June 27, 2019

United States: Canadian Government Not Immune from Tort Suit Filed by U.S. Citizen Injured While Working at Canadian Consulate in Boston

In a split decision, the U.S. Court of Appeals for the First Circuit held the Canadian government was not immune from a suit filed against it by a U.S. citizen who sustained a work-related injury while working as an administrative assistant to the Consul General of Canada in Boston. With its ruling, the First Circuit reversed a federal district court’s determination that had concluded Canada was immune from the suit under...

June 19, 2019

California: The Latest Word on Pneumonia and the Presumption of Industrial Causation

Most workers’ compensation practitioners have general familiarity with the statutory presumptions of industrial causation applicable to peace officers. (See, Lab. Code § 3212 , etc.) These statutory presumptions were enacted to make it easier for certain employees who provide vital and hazardous services to prove industrial causation. ( City of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal. App. 4th...

June 16, 2019

Washington: Employee Mischaracterization Results in $1 Million Assessment in Premiums, Penalties and Interest

A Washington appellate court recently affirmed an assessment of almost $1 million in workers’ compensation premiums, penalties, and interest against a Seattle delivery service company that had argued its drivers were independent contractors and not employees. The company’s business model was somewhat like that employed by Uber and Lyft, using a dispatcher “app” to notify drivers of available work...

June 16, 2019

Delaware: Injured Workers May Recover Against Employer's Underinsured Motorist Coverage

In a decision that held just the opposite of the case construing Colorado law (immediately above), the Delaware Supreme Court reversing rulings in two consolidated cases, held that two workers who sustained injuries in work-related automobile accidents may proceed against their employer’s automobile liability insurer under the respective underinsured motorist provisions. The Court employed different rationale than had...

June 16, 2019

United States: Injured Colorado Employee May Not Pursue Recovery Under Employer’s Uninsured/Underinsured Motorist Coverage

In a case of first impression, a federal court sitting in Colorado, construing Colorado law, held that an employee injured in a work-related vehicle accident may not recover under his or her employer’s uninsured/underinsured motorist coverage. The court stressed that its decision was consistent with public policy; allowing employees to recover under their employer’s policies could, among other things, discourage them...

June 16, 2019

Illinois: Borrowing Employer’s Immunity From Suit Does Not Depend Upon Procurement of Insurance

A borrowing employer is immune from tort liability with regard to injuries sustained by a temporary staffing agency worker assigned to it, held an Illinois appellate court. Moreover, that immunity springs from the borrowed-employee relationship itself. It is not tied to the borrowing employer’s provision, directly or indirectly, of workers’ compensation insurance coverage. The court stressed that the borrowing...

June 16, 2019

New York: Truck Driver’s Failure to Mention Side Business Did Not Result in Forfeiture of Benefits

A New York truck driver’s failure to disclose his involvement in an online and retail flower business was not the sort of misrepresentation that should disqualify him from receiving workers’ compensation benefits under N.Y. Workers’ Comp. Law, § 114-a, held a state appellate court. The court observed that in two hearings, the employee had freely admitted that he owned a company engaged in the flower...

June 16, 2019

Texas: Worker’s Tort Action for Fall in Parking Lot Not Barred by Exclusive Remedy Defense

Under the Texas “access doctrine”—an exception to the going and coming rule—where the employer has evidenced an intention that the employee utilize a particular access route or area in going to and from work, and where that access route or area is so closely related to the employer’s premises as to be fairly treated as part of the premises, any injury sustained within that route or area is...

June 16, 2019

New York: Claimant Gets Second Chance at Establishing Aspergillosis Claim

A finding by the New York Workers’ Compensation Board that a worker had failed to establish his claim for an occupational disease in the form of allergic bronchopulmonary aspergillosis did not prevent the worker from subsequently establishing an accidental injury claim on essentially the same facts, held a New York appellate court. Noting that the case had originally been remitted to the Board for further proceedings...

June 16, 2019

Colorado: Supreme Court Says $841,200 for Failure to Maintain Workers’ Comp Insurance May Be Unconstitutionally Excessive

Stressing that the Eighth Amendment’s prohibition against the imposition of “excessive fines” applies not only to fines that are levied against individuals, but also against corporations, the Supreme Court of Colorado, with one partially dissenting justice, ordered the remand of a case in which the state’s Division of Workers’ Compensation imposed a fee totaling $841,200 against an employer for failure to maintain workers...

June 14, 2019

California: Panel Clarifies Lauher Standard for a Prima Facie Claim of Unlawful Discrimination

Ever since the Supreme Court decision in Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (Lauher) (2003) 30 Cal. 4th 1281 [68 Cal. Comp. Cases 831] many practitioners have grappled with the meaning of the phrase, “singled out for disadvantageous treatment because of the industrial nature of the injury,” in the context of a claim of unlawful discrimination under Labor Code section 132a . That phrase, says a...

June 06, 2019

California Workers' Compensation Case Roundup (6/6/2019)

CALIFORNIA COMPENSATION CASES Vol. 84 No. 5 May 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. Lexis Advance Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court...

June 03, 2019

Blood Is Thicker Than Water: Industrially Related Death With or Without Dependents

By Hon. Robert G. Rassp Disclaimer: The opinions expressed in this article are those of the author and are not the opinions of the State of California Department of Industrial Relations, the Division of Workers’ Compensation, or of the Workers’ Compensation Appeals Board. This article was inspired by a true story that raises issues of public policy, fairness, and equity. It is a tragic story with a bitter-sweet ending...

