December 13, 2018

California: The Critical Distinction Between the “Prospective” and “Concurrent” UR Determinations

Recently, a panel of Workers’ Compensation Appeals Board (WCAB) commissioners addressed a Utilization Review (UR) denial of a medical treatment prescription involving an employee who had suffered a traumatic brain injury. The employee was already in an “in-patient” facility, and the request for treatment was for continued in-patient care ( Hector Garcia v. Barrett Business Services, ADJ8844834). The...

December 11, 2018

Workers’ Compensation Premium Rates Continue Downward Trend: 2018 Update

Oregon Report Provides Additional Evidence of a Continuing Downward Trend in Workers’ Compensation Premiums By Roger Rabb, J.D. **Updated with data from November 2018 report** As states compete not just with foreign job markets but with each other to attract new business development, the cost of labor is often a primary concern to potential business suitors. While employee wages are very important to the calculation...

December 11, 2018

California: 1st District Reversed W.C.A.B. on Apportionment Causation Standard

The First Appellate District Court of Appeals has reversed yet another W.C.A.B. opinion in which, according to the Court, the Board has applied the post SB 899 rules on apportionment too restrictively. In City of Petaluma v. W.C.A.B. (Lindh) , the Appeals Court has provided additional clarification to the current rules on apportionment under Labor Code 4663 in the post SB 899 world. Aaron Lindh was a public safety officer...

December 07, 2018

California Workers’ Compensation: Changes in the Air?

This article is excerpted from an upcoming edition of Herlick, California Workers’ Compensation Handbook. This 2019 edition is the 38th edition of Herlick, California Workers’ Comp Handbook. 2018 was the final year of Governor Brown’s term, and as a new administration takes over in 2019 there is uncertainty as to what a new administration may have in mind for California workers’ comp. 2018 saw a number of significant...

November 29, 2018

California: Everything You Need to Know About AD Decisions

When all else fails “read the instructions.” Sounds like good advice, unless you are attempting to figure out how to obtain and secure a decision from the Administrative Director (AD) of the Department of Industrial Relations (DIR), specifically one dealing with Supplemental Job Displacement Benefits (SJDB) disputes. I. Importance of the SJDB Voucher For industrial dates of injury on or after 1/1/2013, Labor Code...

November 28, 2018

United States: In Longshore Decision, No Abuse of Discretion in Adjusting Attorney’s Fees by National Consumer Price Index

With regard to a claim filed under the Longshore and Harbor Workers' Compensation Act (the Act), the Ninth Circuit Court of Appeals , in a decision not designated for publication, held that it was within the discretion of the Benefits Review Board and the District Director to use the national Consumer Price Index (CPI) to adjust the baseline hourly rates for attorney’s fees, instead of the CPI for the more specific...

November 28, 2018

New York: Employee/Independent Contractor Status Must be Determined by Board

A New York appellate court recently ruled that a state trial court was beyond its powers when it determined that an injured worker was an independent contractor and not an employee. Such a determination was for the state’s Workers’ Compensation Board; the parties could not choose the state courts as the forum for resolution of such core issues. The appellate court stressed that here the defendant had brought...

November 28, 2018

Nebraska: Massive Stroke Unrelated to Injury Does Not Change Claimant’s PTD Status

That a permanently disabled claimant subsequently suffered a massive stroke that was unrelated to her workplace injury and which left her completely incapacitated and unable to care for herself did not alter the fact that she was still permanently disabled under the state Workers’ Compensation Act, held the Supreme Court of Nebraska. Casting aside the employer’s argument that the employee’s continuing disability was the...

November 28, 2018

Iowa: Hardness of Floor Should Have Been Considered in Idiopathic Fall Case

A divided Supreme Court of Iowa recently held that all work-related risk factors must be considered in determining the compensability of an idiopathic fall—even the hardness of the floor. Accordingly, it was error for the Commissioner and a lower court to conclude, as a matter of law, that a claimant’s fall to a level floor could not be compensable. Quoting Larson’s Workers’ Compensation Law , the majority determined...

November 28, 2018

New York: Deviation to Get Beer/See Girlfriend Sink Farm Worker’s Claim

Where a New York farm worker took a short break to get a beer and see his girlfriend, who was moving her belongings into the worker’s employer-provided residence located across the road from the employer’s farm, that deviation was sufficient to remove the worker from the course and scope of his employment. Accordingly, it was not error for the Board to deny the worker’s claim for benefits in connection...

November 28, 2018

Massachusetts: Employer May Not Retaliate Against Worker Filing Third-Party Tort Action Against It

It is axiomatic in Massachusetts—and the significant majority of other American jurisdictions—that an employer may not retaliate against an employee who sustains a work-related injury. The protections afforded under the Bay State’s retaliatory discharge statute [Mass. Gen. Laws ch. 152, § 75B(2)] go even further than similar statutes in other states, at least according to a recent decision by a...

November 28, 2018

Pennsylvania: Comp Carrier May Not Maintain Civil Action Against Third-Party Without Assignment from Injured Worker

A divided Supreme Court of Pennsylvania, reiterating the holding in one of its earlier decisions, held that a workers’ compensation carrier may not maintain a third-party civil action against an alleged tortfeasor unless the injured employee has either assigned her cause of action to the carrier or voluntarily joined the litigation as a party plaintiff. Accordingly, where the carrier filed the lawsuit “on...

November 27, 2018

New York: Out-of-State Medical Treatment Must Comply With State’s Medical Guidelines

Acknowledging that a New York claimant who moved from the Empire State to another—in this case, Nevada—was entitled to reasonable and adequate medical treatment in his or her new location, a New York appellate court held that such out-of-state treatment was, nevertheless, still subject to New York’s Medical Treatment Guidelines. Accordingly, it was appropriate for the state’s Workers’ Compensation Board to find that claimant...

