August 18, 2017

Washington: High Court Clarifies Standard of Proof in Occupational Disease Cases

Stressing that in Washington, the proof of medical causation related to an occupational disease does not require “magic words,” the Supreme Court of Washington affirmed a lower court decision that sustained an award of workers’ compensation benefits claimant’s occupational disease in the form of a low back condition. The Court observed that under Washington’s workers’ compensation law...

August 18, 2017

New York: Surviving Spouse Receives Death Benefits for Employee’s Unwitnessed Death at Work

Under the general rule in New York, and many other jurisdictions, where an unwitnessed death occurs during the course of a decedent’s employment, a presumption arises that the death arose out of that employment [see N.Y. Work. Comp. Law § 21(1)]. Ordinarily, that presumption can be rebutted by substantial evidence demonstrating that the death was not work related. A New York appellate court affirmed an award of death...

August 17, 2017

California: WCAB Allows I-Phone Testimony for Deported Injured Worker

By LexisNexis Workers' Compensation Staff The Vargas v. Darrell Becker, 2017 Cal. Wrk. Comp. P.D. LEXIS 276 panel decision is remarkable for a number of reasons. Many will argue that it is significant because a Workers’ Compensation Administrative Law Judge (WCALJ) allowed a deported illegal immigrant to testify in his California Worker’s Compensation trial by way of Facetime on a four inch I-Phone. There is another...

August 11, 2017

California Workers’ Comp Case Roundup: 8/11/2017

CALIFORNIA COMPENSATION CASES Vol. 82 No. 7 July 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...

August 11, 2017

Pennsylvania: Worker Fails to Show that Loss of Use of Finger is Permanent

A Pennsylvania appellate court held that the state’s Workers’ Compensation Appeal Board appropriately reversed a WCJ’s order granting claimant’s petition for specific loss of the use of the right index finger, where the claimant presented evidence that following a work-related injury involving a circular saw, he continued to have pain in his finger and had difficulty with some hand actions such as writing, playing guitar...

August 11, 2017

New York: Widow Establishes Death Benefits Claim Without § 21(1) Presumption

A state appellate court held that while it was inappropriate for the Board to apply the presumption of compensability found in N.Y. Work. Comp. Law § 21(1), given the fact that the issue was whether decedent was actually performing his duties at work when he sustained the injuries that led to his death, the decedent’s widow (“claimant”) had nevertheless produced sufficient evidence to support the Board’s award of death...

August 11, 2017

South Carolina: HVAC Worker Was Employee, Not Independent Contractor

Where a heating and air-conditioning worker did not bid for work on any projects performed by the purported employer, was not disclosed by the purported employer as an independent contractor to general contractors on the various work projects, and was required to wear a uniform bearing the purported employer’s logo, as well as carry business cards and service contracts supplied by the purported employer, it was not error...

August 11, 2017

United States: North Dakota Need Not Subordinate its Workers’ Comp Death Benefits Statute to Colorado’s More Liberal Provisions

The 8th Circuit Court of Appeals held that the widow of a Colorado resident killed in a traffic accident while working in North Dakota could not successfully challenge—on constitutional grounds—a North Dakota statute that suspended her previously awarded death benefits while she pursued supplemental benefits in Colorado, and which further, would have required her to reimburse the state’s Workforce Safety and Insurance...

August 10, 2017

California: Labor Code Section 4662: Conclusive or Rebuttable Presumption?

Everyone in the workers’ compensation community has heard of the paradigm changing package of laws brought about by SB899 in 2004 and SB863 in 2013, but sometimes a new law slips under the radar radically tweaking a particular aspect of the rules. I. Outdated Labor Code § 4662 Prior to 1/1/2015, there was a resurgence of cases dealing with the Labor Code § 4662 ’s provision that permanent total...

August 04, 2017

New York: Claimant Fails to Establish Causal Connection Between Prostate Cancer and Firefighting Duties

Reiterating that the burden is upon the claimant to establish—by competent medical evidence—a causal connection between the employment and the claimed disability, a New York appellate court affirmed a determination by the full Board (in a majority decision) that denied workers’ compensation benefits to a claimant, who worked for some 24 years as a firefighter and medical technician for the City of Plattsburgh, and who...

August 04, 2017

California: Subsequent Injuries Benefit Trust Fund’s Obligation Begins When Claimant Stops Receiving TD Payments

The appellate court held that pursuant to Lab. Code § 4751, Subsequent Injuries Benefits Trust Fund (SIBTF) benefits commence at the time the employer’s obligation to pay permanent disability benefits begins. Accordingly, the WCAB correctly determined that the start date for SIBTF benefits was the day after a claimant stopped receiving temporary disability payments and not, as the SIBTF had contended that its obligation...

August 04, 2017

Mississippi: Claimant’s Failure to Submit to Breathalyzer Does Not Necessarily Defeat Claim

In a split decision, a Mississippi appellate court held that an injured worker should not have been disqualified from receiving workers’ compensation benefits because he failed to submit to a post-accident breathalyzer test. The Court found that the Commission’s decision that denied benefits was not supported by substantial evidence where it appeared the injured worker remained—in substantial pain—waited...

August 04, 2017

Florida: Physicians Need Not “Interrogate” Claimants Regarding Allegedly False Statements

Florida’s workers’ compensation fraud statute, § 440.105(4), Fla. Stat., does not require a physician to “interrogate” the claimant regarding what may have been false or misleading statements provided by the claimant to the physician, even when the physician has contradictory information from another source, held a state appellate court. Accordingly, the claimant cannot nullify his or her...

