December 01, 2017

Texas: Status as Traveling Employee Works to Bar Wrongful Death Action

A Texas trial court appropriately found plaintiff’s wrongful death action barred by the exclusive remedy provisions of the Texas Workers’ Compensation Act where the deceased employee suffered fatal injuries in a vehicle accident as he and others traveled to a job site. The appellate court initially acknowledged that an employee's travel to and from work generally does not originate in a Texas employer's business...

December 01, 2017

Virginia: Specialized “Running Blade” Prosthesis Found Not to be Medically Necessary

The Virginia Workers’ Compensation Commission did not commit error when it determined that the running blade prosthetic device requested by claimant was not medically necessary under Va. Code Ann. § 65.2-603. Claimant had suffered a work-related accident, which resulted in a below-the-knee amputation of his left foot. He was given a prosthesis to replace his left foot and awarded lifetime medical benefits as well as temporary...

November 30, 2017

California: The Rules for Determining Permanent Disability Can Often Be Difficult to Predict

Labor Code Section 4660(d) provides that California’s Permanent Disability Rating Schedule (PDRS) shall promote consistency, uniformity and objectivity when it comes to determining an injured worker’s permanent disability. From reading this section, one could assume that the rules applicable to determining permanent disability in California Workers’ Compensation System would be easy to navigate. However, Section 4660...

November 09, 2017

California: Emergency Service Personnel’s Heart Trouble Presumption

In most workers’ compensation cases, in order to establish an entitlement to benefits, it is the applicant’s initial burden of proof to establish that an injury or disease process arose out of employment and occurred in the course of employment. This burden is lessened somewhat for emergency service personnel, such as firefighters and police officers. Recent Noteworthy Panel Decisions (NPDs) and writ denied...

November 09, 2017

Kentucky: High Court Reiterates Four-Year Reopening Rule Does Not Always Refer to Date of Original Award

Pursuant to Ky. Rev. Stat. Ann. § 342.125(3), no claim may be reopened more than four years “following the date of the original award or order granting or denying benefits.” Where a worker’s original claim alleging a neck injury was filed on March 14, 2007, and an ALJ approved an award of PPD benefits based upon impairment rating of eight percent on Nov 13, 2007, and the worker filed a motion to reopen in April 2009—well...

November 09, 2017

New York: Insurance Carrier’s Notice of Cancellation Found Sufficient Under Statute

Where a workers’ compensation carrier produced a letter dated January 15, 2014, providing notice of cancellation of the policy to the employer effective January 31, 2014, and additional evidence obtained from the USPS established that the letter had been sent via certified mail, return receipt requested, and that the letter was accepted by the owner and president of the employer on January 25, 2014, it was error for the...

November 09, 2017

Ohio: Firefighter’s Presumption Does Not Apply to ALS

An Ohio appellate court ruled recently that a trial court’s refusal to apply the special firefighter’s presumption contained in Ohio Rev. Code Ann. § 4123.68(W) to amyotrophic lateral sclerosis (ALS) was not error, in spite of the employee’s contention that ALS should be considered a “cardiovascular, pulmonary, or respiratory disease" because it usually caused death by weakening a person's...

November 09, 2017

Florida: JCC May Not Reduce Jointly Agreed Upon Attorney’s Fee

In what appears to be Florida’s never-ending battle over attorney’s fees within the workers’ compensation system, a state appellate court reversed a portion of a Judge of Compensation Claims that reduced the agreed upon amount of the Employer/Carrier-paid attorney’s fee and had required the excess be remitted to the claimant personally. In its per curiam decision, the Court held the “JCC's own subjective and personal...

November 08, 2017

California Workers' Comp Case Roundup (11/8/2017)

CALIFORNIA COMPENSATION CASES Vol. 82 No. 10 Oct 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...

November 08, 2017

Workers’ Compensation Emerging Issues Analysis: The Year of Constitutional Challenges

By Thomas A. Robinson, J.D., co-author, Larson’s Workers’ Compensation Law As most states move into the second millennia of their respective workers’ compensation acts, one might expect that most constitutional issues within the occupational injury and illnesses world would long ago have been decided. Indeed, when it comes to many core issues, the constitutional issues have long been settled [see Larson’s Workers’...

November 03, 2017

New York: Defendant Fails to Show Injured Bus Matron was its “Special Employee”

Plaintiff, a school bus matron employed by a nonparty, stated a claim for injuries allegedly sustained in an accident that occurred while she was working on a school bus registered to defendant, Boro Transit (“BT”), and driven by an employee of BT and defendants failed to make a prima facie showing that plaintiff was BT’s "special employee,” so that her claims against BT and the driver would...

November 03, 2017

South Carolina: Court Finds Workers’ Comp Policy Was Procured by Fraud

Where an employer rushed to an insurance agency to procure a policy of workers’ compensation coverage after one of its employees sustained serious injuries in a fall from a roof, the policy was void ab initio ; “cancellation” of the policy under S.C. Code Ann. § 38-75-730 (2015) was, therefore, not required. The appellate court observed that insurance was meant to protect against the unknown or...

November 03, 2017

Mississippi: Benefits Awarded for Staph Infection Caused by Epidural Injections for Lumbar Injury

It is the province of the Mississippi Workers’ Compensation Commission to weigh the evidence—including expert medical testimony. Accordingly, where the Commission gave more weight to the employee’s medical expert—who opined that, more likely than not, the worker’s staph infection was causally connected to epidural injections the worker received as treatment for a work-related back injury—than...

