March 08, 2019

California Workers' Comp Case Roundup (March 8, 2019)

CALIFORNIA COMPENSATION CASES Vol. 84 No. 2 Feb 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...

March 08, 2019

Larson’s Summary of Recent Developments in Workers’ Compensation (March 2019)

By Thomas A. Robinson, co-author, Larson’s Workers’ Compensation Law Here are some recent important developments in workers’ compensation as reported in the latest release of Larson’s Workers’ Compensation Law , which is scheduled to ship to customers in June. To subscribe to Larson’s Workers’ Compensation Law , go here . For the Desk Edition version, go here . Positional and Neutral Risks. Chapters 4 through 9 of...

February 28, 2019

California: Home Health Care: A Long and Winding Road

In Orozco v. Southland Framers, 2019 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, affirming the WCJ, held that the defendant did not conduct a timely utilization review (UR) of applicant’s 5/9/2012 and 11/25/2014 requests for authorization for home health care services, thereby giving the WCJ jurisdiction to determine the medical necessity of the disputed treatment. The WCAB further found that there was substantial...

February 22, 2019

The Impact of Rising Group Health Deductibles on Workers’ Compensation Claims

A new study suggests that rising group health insurance deductibles may be increasing the number of workers’ compensation claims, with some caveats. From 2007 to 2017, the percentage of workers covered by group health insurance that contained an annual deductible increased from 59 percent to 81 percent. Moreover, among those workers enrolled in a group health plan with a deductible, the average deductible increased...

February 21, 2019

Ohio: Res Judicata Bars Employee’s Attempt to Show Special Circumstances Regarding Wages

The Supreme Court of Ohio held that Industrial Commission did not err in finding that a workers' compensation claimant's motion to recalculate his average weekly wage (AWW) was barred by res judicata where the issue of whether special circumstances existed to avoid applying Ohio Rev. Code § 4123.61 to calculate his AWW had been decided adversely to him in a prior Commission order. The Court observed that the standard...

February 21, 2019

North Carolina: Employer Entitled to Lien on South Carolina UIM Proceeds

A North Carolina appellate court held that the state’s Industrial Commission correctly concluded that an employer and its insurer could, pursuant to N.C. Gen. Stat. § 97-10.2(f) (2017), assert a subrogation lien for workers' compensation benefits paid to a decedent's widow on the underinsured motorist (UIM) policy proceeds she obtained in her South Carolina wrongful death action. The widow acknowledged that the...

February 21, 2019

Louisiana: Epidural Injection During Treatment May Have Caused Worker’s Subsequent Infection

A decision by Louisiana’s Office of Workers' Compensation granting summary judgment in favor of an employer and its workers' compensation insurer was improper where there was a genuine issue of material fact as to whether the employee's infection was contracted during her course of treatment for her workplace accident. The court indicated there was clear evidence that the worker had no infection before...

February 21, 2019

Kansas: Payment of Employee’s Medical Expenses Works to Revive Expired Statute of Limitations

Where a firefighter filed a claim for benefits more than six years after his original work-related injury, but within two years of the employer’s last payment of medical charges related to the firefighter’s work-related back condition, the claim was timely filed in spite of the fact that the statute of limitations had already run on the claim at the time the medical services were provided [see Kan. Stat. Ann. § 44-534...

February 21, 2019

Tennessee: No Subrogation Lien for Nurse Case Management Expenses

A Tennessee employer’s subrogation lien does not include expenses related to nurse case management, held a Tennessee appellate court. Observing that the management services tended to benefit the employer, not the employee, the Court was also unconvinced by the employer’s argument that such expenses should be recoverable since case management was mandatory in the state. Acknowledging further that the case was one of first...

February 21, 2019

New Jersey: Temporary Disability Benefits Ordered for Unemployed Volunteer Firefighter

Reversing a decision by a lower court, the Supreme Court of New Jersey held that a volunteer firefighter, injured in the line of duty, need not show that she actually lost wages due to the injury in order to qualify for temporary disability benefits. While the Court acknowledged a lack of clarity in the statute [N.J.S.A. 34:15-75], it stressed the statute's legislative history was clear in its intention to provide...

February 21, 2019

Oregon: “Impossible” Doesn’t Always Mean Literally Impossible

As is the case in a number of jurisdictions, in Oregon a presumptively responsible employer in an occupational disease claim may avoid liability, shifting such liability to a previous employment, if it can show that it was “impossible” for conditions at its own work site to have caused or worsened the claimant's disease. An Oregon appellate court reiterated that state law does not require a showing of “literal impossibility...

February 21, 2019

Kansas: Marijuana Test Results Should Have Been Admitted into Evidence

Reiterating that in Kansas, because of multiple concerns, the rules of evidence do not apply to workers’ compensation hearings, a Kansas appellate court held the state’s Workers’ Compensation Board should not have excluded the results of a marijuana lab test performed by an outside lab that had been federally certified for such testing. Personnel in a Topeka hospital sent a urine sample to LabCorp after...

February 08, 2019

Arkansas: Commission, Not Trial Court, Has Subject-Matter Jurisdiction Once Exclusive Remedy Issue is Raised

An Arkansas trial court erred in concluding that it had subject-matter jurisdiction over the employee's complaint in which it was alleged that the defendant employed the plaintiff but failed to secure workers’ compensation benefits for the employees. The appellate court held that under clear precedent, the state’s Workers' Compensation Commission had exclusive, original jurisdiction to determine the...