August 03, 2017

RAND Issues Report on Proposed California Workers’ Compensation Drug Formulary

How might the proposed drug formulary impact California? Assembly Bill (hereafter “AB”) 1124 required the California Division of Workers’ Compensation (DWC) in California to implement a drug formulary no later than July 1, 2017. The stated impetus for the bill was in response to several concerns. First, there is the well-publicized opioid epidemic. A large segment of the population are addicted to opioids. Second,...

August 03, 2017

CWCI Study Analyzes the Impact of California’s Proposed Formulary and Drug List

Oakland - More than 30 percent of the prescription drugs currently dispensed to injured workers in California will be classified as “Exempt Drugs” and will no longer require authorization prior to dispensing under conditions outlined in the Workers’ Compensation Prescription Drug Formulary regulations proposed by the state, according to a new California Workers’ Compensation Institute (CWCI) study.  The California...

July 30, 2017

Morbidity, Disability, Cost, Pain & Distress: Exposing the True Burden of Workers’ Compensation

By Karen C. Yotis, Esq., Feature Resident Columnist, LexisNexis Workers’ Compensation eNewsletter A resolute new analytic essay about the substantial impact that the underestimation of workers’ comp risk has on national welfare and public health examines the multi-dimensional aspects of the burden that workplace hazards impose on individuals, organizations, and society, and cuts straight to the heart of the economic...

July 28, 2017

United States: Zone of Special Danger Doctrine of Defense Base Act Applies to Local Nationals, Not Just Those Sent Abroad to Work in Remote Locations

The judicially created zone of special danger doctrine [ see O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S. Ct. 470, 95 L. Ed. 483 (1951)] can be applied to local nationals employed in their home country under an employment contract covered by the Longshore and Harbor Workers’ Compensation Act, as extended by the Defense Base Act, held the Ninth Circuit Court of Appeals. Moreover, the administrative...

July 28, 2017

New York: Claimant’s Alford Plea Regarding Sale of Drugs Did Not Constitute Sufficient Evidence to Justify Finding of § 114-a Violation

Where a claimant pleaded guilty to violating probation by committing a crime that involved the sale of a controlled substance or a narcotic and two days later, in an Alford plea, claimant further pleaded guilty to two separate counts of criminal sale of a controlled substance, it was nevertheless within the province and discretion of the state’s Workers’ Compensation Board to decide that there was insufficient...

July 28, 2017

Utah: High Court Reiterates Meaning of “Basic Work Activities” for Purposes of PTD Benefits

Generally speaking, in order to qualify for permanent total disability benefits, the Utah employee must show, in relevant part, that he or she has an impairment or combination of impairments that limit the employee’s ability to do “basic work activities” [Utah Code § 34A–2–413]. Reversing a lower court decision and citing its earlier decision in Provo City v. Utah Labor Commission, 2015 UT 32, 345 P.3d 1242, the Supreme...

July 28, 2017

Maine: Res Judicata Prevents Employer from Challenging Continued Existence of Disability

The Supreme Judicial Court of Maine held that a 2007 determination that an injured worker had reached MMI and had sustained an injury that resulted in a permanent impairment level of 32 percent could not be subsequently challenged by the employer on the basis that there had been a change of circumstances, as represented by an updated medical examination. The employer contended that the new examination showed the worker...

July 22, 2017

2017 RAND Study Evaluates Occupational Disability Guidelines (ODG)

RAND Corp. published its review of the (1) Technical Quality and (2) Clinical Acceptance of the Occupational Disability Guidelines (ODG) published by Work Loss Data Institute (WLDI). This paper briefly discusses the RAND report. Who Is Work Loss Data Institute (WLDI)? WLDI publishes the ODG, arguably the most successful treatment guidelines in the occupational medicine space. Over 100,000 users support the platform...

July 21, 2017

North Carolina: Injured Construction Worker Was Independent Contractor, Not Employee

The North Carolina Industrial Commission did not err in concluding that plaintiff (“Bentley”) was an independent contractor—and not an employee—of a construction company where it appeared, in relevant part, that Bentley held himself out as the owner and operator of his own construction company, distributed business cards indicating that “Bentley Construction” was engaged in providing...

July 21, 2017

Idaho: Wrongful Death Action Following Helicopter Crash Against State Agency Barred by Exclusive Remedy Rule

In a case with a bizarre factual background, the Supreme Court of Idaho affirmed a state trial court’s order granting summary judgment in favor of the Idaho Department of Fish & Game (IDFG) on exclusive remedy grounds in a wrongful death action filed by the father of a pilot killed in a helicopter crash in a remote region of Idaho. The pilot was employed by a small aviation company that had been contracted to fly...

July 21, 2017

New York: Spouse-Supplied Home Health Care Services Must be Paid to Claimant, Not Spouse Rendering Services

Where a claimant established a claim for multiple work-related injuries as a result of a stroke that rendered him hemiplegic and wheelchair bound and, as a result of his injuries, claimant was in need of home health care services, some of which were authorized to be provided by claimant’s wife, it was error for the Workers’ Compensation Board to conclude that payment should be made directly to claimant’s wife. Citing...

July 21, 2017

Virginia: Commission Errs in Refusing to Consider After-Acquired Medical Evidence

Where an employer made a proper facial showing that it could establish the requirements of Virginia’s after-acquired evidence rule, it was error for the state’s Workers’ Compensation Commission to refuse to hold an additional hearing to determine whether the employer’s newly-discovered medical records constituted the sort of evidence that would warrant modification of the Commission’s earlier...