October 25, 2018

New York: Videotape Evidence Sinks Claimant’s Claim

A workers’ compensation claimant was appropriately disqualified from receiving benefits under N.Y. Work. Comp. Law § 114-a(1) where claimant represented to his treating physician and the carrier's medical expert that he was in constant pain, required use of a cane or knee brace on a daily basis, and was severely impacted in his ability to stand and walk, but where reports prepared by an investigator showed otherwise...

October 25, 2018

New York: Affiliate Company Must Pay Half of Claimant’s Workers’ Comp Benefits

Substantial evidence supported the Workers’ Compensation Board’s ruling that an affiliate company, Quality Carriers, was claimant’s special employer and, therefore, liable for 50 percent of the workers’ compensation benefits owed to an injured driver, where the evidence established that Eaton’s Trucking Service (“Eaton”) and Quality had an arrangement whereby Eaton's drivers...

October 25, 2018

Montana: Supreme Court Says State’s IME Process Does Not Violate Due Process

Mont. Code Ann. § 39-71-605, which permits workers’ compensation insurers to obtain multiple medical examinations of a claimant, does not permit the State Fund (which had insured the risk and was administering the claim in the instant case) to act in contravention to the rights of privacy, substantive due process, and against unreasonable searches embodied in the Montana Constitution, held the Supreme Court of Montana...

October 25, 2018

Arkansas: Office Worker’s Slip and Fall Injury Before Clocking In Found Compensable

Substantial evidence supported the Commission’s finding that an office worker sustained compensable injuries when she slipped on a wet marble floor as she stepped into Arkansas’ Capitol building about fifteen minutes before her work day began, in spite of the relatively restrictive Arkansas statute [Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2012)] that states that an injury arises out of and in the course of the employment...

October 25, 2018

What the Latest RAND Study on Workers’ Compensation Won’t Tell Us

Researchers Omitted Perspectives From Key Stakeholders A recent report , published by the RAND Corporation, entitled “How Can Workers’ Compensation Systems Promote Occupational Safety and Health?: Stakeholders Views on Policy and Research Priorities,” by Michael Dworsky and Nicholas Broten, finds, inter alia , that inadequate coverage, less than adequate benefit levels, problems in the delivery of medical treatment...

October 25, 2018

California: Medical Appointments and the Obligation to Pay Temporary Disability

Generally, an employee who is unable to work during their recovery process is entitled to receive temporary disability benefits (Labor Code Section 4650 et seq.). However, the analysis of whether the employee is entitled to receive temporary disability once the employee returns to full-time work, but then has to miss time from work due to legitimate and authorized medical treatment appointments, can become very complicated...

October 19, 2018

New York: Mental Injury Caused by Ordinary Supervision is Not Compensable

Substantial evidence supported the Workers' Compensation Board's factual determination that the claimant's depressive condition was not compensable, because claimant's supervisors described normal oversight and monitoring practices undertaken to assist her in correcting deficiencies in and improving her performance. Claimant, a registered nurse case manager, alleged that, due to harassment and bullying...

October 19, 2018

Virginia: Shipyard Owed Duty of Care Not to Expose Worker’s Family Members to Asbestos Fibers on Worker’s Clothing

Answering a restated certified question from the U.S. District Court (Eastern District of Virginia), the Supreme Court of Virginia, in a deeply divided 4-3 decision, held that an employer owed a duty of care to an employee's family member who alleged exposure to asbestos from the work clothes of the employee, where the family member alleged the employer's negligence allowed asbestos fibers to be regularly transported...

October 19, 2018

Virginia: Failure to Wear Seatbelt Was Willful Misconduct on Part of Bus Driver

The failure of a Virginia bus driver to lock and wear his seatbelt upon picking up passengers—he later sustained serious injuries when his vehicle was struck from behind, careened down a guardrail, and then flipped—constituted willful misconduct under Va. Code § 65.2-306, since the evidence showed that he did not sustain the injuries while in the driver’s seat, but only after being ejected from...

October 19, 2018

Vermont: Supreme Court Sticks to Earlier Decision—“Substantial Certainty” Rule May Not be Used in Intentional Tort Cases

The Supreme Court of Vermont again refused to adopt the “substantial certainty” rule for intentional tort cases filed by an injured employee against an employer. Citing its earlier decision in Kittell v. Vermont Weatherboard, Inc. , 138 Vt. 439, 417 A.2d 926 (1980), the Court indicated that nothing short of actual intent to injure could support an injured employee’s intentional tort claim against the employer. Here the...

October 17, 2018

California: A Violent Act Is Not Necessarily Sudden & Extraordinary

Lately, there has been quite a bit of litigation over the relatively new Labor Code § 4660.1 (c), which mandates that for dates of injury on or after January 1, 2013, there may be no increase in Whole Person Impairment (WPI) for sex, sleep or psych impairments that are compensable consequences of physical injuries. Sounds easy enough. For instance, if an injured worker has an industrial failed back surgery, she cannot...

October 09, 2018

California: Establishing Apportionment Under Labor Code Section 4664(b)

Labor Code Sections 4663 and 4664 were both passed as part of the massive workers’ compensation reforms that occurred under then Governor Schwarzenegger in 2004. Since these laws were passed, the vast majority of apportionment issues in California workers’ compensation focused on Labor Code Section 4663’s apportionment based on “causation” and less so on Labor Code Section 4664(b)’s...

