October 16, 2017

California: Cases About Carve-Outs

Decades ago, the workers’ compensation system was “carved out of” the personal injury litigation system. More recently, starting in 1993, and pursuant to legislation ( Labor Code §§ 3201.5 (b)(2) and 3201.7 (b)(2)), certain unions and employers were allowed to carve-out their own “alternative dispute resolution” (ADR) programs from the already established California workers’ compensation system. These ADR programs...

October 16, 2017

Following up on the Year’s Top Workers’ Comp Issues: Back to the Future

By Karen C. Yotis, Feature Resident Columnist, LexisNexis Workers’ Compensation eNewsletter Before the blogs and newswires start posting their usual “boy, wasn’t that something” year-in-review stuff, I thought it would be an interesting exercise to revisit the prophesies that industry soothsayers made earlier in 2017 for a brief reality check. I looked at my files for inspiration and pulled out...

October 13, 2017

Precedent or Not? Confusion About Use of Unpublished Decisions

By Thomas C. Fitzhugh, III, Esq., The Longshore Institute, Houston, Texas Before computerized legal research, lawyers had to rely on printed cases that came out first in paperback (advance sheets) and ultimately in beautifully bound volumes. Today those volumes are only used as backdrop for portraits or law firm websites. They have absolutely no value on the market other than as decoration. But the cases that are found...

October 13, 2017

California: A “New” Discovery Tool Available to the Defense Bar?

The California Constitution mandates that the workers’ compensation process, including those provisions applicable to discovery, shall be established so as to accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character. Indeed, in Hardesty v. McCord & Holdren, Inc. and Industrial Indem. Co. (1976) 41 Cal. Comp. Cases 111 (Appeals Board panel opinion), a...

October 13, 2017

Vermont: Claimant’s Second Cervical Spine Claim Was Timely—Not Modification of Original Claim

The Supreme Court of Vermont held that a workers' compensation award of PPD benefits, based on damage to the C4-6 levels of claimant's cervical spine, did not preclude a subsequent award of PPD benefits, more than six years later, for damage to the C3-4 levels of claimant's spine that arose, over time, from the same work injury. The Commissioner determined that since the claim also involved claimant’s cervical...

October 13, 2017

Kentucky: Opioid Dependence Results in Loss of Co-Employee Immunity in Tort Action

A school bus driver was not entitled to rely upon Kentucky’s fellow-immunity rule in a tort action filed against her, since there was sufficient evidence to support the jury’s finding that the defendant driver was voluntarily intoxicated at the time of a serious vehicle accident; her actions were, therefore, outside the scope and course of employment.  Plaintiff, an employee of the school board, was among those seriously...

October 13, 2017

Virginia: Actual Risk Rule Sinks Utility Worker’s Claim

Stressing that the convergence of time and place are insufficient to support a compensable injury in Virginia, a state appellate court affirmed the denial of workers’ compensation benefits to a municipal utility worker who sustained back and leg injuries when, while performing his normal work routine, he stood from a squatted position, twisted to his right, and felt a pop in his back and fell to the ground. Stressing...

October 13, 2017

New York: Apportionment Allowed in Schedule Loss of Use Case

While the normal rule in most jurisdictions is that a judge or board may not apportion a claimant’s PPD award based upon a preexisting condition that did not prevent the employee from effectively performing his or her job duties at the time of a subsequent work-related injury, New York has an exception when it comes to schedule loss of use (“SLU”) cases. Based on that exception, a New York appellate...

October 06, 2017

North Carolina: Worker’s Death from Accidental Overdose of Narcotics is Compensable

In an unpublished opinion, the Court of Appeals of North Carolina affirmed an award, inter alia, of death benefits to dependents of an injured employee who suffered a compensable back injury in June 2010 and died some four years later, as a result of an accidental overdose of prescribed medications and a previously unknown lung infection. At the time of his death, decedent had been prescribed a cocktail of drugs—narcotics...

October 06, 2017

Oregon: Traveling Employee’s Death While Returning from Shopping Trip Was Not Compensable

A person in the status of a traveling employee is continuously within the course and scope of the employment while traveling, except when the person is engaged in a distinct departure on a personal errand, held the Court of Appeals of Oregon. Accordingly, where Coos Bay resident was temporarily working some distance away in Newport, and was killed in an automobile accident as he and a co-employee returned to their Newport...

October 06, 2017

Vermont: Injured Worker’s AWW Includes College Employer’s “Tuition Benefit”

The Supreme Court of Vermont, in a divided decision, held that a college employer’s “tuition benefit” was a type of “other advantage,” as that term was used in 21 V.S.A. § 601(13), and accordingly was appropriately used by the Vermont Commissioner of Labor in computing the injured employee’s average weekly wage (AWW) for workers’ compensation purposes. Quoting Larson ’s Workers’ Compensation Law , the majority of Court...

October 06, 2017

Oklahoma: Yet Another Provision of State’s Workers’ Compensation Law Held Unconstitutional

The forfeiture provision found in Okla. Stat. tit. 85A, § 57, part of the Oklahoma Administrative Workers’ Compensation Act (“the Act”), which bars an injured employee from further benefits (both medical care and indemnity) if the employee misses two or more scheduled medical appointments is unconstitutional, held the state’s Supreme Court, in a split decision. The majority held the provision was outside the original...

October 03, 2017

Workers’ Compensation of the Future: Will Mutual Dystopia Be the New Normal?

