July 20, 2017

Hikida: A Seismic Change in Medical Treatment and Apportionment of Permanent Disability

The dilemma of determining apportionment of permanent disability arising directly from employer furnished medical treatment necessitated by both preexisting industrial and nonindustrial causes and conditions. In a decision certified for publication, the Court of Appeal in Hikida v Workers’ Comp. Appeals Bd. , (2017) 12 Cal.App.5th 1249 , held that an employer is entirely responsible for both medical treatment...

July 18, 2017

California: Exceptional Psyche Cases: Making the Right Decision at the Crossroads

Under Labor Code Section 4660.1(c)(1), psychiatric impairment that is the consequence of a physical injury is no longer generally compensable. Yet, no one disputes that injuries do produce significant psychiatric impairment. In any given case, if this is not added into the picture, it may result in an inequitable award. In order to prevent this from occurring, the legislature did allow for several important exceptions...

July 14, 2017

Idaho: Additional Medical Care Allowed for Carpal Tunnel Syndrome Despite Five-Year Lapse in Medical Treatment

The Industrial Commission erred when it determined that a former employee was not entitled to additional medical care for her bilateral carpal tunnel syndrome (CTS) because, at least in part, she had not seen her treating physician in five years. The court noted that the reasonable treatment required by Idaho Code Ann. § 72–432(1) included palliative care and during that five-year period, she had continued her use of...

July 14, 2017

Louisiana: Independent Contractors May Be Entitled to Benefits Under State’s “Manual Labor” Exception

Under Louisiana’s “manual labor exception,” an independent contractor may be protected by workers’ compensation law if he or she demonstrates that (1) a substantial part of his or her work time is spent in manual labor in carrying out the terms of the contract with the principal and (2) the manual work performed is part of the principal’s trade business or occupation. Accordingly, it was error for the workers’ compensation...

July 14, 2017

New York: Employee’s Preexisting Asthma Insufficient to Support Employer’s Request for Relief from Special Disability Fund

A New York employer was not entitled to receive reimbursement from the Special Disability Fund pursuant to N.Y. Work. Comp. Law § 15(8)(d) unless it could establish three things: (1) that the injured worker had a preexisting permanent impairment that hindered job potential; (2) that the worker sustained a subsequent work-related injury, and (3) that the permanent disability caused by both conditions was materially and...

July 14, 2017

Texas: Appeals Court Overturns $43 Million Verdict on Exclusive Remedy Grounds

Where a general contractor enters into a written agreement under which the general contractor provides workers’ compensation insurance coverage to a subcontractor and the subcontractor’s employees through a contractor-controlled insurance program (CCIP), the general contractor is deemed to be the statutory employer of the subcontractor and the subcontractor’s employees for purposes of state workers’ compensation laws...

July 14, 2017

California: Top 25 Noteworthy Panel Decisions (January through June 2017)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2017. The list features a number of decisions addressing the issue of an employer’s right to credit against its workers’ compensation liability for an employee’s third-party recovery, including panel decisions addressing...

July 14, 2017

Measuring the Adequacy of Workers’ Compensation Benefits in Michigan, 2004-2008

By James J. Ranta, Esq. The recent study by Mr. Bogdan Savych and Mr. H. Alan Hunt, Adequacy of Workers’ Compensation Income Benefits in Michigan , sought to determine how total income received by workers after an injury compared with the total income workers could have received had they not experienced an injury.  The authors of this study compared data over an average length of 4.5 years after an injury from 2004...

July 06, 2017

California: The Medical Treatment Benefit and Subject Matter Jurisdiction

Recently, the WCAB issued a panel decision, Payne v. Federal Express, 2017 Cal. Wrk. Comp. P.D. LEXIS 243 . In Payne , the panel held that an agreement in a Compromise and Release with open medical approved years ago which provides that the AME would determine any future issues of medical necessity of treatment controls over and is not preempted by the UR/IMR process. To the extent Payne followed a previous panel case...

July 06, 2017

California Workers' Comp Case Roundup (7/6/2017)

CALIFORNIA COMPENSATION CASES Vol. 82 No. 6 June 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...

July 06, 2017

Latest Data on Opioid Use in Workers’ Compensation Claims Reported

The 2017 WCRI Report Looks at Data in 26 States to See How Opioid Abuse Reform Efforts are Faring in Workers' Compensation Claims In light of the epidemic in deaths caused by prescription opioid overdoses and abuse building since at least the 1990s, reforms targeting the abuse of opioids for pain management have been taking place for several years now, both at the state and federal levels, and the question arises...

July 06, 2017

Louisiana: Employer Need Not Pay for Functional Capacity Evaluation Claimant Needed to Contest Employer’s Earlier FCE

The Supreme Court of Louisiana affirmed the OWC’s denial of the claimant’s motion to compel the employer to pay for a functional capacity evaluation to be performed by a physical therapist of the claimant’s choice where the purpose of the FCE was to contest the results of a prior FCE that was performed by an employer-referred physical therapist. While the employee was permitted, under La. Rev. Stat....

July 06, 2017

Minnesota: Substantial Deference Must Be Given to Compensation Judge’s Findings

In a deeply divided decision, the Supreme Court of Minnesota reversed a decision of the state’s Workers’ Compensation Court of Appeals (WCCA), finding that the WCCA had inappropriately substituted its judgment for that of the compensation judge. The employee, a registered nurse, injured her shoulder while rushing up a staircase at the workplace of her employer at the end of her work shift. Acknowledging that the staircase...

