August 17, 2018

United States: Tort Action Against Comp Insurer is Barred by Exclusive Remedy Defense

A federal district court granted a workers’ compensation insurance company’s motion to dismiss claims contained in a complaint filed against it alleging, inter alia , concealment fraud, negligent interference, and bad faith breach of contract. The court said that, generally speaking, the carrier had been sued for its role in the alleged mishandling of plaintiff’s workers’ compensation claim following...

August 17, 2018

New York: Special Employer Generally May Not Be Sued in Tort

Where a defendant contracted with Manpower Group US (Manpower) regarding the services of a worker and controlled and directed the manner, details, and ultimate result of the worker’s work, it was the worker’s special employer and, therefore, it was also immune from tort liability where the worker had received workers’ compensation benefits from the general employer, Manpower. In an affidavit offered at the time of a motion...

August 17, 2018

Pennsylvania: Compromise & Release May Not Be Used as Informal Utilization Review

A Pennsylvania appellate court held that a compromise and release (C&R) agreement may not be employed to avoid the procedures in the state’s Workers’ Compensation Act for challenging a provider's invoice or a fee review determination that the invoice must be paid. That is because the parties to a C&R agreement can bind each other; they cannot release themselves from liability to a person or entity who is not...

August 17, 2018

California: The Ongoing Role of VR Evidence in Determining Permanent Disability

Recently, a panel of three commissioners with the Workers’ Compensation Appeals Board (WCAB) upheld a Workers’ Compensation Administrative Law Judge (WCALJ) who determined that the injured employee qualified for an award of 100% permanent and total disability ( Hanus v. URS/AECOM Corporation, 2018 Cal. Wrk. Comp. P.D. LEXIS --). The case is of particular interest to the extent the defendant in Hanus had argued...

August 15, 2018

North Carolina: Subject Matter Jurisdiction Can Be Raised at Any Time

A challenge to a court’s jurisdiction can be offered at any time, held a North Carolina appellate court. Accordingly, in a wrongful death action filed by the administratrix of a young woman’s estate against the deceased’s employer, that employer could contest the court’s ability to hear the case, even after the trial court entered a default judgment against the defendants for more than $2 million...

August 15, 2018

Idaho: Injured Worker’s “Undocumented” Status is Economic Factor to Be Considered in Determining Level of Permanent Disability

In a split decision, the Supreme Court of Idaho held that the plain wording of Idaho Code Ann. §§ 72-425 and 72-430 require that all personal and economic circumstances that diminish the ability of the claimant to compete in an open labor market must be considered when determining whether an injured employee is entitled to permanent disability benefits, including his or her status as an undocumented immigrant . The Court...

August 15, 2018

United States: Teacher May Not Sue School for Injuries Sustained in Breaking Up Student Fight

Construing Minnesota law, the Eighth Circuit Court of Appeals affirmed a federal district court’s decision to grant summary judgment in favor of a Minnesota school district that had been sued by a teacher who sustained serious injuries when he attempted to break up a student fight in a school cafeteria. The Eighth Circuit agreed that the only duty the plaintiff-teacher argued had been breached was the employer’s...

August 15, 2018

North Carolina: Bank Employee’s Tort Action for Failure to Provide Stress-Free Work Environment Fails

A North Carolina appellate court affirmed the dismissal—on exclusive remedy grounds—of a civil action filed by a former bank employee against her former employer and supervisor alleging that the defendants had failed to exercise reasonable care and provide her with a safe working environment free from mental stress or anxiety. The plaintiff further alleged that their failure to provide her with a stress-free work environment...

August 08, 2018

California Workers' Comp Case Roundup (8/8/2018)

CALIFORNIA COMPENSATION CASES Vol. 83 No. 7 July 2018 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 2018 LexisNexis. All rights reserved. LexisNexis Online Subscribers: You can link to your account on Lexis to read the complete headnotes and court decisions...

August 03, 2018

Arizona: Injured Worker May Not Use Post-Settlement Trial to Determine Level of Employer’s Fault in Order to Reduce Insurance Carrier’s Lien

In Arizona, as in virtually all other jurisdictions, an insurance carrier providing workers’ compensation benefits to an injured worker enjoys a lien on a claimant's (or a claimant's dependents') recovery from third persons who negligently injured or killed the claimant to the extent of workers' compensation benefits paid (less reasonable and necessary expenses incurred in securing the recovery)...

August 03, 2018

Louisiana: Office Worker’s Mold Exposure Does Not Qualify as Occupational Disease

A Louisiana appellate court affirmed a ruling by a workers’ compensation judge that the claimant, an office worker, had not suffered an occupational disease within the meaning of the state’s Workers’ Compensation Act related to her alleged exposure to mold in the office. Citing prior authority, the court indicated that mold exposure in the workplace generally falls outside the compensation scheme based upon the meaning...

August 03, 2018

Arizona: Court Adopts Larson’s “Friction and Strain” Doctrine for Workplace Assaults

Acknowledging its earlier adoption of the “quantum theory of work connection,” described in Larson’s Workers’ Compensation Law , under which the “arising out of” and “in the course of” tests are not independent, but joined together, an Arizona appellate court set aside a decision by the state’s Industrial Commission that denied workers’ compensation benefits...

August 03, 2018

Kansas: Court Expands Pardo Decision: Use of AMA Guides 6th Ed. Is Unconstitutional

On Friday (August 3, 2018), the Court of Appeals of Kansas held the use of the AMA Guides (6th Edition) for determining impairment levels of injured workers under the Kansas Workers’ Compensation Act (“the Act”) was unconstitutional as a violation of due process. Expanding its holding in Pardo v. United Parcel Servs., 56 Kan. App. 2d 1,  2018 Kan. App. LEXIS 30   (June 1, 2018), in which a panel of the court determined...

