May 04, 2018

Mississippi: Change in Condition Petition Denied Following Mediated Settlement

The burden of proof for showing a change in condition is on the party asserting the change. Accordingly, where it was undisputed that an employee sustained injuries in a work-related accident, but both the extent of her disability and the issue of resulting psychological injuries were disputed, such that the parties agreed to mediation, the employer could not, subsequent to settlement, seek to reopen her claim on the...

May 04, 2018

Massachusetts: Reinsurer, Not Trust Fund, Responsible for Payment of Benefits Following Employer’s Insolvency

Where an insolvent self-insured employer held a $2.4 million surety bond with Safeco Insurance Company and also maintained a reinsurance policy with ACE American Insurance (ACE) that contained a retention provision in the amount of $400,000, continued payment of workers’ compensation benefits to the injured worker was the responsibility of ACE, following exhaustion of the surety bond, and not the responsibility of the...

May 04, 2018

Oklahoma: Shareholder Land Owner May Be Sued in Tort Following Fatal Work-Related Accident

The Supreme Court of Oklahoma held that the sole shareholder of a corporation, who individually owned a property where an employee of the corporation sustained fatal injuries, was not immune from suit for common-law negligence under the provisions of the Oklahoma Workers' Compensation Act. Reversing the Court of Civil Appeals, the Court held the shareholder was not the decedent’s co-employee, for purposes of workers...

May 03, 2018

California: Not Necessarily “Curtins” for “Outside” Medical Reports

I. Stepping off the Usual Path for MT and Medical-Legal Reports The current workers’ compensation system in California is designed to provide two separate and structured medical evaluation paths. One path is for resolving medical treatment disputes and the other path is for obtaining medical-legal evaluations. For medical treatment disputes, the legislature created the Utilization Review (UR) process and the Independent...

April 30, 2018

California Workers' Comp Case Roundup (4/30/2018)

CALIFORNIA COMPENSATION CASES Vol. 83 No. 4 Apr 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...

April 27, 2018

California: Important Considerations When Calculating Permanent Disability

Recently, in Eyad v. Airport Commuter, Inc. , 2018 Cal. Wrk. Comp. P.D. LEXIS 85 (Appeals Board noteworthy panel decision), a panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) adopted and incorporated a decision by a Workers’ Compensation Administrative Law Judge (WCALJ) addressing the appropriate computation of permanent disability (PD) in a workers’ compensation case. What makes this case so...

April 27, 2018

Ohio: Employee’s Tort Action Against Co-Employee for Parking Lot Accident is Barred by Exclusivity

Where an employee sustained injuries in an automobile accident that occurred in the employer’s parking lot when the vehicle he was driving was struck by another being driven by a co-employee, the co-employee was immune from tort liability under the fellow servant doctrine as set forth in Ohio Rev. Code Ann. § 4123.741. The court noted that two issues needed to be determined. First, was the plaintiff’s injury caused by...

April 27, 2018

Oregon: Physician’s Injuries in Hospital Parking Lot Not Barred by Going and Coming Rule

An injury that occurs when a worker is going to work is compensable if the worker is within the employer's direction and control at the time of the injury; it is not barred by the usual “going and coming” rule, said an Oregon appellate court. Accordingly, a hospitalist physician, who sustained injuries when he slipped and fell on ice in the hospital parking lot while on his way to work one morning, could recover workers...

April 27, 2018

Oregon: Injuries Sustained During “Orientation” Session Found Compensable

Where claimant had applied for a position with the purported employer, had been advised by that employer to attend an "orientation" and a paid training day, had arrived at the purported employer’s office at the appointed day and time, and then sustained a hip fracture when another worker suddenly opened a heavy stairwell door, knocking claimant to the floor, claimant was entitled to workers’ compensation benefits...

April 27, 2018

Missouri: Failure to Wear Truck Seatbelt Does Not Result in Forfeiture of Benefits

An employer was not entitled to a reduction in a workers’ compensation award on the basis that an employee had failed to use safety devices (seat belts and a safety hat) provided by the employer [see Mo. Rev. Stat. § 287.120.5] because the employer had, contrary to a provision in the statute, failed to make a reasonable effort to cause its employees to use the safety device or devices and to obey or follow...

April 24, 2018

Update from the Benefits Review Board (April 2018)

By Karen Koenig, Associate General Counsel, Longshore Division, Benefits Review Board BRB Statistical Update The Board began Fiscal Year (FY) 2018 in October 2017 with 109 pending Longshore/DBA appeals. During the last fiscal year, which ended September 30, 2017, the Board received 183 appeals in cases under the Longshore and Defense Base Acts, 13 more than FY16. The Board issued 175 decisions, 12 more than FY16;...

April 20, 2018

New Study Links Pre-Injury Opioid and Benzodiazepine Use with Risk and Cost of Post-Injury Disability

A study to be published by the Journal of Occupational and Environmental Medicine supports the widely-held — although not thoroughly documented — notion that pre-injury opioid and benzodiazepine use may increase the risk and cost of disability after a work-related injury [ see Esi W. Nkyekyer, MD, MPH, et al., “Opioid and Benzodiazepine Use Before Injury Among Workers in Washington State, 2012 – 2015,” Journal of Occupational...

April 19, 2018

Louisiana: Claimant Misrepresents Ability to Work and Forfeits Comp Benefits

A grant of summary judgment by the Louisiana Office of Workers’ Compensation that order the forfeiture of a claimant’s right to workers' compensation benefits under La. Stat. Ann. 23:1208, based upon a finding that he made false statements or representations in connection with his claim, was affirmed by a state appellate court. The court observed that in a deposition the claimant testified that he was...

