January 18, 2019

Ohio: Worker Fails to Show “Zone of Employment” Should Be Extended to Nearby Public Parking Lot

Acknowledging that Ohio employs exceptions to the usual “going and coming rule,” including the “zone of employment” exception, in which the employer’s premises is deemed to include areas where the employer has control of the conditions and the employee has no option but to pursue a given course, a state appellate court nevertheless affirmed the denial of benefits to a worker who slipped and fell in an enclosed, indoor...

January 18, 2019

Virginia: Claimant Bound by Terms of Settlement Agreement and Full Release

Where a claimant filed multiple claims, was represented by an attorney, and later entered into a settlement agreement that provided, inter alia , (a) that the employer would not be responsible for medical costs associated with a claimed right shoulder injury, and (b) the agreement disposed of all issues related to claimant’s September 22, 2016 injury, the claimant could not later seek additional benefits for her right...

January 18, 2019

Pennsylvania: Court Refuses to Apply Extraterritorial Jurisdiction for Injury Occurring in New Jersey

Where Pennsylvania and New Jersey were joint owners of a bridge crossing the Delaware River between Philadelphia and Camden and claimant, a Pennsylvania resident hired by a subcontractor to perform painting and lead abatement services on the bridge and adjoining property, sustained work-related injuries while standing on the ground in New Jersey, the Pennsylvania Workers' Compensation Appeal Board did not err in affirming...

January 18, 2019

New York: No Indemnity by Employer Since No Showing of “Grave Injury”

Acknowledging that an employer may be liable to third parties for indemnification or contribution where the employer’s employee suffers a “grave injury,” as defined by N.Y. Workers Comp. Law § 11, a New York appellate court nevertheless reversed a trial court’s decision and directed the clerk to enter judgment in favor of the employer since there had been no actual showing of any grave injury. According to the court,...

January 18, 2019

Nebraska: Nonresident Corporation, With Limited Contacts, is Not an “Employer”

Where a Washington seafood corporation recruited workers in Nebraska, hosting them at a hotel conference room, and completing drug testing on those who were hired, but performed no actual work in Nebraska and did not frequently have employees either as support personnel or directly engaged within the state, it was not an “employer” for purposes of the Nebraska Workers’ Compensation Act. Accordingly, where a Nebraska resident...

January 18, 2019

United States: No Private Right of Action in Florida’s Drug-Free Workplace Program Statute

The Eleventh Circuit Court of Appeals recently held that a Florida job applicant, who was required to take a drug test, but then offered no actual position, may not maintain a civil action against the prospective employer under Florida’s Drug-Free Workplace Program Statute [§ 440.102, Fla. Stat.], since the statute does not provide an aggrieved applicant with a private right of action. The plaintiff, a black male, proceeding...

January 18, 2019

United States: Improper Cancellation Leaves Employer With Two Policies; Insurers Split Cost of Claim

Where a Missouri husband and wife operated a local bakery and each separately procured policies of workers’ compensation insurance for the business, cancellation of one of the policies nevertheless had to be in conformity with state law, held the Eighth Circuit Court of Appeals. Since the so-called cancellation did not follow the statutory guidelines, the business was protected by two policies and, following a work-related...

January 08, 2019

California: What Happens When the WCAB Invalidates an MTUS Regulation?

California’s 2012 WC reform package, SB863, mandated that medical treatment disputes would no longer by adjudicated by the WCAB. Instead, these disputes would be referred to Utilization Review (UR) and if requested, parties were permitted to appeal UR decisions to the Administrative Director (AD)’s Independent Medical Review (IMR) process. (See Lab. Code, § 4610.6 .) Labor Code section 4610.6(h) provides...

January 04, 2019

New York: Medical Opinions May Not Be Based Upon Mere “Possibility”

Substantial evidence supported the New York Workers' Compensation Board's decision finding that the claimant did not sustain a causally-related cervical spine injury because the medical testimony contained conflicting findings as to whether the claimant's cervical spine injury was causally related to the accident, and, inasmuch as neither treating physician reviewed the claimant's medical records from...

January 04, 2019

Idaho: Family Barred from Suing Employer for Wrongful Death in Spite of Safety Issues

Where an Idaho employee sustained fatal injuries when the exposed driveshaft of her employer’s “picking table" caught her hair and pulled her into the machine, her family could not maintain a wrongful death action against the employer; the civil action was barred by the exclusive remedy provisions of the state's Workers' Compensation Act [see Idaho Code Ann. §§ 72-209(1) and 72-211]. The evidence was clear...

January 04, 2019

United States: Claimant Establishes Legal Pneumoconiosis in Spite of Conflicting Medical Evidence

A claimant, who smoked cigarettes and worked as a coal miner for 30 years and who developed severe breathing problems after he stopped working in the coal mines was properly awarded benefits under the Black Lung Benefits Act, 30 U.S.C.S. § 901 et seq. , because he established that he had legal pneumoconiosis arising out of his coal mine employment that contributed to his total disability and the employer did not...

January 04, 2019

New York: Reimbursement from Special Fund Requires Showing That Preexisting Condition Hindered Employability

In order to obtain reimbursement from the state’s Special Disability Fund pursuant to N.Y. Workers’ Comp. Law § 15(8), it is not enough for the employer or carrier to show that the claimant had one or more previous physical impairments; it must also show that the claimant's preexisting conditions hindered or were likely to hinder her employability. Accordingly, where claimant, a licensed practical nurse, had been...