November 21, 2018

California: Avoiding Unpleasant Surprises: The Story of the “Closed” File

Surprisingly, one of the biggest impediments to settling a workers’ compensation case these days occurs when the settlement is nominal. Cases often settle for a nominal, sometimes called a “nuisance value” amount, because the facts of the case lead both parties have legitimate concerns. Applicant may worry about prevailing at trial. Defendants have issues spending enormous amounts of time and money on a case where risk...

November 08, 2018

New Mexico: Unexplained Fall in Level, Unobstructed Hallway is Presumed to be Compensable

Reversing a decision by a state Workers’ Compensation Judge (WCJ) that had ruled an employee’s injury, in the form of a fractured humerus, was not compensable because it did not arise out of and in the course of the employment, the Supreme Court of New Mexico ruled the employee’s fall was “unexplained,” and as such there arose a presumption that the on premises injury did indeed arise out of and in the course of the employment...

November 08, 2018

United States: Mother of Deceased Temporary Worker May Not Maintain Wrongful Death Action Against Borrowing Employer

Construing Louisiana law, and applying the ten-factor test established by the Fifth Circuit Court of Appeals in U.S. Fire Ins. Co. v. Miller , 381 F.3d 385, 388 (5th Cir. 2004), a federal district court found that a worker assigned to the defendant’s pipe manufacturing plant in New Orleans by a temporary staffing agency was the borrowed employee of the defendant and, accordingly, a wrongful death action filed against...

November 08, 2018

New Hampshire: Board Errs in Failing to Utilize “Increased Risk” Test

The Supreme Court of New Hampshire vacated and remanded a decision of the state’s Compensation Appeals Board that denied a personal care service representative’s request for reimbursement for medical treatment and workers' compensation benefits where evidence showed that the worker slipped on stairs at the home of a disabled person to whom she had been assigned. The Court ruled that the Board erred in failing to utilize...

November 08, 2018

Tennessee: Widow Fails in Attempt to Tie Husband’s Pancreatic Cancer to Coal Tar Pitch Exposure at Work

In an occupational disease/death case, the evidence in the record did not preponderate against the trial court's determination that a deceased employee's widow failed to establish that her deceased husband’s pancreatic cancer was causally related to her husband’s work-related exposure to coal tar pitch. The employer's expert testified that the employee possessed recognized risk factors for the development...

November 08, 2018

Virginia: Worker Loses Comp Benefits By Failing to Attend Scheduled FCE Session

Where an employer sought to terminate an injured worker’s benefits on the grounds that she had unjustifiably refused medical treatment—on three occasions over a four-month period of time, she cancelled a scheduled (and rescheduled) “functional capacity evaluation” (“FCE”) session—the employee’s “cure defense” offered at a hearing more than ten months after the...

November 08, 2018

Georgia: Injury Sustained On Premises During Scheduled Lunch Break Not Compensable

Where a Georgia employee was injured in the break room in the process of taking her lunch outside during a scheduled lunch break, the state’s Board of Workers' Compensation did not err by applying the scheduled lunch break exception and by ruling that the ingress and egress rule did not apply to an employee leaving the employer's premises on a scheduled lunch break. The court indicated the employee's injury...

November 08, 2018

Ohio: Parking Lot Injuries Found Compensable Under “Zone of Employment” Rule

Injuries sustained by an Ohio office worker when she fell in a parking lot adjacent to the building housing her office were compensable, since they arose out of and in the course of her employment, held an appellant court recently. The worker had clocked out for lunch and had exited the building when she fell over some uneven pavement. The employer contended the claim was barred by the going and coming rule, but the appellate...

November 08, 2018

Florida: No Ex Post Facto Comp Coverage Allowed

Where an insurance broker secured a policy of workers’ compensation insurance for a client an hour or so after one of the client’s employee had suffered a work-related accident, without disclosing to the carrier that the accident and injury had occurred, yet the policy bound over coverage beginning at 12:01 a.m. of the day of the incident—technically before the accident had occurred—there was,...

November 07, 2018

California: What Types of Medical Issues May AMEs/QMEs Decide Post SB 863?

Until the recent Noteworthy Panel Decision of Pacas v. The Mailing House , 2018 Cal. Wrk. Comp. P.D. LEXIS 20 , it seemed pretty clear that neither AMEs (Agreed Medical Evaluators) nor PQMEs (Panel Qualified Medical Evaluators) were currently allowed to weigh in on “contested medical treatment issues.” But now, one wonders about it. I. Pacas Case – Parties Stipulated to Use AME to Determine “Home Care” The Pacas decision...

November 07, 2018

The Quiet Before the Storm: Workers' Compensation Emerging Issues Analysis 2018 Edition

By Thomas A. Robinson, J.D. As we put together this year’s edition of our Workers’ Compensation Emerging Issues Analysis series, I allowed to a colleague that I felt as if 2018 might appropriately be characterized as “the quiet before the storm.” That is to say that although there have been several important decisions from state appellate courts this year—e.g., see my discussion below of cases from Kansas, Oklahoma...

November 02, 2018

California: Does Dynamex Apply to Workers’ Compensation Proceedings?

Since the California Supreme Court recently decided the Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. 5th 903 , 83 Cal. Comp. Cases 817 case, there has been a great deal of discussion as to what is, for purposes of California law, the correct standard to be applied in determining whether a worker is an employee or independent contractor. The controversy centers on the fact that the California Supreme Court...