April 19, 2018

West Virginia: Claimant Must Be Reimbursed for Meal Associated with Required Out-of-Town Medical Exam

Where a West Virginia claimant was ordered by his claims administrator to attend a medical examination that was to take place some 100 miles from his home and the claimant spent six hours traveling to, attending, and returning from a medical examination, the employer was required to reimburse the claimant for reasonable travel expenses,  including meals , incurred in connection with the medical examination. The appellate...

April 19, 2018

Vermont: “Value” Received by Student Teacher/Intern Constitutes “Wages” for Workers’ Comp Purposes

In a decision in which the plurality, the concurring, and the dissenting opinions all quoted Larson’s Workers’ Compensation Law , the Supreme Court of Vermont held that an individual who sustained injuries while student teaching received “wages” under Vt. Stat. Ann. tit. 21, § 601(13) and, therefore, was an “employee” as defined under Vt. Stat. Ann. tit. 21, § 601(14), because...

April 19, 2018

North Carolina Court Approves Medical Claim for Non-FDA-Approved Compound Cream

A North Carolina appellate court recently held that non-FDA-approved drugs could not be categorically excluded from medical compensation under the state’s workers’ compensation system. The court noted that the text of the Workers' Compensation Act did not limit the types of drugs that might reasonably be required solely to those that are FDA-approved. The court stressed that instead, the statute indicates that whether...

April 16, 2018

California: Ex Parte Communications: When Replacement Panel Not Warranted

A recent noteworthy panel decision, Turner v. PT Gaming , addresses three interrelated issues on QME reporting and service of reports and whether they provide grounds for a new PQME. The majority, in this split opinion, concludes per Alvarez v. WCAB, 187 Cal. App. 4th 575, 75 Cal. Comp. Cases 817 , that an ex parte communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable...

April 13, 2018

New Mexico: Native American Tribe’s Insurer Liable for Benefits Even if Tribe Enjoys Sovereign Immunity

Where a Native American tribe operated a casino and secured workers’ compensation insurance from an insurer to cover workers’ compensation benefits that might be payable for work-related injuries to casino employees, that insurer and its third-party administrator could not hide behind the tribe’s purported sovereign immunity. The injured worker was a third-party beneficiary to the workers' compensation insurance policy...

April 13, 2018

Kansas: Widow’s Motion to Characterize Wrongful Death Recovery as Exempt from Subrogation Rules Found Barred

Where a surviving spouse of a worker killed in a work-related car accident filed a wrongful death action in a state court and joined a separate federal wrongful death action filed by her son, and the parties eventually settled the claim with the federal court approving not only the settlement, but the apportionment between the surviving spouse and her son, that surviving spouse could not later petition the state court...

April 13, 2018

Oregon: Claimant May Not Receive TTD and PTD Indemnity for Same Time Period

A workers’ compensation claimant may not receive both temporary and permanent total disability compensation for the same period, held an Oregon appellate court. Quoting Larson’s Workers’ Compensation Law and explaining the “theoretical” and “practical” reasons for the rule, the court stressed that a worker cannot, logically, be both permanently totally disabled and temporarily totally disabled at the same time. Thomas...

April 13, 2018

Virginia: EMT’s Fainting Episode in Emergency Room Did Not Arise Out of Employment

A Virginia emergency room paramedic, who fainted serious injuries when he fainted while assisting a physician as the latter inserted a needle into a patient’s spine, is not entitled to workers’ compensation benefits, held a state appellate court. The court indicated that while was no question that the injuries were sustained in the course of the employment, he failed to show that they actually arose from the employment...

April 12, 2018

An Alternative to Opioids: A Mind-Body Approach to Pain Management

A recent webinar discussed one approach to reducing reliance on dangerous opioids for pain management By Roger Rabb, J.D. The opioid epidemic is perhaps the biggest health crisis facing the U.S today, as an estimated 115 Americans die from an opioid overdose each day. At the very least, this epidemic should serve as a cautionary tale against the sometimes all-too-quick reliance on drugs and pills for relieving the...

April 09, 2018

California: Interpreter Fees: Filing a Petition for Costs Deemed Unnecessary in Certain Situations

The practice of ordering interpreter fees at the WCAB at the time of hearing is becoming more common. These recent panel decisions address the issue of whether the practice is compliant with the statutory and regulatory process. In Alcaide Sierra v. Mark Bowers Drywall , the WCAB held that an order issued by the WCJ at the 1/22/2018 status conference instructing the defendant to pay a $165.00 fee for one-half day of...

April 06, 2018

South Carolina: Timely Notice is Subject to Substantial Evidence Standard, Not De Novo Review

The question of timely notice to the employer was not a jurisdictional question subject to de novo review, held the Supreme Court of South Carolina. Accordingly, where the Court of Appeals employed the de novo standard, instead of the substantial evidence standard to review a decision by the appellate panel that found the employee failed to provide timely notice of the injury, it committed error. The matter was remanded...

April 06, 2018

Wyoming: TTD Awarded Beyond Statute’s 4-Year Time Frame

Generally speaking, Wyo. Stat. Ann. § 27-14-605(b) and (c) provide that an employee’s right to receive TTD benefits ceases four years after the injury, although the employee may be awarded medical benefits beyond that time period. Where an employee sustained an admitted injury to his right knee in 2007, for which the Division paid medical and TTD benefits and, in 2014, sought additional TTD benefits associated with a...