September 21, 2018

Connecticut: Causation Determination under Longshore Act Precludes Re-Litigation of Issue in State Workers’ Compensation Matter

An employer was collaterally estopped from litigating the issue of causation with respect to a death benefits claim filed by the widow of a worker who had been exposed to asbestos during his employment where that issue had already been litigated between the parties in a federal administrative action involving benefits under the Longshore and Harbor Workers Compensation Act. The Court found that the federal causation findings...

September 21, 2018

Nebraska: Indemnity Agreement Costs ConAgra $108.9 Million Following Explosion at NC Facility

Where ConAgra, the large food manufacturer, had contracted with Jacobs Engineering (Jacobs) for engineering services connected to its Garner, North Carolina facility and the parties included within the contract a clause whereby each agreed to indemnify the other against claims arising from the respective party’s negligence, that express indemnity clause was not negated by the exclusive remedy provisions of the Nebraska...

September 21, 2018

Nevada: Stroke Victim May Not Sue Employer for Delay in Seeking Medical Treatment

The Supreme Court of Nevada, reversing a decision of the state’s court of appeals, held that a Las Vegas casino employee could not maintain a civil action against his employer to recover damages for its alleged delay in seeking medical treatment following his suffering of a stroke just prior to the beginning of his work shift; his alleged additional injuries arose out of and in the course of his employment and his suit...

September 19, 2018

California: Determining Permanent Disability When There Is No Rating Schedule Nor Any Clear Rules

Any discussion concerning the appropriate calculation of the permanent disability in California’s Workers’ Compensation System should start with Labor Code Section 4660(a). This section basically states that the percentage of PD should reflect the “nature of the physical injury or disfigurement” (explained in section 4660(b)(1) to be done by application of the AMA Guides), the employee’s...

September 14, 2018

Arkansas: Employer Fails to Show High School Basketball Injury Was Idiopathic Condition Causing 66-year-old Pharmacist to Fall

In Arkansas, in order for an employee to establish that the injury arose out of and in the course of the employment, the claimant must prove that he or she was “performing employment services” when he or she was injured. In spite of that limiting provision in the state’s case law, an Arkansas appellate court recently affirmed an award of benefits to a staff pharmacist who sustained injuries when he tripped and fell while...

September 14, 2018

New Mexico: Worker’s Offer of Judgment Triggers Statutory Fee-Shifting Provisions

A workers' compensation judge erred as a matter of law by declining to apply the mandatory fee-shifting provision set forth in N.M. Stat. Ann. § 52-1-54(F)(4)(2003)(amended 2013), because the worker made a valid offer under N.M. Stat. Ann. § 52-1-54(F) (2003), held the Supreme Court of New Mexico. The employer had argued that the worker’s offer failed to address two contested issues: date of MMI and...

September 14, 2018

Iowa: Psychiatrist’s Reopening Petition Based Upon Alleged “New” Mental Disorder Denied

An Iowa appellate court affirmed the denial of a psychiatrist’s petition to reopen his prior workers' compensation settlement agreement in which he alleged that he had developed a mental disorder as a result of his original injuries and that such disorder amounted to a change in medical condition. The appellate court found that substantial evidence supported the Commissioner’s finding—affirmed by the district court...

September 14, 2018

Oklahoma: Injuries Sustained While Being Treated for Earlier Work-Related Claim Are Also Compensable

Reversing the state’s Court of Civil Appeals, the Supreme Court of Oklahoma has reinstated a decision by a three-judge panel of the Workers’ Compensation Court that earlier held a workers’ compensation claimant was entitled to additional compensation following a freakish accident that occurred while the claimant was receiving medical treatment for an earlier work-related injury. The claimant, who sustained...

September 14, 2018

California: Medical Examiner Appointment Timeframes

In Bogue v. County of Solano , 2018 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, denying removal, affirmed the WCJ’s finding that a panel qualified medical evaluator’s inability to schedule an appointment for an applicant within 60 days of the applicant’s appointment request did not entitle the applicant to a replacement qualified medical evaluator in this case. The applicant, pursuant to her initial right...

September 13, 2018

WCRI Report Shows Wide State Variations in Time From Injury to Medical Treatment

Workers Compensation Research Institute (WCRI) recently released a report examining interstate differences in the time from work-related injury to first medical treatment by type of provider, type of service, and type of injury, and found wide variations across states for some medical services [ see Carol A. Telles and William Monnin-Browder, “ Time from Injury to Medical Treatment: How States Compare ,” ISBN 978-1-61471...

September 10, 2018

CWCI Analysis Finds California Workers’ Comp IMR Volume Has Increased in 2018

Oakland – The number of independent medical reviews (IMRs) used to resolve California workers’ compensation medical disputes rose 4.4 percent in the first half of 2018 compared to the first half of 2017, though once again in more than 90 percent of the cases the independent medical review physician upheld the utilization review physician’s modification or denial of treatment. Under California law every workers’ compensation...

September 07, 2018

Maryland: First Responder Establishes Occupational Disease Claim for Menisci Tears

A state appellate court affirmed a decision by a trial court that a first responder presented evidence sufficient to prove that his menisci tears were an occupational disease under Md. Code Ann., Lab. & Empl. § 9-502(d)(1)(i) (1991, 2016 Repl. Vol.), including his own testimony that being a paramedic required him to kneel for lengthy periods of time and carry patients down stairs and lift them onto stretchers. Expert...