February 08, 2019

Illinois: Description of Injury in Workers’ Compensation Settlement Agreement Did Not Bar Later Third-Party Claim for Additional Injuries

Where plaintiff, a semi-truck driver for a Pennsylvania corporation, sustained injuries in a vehicular accident in Grundy County, Illinois and eventually settled his Pennsylvania workers’ compensation claim by means of a settlement agreement in which he indicated the “precise nature of the injury” consisted of “[r]ight knee strain,” and the parties to the workers' compensation claim also...

February 08, 2019

New York: Burden Was on Claimant to Show Disability Was Factor in Her Inability to Secure Work

Where a claimant, who had not worked for three years, attended an orientation session and took classes on preparing a résumé and cover letter to assist her in finding a job and where she subsequently submitted job applications to various retail companies, she did not qualify for wage replacement benefits unless she established that her disability was a factor in her inability to secure employment. The appellate court...

February 08, 2019

North Carolina: Special Employer is Immune From Tort Liability

Where a plywood manufacturer recruited a worker as a candidate for a mechanic position in its maintenance department, undertook the right to control the worker’s day-to-day work activities, controlled the work the worker performed and paid him an hourly wage, but left the administrative and clerical functions (payroll, etc.) to an employee staffing company, the plywood manufacturer was the worker’s special employer and...

February 08, 2019

United States: General Liability Insurer Need Not Defend Porn Studio in HIV Suit Filed by Actors

A panel of the Ninth Circuit Court of Appeals held that a California business liability insurer was not required to defend its insured—a pornography studio—in a suit filed against it by actors who contended, inter alia , that the insured defendant corporation had not taken adequate steps to protect its performers and prevent the spread of sexually transmitted diseases (STDs) and HIV during pornographic shoots. Construing...

February 08, 2019

Virginia: Commission Failed to Consider Risk of Assault Faced by Rest Area Attendant Attacked by Former Co-Worker

That an overnight attendant at a rest area knew his assailant—a former co-employee—and could not show that the assailant’s motives were related to the employment—the assailant committed suicide shortly after the attack—did not mean the attendant could not prevail in his workers’ compensation claim, held the Court of Appeals of Virginia. He could establish his claim by showing that the...

February 08, 2019

Arizona: Law of State Where Benefits Are Paid Controls Important Assignment Rights to Third-Party Claim

The law of the state in which compensation is paid ordinarily governs an employee’s claim against an alleged third-party tortfeasor. Accordingly, where Arizona law gave the injured employee the exclusive right to maintain a third-party action for a period of one year after the injury, but thereafter provided for an absolute assignment to the employer of the injured employee’s cause of action, but Nebraska law—where workers...

February 08, 2019

Tennessee: Employer’s Failure to Use On-Site Defibrillator Does Not Mean Injury Claim is Compensable

A worker’s injury, in the form of brain damage due to oxygen deprivation following a non-work-related medical emergency, did not arise out of the employment in spite of the employer’s failure to utilize an automated external defibrillator (AED) to aid the employee, held the Supreme Court of Tennessee. The high court allowed that under the state’s emergency doctrine, an employer might be liable for workers’ compensation...

February 08, 2019

New York Workers’ Compensation 2018 Update

By Ronald E. Weiss, Hamberger & Weiss LLP, and Ronald Balter, Caruso, Spillane, Leighton, Contrastano, Savino & Smollar, P.C., co-authors, New York Workers' Compensation Handbook 2018 was an election year for state offices in New York and, when compared to the numerous legislative reforms enacted in 2017, turned out to be a relatively quiet one legislatively for the Workers’ Compensation Law. Democratic...

January 31, 2019

California: When Average Weekly Wages Are Not What They Seem

In Brooks v. E. I. Dupont, 2018 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB amended the WCJ’s finding to clarify that the applicant who suffered industrial injuries to her knees and lumbar spine while working as administrative assistant on 12/5/2002 and 2/11/2003 was entitled to the temporary disability rate based on wages actually earned at the time her temporary disability began in 2007. The WCAB rejected the WCJ’s...

January 25, 2019

Notable Workers’ Compensation and Employee Health Issues to Watch in 2019

By Roger Rabb, J.D. A recent webinar highlights some key issues to monitor in the new year In a recent webinar , workers’ compensation advocates Kimberly George and Mark Walls identified some notable issues to watch in 2019 in the related areas of workers’ compensation and employee health care benefits. While a detailed discussion of all, or even any, of their highlighted topics is beyond the scope of this overview...

January 24, 2019

California: How Does the WCAB Define “Insidious Progressive Disease”?

In the case of General Foundry Service v. WCAB (Jackson) (1986) 42 Cal. 3d 331 , 51 Cal. Comp. Cases 375, the injured worker suffered from the “insidious progressive disease” of asbestosis. Unlike typical workers’ compensation cases, where latency is not an issue, this disease had a latency period and it was an extremely long latency period (anywhere from 20 to 40 years). An injured worker who contracted the industrial...

January 18, 2019

New York: Claimant Disqualified from Future Benefits Based Upon Misrepresentations as to Post-Injury Earnings

A New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that found in relevant part that claimant violated N.Y. Workers’ Comp. Law § 114-a and disqualified him from future indemnity benefits where the employer presented evidence that claimant did not disclose his work activities with a landscaping business during the relevant time periods. During a hearing, claimant...