April 11, 2019

Florida: Home-Based Worker Cannot Recover for Injuries Related to Tripping Over Her Dog

In a deeply divided decision, a Florida court reversed an award of benefits to a home-based worker (working in Arizona) who tripped over her dog as she reached for a coffee cup during a brief break in her daily work activities. The court agreed that the course and scope of the employment could be expanded to include injuries sustained while seeking personal comfort, but stressed that in any event the risk had to be a...

April 11, 2019

California: In Memory of the Honorable Frank Brass

IN MEMORY OF THE HONORABLE FRANK BRASS WCAB Commissioner Frank Brass (Ret.) was born on “Bloomsday,” June 16, 1931 at St. Francis Hospital in his favorite city, San Francisco. After spending over fifty years brilliantly serving the interests of our statewide legal community, Frank passed away at St. Francis Hospital on March 11, 2019. His adventure had come full circle. Frank was extremely proud of his Portuguese...

April 10, 2019

California: Is the Good Faith Personnel Action Defense Exempt From the Presumption of Compensability?

Split panel holds it is, but is that the last word? The recent panel decision, Khachatrian v. State of California, Attorney General’s Office, Dept. of Justice (March 6, 2019) 2019 Cal. Wrk. Comp. P.D. LEXIS ___, is the third decision to hold that the good faith personnel defense to a claim of psychiatric industrial injury ( Lab. Code, § 3208.3 (h)) is exempt from the Labor Code section 5402(b) presumption...

April 06, 2019

California Workers' Compensation Case Roundup (4/6/2019)

CALIFORNIA COMPENSATION CASES Vol. 84 No. 3 March 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 04, 2019

California: Supplemental Job Displacement Voucher Entitlement: No Form Over Substance

In Fndkyan v. Opus One Labs , 2019 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, reversing the WCJ, held that applicant was entitled to supplemental job displacement voucher (SJDV) benefits and, contrary to the WCJ’s finding, was not precluded from receiving SJDV based on the fact that the Physician’s Return-to-Work (Physician’s RTW) form was not sent to or received by defendant, when it was undisputed that...

March 27, 2019

California: When the IMR Reviewer Doesn’t Review All Submitted Reports

In Bowen v. County of San Bernardino, 2019 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB affirmed the WCJ’s decision granting applicant’s appeal of the 3/7/2016 independent medical review (IMR) determination upholding the utilization review denial of the prescription for Norco, when the IMR reviewer denied authorization for Norco on the basis that there was no documentation of functional improvement with the use...

March 22, 2019

North Carolina: Providing Company Vehicle to Employee Does Not Necessarily Bring Commute Within the Course and Scope of Employment

The gratuitous provision of transportation to an employee does not, in and of itself, expose an employer to liability under North Carolina’s Workers' Compensation Act. Accordingly, where a cost estimator working for a security systems company was given a company truck both for his daily commute and sometimes in order that he could travel directly to clients' locations, his fatal injuries sustained in a trip home...

March 22, 2019

Oklahoma: Statutory Definition of “Compensable Injury” Should Not Read Too Narrowly

Oklahoma’s definition of “compensable injury” requires damage or harm to the physical structure of the body … “caused solely as the result of either an accident, cumulative trauma or occupational disease arising out of the course and scope of employment” [Okla. Stat. tit. 85A, § 2(9)(a), emphasis added]. Notwithstanding that definition, it was error to deny an employee workers’ compensation benefits where her injury undisputedly...

March 22, 2019

Florida: JCC May Not Order Employer to Pay Claimant’s Authorized Physician

A Florida appellate court held a judge of compensation claims had no authority to order an employer to pay the claimant's authorized physician, since reimbursement was handled under § 440.13(7), Fla. Stat., and all reimbursement disputes fell under the exclusive jurisdiction of the Department of Financial Services. The JCC also properly ordered the physician's continued authorization, as the only basis the employer...

March 22, 2019

Kentucky: Bus Driver’s Aggressive Interaction With Passenger Defeats Claim for Benefits Arising out of “Assault”

In a decision that conforms with the majority rule among American jurisdictions, the Supreme Court of Kentucky affirmed a lower court finding that a municipal bus driver was appropriately denied workers’ compensation benefits in connection with injuries he sustained in a fight with a passenger since evidence tended to show that the driver had been the actual aggressor in the incident. The driver sought benefits...

March 22, 2019

Colorado: Maximum Medical Improvement Determination Requires “Appropriate” Expert Medical Evidence

While it is the duty the ALJ to determine the facts, including whether or not an injured worker has reached MMI status, that determination may not be made without the support of appropriate medical evidence, held a Colorado appellate court. Accordingly, where neither the claimant’s treating physician nor an independent physician appointed under the state’s division-sponsored independent medical examination (DIME) process...

March 22, 2019

Ohio: Employer Not Liable For Failure to Implement Substance Abuse Policy

A widow’s wrongful death action filed against her deceased husband’s employer for its failure to implement and maintain a substance abuse policy is barred by the exclusive remedy provisions of the Ohio Workers’ Compensation Act, held a state appellate court. The husband collapsed at work and was transported to a nearby hospital where he died. Tests were positive for the presence of marijuana and fentanyl...

March 22, 2019

Washington: Narrow Definition of “Injury” Means Public Defender May Be Able to Sue Employer for Work-Related PTSD

A county public defender, who alleged that she sustained a mental injury in the form of PTSD following a harrowing period of time in which she was allegedly stalked and harassed by a "client," may move ahead with a civil action filed against her employer, held a state appellate court. The attorney alleged, in relevant part, that she had been forced to endure a hostile work environment and had suffered because...