May 30, 2019

Idaho: For IME Purposes, Court Takes Broad View in Defining “Period of Disability”

In spite of language within Idaho's IME statute [Idaho Code § 72-433] that appears to require attendance at the independent medical examination (IME) session only during the injured employee's ”period of disability,” an employer who had ceased payment of workers' compensation benefits was within its rights to compel attendance at an IME session once the employee filed a complaint seeking their reinstatement...

May 30, 2019

Iowa: Third-Party Administrators Immune from Bad Faith Claims

A common law cause of action for bad-faith failure to pay workers’ compensation benefits may not be pursued against a third-party administrator of a workers’ compensation insurer, held the Supreme Court of Iowa, in a divided (5-2) decision. Answering a question certified to it by a U.S. District Court, the Court noted that such an action could be maintained against the insurer and against a self-insured employer...

May 30, 2019

Ohio: Business Owner’s Injuries in Commute to Informal Breakfast Meeting Found Compensable

An owner/employee’s decision to meet two subordinate employees for breakfast and a general business discussion meant that injuries sustained in a car accident on the way to the restaurant arose out of and in the course of the employment, in spite of the fact that the subject matter to be discussed was only tangential to the business of the employing company and likely would not have resulted in any work-related...

May 30, 2019

Oregon: Injured Worker’s Suit Against Employer’s Landlord/Officers is Unsuccessful

Acknowledging that the 2013 amendment to the so-called “dual capacity” provision of the Oregon Workers’ Compensation Act [Or. Rev. Stat. § 656.018(3)] had narrowed somewhat the immunity enjoyed by officers and directors of the employing corporation, an appellate court held, however, that the exception remained quite narrow and, in the instant case, the injured worker could not maintain a civil action against officers...

May 30, 2019

Virginia: Court Eases—Ever So Slightly—State’s “Sudden Mechanical or Structural Change” Rule

Virginia, which has one of the most restrictive coverage formulae in the nation, generally requires that a claimant show she suffered a “sudden mechanical or structural change to the body” in order to meet the state’s definition of “injury.” According to a recent decision of the state’s Court of Appeals, that requirement does not require the claimant to show such a mechanical or structural...

May 30, 2019

New York: Work Experience Program Benefits Are “Wages” for Purposes of Computing Average Weekly Wage

Payments made to participants in New York’s work experience program (WEP) are “wages” for purposes of the state’s workers’ compensation law [see N.Y. Workers’ Comp. Law § 2(9)], and should be utilized in computing the level of benefits owed to an injured worker, held a state appellate court. Accordingly, where a WEP participant sustained a 7.5 percent loss of use injury while working for a county project, it was appropriate...

May 30, 2019

North Carolina: Exclusive Remedy Rule Does Not Bar Civil Action Against Employer and Plant Nurse

Stressing that although closely related, the “arising out of” [the employment] and the “in the course of employment” concepts are separate and distinct elements of proving a workers' compensation claim, the Court of Appeals of North Carolina held that an employee could maintain a negligence action against his employer and a company nurse where he alleged that he suffered a stroke while at work and the nurse's...

May 30, 2019

Oklahoma: Retaliatory Discharge Statute is Constitutionally OK in Spite of Lack of Access to Jury

Under Oklahoma’s retaliatory discharge statute, 85A O.S.Supp. 2013 § 7, a worker who claims that he or she was fired for filing a workers’ compensation claim must seek relief from the state’s Workers’ Compensation Commission; he or she may not maintain a civil action in tort against the employer. That statute which, among other things, does not provide for a hearing before a jury of the worker's...

May 17, 2019

California: WCAB En Banc Provides Analytical Framework for Determining Catastrophic Injury Under Labor Code Section 4660.1(c)(2)(B)

In the six years since the legislature enacted Labor Code section 4660.1 (c)(2)(B), practitioners have wrestled with the meaning of “catastrophic injury” as used in the section. The statute was in response to a widely-held belief that lower permanent disability ratings as a result of the 2004 legislative reforms had given rise to increased impairment (referred to as “add-ons”) even for questionable claims, such as psychological...

May 10, 2019

Mississippi: Claimant’s Return to Work for Seven Months Leads to Presumption of No Loss of Wage-Earning Capacity

The Workers Compensation Commission, on remand, erred in holding that an employee successfully rebutted the presumption that she was entitled to no permanent disability as a result of her brief return to accommodated employment because the employee returned to work at the employer full-time with the same job duties and expectations as before and with no accommodations for more than seven months, neither the employee's...

May 10, 2019

Virginia: Claimant’s Aversion to Hypodermic Needles Did Not Justify Change in Physicians

A claimant’s aversion to hypodermic needles associated with injection treatments for her lower back condition was not a sufficient reason to justify a change in physicians, held a Virginia appellate court. Claimant’s physician observed that claimant had an essentially normal MRI and that a functional capacity evaluation expert had opined that claimant had not sufficiently exerted herself during the exam and likely was...

May 10, 2019

New York: Party Stuck With Settlement Stipulation Offered in Open Court

A New York appellate court recently held a plaintiff was bound by his attorney’s open-court stipulation with defendants that the case had been settled for $325,000. Plaintiff could not later declare the settlement “null and void” because there was no written agreement when he determined his recovery would be smaller than anticipated due to a workers’ compensation lien and a Medicare Set-Aside provision...