January 12, 2018

New York: Department Store Model is Employee of Skin Care Company

A "skin care specialist and spokesmodel,” who worked in a Bloomingdale's department store, was the employee of the skin care company whose products the model demonstrated, held a New York appellate court, affirming a decision of the state’s Workers’ Compensation Board. Accordingly, the spokesmodel could recover workers’ compensation benefits associated with injuries he sustained in a fall as he walked to a store...

January 12, 2018

United States: Texas Armored Car Employee’s Family May Not Recover Exemplary Damages for Death Occurring During Robbery

The family of a deceased employee of an armored car service may not maintain a wrongful death action for exemplary damages against the employer on the basis of allegations that it engaged in gross negligence resulting in the death of their family member because the death resulted from “an assault, theft, or other criminal act,” as described in Tex. Civ. Prac. & Rem. § 41.005(a), held a federal district court in Houston...

January 10, 2018

New York Workers’ Compensation Trends and Developments 2017

Legislative and administrative action produced significant changes in the Workers’ Compensation Law and practice in 2017. As with 2013 reforms, Governor Cuomo resorted to inclusion of provisions in the Executive Budget to fast track reforms to key areas of the Workers’ Compensation Law in April 2017. Workers’ Compensation Legislation 2017 reform legislation included a number of changes to the law regarding permanently...

January 10, 2018

California: Racial Stereotyping in the Panel QME Process

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 Workers’ Compensation Administrative Law Judge (WCALJ) and a panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) reminded practitioners in the California Workers’ Compensation...

January 05, 2018

Pennsylvania: Self-Employed Spouse Fails to Show He Was Dependent upon Deceased Employee after Couple Separated

A self-employed spouse, who separated from his wife two years before her work-related death is not entitled to workers’ compensation dependency benefits as he failed to show that he received a substantial portion of support from his estranged wife at the time of her death, held a Pennsylvania appellate court. The claimant did receive health care benefits, in the form of health insurance provided through his wife’s...

January 05, 2018

Oregon: Working Partner Was Not a “Subject Worker” Under State Comp Act

Where a husband worked in an enterprise with his wife and shared the profits (or losses) of the business equally with her, the Oregon Workers’ Compensation Board was within its powers to find that he was not a "subject worker" (see Ore. Rev. Stat. §656.027(8), excluding certain partners from the category of "subject worker") and, as a partner, the husband had not applied for or made an election...

January 05, 2018

Ohio: Flight Attendant Does Not Recover Benefits for Layover Injury

An airline flight attendant, who was based in Ohio, did not sustain an injury arising out of and in the course of her employment when, during a layover, she fell on a public sidewalk in New York City as she returned to an inn after walking to a nearby restaurant for dinner. The Ohio appellate court acknowledged that, under a line of Ohio cases, employees who travel regularly for work and who are injured away from the...

January 05, 2018

New York: Lack of Written Notice of Injury Excused Where Claimant Told Supervisor of Work-Related Injury

It was within the discretion of New York’s Workers' Compensation Board to excuse a claimant's failure to provide timely written notice where competent evidence indicated the injured worker actually reported her leg injury to her supervisor at the end of a work shift and where the employer offered no conflicting evidence. The court acknowledged that N.Y. Work. Comp. Law § 18 contemplates written notice of injury...

January 03, 2018

California: Top 25 Noteworthy Panel Decisions (July-December 2017)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2017. The list features a number of split panel decisions, including a case interpreting the Labor Code § 5406 statute of limitations applicable to death benefit claims, a decision (in which the Court of Appeal has recently granted...

January 03, 2018

California Workers' Comp Case Roundup (1/3/2018)

CALIFORNIA COMPENSATION CASES Vol. 82 No. 12 Dec 2017 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...

December 15, 2017

Utah: Statute Placing 12-Year Outside Limit on Workers’ Compensation Benefits is Constitutional

In another important constitutional challenge case, the Supreme Court of Utah held the state’s Labor Commission appropriately denied and dismissed two workers’ claims for additional PD benefits as untimely under Utah Code Ann. § 34A-2-417(2)(a)(ii). In each case, the worker had been injured in a workplace accident, filed a request for compensation within six years of the accident in accordance with Utah Code § 34A-2-417...

December 15, 2017

Utah: 312-Week Limitation on TTD Benefits is Constitutional

Utah Code Ann. § 35-1-65 (1982) (current version at Utah Code § 34A-2-410 (2016)), which provides that an injured worker who is temporarily totally disabled shall receive a specified amount of compensation per week, but that in no case shall compensation benefits exceed 312 weeks over a period of eight years from the date of the injury is not an unconstitutional statute of repose under the Open Courts Clause of the Utah...

December 15, 2017

Maine: “Volunteer” Driver is No Employee—Injury Claim Denied

In a case presenting an issue of first impression in Maine—whether a mileage reimbursement to a “volunteer” can constitute remuneration when it is significant enough to exceed the volunteer's immediate expenditures—and therefore establish that the driver is actually an employee—the Supreme Judicial Court of Maine affirmed a decision of the Workers' Compensation Board Appellate Division that found the driver was...