October 04, 2018

Kentucky: Under Special Statute, Retiring Worker Receiving PPD Indemnity Entitled to Double Benefits

Under Ky. Rev. Stat. Ann. § 342.730(1)(c)(2), where there is a cessation of employment, temporary or permanent, “for any reason, with or without cause,” payment of weekly benefits for PPD during the time of cessation is doubled. In a case of first impression, the Supreme Court of Kentucky held that the statutory multiplier applied to a claimant's benefits when that claimant returned to work and later...

October 04, 2018

Ohio: Employer Did Not Violate Safety Rule Where Compliance Was “Impossible”

Acknowledging that it was possible for an employer to establish impossibility as an affirmative defense to an application for an additional award for a violation of a specific safety requirement (“VSSR”), the Supreme Court of Ohio held that in order to take advantage of such a defense, the employer must show (1) that it would have been impossible to comply with the specific safety requirement or that compliance...

October 04, 2018

Hawaii: Employer’s Decision to Fill Injured Worker’s Position 10 Months After Injury Was not Discriminatory

An employer who waited 10 months after an employee’s work-related injury to fill the position and who offered the employee a number of positions when she sought post-recovery employment did not discriminate against the employee “solely because” of her work-related injury under HRS § 378-32(a)(2), held an appellate court in Hawaii. The employer offered evidence that the employee’s prolonged...

October 04, 2018

Ohio: Claimant Establishes Aggravation Claim in Spite of Paucity of Objective Evidence

In a divided decision, an Ohio appellate court held that a trial court committed error in granting summary judgment to a hospital employer regarding a nursing assistant’s workers’ compensation claim in which the assistant claimed her preexisting conditions were substantially aggravated by a work injury—she was kicked by a patient. Although the nursing assistant did not present pre-injury medical documentation as to the...

October 04, 2018

Illinois: Defendant Allowed to Add Exclusive Remedy Defense After 40 Depositions Have Been Taken

In a divided decision, an Illinois appellate court held that a trial court did not abuse its discretion in allowing the defendant to raise the exclusive remedy defense in spite of the fact that the parties had already taken more than 40 depositions during more than five years of motion practice, discovery, and an earlier appeal in as much as the employer’s response was to plaintiff’s seventh amended complaint...

October 04, 2018

Alaska: Settlement of Third-Party Action for Auto Insurance Policy Limits Without Employer’s Approval Results in Dismissal of Workers’ Compensation Claim

Where a taxi driver sustained work-related injuries in a vehicular accident and subsequently settled his third-party tort action against the other driver’s estate for the policy limits of that driver’s auto insurance policy without obtaining written approval from the employer, it was appropriate for the Workers’ Compensation Board to dismiss the driver’s workers' compensation claim under Alaska...

October 04, 2018

Virginia: Repetitive Trauma Generally Cannot Support Comp Claim

A Virginia appellate court reiterated the general rule that in order to recover under the state’s Worker’ Compensation Act, a claimant must demonstrate an “identifiable incident” or “sudden precipitating event” that results in an “obvious sudden mechanical or structural change in the body.” Accordingly, the Court held that the Commission appropriately found that a claimant failed to prove his shoulder injuries were compensable...

October 04, 2018

Ohio: High Court Overrules Prior Decisions; Voluntary Removal from Employment Unrelated to Injury Results in Loss of TTD Benefits

Overruling two of its own decisions, the Supreme Court of Ohio held that where a claimant in a workers’ compensation case voluntarily removes himself from his or her former position of employment for reasons unrelated to the workplace injury, the claimant is no longer eligible for TTD compensation, even if the claimant remains disabled at the time of the separation from employment. The worker gave the employer a...

October 03, 2018

A Large C&R and the Feds: What Can Go Wrong and How to Fix It

By Hon. Robert G. Rassp[fn1] What does an Applicant’s attorney do when the feds come calling and say the Applicant has been overpaid social security disability benefits (SSDI) because of a large Compromise and Release? This article addresses this issue along with attorney best practices in these cases and how judges who approve lump sum settlements can protect against an Applicant’s reduction of monthly social security...

October 03, 2018

A Large C&R and the Feds: What Can Go Wrong and How to Fix It

By Hon. Robert G. Rassp[fn1] What does an Applicant’s attorney do when the feds come calling and say the Applicant has been overpaid social security disability benefits (SSDI) because of a large Compromise and Release? This article addresses this issue along with attorney best practices in these cases and how judges who approve lump sum settlements can protect against an Applicant’s reduction of monthly social security...

September 26, 2018

California: Appellate Court Rejects PTD “In Accordance with the Fact”

The 3rd District Court of Appeal has issued a stunning decision rejecting the W.C.A.B.’s reliance on an award by a WCJ of Permanent Total Disability based on Labor Code 4662(b)’s language of disability “…in accordance with the fact”. In doing so, the Court specifically found, in the absence of PTD under Labor Code 4662(a), the only way to make a finding of PTD is under Labor Code 4660[n1]. In California Department of...

September 26, 2018

New Commissioner Speaks and Other Texas-sized Updates

For the first time in a public setting, the new Commissioner of the Division of Workers Compensation (DWC) provided her insights on the direction of the agency and the workers compensation system as a whole at the Insurance Council of Texas (ICT) Fall Conference. ICT is the preeminent provider of education to workers compensation stakeholders and the education lived up to its new location on the campus of the University...

September 21, 2018

United States: Worker Who Settles Third-Party Tort Suit Without Notice to Employer Forfeits Right to Benefits Under Longshore Act

Where an injured worker filed a claim for benefits with the Office of Workers’ Compensation Programs for total/permanent disability benefits under the Longshore and Harbor Workers Compensation Act (LHWCA) and, without notice to the employer, settled a third-party tort action for $325,000 that was based on the same accident, the worker forfeited any right to compensation or medical benefits that he might otherwise...