By Richard B. Rubenstein, Esq., Rothenberg, Rubenstein, Berliner & Shinrod, LLC, Livingston, New Jersey It is 2017, and among the most watched properties in our media are A Handmaid’s Tale and Hunger Games . Dystopia rules in 2017. With this in mind, Mark Walls, a prolific producer of seminars for the workers’ compensation industry, set the table for a panel of workers’ compensation professionals with the premise...

September 29, 2017

Pennsylvania: Donut Shop Manager was Traveling Employee; Death Claim Not Barred by Going and Coming Rule

Where an employee worked as manager at one of the employer’s three donut shops, was occasionally required to respond to operational issues at the other two shops, and sustained fatal injuries in an vehicle accident as he traveled from his residence to one of the other shops to investigate and potentially fill in for a kitchen employee who had fallen ill during a work shift, the decedent was a traveling employee during...

September 29, 2017

Oklahoma: Multiple Injury Trust Fund Liable for Combined Injuries to Different Body Parts

In a deeply divided decision, the Supreme Court of Oklahoma held that a workers’ compensation claimant, who sustained an injury to his left shoulder in 2013, was a “physically impaired person,” as defined in Okla. Stat. tit. 85A, § 402(A), in spite of the fact that none of his prior adjudicated disabilities had involved his left shoulder. Accordingly, since the Workers’ Compensation Court of Existing Claims had determined...

September 29, 2017

Vermont: Commissioner May Not Set Aside Settlement Agreement on Public Policy Grounds

Where a hearing officer approved a workers’ compensation settlement agreement that contained broad release language and had required the claimant to sign a separate letter acknowledging the breadth of the release of future rights to seek additional benefits, the Commissioner could not subsequently set aside a significant portion of the agreement on the basis that it was “impermissibly broad” and violated public policy...

September 29, 2017

Ohio: “Consent Provision” Regarding Employer-Initiated Appeals is Constitutional

The Supreme Court of Ohio, reversing the Eighth District Court of Appeals, held the state’s “consent provision” [see Ohio Rev. Code § 4123.512(D)], which allows an employee to dismiss an employer-initiated appeal only with the consent of the employer, is constitutional. Under Ohio law, while an employer may appeal a determination by the Industrial Commission that an employee has the right to participate in the workers'...

September 29, 2017

California: Retroactive Approval of Denied Treatment Causing Increased Temporary Disability and Permanent Disability

Go v. Sutter Solano Medical Center is one of series of panel cases addressing the question of whether an employee can obtain TD and PD benefits based on medical treatment that was denied through UR and IMR. As the panel in Go points out, in the context of a UR/IMR decision denying treatment that is subsequently self-procured, a prior panel case, Barela [ 2009 Cal. Wrk. Comp. P.D. LEXIS 482 ], found that that the WCAB...

September 28, 2017

California Workers’ Comp Case Roundup: 10/3/2017

CALIFORNIA COMPENSATION CASES Vol. 82, No. 9 September 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...

September 28, 2017

California: Secrets Revealed for Handling SIBTF Cases

Over the last few years, there has been quite an increase in the number of workers’ compensation cases dealing with the Subsequent Injuries Benefit Trust Fund (SIBTF) under Labor Code § 4751 . The primary issue is whether or not an injured worker qualifies for additional compensation from the SIBTF, but there are many other issues and strategies that practitioners need to become familiar with before handling an SIBTF...

September 22, 2017

Minnesota: Part-Time Work by Injured Employee Does Not Automatically Result in Termination of Rehab Benefits

A compensation judge’s determination that a claimant was no longer a "qualified employee” entitled to receive rehabilitation benefits under Minnesota Rule 5220.0100, subps. 22 and 34 (2015), in light of her part-time job with a new employer was erroneous, held the Supreme Court of Minnesota. The Court accordingly affirmed a decision by the state’s Workers' Compensation Court of Appeals (WCCA) that required the...

September 22, 2017

Illinois: Slip and Fall on Wet Pavement in Employer’s Parking Lot Not Compensable

Where the employer’s parking lot was free of any ice or snow and had no defects on the paved surface where the claimant fell, but was merely wet from rain, claimant’s injury in a slip and fall accident arose from an activity of daily living and did not result from an employment-related risk or from a neutral risk to which the claimant was at increased exposure as a result of her employment, held an Illinois appellate...

September 22, 2017

Oklahoma: Worker with Bilateral Inguinal Hernias Entitled to Separate TTD Award for Each Injury

Construing Oklahoma’s hernia statute [85A O.S. Supp. 2013 § 61], which permits an award of up to six weeks of TTD for each hernia suffered by a claimant, the Supreme Court of Oklahoma held that where an injured worker had sustained a bilateral inguinal hernia, he was entitled to 12 weeks TTD—one six-week period for “each” hernia, and not merely one six-week period of disability, as determined...

September 22, 2017

Maryland: Police Officer Recovers Under Special Errand Doctrine

A police officer, who sustained injuries in a motorcycle accident while traveling home after attending police training held at a different site from his usual workplace, and which was held on a day that he had been scheduled to be using personal leave, was entitled to workers’ compensation benefits under Maryland’s special mission or errand exception to the going and coming rule, agreed a state appellate court. The County...

September 21, 2017

Temporary Worker vs. Direct Hire Workers’ Comp Filings in Illinois: The Art of the Raw Deal

By Karen C. Yotis, Feature Resident Columnist, LexisNexis Workers’ Compensation eNewsletter While stopping just shy of concluding that temporary worker status—by itself—results in lower workers’ comp claim awards, a new study concludes that the temp worker’s status is highly correlated with many of the factors that do determine the amount of those payouts, such as a significantly lower weekly wage and less time taken...