February 09, 2018

Maine: Employer Allowed Retroactive Credit for Portion of Payments Made While Claimant Received Social Security Benefits

In a case of first impression within the jurisdiction, a divided Maine Supreme Judicial Court held that the “coordination of benefits” provision in the state’s Workers’ Compensation Act, 39-A M.R.S. § 221(1) entitles an employer to a credit against ongoing incapacity benefit payments for overpayments made in the past while the employer was also receiving Social Security retirement benefit payments. The majority considered...

February 09, 2018

Wyoming: Worker Aided by Presumption of Compensability When Injury Occurred on Employer's Premises

The Supreme Court of Wyoming held the state’s Office of Administrative Hearings committed error when it affirmed the denial of benefits to a worker who sustained a head injury while working as a well operator. The worker, who typically worked alone, had earlier testified that he was started by a flash fire at the employer’s premises, which caused him to fall and strike his head. The Workers’ Compensation Division determined...

February 09, 2018

Iowa: Injured Worker Entitled to Both "Active" and "Passive" Prosthetic Hands

An employee, whose left hand was severely injured in an industrial accident, should not only receive a mechanical prosthetic device that allowed him to manipulate his thumb and index finger; he should also receive a “passive” prosthetic left hand "that looked like a natural hand,” held an Iowa appellate court. The employer had already supplied the mechanical device, contending that Iowa Code § 85.27 obligated an...

February 09, 2018

Wisconsin: Borrowing Employer May Be Sued in Tort by Injured "Employee"

Holding that a borrowing employer is not always the “employer” of a worker assigned to it by a temporary help agency, at least for purposes of the exclusive remedy provisions of the state’s Workers’ Compensation Act, a Wisconsin appellate court held the injured worker could sue the temporary or borrowing employer in tort for injuries sustained on the job. The court stressed that under the plain language of  Wis. Stat...

February 08, 2018

Multiple Chemical Sensitivities: The Next Big Workers’ Compensation “Thing?”

Workers’ Compensation Attorneys Should Read This Study and Dust Off Their Copies of the ADA By Richard B. Rubenstein, Esq., Rothenberg, Rubenstein, Berliner & Shinrod, LLC, New Jersey In the last thirty years, advances in epidemiology and diagnostics and trends in litigation brought the workers’ compensation community a veritable explosion of carpal tunnel syndrome, arthroscopic surgeries, complex...

February 01, 2018

Florida: Delay Between Physical Exam and Hire Date Causes Police Officer to Lose Presumption of Compensability

As is the case with a number of other states, Florida has a special presumption of compensability that favors first responders, such as law enforcement officers and firefighters who contract specified diseases or conditions, such as cancer, heart disease, or hypertension. Florida’s provision, § 112.18(1)(a), applies only where the law enforcement officer has successfully passed a physical examination “upon entering into...

February 01, 2018

Tennessee: Employer Saddled With 90 Percent of PTD Award Where Preexisting Condition Prevented Surgery

A trial court properly apportioned 10 percent of a permanently and totally disabled worker’s disability to the Second Injury Fund where it found that the worker sustained a 90 percent PPD as a result of a shoulder and arm injury, but also found that when combined with the worker’s prior medical issues, which included congestive heart failure, the worker was not capable of working. The employer did not actively dispute...

February 01, 2018

Georgia: Discharged Attorney Due $17,180 on Quantum Meruit Basis

Where Georgia’s State Board of Workers’ Compensation determined that a fee contract with an injured worker’s former counsel was unenforceable—the attorney was discharged before the final resolution of the case—it was nevertheless appropriate for the Board to award the discharged attorney a reasonable fee on a quantum meruit basis. The court noted that the discharged attorney had represented the client in the workers’...

February 01, 2018

Washington: Reopening Case Doomed Where No Objective Medical Evidence Indicated Worsening of Condition

A Washington appellate court affirmed the dismissal of an employee’s application to reopen her workers’ compensation claim, reiterating that under Wash. Rev. Code § 51.32.160(1)(a), the employee must not only show a worsening of her condition, she must produce objective medical evidence supporting her claim. The court added that it was not enough for the claimant honestly to believe her condition had worsened. Here the...

January 30, 2018

California: Labor Code §4660.1 Excludes Vocational Rehabilitation Evidence to Rebut the PDRS for Injuries Occurring On or After 1/1/13

By: Christian P. Kerry, Esq. Introduction Labor Code §4660.1 (a), by its express terms, applies to all injuries occurring on or after January 1, 2013. It provides in pertinent part that in determining the percentages of permanent partial or permanent total disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time...

January 30, 2018

California: Vocational Rehabilitation Evidence May Be Used to Rebut the PDRS For Post 2012 Injuries

By: Mark Gearheart © Copyright Mark Gearheart 2018 January 8, 2018 Introduction : Recently some have argued that vocational rehabilitation evidence cannot be used to rebut the Permanent Disability Rating Schedule (hereinafter referred to as the PDRS) for post-2012 injuries. This argument rests on two dubious propositions: That Labor Code Section 4660.1 “defines” permanent disability (PD) and an obscure dictum...

January 29, 2018

California: What Constitutes a Prescription for Home Health Care Services?

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. Prior to 2013, there may not have been a more controversial issue than home health care. Home health care could become an extraordinarily expensive benefit for a defendant in a workers’ compensation case. The math bears this out...

January 26, 2018

Arkansas: No Compensation Where Fall is Due to Idiopathic Cause

The Supreme Court of Arkansas affirmed a finding by the state’s Commission that a grocery store worker had not shown that her brain injury arose out of and in the course of her employment where the worker claimed she sustained an unexplained, compensable fall and the Commission found instead that her injury was the result of an idiopathic condition. It was undisputed that the worker fell while working at the Kroger store...