January 04, 2019

Ohio: Roofer’s Failure to Install “Catch Platforms” Results in Penalty for Violation of Specific Safety Requirement

Where a claimant was injured in a fall from a roof, the Industrial Commission did not err in awarding him additional compensation for his employer's violation of a specific safety requirement (“VSSR”), since Ohio Admin. Code 4123:1-3-09(F)(1) required the employer to install catch platforms if safety belts were not “used” during work performed on qualifying pitched roofs. The court acknowledged...

January 04, 2019

Ohio: Provisions in State’s “Contractor’s Self-Insurance Plans” Found to be Constitutional

Building on an earlier decision in which the Ohio Supreme Court had determined that the Ohio contractor’s self-insurance plan [see Ohio Rev. Code Ann. § 4123.35(O)] provided immunity not only to the self-insuring general contractor, but also to enrolled subcontractors from tort claims brought by employees of other enrolled subcontractors [see Stolz I , 146 Ohio St.3d 281, 2016-Ohio-1567, 55 N.E.3d 1082, at ¶ 8], the state's...

January 04, 2019

New York: Videotape and Social Media Evidence Torpedo Worker’s Claim for Benefits

Where a workers’ compensation claimant represented to an independent medical examiner that he could not sit upright or stand without head support, that he became dizzy from time to time, could not engage in play or other activities with his son, could engage in no social activities and was sensitive to light and noise, and yet videotape surveillance footage during the relevant time frame showed the claimant working outside...

January 04, 2019

Ohio: Worker’s Estate May Not Sue Bureau of Workers’ Compensation Re Alleged Faulty Inspections

The estate of an Ohio employee who sustained fatal injuries in an extrusion press accident may not maintain a civil action against the state’s Bureau of Workers’ Compensation (“BWC”) for its alleged negligent provision of safety consulting services including inspections it allegedly made of the employer’s extrusion press operations. In its civil action, the estate alleged that the employer’s...

January 02, 2019

California: Top 25 Noteworthy Panel Decisions (July through December 2018)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2018. The list features a number of cases addressing permanent disability and apportionment, including a case discussing application of the “cannot parcel out” exception outlined in Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166...

December 14, 2018

New York: Two-Year Delay in Contesting Coverage Bars Carrier From Pushing Loss to Second Carrier

Where a carrier accepted the claim and did not contest coverage for two years, it was appropriate for the Board to apply the doctrine of laches and preclude that carrier from litigation the coverage issue with another carrier. The court acknowledged that the first carrier contended its delay in challenging coverage was due to “complex” coverage issues but found that the carrier did not further elaborate on these issues...

December 14, 2018

New York: Truck “Monitor” Was Not Engaged in “9/11 Cleanup”

A worker hired to monitor the truck traffic hauling debris from the site of the terrorist attacks on the World Trade Center was not a participant in the “rescue, recovery, or cleanup operations” at the World Trade Center site and, accordingly, could not qualify for special benefits under N.Y. Work. Comp. Law article 8-A, held a state appellate court. Affirming the Board’s finding, the appellate court agreed that he could...

December 14, 2018

United States: Airline Deregulation Act Preempts WV’s Attempt to Regulate Air Ambulance Charges in Comp Claims

Continuing a line of similar decisions reached in various courts over the past year or so, the Fourth Circuit Court of Appeals held that the Airline Deregulation Act of 1978, 49 U.S.C. § 41713(b)(1), expressly preempted West Virginia's efforts to regulate the prices, routes, and services of air ambulance companies. Accordingly, an air ambulance company had U.S. Const. art. III standing to challenge the West Virginia...

December 14, 2018

New York: Continued Short-Term Med Approved in Spite of Passage of 16 Years

A New York appellate court recently affirmed the Board's decision that claimant’s continued use of Amrix—a muscle relaxant—was medically necessary in spite of the employer/carrier’s argument that the Board's Non-Acute Pain Management Guidelines recommended only short-term use of the medication and claimant’s back, right shoulder and left hip injury occurred in 2000, sixteen years...

December 14, 2018

United States: Claimant’s Unilateral Mistake Cannot Defeat Settlement and Release

Where a former employee, represented by counsel, sought workers’ compensation benefits and later settled his claim for $3,800, executing a settlement agreement and general release, it was inconsistent for him later to argue that the release should be disregarded because its execution had been a unilateral mistake, held a federal district court, sitting in Florida. The former employer raised the release as a defense when...

December 14, 2018

New York: Attorney’s Short Text Message to Physician Was Not Improper

A short text message sent only to a physician, and not to opposing counsel, notifying the doctor that his upcoming deposition would address claimant’s schedule loss of use, was not the sort of ex parte communication that gave the appearance of impropriety or improper interference on the part of the “offending” attorney. Accordingly, it was error for the New York Board to bar the introduction of the physician’s report...

December 14, 2018

North Dakota: Failure to File Claim Within 29 Months of Injury Bars Recovery of Benefits

In North Dakota, as is also the case in most states, the claims filing period begins on the date of injury. Under N.D. Cent. Code § 65-05-01, however, if the employee suffers from a latent injury or condition, the filing period begins on the first date a reasonable lay person, not learned in medicine, knew or should have known that he suffered a compensable work-related injury and has either lost wages or received medical...

December 14, 2018

Nevada: To Gain Relief from Subsequent Injury Fund, Employer Need Not Prove it Had Specific Knowledge of Condition

A Nevada employer need not show that it had knowledge of an employee’s specific medical diagnosis in order to receive reimbursement from the state’s Subsequent Injury Fund (“the Fund”). It must, however, prove that it had some sort of knowledge of a preexisting physical impairment that would support an impairment rating of at least six percent of the whole person, held the state’s Supreme Court. Here, the employee worked...