November 03, 2017

Texas: Weekly Stipend Loosely Tied to Travel Does Not Make Worker Traveling Employee

Where an employer paid a “field electrician” a weekly stipend of $75, but neither (a) required the employee to keep records regarding travel expenses nor (b) required the additional payment to be spent for travel, the employee would not be considered a traveling employee on that basis alone, held a Texas appellate court. The employee’s fatal injuries, sustained as he drove toward the employer’s...

November 01, 2017

Despite the Risks, Most WCMSA Plans Include Funds for Long-Term Opioid Use

Oakland – Nearly 70% of federally mandated and approved Medicare settlements for injured workers require funding for decades of opioid use, often at dangerously high levels and in conjunction with other high-risk drugs. Such a requirement exceeds federal and state clinical guidelines and places patients at high levels of risk. Workers’ Compensation Medicare Set-Aside (WCMSA) plans are required to set up...

October 30, 2017

Obesity and Worker Productivity by Occupational Class in the U.S.

A new study focuses on the negative impacts of obesity across different occupational classifications Obesity and its adverse effects on health and employment continue to be the subject of much-needed research and attention. In the recent past, I have taken a look at studies that examined the causes and effects of obesity as reflected in data from the Nurses’ Health Studies biannual research surveys , as well as a 50...

October 27, 2017

North Carolina: Fatal Auto Accident Not in Course and Scope of Employment

A North Carolina appellate court affirmed the denial of workers’ compensation death benefits to the dependents of an employee, who worked as a supervisor for a public nonprofit agency and who sustained fatal injuries in a one-vehicle accident in an employer-owned vehicle that occurred during working hours, but some 30 miles from his place of employment. The dependents contended that the deceased must either have...

October 27, 2017

Virginia: Employee’s Injury Crossing Street from Parking Lot Not Compensable

Where a claimant’s injury occurred on a public street as she crossed from one of several parking lots provided by the employer to her workplace, her injuries did not arise out of and in the course of her employment, held a state appellate court. Quoting Larson ’s Workers’ Compensation Law , current § 13.04, the court acknowledged that under Virginia’s “extended premises” rule, employment cannot be rigidly limited by the...

October 27, 2017

Ohio: Claimant Required to Show Fall Was Not Due to Idiopathic Condition

Where an employee sustained a broken hip in a fall at work, with no clear reason for the fall, but where the employee’s medical record indicated that she suffered from various medical conditions, including diabetes mellitus type II, thyroid disease, and neuropathy in her leg, it was incumbent upon her to demonstrate that the fall was due to idiopathic causes. Accordingly, the trial court erred when it granted summary...

October 27, 2017

Florida: Isolated Pre-Employment High BP Reading Does Not Cause Loss of Presumption of Compensability

In a split decision, a Florida appellate court held that a single—abnormally high —blood pressure reading taken at an employment physical eight years before a police officer’s claim for workers’ compensation benefits was not “any evidence” of hypertension under the state’s “Heart-Lung” presumption of compensability statute [see § 112.18(1), Fla. Stat.] that favors law enforcement officers. To take advantage of the presumption...

October 20, 2017

Kentucky: Self-Insurance Fund Responsible for 30 Percent Enhancement of Benefits for Insolvent Employer’s Safety Violation

Ky. Rev. Stat. Ann. 342.165(1), which provides for a 30 percent increase in workers’ compensation benefits where the workplace accident is caused in any degree by the intentional failure of the employer to comply with certain specific safety regulations, is not a penalty against the employer, but rather an award of benefits to the injured worker, held a state appellate court. Accordingly, the Kentucky Coal Employers...

October 20, 2017

Georgia: Employer May Suspend Indemnity Payments When Effects of Aggravation are Over

When an employee has a preexisting condition that limits his or her work capacity before the work-related injury, as soon as the effects of the work-related injury cease, the employer's responsibility for workers' compensation also ceases. The employer is not responsible for compensating the employee until the preexisting condition improves as well or for showing that work exists suitable for an employee with...

October 20, 2017

Georgia: Meretricious Relationship Results in Disqualification of Death Benefits

Citing a 1990 decision of the Supreme Court of Georgia [ Williams v. Corbett , 260 Ga. 668, 398 SE2d 1 (1990)], as controlling, a state appellate court held that within the context of a workers’ compensation claim, a meretricious relationship works to deny dependency benefits, even if actual dependency exists. Here the claimant had lived with the deceased employee for some 13 years before the employee sustained fatal...

October 20, 2017

New York: Employer Faces No Tort Liability Following Holiday Party Fatality

An employer and various co-employees could not be held responsible in tort following the death of a co-employee who became intoxicated at a holiday party organized by a number of the co-employees, but not sponsored to any degree by the employer, held a New York appellate court. Co-employees of the deceased employee contacted the employee’s spouse, indicating the employee was in no shape to make it home on his own. The...

October 19, 2017

California: A Game Changer for Workers’ Compensation and FEHA Claims?

FEHA Claim Barred by Decision in Workers’ Compensation Case Typically, when an employee suffers an industrial injury, he is precluded from filing a civil cause of action against his employer as the workers’ compensation system is considered his “exclusive remedy”. However, there are instances where the employee can sue the employer in both workers’ compensation and civilly for discrimination under the California Fair...