July 06, 2017

Ohio: Denied Claim Abates at Death of Workers’ Compensation Claimant

The language of Ohio Rev. Code Ann. § 4123.60 expressly authorizes a deceased worker’s dependents to recover the compensation benefits for which the worker qualified and should have received before death. Otherwise, however, the claim abates upon the worker’s death, held a state appellate court. Accordingly, the surviving spouse, based on his status as a dependent, could not simply “step into the...

July 06, 2017

Mississippi: Officer’s Participation in High-Speed Chase Was Not Willful Intent to Injure Himself

That a Mississippi patrol officer failed to wear his seatbelt and accelerated his police cruiser to more than 90 mph in the twelve seconds prior to his single-vehicle accident, was insufficient to show that the officer willfully acted with the intent to injure himself under the provisions of Miss. Code Ann. § 71–3–7(4) (Supp. 2016). The appellate court cited the officer’s testimony that he and several fellow officers...

June 23, 2017

CWCI, CalChamber and CCWC File Amicus Brief in Stevens v. WCAB

Oakland – The California Workers’ Compensation Institute (CWCI), the California Chamber of Commerce and the California Coalition of Workers’ Compensation (CCWC) have filed a joint amicus brief in Stevens v. WCAB , the long-running court case that challenged the constitutionality of the Utilization Review/Independent Medical Review (UR/IMR) process used to resolve California workers’ compensation...

June 22, 2017

California: “Required Vehicle” Exception to Going and Coming Rule Can Apply to In-Home Caretaker’s Bicycle

Utilizing the state’s “required vehicle” exception to the going and coming rule, a state appellate court held that injuries sustained by an in-home caretaker when she was struck and injured by a car as she rode her bicycle from one private home where she worked to another home where she was scheduled to work were compensable. The Court added that under the facts of the case, the employer clearly received a benefit from...

June 22, 2017

New Hampshire: Fees on Fees May Be Awarded to Successful Claimant

Pursuant to N.H. Rev. Stat. Ann. § 281-A:44, VI, an injured worker was entitled to reimbursement of reasonable attorney’s fees and costs that she incurred in successfully litigating an attorney fee dispute, held the Supreme Court of New Hampshire. The Court acknowledged that, except where allowed by specific statute, the usual rule in New Hampshire was for each party to bear the expense of his or her own litigation, including...

June 22, 2017

Kentucky: IME May Use Clinical Skill and Judgment in Construing AMA Guides

While a Kentucky physician must base his or her impairment rating regarding an injured worker on the AMA Guides (5th Ed.), the physician is not required to park his or her medical judgment at the examining room door. He or she may utilize clinical skill and judgment in assessing the level of impairment. Thus, while the AMA Guides required the evaluation of the worker’s shoulder impairment to be based upon “active” range...

June 22, 2017

New York: $86,000 Penalty Assessed for Failure to Provide Coverage for Live-in Domestic Worker

Where a husband and wife employed a live-in domestic to perform housekeeping and child care duties, but failed to maintain workers’ compensation insurance, it was appropriate for the New York Workers’ Compensation Board to impose an $86,000 penalty pursuant to N.Y. Work. Comp. Law § 26-a(2)(b). The domestic worker filed a claim after she cut her hand on a broken piece of glass while washing dishes. The WCLJ assessed a...

June 20, 2017

California: What in the World Is an “Adverse Inference”?

The world of workers’ compensation litigation must seem like a foreign country to lawyers who practice in the civil or criminal courts of California. We use odd phrases like “denied body parts” and “case opening document” and “failed QME appointment.” Corporate lawyers must be scratching their heads when they hear such language and wonder what in the world these terms mean. But...

June 15, 2017

Florida: Judge Could Not Compel Claimant to Undergo Functional Capacity Evaluation

Stressing that substantive rights under Florida workers’ compensation law are established by the date of the accident and that the 1988 law, which would apply in the instant case, did not contain any provision that could compel a claimant to undergo a functional capacity evaluation (FCE), a Florida appellate court held that an order by a Judge of Compensation Claims requiring attendance by a claimant at an FCE should...

June 15, 2017

North Carolina: Supreme Court Adopts “Parsons Presumption” Regarding Medical Care

Affirming the state’s Court of Appeals in relevant part, the Supreme Court of North Carolina adopted the “ Parsons presumption” [see Parsons v. Pantry, Inc. , 126 N.C. App. 540, 485 S.E.2d 867 (1997)]: Once the employee meets the initial burden of showing that an injury is the result of a compensable accident, a presumption arises that additional medical treatment is directly related to the compensable injury. To do otherwise...

June 15, 2017

West Virginia: Work Release Inmate Barred from Comp Benefits for Injuries Sustained While Working for State

W. Va. Code § 23–4–1e(b), which prohibits an inmate housed at a state work release center from collecting workers’ compensation benefits for an injury sustained while performing work for the state’s Division of Highways (DOH), but which apparently allows a similarly-housed inmate benefits if he or she is injured while working for a private employer, does not violate the inmate’s equal protection rights, held the Supreme...

June 15, 2017

New York: Eucharistic Volunteer Trips at Altar and in Court—Tort Suit is Barred by Exclusive Remedy Rule

A volunteer at a Roman Catholic church, who on occasion helped distribute the Eucharistic elements, may not sue the church in tort for injuries that she sustained when she tripped and fell over an exposed power cord near the church altar; her negligence action was barred by the exclusive remedy provisions of the New York Workers’ Compensation Law. The church was self-insured, with coverage that extended to church volunteers...