May 10, 2019

Utah: Court Stresses Unusual or Extraordinary Exertion Required for Claims Involving Preexisting Conditions

In Utah, a worker ordinarily need not show that his or her work-related injury was caused by unusual or extraordinary stress or strain. Applying the framework established in Allen v. Industrial Comm’n , 729 P.2d 15 (Utah 1986), and its progeny, however, a state appellate court held that unusual or extraordinary stress or strain is required if the worker’s claimed injury is also associated with a preexisting condition...

May 10, 2019

Iowa: Constitutional Challenge to Provision Granting Carrier Immunity for Faulty Inspections is Unsuccessful

The Supreme Court of Iowa held that a statutory provision [Iowa Code § 517.5 (2017] that provides tort immunity to insurers and their inspectors for any alleged faulty inspections at an employer's work site is constitutional. Based on that ruling, the Court affirmed the dismissal of a civil action filed by current and former employees of a manufacturing facility against that facility's workers’ compensation insurer...

May 10, 2019

New York: Subway Employee’s Assault Claim Barred by Going and Coming Rule

A New York appellate court recently affirmed a decision of the state’s Workers’ Compensation Board that denied a claim filed by a subway train cleaner for injuries he incurred as he disembarked from a subway as he traveled to his home after the end of a work shift. The assault took place a mere five minutes after the worker had clocked out to head home. The claimant contended that the injury was still within the course...

May 10, 2019

Missouri: Commission Has Broad Discretion in Allowing Introduction of Medical Evidence

The Missouri Labor and Industrial Relations Commission has broad discretion in considering and receiving expert medical evidence, held a state appellate court. That discretion is in fact so broad that it was empowered to accept the opinion of an audiologist (who had a Ph.D in hearing science) as to the nature and extent of a worker’s disability from tinnitus instead of the expert opinion offered by a medical doctor...

May 10, 2019

Oregon: Court Draws Important Distinction Between “Susceptible to” and “Preexisting Condition”

In Oregon, the old adage, “The employer takes employees as it finds them,” doesn’t always apply. With regard to occupational disease claims, for example, the claimant must prove that his or her employment was the “major contributing cause” of the disease and further, preexisting conditions are deemed by special statute [Ore. Rev. Stat. § 656.802(2)(e)] to be “causes" for purposes of determining the disease's...

May 08, 2019

California: The Latest Word on Professional Employer Organizations

California’s workers’ compensation system is predicated on the existence of an employer-employee relationship: the employee provides services to the employer and the employer has the right to control the manner and means of achieving the desired result. When California’s workers’ compensation act was first adopted, the roles of employee and employer were a lot easier to identify. Fast forward to...

May 02, 2019

Noteworthy Independent Medical Review (IMR) Decisions (5/2/2019)

LexisNexis has selected some noteworthy IMR decisions issued over the past year 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...

April 29, 2019

California Workers' Comp Case Roundup (4/29/2019)

CALIFORNIA COMPENSATION CASES Vol. 84 No. 4 Apr 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...

April 26, 2019

Oregon: Driver Injured in Pre-Employment Driving Test Awarded No Benefits

Where a trucker sustained injuries while performing a pre-employment driving test, he could not recover workers’ compensation benefits; he was not an “employee” within the meaning of Or. Rev. Stat. § 656.005(30), held the Supreme Court of Oregon. That the test drive involved the handling of actual freight and resulted in revenue for the prospective employer made no difference, said the Court. Citing Larson’s Workers’...

April 26, 2019

Mississippi: Death Benefits May Be Subjected to Lien for Unpaid Child Support

In a deeply divided (5-4) decision, a Mississippi appellate court held that a deceased employee’s workers’ compensation death benefits could be subject to a lien for unpaid child support in spite of the fact that, prior to the employee’s death, the children had been adopted by their step-father. The court reversed a decision by the state’s Commission that found the “children” were not dependent upon the employee at the...

April 26, 2019

Colorado: Court Refuses to Give Presumptive Deference to DIME Physician's Opinion

Acknowledging that under Colo. Rev. Stat § 8-42-107(8)(b)(III), a division-sponsored independent medical examination (“DIME”) physician’s opinions concerning MMI and impairment are afforded presumptive weight, a state appellate court held the presumption did not apply to the DIME physician’s opinions as to causation, particularly where, as in the instant case, the DIME physician stated no...

April 26, 2019

Kansas: Supreme Court Draws Strong Distinction Between “Idiopathic” and “Unknown”

Quoting Larson’s Workers’ Compensation Law , the Supreme Court of Kansas reiterated that “idiopathic” and “unknown” do not have the same meaning; the use of the former in Kan. Stat. Ann. § 44-508(f)(3)(A)(iv)(2018) means that claims are disqualified where the accident or injury arose directly or indirectly from idiopathic causes that are peculiar to the injured individual , not where the circumstances surround the alleged...

April 26, 2019

New York: Board Commits Error in Disqualifying Injured Worker From Future Benefits

A Board decision that disqualified an injured worker from receiving future wage replacement benefits was erroneous where the New York appellate court found that the Board’s decision had been based on speculation and conjecture. The court acknowledged that the Board had broad latitude in finding the facts, but it said there was no basis for the the Board’s conclusion that the worker’s movements, as depicted in a surveillance...

