressing that the employer is responsible for all sequelae that flow from the primary work-related injury, a Virginia appellate court affirmed an award of benefits to a claimant who developed a right knee condition more than a decade after sustaining a work-related left knee injury. Quoting earlier precedent, which had specifically relied upon the discussion contained in Larson’s Workers’ Compensation Law , the Court...

July 14, 2019

United States: 6th Circuit Strikes Down Ohio’s Statutory Prohibition Regarding Attorney Solicitation

The Sixth Circuit Court of Appeals struck down a provision in Ohio Rev. Code Ann. § 4123.88(A) that bars an attorney from soliciting authority to represent a claimant or employer with respect to a worker’s compensation claim or appeal. Finding the provision violated the First Amendment, the Court acknowledged that the state had an interest—up to a point—in protecting the privacy of those who had filed a claim with the...

July 14, 2019

New York: Video Surveillance of Injured Firefighter’s Activities Showed Different Picture of Level of Disability

Where a claimant, former firefighter, represented during a functional capacity evaluation that he was unable to lift and/or carry any weighted objects, crouch, reach for an object, or complete any of the balance tests required during the evaluation, yet surveillance video showed the claimant was subsequently able, without any apparent difficulty, to bend, lift and carry objects (including boards and boxes), walk, raise...

July 14, 2019

New York: RB-89 Form is Not a Cover Sheet; Incomplete Form Results in Denial of Application for Review

Where a New York claimant failed to complete the information “box” for question 13 of the RB-89 form (Application for Review), within which claimant would otherwise have provided details as to “[h]earing dates, [t]ranscripts, [d]ocuments, [e]xhibits, and other evidence that she would rely upon in her administrative appeal, the Application was defective and the Workers' Compensation Board was within its discretion...

July 10, 2019

California Workers' Comp Case Roundup (7/10/2019)

CALIFORNIA COMPENSATION CASES Vol. 84 No. 6 June 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...

July 07, 2019

California: Permanent and Total Disability Cases after Fitzpatrick

Since the Third Appellate District’s case in Department of Corrections and Rehabilitation v. Workers’ Comp. Appeals Bd. , 27 Cal. App. 5th 607 , 83 Cal. Comp. Cases 1680, was decided in September of 2018, there has been an open question as to how the Workers’ Compensation Appeals Board (WCAB) would apply Fitzpatrick to permanent and total disability cases, and more specifically to those cases that may have previously...

July 04, 2019

Georgia: School Custodian’s AWW Based On Actual Earning, Not Lesser Amount He Received Because of Wage Pro-Ration Over 12-Month Period

Where a school custodian worked a school-year schedule of 220 days, but his pay was pro-rated and spread over a full calendar year, in order that he not have pay gaps over the course of the year, his average weekly wage should be computed based upon the $334.03 gross weekly wages he earned during the 13-weeks preceding his injury (i.e., 40 hours each week times his hourly rate of $9.20) [see OCGA § 34-9-260 (1)]; his...

July 04, 2019

North Carolina: Police Officer Loses Retaliatory Discharge Action

In an opinion not designated for publication, the Court of Appeals of North Carolina affirmed a trial court’s order granting the defendant/employer summary judgment in a retaliatory discharge action filed against it by a former police officer who was terminated subsequent to his sustaining an admitted work-related injury. Noting that the states Retaliatory Employment Discharge Act (“REDA”) invoked a...

July 04, 2019

New York: Right to Cross-Examine Employer’s Expert Not Predicated Upon Filing Competing Report

A New York appellate court held the state’s Workers’ Compensation Board abused its discretion in denying, as untimely, a claimant’s request to cross-examine the carrier’s medical consultant where that consultant examined the claimant, advised the claimant that he had sustained a 40 percent schedule loss of use of the right arm and, prior to a hearing on permanency, claimant failed to obtain and file a competing opinion...

July 04, 2019

Minnesota: No-Fault Auto Insurer Ordered to Pay Injured Worker’s “Excess” Chiropractic Charges

Minn. Stat. § 176.83, subd. 5(c), and accompanying rules, under which an employer or workers’ compensation carrier may not be forced to pay chiropractic benefits beyond a 12-week period, does not prevent the injured worker from seeking reimbursement from his or her no-fault automobile insurer where the worker’s injuries were sustained in a work-related auto accident and where the worker sought the additional chiropractic...

July 04, 2019

Oregon: Court Construes Post-Smothers Statute of Limitations Issue

A post- Smothers  [see Smothers v. Gresham Transfer, Inc. , 332 Ore. 83, 23 P3d 333 (2001), overruled by Horton v. Or. Health & Sci. Univ. , 359 Ore. 168, 376 P.3d 998 (2016)] statute of limitations, ORS 656.019(2)(a), which allows a civil action to be filed within 180 days after an unsuccessful workers' compensation claim against an employer—including a public employer—has become final, even if more than two...

July 01, 2019

District of Columbia: Split-Shift Transit Manager’s Injuries Sustained During Unpaid Break Are Compensable

Injuries sustained by a transit authority manager when she tripped and fell on a transit authority escalator near an employee-only break room, during a two-hour unpaid break between her two scheduled shifts, arose out of the employment, held the District of Columbia Court of Appeals. Accordingly, her claim for benefits should have been allowed. The employer contended that since the manager was on an unpaid break and free...

June 28, 2019

Maryland: Home-Based Worker’s Slip and Fall on Sidewalk Near Home Might Be Compensable

A Maryland appellate court, indicating it was undertaking a case of first impression, held that the compensability of an injury to a home-based employee depended upon an examination of the factors involved in the so-called “Larson Three-Part Test” [see Larson’s Workers’ Compensation Law , § 16.10], which the court adopted. That three-part test examines the following: The quantity and regularity...