March 22, 2019

New Hampshire: High Court Hints that Carriers Might Have to Pay for Medical Marijuana

In a decision that cast some light on the issue of medical marijuana use by workers’ compensation claimants in New Hampshire, but which did not answer all pertinent questions definitively, the state’s Supreme Court held that the Appeals Board erred when it refused to require a workers’ compensation carrier to reimburse an injured worker for the cost of medical marijuana supplied to him under a state-approved program....

March 21, 2019

AMA Guides Fifth Edition and the Heart: A California Perspective

By Hon. Robert G. Rassp The opinions expressed in this article are those of the individual author and are not those of the California Department of Industrial Relations, Division of Workers’ Compensation or of the WCAB. The following is a quick reference of common medical conditions that are found in AMA Guides Chapter 3: The Cardiovascular System: Heart and Aorta, and Chapter 4: The Cardiovascular System: Systemic...

March 15, 2019

California: The Bunkhouse Rule and Intoxication Defense

The Bunkhouse Rule ( Aubin v. Kaiser Steel Corp. (1960) 185 Cal. App. 2d 658, 8 Cal. Rptr. 497) might seem like an outdated concept in 2019 workers’ compensation litigation. The recent panel decision, Gonzalez v. Athwal Farms , 2019 Cal. Wrk. Comp. P.D. LEXIS 16 , makes clear, however, that this decades-old rule is still relevant to determine whether an injury arose out of and occurred in the course and scope of employment...

March 08, 2019

Minnesota: Temporary Total Disability Owed May Not Be Offset by Payments Made Under Short-Term Disability Plan

Payments made to an injured employee under an employer’s short-term disability may not be used to offset amounts owed to the employee for the same period of disability under the employer's self-funded, self-administered, short-term disability (STD) plan, held the Supreme Court of Minnesota. The Court initially acknowledged that public opinion disfavored a double recovery. Further, it recognized the employer’s concern...

March 08, 2019

Oregon: Traveling Employee’s Death Caused by Metastatic Lung Cancer, Not any Work-Related Injury

An Oregon appellate court recently affirmed the denial of death benefits to a surviving spouse whose husband died seven days after sustaining a fracture in his left femur while walking through a hotel lobby during a business trip. The claimant contended that since her husband was traveling in connection to his work, any injury sustained during that travel was compensable under the traveling employee doctrine. The court...

March 08, 2019

Pennsylvania: Home Caretaker’s Duties Fell Within Domestic Service Exception

Where a caretaker’s primary responsibilities while working for a woman suffering from mild dementia were to get the woman ready for bed and make sure she stayed in bed throughout the evening, those duties fell within the domestic service exception of the Pennsylvania’s Workers’ Compensation Act [77 Pa. Stat. Ann. § 676] and the caretaker’s claim for benefits resulting from a work-related injury were not compensable, held...

March 08, 2019

Minnesota: Discrimination Claim Under State Human Rights Act May Proceed

A divided Supreme Court of Minnesota held that a firefighter may proceed against his employer for its alleged discrimination under Minnesota’s Human Rights Act (“HRA”) in spite of the fact that he had already received workers’ compensation benefits for a work-related injury; his civil action was not barred by the exclusive remedy provisions of the state’s Workers’ Compensation Act (“WCA”). Following a series of injuries...

March 08, 2019

Delaware: Toll Charges and Parking Fees Not Part of Claimant’s Medical Expenses

An injured worker is not entitled to reimbursement for travel-associated toll charges and parking fees in connection with his or her employer-provided medical care, held a Delaware appellate court. The worker had been reimbursed some $761.20 for mileage over a ten-month period under Del. Code Ann. tit. 19, § 2322, but sought an additional $114.75 for tolls and parking expenses. The Court reasoned that the wording of the...

March 08, 2019

Virginia: Trip and Fall Injury While Attending Mandatory Training Session Was Not Compensable

A professional counselor, who sustained injuries when she tripped and fell over raised tree roots as she walked on the campus of a community college where she was to attend mandatory off-site training, did not sustain an injury arising out of and in the course of her employment, held a Virginia appellate court. Reiterating that Virginia follows what it calls the “actual risk” doctrine, the appellate court observed that...

March 08, 2019

South Carolina: $14 Million Verdict Stands Since Worker Was Not Statutory Employee of Manufacturer

Affirming a judgment entered on a $14 million verdict in a mesothelioma case against a former textile manufacturer, the South Carolina Court of Appeals held that the deceased maintenance worker was not the statutory employee of the defendant’s predecessor in interest and his estate could, therefore, maintain a civil action for damages. The former textile company argued that the decedent’s maintenance services—he’d...

March 08, 2019

Ohio: Worker’s Refusal to Undergo Psychological Testing Results in Suspension of Benefits

Where an injured Ohio worker sought disability and medical benefits based upon an alleged psychological injury yet, on the advice of his attorney, refused to undergo psychological testing by a psychologist hired by the employer, it was appropriate for the Commission to suspend the worker’s benefits for the duration of his refusal. The appellate court observed that the issue wasn’t whether the claimant had the right to...

March 08, 2019

California: What Can Sink a Compromise and Release: Lack of Mutual Intent

In Morales v. Universal Furniture , 2019 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB affirmed its prior decision [see Morales v. Universal Furniture , 2017 Cal. Wrk. Comp. P.D. LEXIS 591 (Appeals Board noteworthy panel decision)], wherein the WCAB found that applicant’s claim of internal injury was not resolved as part of the 6/13/2016 Compromise and Release, which settled applicant’s cumulative orthopedic and...