March 09, 2018

Ohio: Independent Contractor May Not Maintain Retaliatory Discharge Action

Where a worker admitted that he was responsible for his own equipment, provided his own labor and equipment, and was responsible for his own Workers' Compensation insurance, it was appropriate for the fact-finder to determine that he was an independent contractor and not an employee. Accordingly, as an independent contractor, he could not maintain a retaliatory discharge action under Ohio Rev. Code § 4123.90.   ...

March 09, 2018

Arkansas: Deputy Sheriff Was Independent Contractor at Grocery Store

A deputy sheriff who provided security services at a grocery store was an independent contractor; he was not an employee of the store, held an Arkansas appellate court. The court noted that the sheriff’s department required that the deputy secure permission to provide security for the store, the deputy was required by the department to wear his uniform at the store, and the store did not provide the deputy's...

March 09, 2018

Ohio: Mental Injury Must Be Caused by Physical Injury; It Need Not be Contemporaneous

Construing the Supreme Court of Ohio’s important, earlier decision in Armstrong v. John R. Jurgensen Co. , 136 Ohio St. 3d 58, 2013-Ohio-2237, 990 N.E.2d 568, a lower-level Ohio appellate court held that while there must be a causal relationship between a claimant’s physical injury and his or her mental injury, the two need not necessarily occur contemporaneously. The court acknowledged that the passage of time would...

March 07, 2018

Occupational Injuries and Third-Party Tort Claims: Effecting Change for Freelancers in the Digital Age or More Dust in the Wind?

By Karen C. Yotis, Esq. Industrial accidents and occupational disease epidemics motivated the movement to pass national health and safety laws, and the interaction between third-party actions in the workplace and these historical drivers should operate to preserve and expand the crumbling Grand Bargain in a battle that is currently crystalizing around the rising ranks of independent contractors. These is the nutshell...

March 07, 2018

California: Keys to Obtaining Jurisdiction

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates. Workers’ Compensation Appeals Board (WCAB) jurisdiction is one of the most important threshold issues that an injured worker must establish in order to claim benefits. (See Labor Code, Part 4 Compensation Proceedings, Chapter 1 – Jurisdiction, §§ 5300-5413.) A plethora of cases have issued lately...

March 06, 2018

California: Workers' Comp Case Roundup (3/6/2018)

CALIFORNIA COMPENSATION CASES Vol. 83 No. 2 Feb 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...

March 02, 2018

California: Third-Party Credit and the Legal Malpractice Recovery

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates or by the LexisNexis® editorial consultants who review panel decisions. Recently, a panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) addressed the question of whether a legal malpractice recovery against a civil attorney based on that attorney’s failure to timely file the...

March 01, 2018

New York: Tort Suit Against Co-Employee Not Barred Where Accident Occurred Near, But Away from Employer's Premises

The defendant employee’s employment ended when he entered his car, drove away from an employer-controlled parking lot, and struck a co-employee who had entered a cross-walk on a street that circled the employer’s campus. Accordingly, it was error for a trial court to grant summary judgment in favor of the defendant employee in a civil action filed by the co-employee who was struck by the auto. The court reasoned that...

March 01, 2018

Florida: Intoxication Defense Waived by Carrier Once 120-Day "Pay-and-Investigate" Period Had Passed

Noting that once a Florida employer (or carrier) becomes aware of the need for medical benefits for a particular condition or injury, it has three options: pay, deny, or pay and investigate within 120 days, in accordance with § 440.20(4), Fla. Stat., a Florida appellate court held that where the employer/carrier did not bring forward its intoxication defense within the 120-day period, it waived its right to do so and...

March 01, 2018

Nebraska: Average Weekly Wage Included Room and Board for Professional Football Player

Acknowledging that for purposes of computing an injured worker’s average weekly wage, board, lodging, or similar advantages received from the employer were not to be included, unless the money value of such advantages was fixed by the parties at the time of hiring, the appellate court held that is was appropriate for the Commission to find a professional football player’s AWW was $903.25, rather than the weekly salary...

March 01, 2018

Illinois: Children Born with Birth Defects Could Maintain Tort Action Against Fathers' Employer for Alleged Exposure to Toxic Chemicals

Plaintiffs, who alleged that they were born with severe birth defects that had been (a) sustained in utero and (b) caused by their fathers' exposure to toxic chemical products during their fathers’ employment with the defendant, stated valid claims for negligence and willful and wanton misconduct under both Arizona and Texas law and the claims for loss of child consortium under Arizona law were sufficiently pled to...

February 28, 2018

Comp Claims: Men Really Are from Mars—Women From Venus

Recent Study Points to Sex-Specific Patterns in Reoccurring Injury Claims A recent study to be published in the Journal of Occupational and Environmental Medicine [See Schwatka, Natalie V., Ph.D., et al., “ Reoccurring Injury, Chronic Health Conditions, and Behavior Health: Gender Differences in the Causes of Workers’ Compensation Claims ” JOEM, December 8, 2017, DOI: 10.1097/JOM.0000000000001301], suggests that while...

