June 08, 2018

Kentucky: Divided Court Says Injury While Retrieving iPad Was Compensable

In a divided decision, the Court of Appeals of Kentucky affirmed an award of workers’ compensation benefits to a worker who fell while returning to her parked vehicle at the end of the day, after she had returned to her office to retrieve an employer-issued iPad from her office. The majority found the injury was not barred by the going and coming rule. The worker originally had safely made her way to her vehicle and intended...

June 08, 2018

Kansas: Court of Appeals Nixes Use of AMA Guides 6th Edition

Where a Kansas worker injured his shoulder in a 2013 work-related injury and, in March 2015, injured the same shoulder in another work-related accident and where, because of language in the AMA Guides, 6th Edition (which applied to injuries after 1/1/2015), examining physicians were forced to issue 0% impairment ratings in spite of the fact that both testified that such an impairment rating was medically inaccurate and...

June 08, 2018

California: Private Citizens Assisting Police May Not Sue in Spite of Being Lured to Murder Scene

In a case involving an utterly bizarre fact pattern, a California appellate court held that a civil action for negligence and misrepresentation filed by two private citizens against a California county was barred by the exclusive remedy provisions in Cal. Labor Code § 3366 (California’s “posse” law). The two citizens, a husband and wife, did not work for the county. They were telephoned by a Trinity County deputy who...

June 07, 2018

California Workers' Comp Case Roundup (6/7/2018)

CALIFORNIA COMPENSATION CASES Vol. 83 No. 5 May 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...

June 01, 2018

Louisiana: Approved Settlement Agreement Can Be Modified to Address SSA Language Requirements

Where an injured worker and his employer/carrier entered into settlement agreement, subsequently approved by a WCJ, calling for payment of $148,574.00 ($8,574.00 of which was to be placed in a Medicare Set-Aside Account) to the worker, and the worker subsequently filed a motion to amend the order of approval on the basis that due to his counsel's inadvertence, the WCJ's order did not include language that expressed...

June 01, 2018

Vermont: Lack of “Wages” Sinks Volunteer Driver’s Comp Claim

Emphasizing that the definition of “employee” within the context of workers’ compensation law was not identical with the common law definition and that the tests used to determine whether a particular worker was an employee versus an independent contractor were not applicable to the facts of the case, the Supreme Court of Vermont held that a purported employer’s reimbursement of a “volunteer”...

June 01, 2018

Pennsylvania: Employer Gets No Subrogation Rights for Recovery under State’s Motor Vehicle Responsibility Law

In Pennsylvania, as in most states, an employer or carrier who has paid out workers’ compensation benefits enjoys a strong statutory subrogation right in any third-party recovery that the injured worker may enjoy. The Supreme Court of Pennsylvania held that the State Police, as the employer of a state trooper who was seriously injured when his police vehicle was hit by a tractor-trailer, did  not enjoy such a subrogation...

June 01, 2018

New York: Death Benefits Awarded Since Employer Takes Employee as it Finds Him

A New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that awarded workers’ compensation benefits in connection with a construction worker’s fatal heart attack that occurred during his work shift, in spite of that the deceased employee’s preexisting risk factors — smoking and high, untreated cholesterol were also significant factors in the onset of the fatal attack. The construction...

May 31, 2018

Post-retirement Disability Claims under the Longshore Act

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...

May 31, 2018

California: The RFA as well as the Accompanying Documentation Must Be Considered

Recently, a panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) addressed a medical treatment dispute where the question was what documentation had to be considered by the claims adjuster in reviewing a treatment request ( Ives v. DR Myers Distributing Company , 2018 Cal. Wrk. Comp. P.D. LEXIS --). On the RFA form, the requesting provider listed eight sessions of chiropractic care, however...

May 21, 2018

California: The Difficulty With Overpayments

Recently, a split panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) allowed a temporary disability overpayment from monies that had accrued as a direct consequence of defendant’s failure to properly pay an earlier award of temporary disability ( Morehouse v. Anthony Indrieri, d/b/a Orlando Electric and Air , 2018 Cal. Wrk. Comp. P.D. LEXIS --). Indeed, defendant underpaid a prior award of temporary...

May 18, 2018

Workplace Violence: The Troubling Disconnect Between OSHA Figures and What’s Really Happening

Conducting Impartial Assessments and Making Tough Decisions in a Politicized World By Karen C. Yotis, Esq. When we go to work each day, we don’t expect to be attacked. Nor do we anticipate suffering serious bodily harm. And we can hardly imagine being killed somewhere between our morning coffee and a lunchtime salad. Yet OSHA calculates the number of workers who suffer workplace violence each year at more than 2...

May 18, 2018

New York: Withdrawal of Partner Does Not Cause Loss of Coverage under Employer’s Workers’ Comp Insurance Policy

Where a father and son operated a farm business as a partnership, securing workers’ compensation insurance through the State Insurance Fund (“SIF”), the subsequent withdrawal of the father from the partnership, with the son’s continuance in the business, did not violate the policy in such a fashion as to make the business uninsured, held a New York appellate court. The only stated consequence of failing to apprise SIF...

May 18, 2018

Illinois: Employer’s Right to Workers’ Compensation Lien is Absolute

Under the plain language of 820 ILCS 305/5(b) (2016), an employer's right to reimbursement of the full amount of benefits paid or to be paid to the injured or deceased worker is absolute; it may not be diminished or, as in this case, strikes by a trial court based upon allegations that the employer and/or carrier did not cooperate sufficiently in the third-party suit that produced a settlement. The court indicated...