December 15, 2017

New Jersey: Most Third-Party Tort Action Waivers in Employment Contracts Invalidated

Waiver or “disclaimer” clauses, typically found in the employment agreements of New Jersey workers that work for employment services firms, pursuant to which the employee prospectively waives third-party claims against the employer’s customers, are contrary to public policy, held the Supreme Court of New Jersey recently. The Court added that in as much as such clauses are contrary to both the letter...

December 15, 2017

New Jersey: No Lost Wages = No Temporary Disability Benefits

Stressing that temporary disability benefits are intended to be a partial substitute for a loss of current wages and that actual absence from work is a prerequisite to a temporary disability award, a New Jersey appellate court affirmed the denial of such benefits to an unemployed New Jersey firefighter, who suffered a fractured fibula and other injuries when she slipped and fell on ice as she and others fought a multi...

December 11, 2017

An American Sickness: How Workers’ Compensation Fell into the Same Abyss as Health Insurance

By Richard B. Rubenstein, Esq., Rothenberg Rubenstein Berliner Shinrod LLC Stakeholders in the Workers’ Compensation community can proudly proclaim that our system was quite literally the first form of health insurance in America, preceding Blue Cross of the 1930’s by more than two decades.  The cynical among us can also feel great shame in the fact that our system was quite literally the first form of health insurance...

December 08, 2017

Arkansas: Workers’ Compensation Exclusive Remedy for Fatal Shooting During Robbery

Substantial evidence supported the Commission’s finding that a restaurant employee was killed during the course and scope of his employment and, therefore, his survivors’ recover against the employer was limited to workers’ compensation death benefits, held an Arkansas appellate court. Evidence indicated that the deceased was serving a customer at the time of an armed robbery by two off-duty restaurant employees, that...

December 08, 2017

Mississippi: Return to Work at Same or Higher Wages Dooms PPD Claim

Stressing that under the Mississippi Workers’ Compensation Act—except for scheduled-member cases—indemnity benefits are made for diminished wage-earning capacity and not medical impairment, as such, a state appellate court affirmed the Commission’s findings that an injured worker was not entitled to PPD benefits where he had returned to his same or similar employment and earns the same or higher wages [ see Miss. Code...

December 08, 2017

North Carolina: Out-of-State Medical Care Qualifies Under State’s Two-Year Jurisdiction Rule

In North Carolina, a claim must be filed either (a) within two years of the accident [N.C. Gen. Stat. § 97-24(a)(i)], or (b) “within two years after the last payment of medical compensation when no other compensation has been paid and when the employer's liability has not otherwise been established under this Article” [N.C. Gen. Stat. § 97-24(a)(ii)]. A state appellate court ruled that in connection with the second...

December 08, 2017

Oregon: Board Should Have Considered Personal Comfort Doctrine in Parking Lot Injury

The personal comfort doctrine is part of the “course and scope inquiry,” and accordingly, it precedes any discussion of the going and coming rule, which applies when the worker has left the course and scope of the employment, held an Oregon appellate court recently. Accordingly, where a nurse manager tripped and fell on an uneven sidewalk adjacent to her employer’s parking lot as she returned to her duties following a...

December 07, 2017

California: When Due Process Becomes “Inconvenient”

Circumstances sometimes arise where justice requires that a party’s due process rights trump the inconvenience it may cause to a witness. Scheduling witness testimony is not an exact science, and often results in a minor and sometimes major inconvenience to the person being questioned. It is necessary to weigh the due process rights of the party doing the questioning with the type of inconvenience imposed on the...

December 07, 2017

California Workers' Comp Case Roundup (12/7/2017)

CALIFORNIA COMPENSATION CASES Vol. 82 No. 11 Nov 2017 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 2017 LexisNexis. All rights reserved. LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and...

December 01, 2017

Interrelationship Between Personal and Occupational Risk Factors Complicates Opioid/Benzodiazepine Crisis

Building on prior research, a recent study sponsored in part by the National Institute of Occupational Safety and Health (NIOSH) and the Health Resources and Services Administration (HRSA) identifies eight models that demonstrate the interrelationships among occupational risk factors (ORFs), personal risk factors (PRFs), and prescription drug (PD) use involving opioids and/or benzodiazepines in the occupational setting...

December 01, 2017

Tennessee: Injury Covered in Spite of Claimant’s Resignation from Her Employment

Where an employee told her supervisor that she was quitting and she fell on her way out of the employer’s store, she was nevertheless entitled to workers’ compensation benefits for her injuries since her employment included incidents that occurred within a reasonable time after termination of her employment. Walking to the front door to exit the premises was a normal incident of the employment; her injuries during that...

December 01, 2017

Utah: Court Sets Aside 15 Percent Penalty for Alleged Safety Violation

It was proper for the Utah Labor Commission to determine that an employer had not willfully or deliberately bypassed a safety devise in violation of Utah Code Ann. § 34A-2-301(1)(d)(2015), where a manager credibly testified that he had not overridden the safety sensor on the machine in question and did not know how to do so. The court acknowledged that there was evidence that the manager had observed employees operating...