February 28, 2018

CWCI Examines Changes in California Workers’ Comp QME Population & Med-Legal Trends

Oakland - The number of qualified medical evaluators (QMEs) who resolve disputes over California workers’ comp claim issues such as the extent of an injured worker’s permanent impairment fell 20% between January 2012 and September 2017 according to a new California Workers’ Compensation Institute (CWCI) study, but the impact on QME accessibility was partially offset by an increase in the median number...

February 23, 2018

Illinois: Nine Percent Judgment Interest Does Not Apply to Affirmance of Arbitrator's Award

Illinois’ Administrative Review Law has no bearing on the provisions of the state’s Worker’s Compensation Act, which sets forth a specific procedure for the review of an arbitrator's workers' compensation award at all levels, interest on the award during this process, and the conversion of the award into a judgment at the conclusion of review, in the event that the employer fails to pay the award. Accordingly...

February 23, 2018

New York: Truck Driver Proves Back Injury Claim in Spite of Contradictory "Black Box" Data

A New York appellate court affirmed the Board’s determination that a truck driver had sustained a back injury in the course and scope of his employment in spite of the fact that the driver’s version of what happened differed from data generated by an on-board computer monitor system. The driver testified that he felt a “pop” in his neck when he was forced to decelerate to avoid another driver’s lane change. The driver...

February 23, 2018

Texas: Statutory Employer Was Not Immune from Tort Liability

In a decision that may produce ripples within the Texas construction industry, a state appellate court held that in order to enjoy the exclusive remedy defense, Tex. Lab. Code Ann. § 406.123(a) requires a general contractor to do something more than simply pass the onus of obtaining coverage to the subcontractor. Accordingly, where a general contractor’s agreement with a subcontractor required the latter to secure workers...

February 23, 2018

New York: Surveillance Video Dooms Worker's "Attack of the Elevator Doors" Claim

Noting that the New York Workers’ Compensation Board has broad authority to resolve factual issues based on credibility of witnesses, a state appellate court affirmed the denial of benefits to a state hearing officer who claimed she was seriously injured when elevator doors closed abruptly on her. The hearing officer, who contended she was forced to miss four months of work in order to recover from her injuries, analogized...

February 21, 2018

Fracking and Occupational Diseases: Gasland or FrackNation?

By Richard B. Rubenstein, Esq., Rothenberg, Rubenstein, Berliner & Shinrod, LLC, New Jersey The 2010 documentary Gasland , nominated for an Academy Award for Best Documentary Film, introduced many of us to fracking, or hydraulic fracturing, for the first time. Gasland spawned a counter-narrative, the industry film , FrackNation , which sought to rebut the allegations put forth in Gasland of grave health hazards...

February 20, 2018

California: What Constitutes a Blood-Borne Infectious Disease for Purposes of Labor Code Section 3212.8?

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates or by the LexisNexis® editorial consultants who review panel decisions. Recently, a panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) addressed what conditions may qualify as a “blood-borne infectious disease” so as to qualify for the presumption of compensability provided...

February 16, 2018

New York: School Paraprofessional's Civil Action Against Custodian Fails

A paraprofessional working at a Staten Island school, who sustained injuries when she slipped and fell on a wet floor in the school cafeteria, may not maintain a civil action in negligence against the school custodian engineer and a school custodial assistant since the claim is barred by the exclusive remedy provisions of the New York Workers’ Compensation Law. The court observed that the custodian engineer was employed...

February 16, 2018

Oklahoma: Civil Action Against Comp Insurer Barred by Exclusive Remedy Rule

Plaintiff’s civil action against a workers’ compensation insurance insurer alleging that it failed to timely provide reasonable and necessary medical treatment, as ordered by the Workers’ Compensation Court, was appropriately dismissed by an Oklahoma trial court under the exclusive remedy provisions of the state’s Workers’ Compensation Act, held the Supreme Court of Oklahoma. The Court observed that plaintiff's civil...

February 16, 2018

Mississippi: Employer Was Not Liable to Third Person for Injuries Caused by Employee's Horseplay

A Mississippi truck driver employed by an independent hauler may not maintain a civil action against one of the hauler’s customers, whose own employee engaged in a horseplay incident with the driver by giving him a “bear hug” and throwing the driver into some pallets at work, held a state appellate court. While the customer firm could be liable for the torts committed by its employees during the course and scope of their...

February 16, 2018

Colorado: "Disability" Need Not Always Involve Medical Incapacity

While the concept of “disability” within the worker’s compensation setting ordinarily requires a demonstration of both medical incapacity and loss of wage earnings, a claimant is not always required to prove both components to establish entitlement to disability benefits under Colorado’s Workers' Compensation Act, held a divided Colorado appellate court. Here, claimant, a furniture sales representative, suffered injuries...

February 14, 2018

California: Workers' Comp Case Roundup (2/14/2018)

CALIFORNIA COMPENSATION CASES Vol. 83 No. 1 January 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...

February 12, 2018

California: What Constitutes a Valid RFA That Triggers UR Timeframes?

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates or by the LexisNexis® editorial consultants who review panel decisions. There can be little question that there has been rampant abuse in the medical treatment benefit under California’s workers’ compensation process. As a consequence of this abuse, there have been significant controls...