April 26, 2019

Kansas: Split Supreme Court Mulls Over “No Progress” Statute

The Kansas “no progress” statute, Kan. Stat. Ann. § 44-523(f)(1), prohibits an administrative law judge from affirmatively allowing an extension to a claimant who fails to move for that extension within three years of the initial filing of the claim, held the Supreme Court of Kansas In a split decision. Accordingly, the majority of the Court held that since the claimant’s request for an extension was filed after the three...

April 26, 2019

Rhode Island: Co-Employee Immunity to Tort Liability Extends Even to Instigator of Dangerous Horseplay

The exclusive remedy provision of the Rhode Island Workers’ Compensation Act is so strong, held the state’s Supreme Court, that it shielded a co-employee from tort liability in a dangerous incident involving horseplay. The evidence indicated the defendant had noticed that his co-worker was occupying a bathroom stall during a lunch break, found a gasoline canister on the job site, poured some of the gasoline onto the bathroom...

April 26, 2019

Ohio: Injured Worker Need Not Provide Unlimited Medical Release

While an injured worker is required to provide the employer and carrier with reasonable and relevant access to his or her medical records, the worker need not always sign an unlimited medical release provided by the employer, held an Ohio appellate court. Thus, where a worker sustained injuries to her back and left knee (with alleged accompanying depression) in a work-related auto accident in 2009 and eight years later...

April 25, 2019

California: Apportionment of Permanent Disability Per Benson

What Happens When One AME Cannot Apportion Permanent Disability Per Benson and Five Other AMEs Can? In Mills v. American Medical Response, 2019 Cal. Wrk. Comp. P.D. LEXIS 84 , the WCAB affirmed the WCJ’s finding that applicant was entitled to a single, unapportioned award of 100 percent permanent disability as a result of four separate specific and cumulative industrial injuries incurred during his employment as a paramedic...

April 18, 2019

California: Delay in Authorizing Secondary Treater Can Lead to Penalty

A recent panel decision ( Pena v. Aqua Systems (February 23, 2019) 2019 Cal. Wrk. Comp. P.D. LEXIS —) clarifies two previously unresolved issues concerning secondary treaters. First, that a referral for treatment with a secondary treating physician does not need to be initiated by the PTP. It can originate with the injured worker’s designation based on the recommendation of a QME. Second, that the mere selection...

April 11, 2019

Virginia: Worker Did Not Violate Known Safety Rule Against Heavy Lifting

An employer’s known work rule—that an employee should not lift more than 40 pounds without assistance—did not bar the claim of a Virginia worker who sustained a back injury while attempting to move three boxes of computers, each weighing approximately 120 pounds, with a hand truck, held a state appellate court. In the incident, the employee and a co-worker stacked the boxes on a hand truck and the employee then attempted...

April 11, 2019

Nebraska: No Death Benefits For Deputy Killed in Vehicular Accident While Discussing Police Business

A Nebraska appellate court affirmed the denial of workers’ compensation death benefits to the family of a county deputy who sustained fatal injuries in a car crash that occurred as the deputy drove his private vehicle home some five minutes after he had clocked out, but while the deputy communicated required shift-change information via cell phone to another deputy who was coming on duty. The court held that the normal...

April 11, 2019

Florida: Six-Month Limit on Mental Injury Benefits Passes Constitutional Muster

A Florida appellate court recently held that the state’s six-month limitation for temporary benefits for psychiatric injuries (which follow a physical injury) [see § 440.093(3), Fla. Stat.] is constitutional and that such benefits were not available to the claimant here, since his psychiatric injury arose more than a year after claimant had reached MMI on his back injury. Claimant had sustained a back injury in 2014,...

April 11, 2019

Delaware: Indemnification Clause Can Only Be Used Against Negligent Employer

Following the minority rule utilized in Delaware, a state court held an employer was immune from a third-party indemnity claim filed against it by a landlord that had been sued by an injured worker in spite of the fact that the lease in question contained a strong indemnification clause whereby the employer agreed to indemnify and defend the landlord from any harm arising out of the lease arrangement. Noting that the...

April 11, 2019

Ohio: Retaliatory Discharge Rule Does Not Apply Where Claim Filed Against Prior Employer

The provision in Ohio law [Ohio Rev. Code § 4123.90] prohibits an employer from terminating a worker who files a claim for workers’ compensation benefits, the statute does not apply where the claim was filed regarding a prior employer. Thus, where an employee sustained injuries in 2014, while working for one employer and then, in 2016, took a job at a second employer, that second employer could not be sued...

April 11, 2019

United States: 7th Circuit Certifies Question to Illinois Supreme Court

Generally speaking, workers’ compensation benefits are beyond the reach of creditors. The rule is not so clear in Illinois, said the 7th Circuit Court of Appeals in a recent case. It certified to the Illinois Supreme Court a question asking if that exemption applies to medical providers who have provided the injured worker with medical care. The 7th Circuit noted the 2005 amendments to Illinois’ exemption statutes and...

April 11, 2019

United States: “One Day of Rest in Seven” Act Does Not Trump Workers’ Compensation Exclusive Remedy Defense

In a case construing Illinois law, a federal district court held that the state's “One Day Rest in Seven Act” (“ODRA”) [820 Ill. Comp. Stat. 140/1 et seq.] may not be used to circumvent the exclusive remedy of the Illinois Workers' Compensation Act. Accordingly, where the family of the deceased employee filed a wrongful death action against the deceased’s employer contending, in relevant part, that the deceased...