August 01, 2018

California: Adding Disabilities Rather than Using the CVC

In a noteworthy panel decision, the WCAB in Taina v. County of Santa Clara/Valley Medical Center , 2018 Cal. Wrk. Comp. P.D. LEXIS --, affirmed the WCJ and held that the WCJ did not err by determining the level of permanent disability caused by applicant’s 10/4/2011 neck, shoulder and psychiatric injuries by adding orthopedic and psychiatric disabilities to find 87 percent permanent disability, rather than by combining...

July 27, 2018

Officer, Employee or Tools: The Role of Administrative Law Judges

By Stephen C. Embry, Esq., Embry and Neusner The Supreme Court on June 21, 2018 rendered a decision in Lucia et al. v. Securities and Exchange Commission, __ U.S. __, 2018 U.S. LEXIS 3836 , No. 17-130, which may have significant impact on the role that Administrative law judges play in the interpretation of the Longshore and Harbor Workers' Compensation Act, as well as other laws, and which raises the spectre of...

July 26, 2018

CWCI Examines Prescription Drug UR/IMR Outcomes Under the California Workers’ Comp Formulary

Oakland, CA – A new California Workers’ Compensation Institute (CWCI) analysis offers a preliminary look at Utilization Review (UR) and Independent Medical Review (IMR) outcomes involving pharmaceutical requests for California injured workers since the state implemented a workers’ comp formulary in January of this year. In October 2015, Governor Brown signed AB 1124 mandating the adoption of an evidence...

July 26, 2018

Florida: With Regard to Requested $2,000 Advance, JCC May Consider Worker’s Financial Need

A Florida appellate court affirmed an order by a Judge of Compensation Claims that denied a workers’ compensation claimant’s request for a $2,000 advance pursuant to § 440.20(12)(c), Fla. Stat., because she failed to establish a financial need for the advance. The claimant contended that in as much as her stated purpose for the advance was to pay for an independent medical examination in support of her...

July 26, 2018

Minnesota: Claimant Pulled into Argument Between Two Employers Awarded Attorney’s Fees

In a workers' compensation dispute where two employers denied liability and the employee was drawn into the litigation, the employee was entitled to attorney fees under Minn. Stat. § 176.191, held the Supreme Court of Minnesota. Here, the employee sought benefits in 2015 for work-related aggravations to a low-back condition that resulted from an admitted work-related injury in 2009. At all relevant times, the employee...

July 26, 2018

California: Intervention of WCJ When PQME Process Fails

It is difficult to come up with a more controversial not to mention hotly litigated topic in California’s workers’ compensation system than the Panel Qualified Medical Evaluation (PQME) process. Though there is little question that the old “battling QME” process that pre-dated the current PQME process had its share of problems, the difficulties encountered while dealing with the Medical Unit or...

July 26, 2018

Pennsylvania: Benefits Terminated in Spite of Claimant’s Continuing Pain

A Pennsylvania appellate court found substantial evidence supported the Board’s decision to terminate compensation benefits in spite of the fact that the claimant credibly testified that he continued to experience pain resulting from the work-related injury. Citing Udvari v. Workmen's Compensation Appeal Board (U.S. Air, Inc.), 550 Pa. 319, 705 A.2d 1290 (Pa. 1997), the appellate court said a contrary conclusion would...

July 26, 2018

Nebraska: Claimant Fails to Prove “Increased-Risk” of Injury Associated With Idiopathic Fall

Citing  Larson’s Workers’ Compensation Law , the Supreme Court of Nebraska acknowledged that a vast majority of courts nationally had adopted the so-called, increased-risk rule, under which the effects of an idiopathic-caused fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, the Court said it need not consider that question since the injured worker...

July 19, 2018

Washington: Neither Collateral Estoppel Nor Res Judicata Bar Firefighter’s Claim for Brain Tumor

A long-time firefighter’s unsuccessful earlier claim that he was entitled to TTD benefits for five weeks of lost time in 2011, during which he recovered from the surgical removal of a malignant melanoma on his shoulder, did not mean that a subsequent claim for permanent total disability benefits—the melanoma metastasized in 2014 to claimant’s brain—was barred by collateral estoppel or res judicator, held a Washington...

July 19, 2018

Wyoming: Claimant Deemed at MMI Despite Continued Use of Spinal Cord Stimulator to Reduce Pain

The Supreme Court of Wyoming affirmed a finding by the state’s Office of Administrative Hearings (OAH) that a workers’ compensation claimant had reached MMI—with a resulting end to TTD benefits—despite a medical treatment plan, on the part of the claimant’s medical providers, to use a spinal cord stimulator to reduce the claimant’s pain and improve his quality of living. The high court noted that the OAH properly applied...

July 19, 2018

Ohio: Claimant Suffers Compensable Aggravation During Routine Act of Cleansing After Toilet Use

An Ohio appellate court found that Ohio’s Industrial Commission acted within its discretion with it determined that the ordinarily daily activity of cleansing after using the toilet, which resulted in the exacerbation of the claimant's allowed conditions for disc protrusion, herniated disc, and lumbar radiculopathy, was not of sufficient magnitude to break the causal connection between the work-related injury...

July 19, 2018

Maine: Dual Persona Doctrine Cannot Shield Related Entity from Tort Liability

The dual persona doctrine, under which an injured employee may sometimes be allowed to sue the employer in tort if the employer possesses a second “persona” sufficiently independent from and unrelated to its status as employer, may not be utilized “in reverse” by an entity seeking to shield itself from tort liability in a negligence action filed against it by a worker it does not employ, held the Supreme Judicial Court...