May 18, 2018

Alaska: Statute Affording No Death Benefits to Non-Dependent Parents Is Constitutional

A provision in the Alaska Workers’ Compensation Act (Alaska Stat., § 23.30.055) that bars a non-dependent parent from suing the employer for negligence allegedly associated with the death of an employed child is constitutional, held the Supreme Court of Alaska, in spite of the fact that the same non-dependent parents is not entitled to any workers’ compensation death benefits. The Court, quoting Larson’s Workers’ Compensation...

May 18, 2018

North Carolina: Injuries Sustained After Choking on E-Cigarette Not Compensable

Stressing the crucial difference between an “unexplained” fall and an “idiopathic” fall, a North Carolina appellate court affirmed the denial of benefits to a municipal worker who suffered injuries when he fainted and collapsed after getting choked on an e-cigarette. Noting that the Commission’s denial had been based upon its finding that the worker’s fainting and fall resulted from the worker’s idiopathic conditions...

May 14, 2018

California: Conclusively Presumed Permanent and Total Disability Cases

Labor Code Section 4662 (a) provides that any of the following permanent disabilities shall be conclusively presumed to be total in character: loss of both eyes or the sight thereof, loss of both hands or the use thereof, an injury resulting in a practically total paralysis; and an injury to the brain resulting in permanent mental incapacity. The noteworthy panel decision of Burr v. The Best Domolition & Recycling...

May 12, 2018

Montana: Extension of Tort Immunity to Professional Employer Organization Does Not Violate State Constitution

The Supreme Court of Montana, construing what some saw as an inconsistency between the state’s workers’ compensation law and its Constitution, held that both parties to an employee leasing arrangement — the employee leasing firm and its client — are immune from tort liability for injuries arising out of and in the course of a worker’s employment in spite of the fact that Article II, 16 of...

May 11, 2018

New York: Injured Horse Farm Employee May Not Sue Employer’s Alter Ego Entity in Tort for Injuries

Where a defendant formed two single-member-owned LLCs on the same day for the purpose of operating a horse stable business, with one entity owning the real property and leasing it to the second entity, which employed the plaintiff, the real estate owner was the alter ego of plaintiff’s employer and was not subject to tort liability because of the exclusive remedy provisions set forth in N.Y. Work. Comp. Law §§...

May 11, 2018

Massachusetts: Independent Contractor Statute’s Definition of “Employee” Does Not Trump Workers’ Compensation Law

The definition of “employee” contained within the Massachusetts independent contractor statute (Mass. Gen. Laws Ann. ch. 149, § 148B), does not displace the definition of “employee” contained in the state’s workers’ compensation law (Mass. Gen. Laws Ann. ch. 152, § 1). Accordingly, an administrative judge properly concluded that the claimant was an independent contractor where...

May 11, 2018

Hawaii: Exclusive Remedy Provision Does Not Bar Civil Actions for Harm to Employee’s Reputation

The Hawaii Workers’ Compensation Act’s bar on claims for injuries incurred in the course of the employment does not extend to injuries to a person’s reputation, held the state’s Supreme Court. Accordingly, where two county employees filed a defamation suit against county officials following publication in a local newspaper that the employees had been fired for operating a private business out of a county-leased warehouse...

May 11, 2018

United States: Postal Worker Loses $37K in SSDI Benefits for Failure to Advise of Workers’ Comp Awards

The 6th Circuit Court of Appeals affirmed a decision of the Social Security Appeals Council that found a disabled postal worker was not without fault in failing to submit complete, accurate information to the Social Security Commission regarding awards of workers’ compensation benefits received by the worker. The Court agreed that due to the worker’s failure to disclose benefits, he had received a Social Security...

May 07, 2018

Affordable Care Act’s Impact on Workers’ Compensation Claims in California

A new study finds some impacts of the ACA on California workers’ compensation claims, but perhaps not as much as expected. By Roger Rabb, J.D. The Affordable Care Act (ACA) took effect in January 2014 and the numbers for California indicate that by 2015 2.5 million additional California workers had acquired health insurance coverage either through the ACA or through the expansion in Medicaid. This expansion...

May 07, 2018

CWCI Study Shows Drop in California Workers’ Comp Hospital Stays and Spinal Surgeries

Oakland–A new California Workers’ Compensation Institute (CWCI) study finds that the number of California workers’ compensation inpatient hospital stays fell 31.2% between 2008 and 2016, compared to a 19.6% drop in hospital stays paid under private plans, a 2.4% increase in Medicare inpatient stays, and a 19.6% increase in inpatient stays paid by Medi-Cal, which saw a huge jump in enrollment with the rollout of Affordable...

May 04, 2018

Ohio: Loss of Vision Determined by Measurement of Uncorrected Vision Following Injury

Pursuant to Ohio Rev. Code Ann. § 4123.57(B), for the permanent partial loss of sight of an eye, a claimant is entitled to “the portion of one hundred twenty-five weeks as the administrator in each case determines, based upon the percentage of vision actually lost as a result of the injury.” Moreover, loss of uncorrected vision means the percentage of vision actually lost as a result of the injury or occupational disease...