July 19, 2018

California: Genetics – A Non-Industrial Factor?

The analysis of apportionment of disability in the workers’ compensation world changed dramatically after SB899 was enacted in 2004. The changes occurred in ways no one could ever have imagined. Then, in 2017, the 3rd District Court of Appeal (DCA) issued their decision in the case of City of Jackson v. Workers’ Comp. Appeals Bd. (Rice) (2017) 11 Cal. App. 5th 109 [82 Cal. Comp. Cases 437]. It took some practitioners...

July 13, 2018

California: Top 25 Noteworthy Panel Decisions (January through June 2018)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2018. The list features a number of split panel decisions, including a case in which the WCAB interpreted City of Covina v. W.C.A.B. ( Alvarez ) (2002) 67 Cal. Comp. Cases 1044 (writ denied), to award a retired police officer permanent...

July 13, 2018

South Dakota: Claimant Did Not Abandon Labor Market By Relocating to Daughter’s Home in Small Town

An award of permanent total disability benefits to an injured worker was appropriate in spite of allegations by the former employer that the worker abandoned the labor market by moving to Winner, South Dakota, more than 60 miles from Sioux Falls—her former residence and the location of her earlier employment—held the Supreme Court of South Dakota. The Court observed that the worker moved to take up residence with her...

July 13, 2018

Kentucky: Going and Coming Rule Bars Recovery in Negligence Case

Because of the operation of the going and coming rule, a Kentucky delivery person, who delivered food, utilizing his own private vehicle, to customers of his employer—a Papa John’s sandwich store—was not acting in the course and scope of his employment when he struck and killed a pedestrian as the employee drove home after his work day had ended, held a Kentucky appellate court. Accordingly, the employer could not be...

July 13, 2018

Connecticut: Arbitration Decision Adverse to Discharged Employee Does Not Bar Separate Retaliatory Discharge Action

A former employee should be permitted to pursue a claim under against a former employer for retaliatory discharge under Conn. Gen. Stat. § 31-290a, in spite of the fact that the former employee’s union filed a grievance that was submitted to arbitration pursuant to a collective bargaining agreement and the mediation and arbitration board determined that the employer had just cause to terminate the plaintiff...

July 13, 2018

Michigan: Employee May Not Use Misclassification Statute to Sue Employer in Tort

In a split decision, the Supreme Court of Michigan held that MCLS § 418.171(4)—a provision that prohibits the misclassification of certain employees in order to avoid workers’ compensation liability—did not apply to a plaintiff/employee who, following an industrial accident, sued his employer, alleging an intentional tort. With its decision, the Court reversed a contrary holding by the state’s...

July 09, 2018

Post-retirement Disability Claims under the Longshore Act (2018)

By Yelena Zaslavskaya, Senior Attorney for Longshore, Office of Administrative Law Judges, U.S. Department of Labor, Washington, D.C. Section 2(10) of the Longshore Act defines “disability” as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment,” except in cases involving awards to retirees with occupational diseases compensated under...

July 09, 2018

California Workers' Comp Case Roundup (7/9/2018)

CALIFORNIA COMPENSATION CASES Vol. 83 No. 6 June 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 Advance to read the complete headnotes and...

July 06, 2018

Pennsylvania: Construction Workplace Misclassification Act Does Not Apply to Restaurant Remodeling Job

Where a restaurant owner hired an experienced remodeler to complete work at the restaurant prior to its opening, neither the owner nor the restaurant was engaged in the “construction industry,” held the Supreme Court of Pennsylvania. Accordingly, Pennsylvania’s Construction Workplace Misclassification Act (CWMA) did not apply and a worker, who had 15 years’ experience in the remodeling business...

July 06, 2018

New York: Farmhand’s Claim of Injury While Birthing Calf Fails

A New York appellate court reiterated the important legal point that while it is true that, absent substantial evidence to the contrary, N.Y. Work. Comp. Law § 21(1) affords a presumption that an accident that occurs in the course of employment also arises out of such employment, the statutory presumption cannot be used to establish that an accident occurred in the first instance, nor does it wholly relieve a claimant...

July 06, 2018

Ohio: Ohio Logger is Independent Contractor, Not Employee

An Ohio court affirmed a finding that a logger was an independent contractor and not an employee, where evidence indicated the logger was hired at a rate of $80 per day, the logger had represented that he had extensive experience in logging, the logger was told that he would be responsible for his own taxes and, if he got hurt on the job, the injury would be his own responsibility, the purported employer did not supervise...

July 06, 2018

United States: Companies Found to be Related, But Not Necessarily Alter Egos

Construing New Hampshire law, a federal district court refused to grant summary judgment to a trucking company and one of its drivers in a wrongful death action filed against them by the estate of a logging worker who was killed while helping the driver install snow chains on the tires of a tractor-trailer. Defendants had argued that the logging company—which employed the deceased—and the trucking company—which employed...

July 05, 2018

California: Application of Benson in Cases Involving Overlapping Body Parts

Recently, a panel of three commissioners with the Workers’ Compensation Appeals Board (WCAB) addressed the “cannot parcel out” exception” outlined in Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal. App.4th 1535 , 74 Cal. Comp. Cases 113. This case is particularly significant due to the fact that since Benson was decided, the proper application of the “cannot parcel out” exception...

June 21, 2018

Hawaii: General Contractor May Not Recover Workers’ Compensation Outlay for Worker’s Injury from Negligent Subcontractor

Summary judgment in favor of the subcontractor was proper, because Haw. Rev. Stat. § 386-8 provided the exclusive remedy for an employer to recover workers' compensation benefits from a third-party tortfeasor, and the general contractor did not avail itself of that exclusive remedy. The comprehensive workers' compensation reimbursement scheme established by Haw. Rev. Stat. § 386-8 provides the exclusive remedy...