January 26, 2018

Virginia: Inability to Perform Light Work Due to Unrelated Disability Amounts to Unjustified Refusal of Employment

An employee who suffered from polycystic kidney disease at the time he was hired by the employer, who subsequently suffered a compensable injury to his left arm that was unrelated to his kidney disease, and who returned to light duty, but then could not continue the employment due to kidney failure that manifested after the work-related accident, he was not entitled to additional indemnity benefits. The court acknowledged...

January 26, 2018

Mississippi: Commission Was Wrong to Sanction Claimant's Attorney for Subpoena Issued to Employer's Medical Expert

A Mississippi appellate court reversed a decision of the state’s Workers' Compensation Commission that had sanctioned a claimant’s attorney for issuing a subpoena duces tecum to the employer’s medical expert in which the attorney sought information as to how much the physician annually earned performing employer medical examinations (EMEs), IMEs, and from testifying as an expert in workers’ compensation disputes....

January 26, 2018

Oklahoma: Special Tort Immunity Provision Favoring Oil and Gas Wells Struck Down as Unconstitutional

A provision in Oklahoma’s Administrative Workers’ Compensation Act (“the Act”), 85A Okl. St. § 5, which favors operators and owners of oil and/or gas wells with extended immunity in tort actions filed against them by plaintiffs who are injured at the well site and who are actually employed by other firms, is unconstitutional as an impermissible special law under Art. 5, § 59 of the Oklahoma Constitution, held the Supreme...

January 23, 2018

California: Apportionment Under Benson: The Long Overdue Demise of “Inextricably Intertwined”

By Raymond F. Correio, Esq. A number of decisions from the WCAB in 2016 and 2017 indicate a marked shift related to apportionment involving multiple injuries under Labor Code §§ 4663 and 4664 , as reflected in the WCAB’s Benson en banc decision (affirmed by the Court of Appeal in Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535 , 75 Cal.Comp.Cases 113, 2009 Cal. Wrk. Comp. LEXIS...

January 19, 2018

California: Is There a Limit on the Employer’s Control Over Medical Treatment?

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. The appropriate provision of medical treatment is one of the most fundamental aspects of California’s Workers’ Compensation System. For many years prior to April 19, 2004, an employee was able to choose his or her own treating...

January 18, 2018

The Scope of an ALJ’s Authority Under the LHWCA

By Mark Reinhalter, Office of the Solicitor, U.S. Department of Labor, Washington D.C. Section 19(a) of the Longshore and Harbor Workers’ Compensation Act (LHWCA) provides the agency official who conducts hearings on claims for benefits “full power and authority to hear and determine all questions in respect of such claim.” 33 U.S.C. § 919(a).[fn1] Although courts have addressed the meaning of that phrase in the past...

January 18, 2018

United States: Oklahoma Plaintiff’s Intentional Tort Action Against Employer Fails

Construing Oklahoma law, a federal district court dismissed a civil action filed by a Marriott International employee against Marriott on the basis that the plaintiff had not alleged sufficient facts to plausibly show that his injury was the result of a willful, deliberate, and specific intent of Marriott to cause his injury [see Okla. Stat. tit. 85A, § 5(A),(B)(2)]. Plaintiff sustained severe burns when a pipe beneath...

January 17, 2018

Pennsylvania: No Appeal of Utilization Review Determination Where Treating Provider Fails to Turn Over Records

A Pennsylvania appellate court held that where an employer files a request for utilization review of the medical treatment provided to claimant by a treating physician and that treating physician fails to provide the reviewing physician with the treating physician’s medical records, but a peer review report was nevertheless prepared indicating the treatment was unreasonable and unnecessary, the WCJ lacks jurisdiction...

January 17, 2018

Minnesota: Employee’s Retaliatory Discharge Action Re: Potential Future Injuries Cannot Proceed to Trial

A Minnesota trial court appropriately dismissed a civil action filed by a former employee against her former employer which alleged, inter alia , that it terminated her employment because it feared she might file a workers’ compensation claim for an injury that had not yet occurred . The appellate court held the former employee had not engaged in protected conduct. The employee worked for the employer as a “cell...

January 17, 2018

Virginia: Firefighter Paramedic’s PTSD May Be Compensable Occupational Disease

A Virginia appellate court affirmed, in relevant part, a state Workers’ Compensation Commission’s finding that a firefighter paramedic’s work-related experiences over his 17-year career caused his post-traumatic stress disorder (PTSD), not family or any other non-work-related issues. The paramedic testified that during his career he had “a lot of bad calls,” had witnessed decomposing bodies...

January 12, 2018

Pennsylvania: Massage Therapy Expenses Covered by Comp Act

A Pennsylvania appellate court held it was error for the state’s Workers' Compensation Appeal Board to find that a claimant’s massage therapy expenses were not reimbursable where they were provided by a massage therapist under the supervision of claimant's licensed chiropractor under 77 Pa. Stat. Ann. § 531(1)(i). While the massage therapist was not a “health care provider” as that term is defined by the Pennsylvania...

January 12, 2018

United States: Injured Federal Worker’s Action under Tort Claims Act Barred by Exclusivity

A Department of Commerce employee, who sustained serious injuries when she was struck by a car as she crossed the street after picking up mail from another federal building, may not maintain a civil action for negligence against the federal government (the driver of the vehicle was an employee of the Federal Protective Service) under the Federal Tort Claims Act, held a federal district court. The plaintiff’s action...