September 07, 2018

United States: Termination for Being Unable to Perform Job is Not Retaliation

Construing South Carolina law, a federal district court held that S.C. Code § 41-1-80 and statutes like it do not require an employer to retain an employee who can no longer perform the duties of her job simply because her inability to perform the duties results from an on-the-job injury. An employer did not violate the statute, therefore, by terminating a worker after it learned that he could lift 35 pounds maximum...

September 07, 2018

New York: Board Justified in Failing to Excuse Claimant’s Late Notice to Employer

Where an employer placed a worker on medical leave in February 2013, due to a bilateral knee condition and, more than a year later, and after consulting with a different orthopedist, the worker sought workers' compensation benefits, attributing her bilateral knee condition to walking between the employer's work sites and the repetitive stair climbing associated with her job duties, an appellate court would not...

September 07, 2018

North Carolina: Insurer’s Anti-Fraud Actions May Backfire into Punitive Damages

An injured worker, who sustained catastrophic injuries that initially rendered him comatose and which ultimately resulted in significant behavioral and memory deficits, including deficits in executive functioning, problem solving, planning, and balance, may proceed in tort against his employer’s workers’ compensation carrier, based upon his allegations that the carrier, with the aid of an extensively edited...

September 06, 2018

California: Supreme Court Reverses King v. CompPartners—Cites Exclusive Remedy

By Richard M. Jacobsmeyer, Esq. In one of the most anticipated appellate decisions of 2018, the California Supreme Court has reversed the Court of Appeal decision in King v CompPartners . The Court determined the Labor Code’s exclusive remedy provisions limit an employee’s ability to proceed outside the W.C.A.B for injuries alleged to have occurred as a result of the utilization review process. In doing so, the Court...

August 26, 2018

Larson’s Workers’ Comp Case Roundup (8/26/2018)

The following are some noteworthy cases that are being reported in an upcoming release of Larson’s Workers’ Compensation Law. Assaults. In one bizarre and tragic Alabama case, the court awarded death benefits to the surviving spouse of an accountant who was stalked and then shot to death by an assailant who blamed the accountant for tax problems in his business [see Lawler & Cole CPAs, LLC v. Cole , 2018 Ala. Civ...

August 24, 2018

Ohio: Worker Barred From Recovery After Being Assaulted by Co-Worker’s Husband in Company Parking Lot

In a case with bizarre facts, a worker who alleged that he sustained injuries when he was physically assaulted by the husband of a co-worker and then intentionally struck by the husband’s vehicle as the worker tried to block the path of the assailant did not sustain injuries arising out of and in the course of the employment, held an Ohio appellate court. The worker had apparently arrived at the parking lot some ten minutes...

August 24, 2018

United States: Employee Assigned by Personnel Agency May Not Sue “Borrowing” Firm in Negligence

Construing California law, a federal district court granted summary judgment to a defendant company that had been sued by a worker who sustained injuries when one of the company’s employees “bumped” his forklift blade into the plaintiff while the two men were working at the company’s facility. The defendant company contended the plaintiff, who had been assigned to work at the company’s facility...

August 24, 2018

Wyoming: Cost of “Alternative” Spinal Surgery in Germany Need Not be Paid by Employer/Carrier

For workers’ compensation purposes, approval of a medical device or treatment by the U.S. Food and Drug Administration (FDA) is not required to establish that it was reasonable and necessary; but the Wyoming Workers’ Compensation Division may nevertheless require a claimant requesting a non-FDA-approved medical device or treatment to produce reliable documentation of its safety and effectiveness against her specific medical...

August 24, 2018

California: Reviewers Under State's Utilization Review Procedure are Immune from Tort Liability; Exclusive Remedy is Workers’ Compensation

The exclusive remedy provisions contained in Cal. Labor Code § 3602 extend their shield against tort liability to utilization reviewers performing their services under the state’s workers’ compensation utilization review process. Accordingly, where a utilization reviewer denied a treating physician's request to continue prescribing a certain medication — Klonopin — for an injured employee...

August 22, 2018

California: Will Dynamex Dynamite the Borello Factors?

In 1989, the California Supreme Court issued the opinion of S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341 , 54 Cal. Comp. Cases 80, whereby a plethora of factors were considered to determine whether a worker was an “employee” or an “independent contractor” in a workers’ compensation case. The workers’ compensation community has been using these “ Borello factors” ever since to analyze...

August 22, 2018

Opioids Top the Drug List in California Workers’ Comp Polypharmacy Claims

Oakland, CA - Efforts to curb opioid use in California workers’ compensation have been successful, but new research by the California Workers’ Compensation Institute (CWCI) shows they remain very common among claims in which injured workers are given multiple concurrent prescriptions, and are the most prevalent type of drug found in polypharmacy claims that involve five or more concurrent prescriptions. Polypharmacy...

August 20, 2018

Is the Sky Falling? Will ALJs Become Political Pawns?

By Thomas C. Fitzhugh, III, Schouest, Bamdas, Soshea & BenMaier PLLC, Houston, Texas Last month Steve Embry reported the developments in the Administrative Law Judge (ALJ) world following the Supreme Court’s opinion in Lucia v. Securities & Exchange Commission, 201 L.Ed 2d 464 (2018), and the President’s Executive Order 13483 moving ALJ’s from selection by competitive examination to executive appointments. The...

August 17, 2018

Texas: Issue of Jones Act “Vessel” Status is Fact-Intensive

Noting that whether a vessel is or is not “in navigation” for Jones Act purposes is a fact-intensive question normally for the jury, and not the court, to decide, a Texas court reversed a state trial court’s decision granting summary judgment to the defendant in a Jones Act case filed by a welder working on the Artic Challenger, The defendant contended the welder was not a Jones Act seaman because the Artic Challenger...