June 21, 2018

United States: Shareholder/Owner of Equipment May Be Liable in Tort to Injured Employee

Construing Oklahoma law, the Tenth Circuit Court of Appeals reversed a federal district court’s dismissal of a negligence action filed against the sole stockholder of a worker’s employer, finding the district court failed to consider the stockholder's “persona” or “identity,” as required under Okla. Stat. tit. 85A, § 5(A), in determining whether the exclusivity provision applied. The stockholder owned a trailer that...

June 21, 2018

New York: No Combination of Awards for Nonschedule PPD and Schedule Loss of Use Allowed for Same Accident

An injured New York worker may not receive both a schedule loss of use award and a nonschedule permanent partial disability award for injuries arising out of the same work-related accident. Accordingly, where the state’s Workers’ Compensation Board determined a claimant suffered reflex sympathetic dystrophy/complex regional pain syndrome (RSD/CRPS) and ptosis of the right eyelid entitling claimant to a nonschedule permanent...

June 21, 2018

Kansas: No Claimant’s Attorney Fees Available for Appellate Work in Comp Case

The Court of Appeals of Kansas held that attorneys representing claimants at the appellate court level in the state fall between the cracks when it comes to awards of attorney’s fees, even when successfully representing their clients. Citing Rogers v. ALT-A&M JV LLC,  52 Kan. App. 2d 213 , 364 P.3d 1206 (2015), the Court noted that attorney fees in a workers compensation case are governed by Kan. Stat. Ann. 2017 Supp...

June 21, 2018

What’s New in Florida Workers’ Compensation: 2018

By Robert J. Grace, Jr., Esq. & Lyle Platt, Esq. Since publication of our last edition of Dubreuil’s Florida Workers’ Compensation Handbook (LexisNexis), legislative activity was confined to a popularly supported bill regarding first responders. HB227/SB376 was signed into law in March 2018 after both houses passed it unanimously. Existing Florida law provided that injured workers are not entitled to...

June 18, 2018

California: Labor Code Section 4660.1 and the Repeal of Diminished Future Earnings Capacity

Recently, a panel of three commissioners with the Workers’ Compensation Appeals Board (WCAB) in Hennessey v. Compass Group , 2018 Cal. Wrk. Comp. P.D. LEXIS --, addressed one of the most important issues arising out of Senate Bill 863 that has not yet been decided by the WCAB or the appellate courts. The issue is whether Labor Code Section 4660.1 , applicable to dates of injury after January 1, 2013, precludes the...

June 18, 2018

California Workers’ Comp IMR Volume & Outcomes Held Steady in Q1 2018

Data on California workers’ compensation independent medical review (IMR) decisions issued in the first quarter of this year shows that the medical dispute resolution process established as part of the 2012 workers’ comp reforms continues to produce consistent outcomes, with little change in the number of IMR determination letters and decisions; the percentage of modified or denied treatment requests that...

June 15, 2018

Pennsylvania: Court OKs Reinstatement of Permanent Benefits for “Pre-Protz” Claimant

An injured Pennsylvania worker, whose disability status was modified from permanent to temporary in 2008, based upon a 2006 impairment rating evaluation (IRE), who then exhausted her 500 weeks of partial disability benefits and, within three years of the last payment of compensation, sought reinstatement of permanent disability, may take advantage of the Pennsylvania Supreme Court's holding in  Protz v. Workers'...

June 15, 2018

California: Fine Print on Preprinted C & R Form Does Not Cause Waiver of Claims Outside Immediate Context of Workers’ Comp

Language contained in a preprinted Compromise & Release form, which purported to release the employer from liability for ”any and all potential claims” did not constitute a waiver by a former employee when he subsequently filed suit against his former employer for discrimination, held a California appellate court. Accordingly, it was error for a trial court to grant summary judgment in favor of the employer. The court...

June 15, 2018

Kansas: Roofer Struck by Drunk Driver at 2:20 A.M. While Walking to Hotel Cannot Recover Benefits

A Kansas roofer, who worked as part of a construction crew in Enid, Oklahoma, who stayed in a hotel there will he and others performed their roofing services and who was struck by a drunk driver as he crossed a street at 2:20 a.m. from a bar so as to return to his hotel, did not sustained an accidental injury arising out of and in the course of his employment, ruled the Supreme Court of Kansas. The high court noted that...

June 15, 2018

Texas: Comp Carrier May Not Rush in Through Back Door to Claim Lien on Settlement Proceeds

In Texas, as in most other states, an employer and/or workers’ compensation insurance carrier enjoy strong subrogation rights that allow recovery of the workers’ compensation outlay against third parties that may be responsible for all or part of the worker’s injury and resulting damages. Where, however, an employer and a carrier agree to utilize a policy that contains a waiver of the carrier’s right to recover from any...

June 08, 2018

Georgia: Positive Drug Test Negated Because of Evidence Chain Issues in Drawing Injured Worker’s Urine

Acknowledging that under Ga. Code Ann. § 34-9-17(b)(2), there is a rebuttable presumption that marijuana use caused a work injury if any amount of marijuana is in the employee's blood within eight hours of the time of the alleged accident, a Georgia court also stressed that the presumption is dependent entirely upon compliance with the procedural requirements for testing established by Ga. Code Ann. § 34-9-415. Accordingly...