June 14, 2017

Update from the Benefits Review Board (June 2017)

Update from the Benefits Review Board By Karen Koenig, Associate General Counsel, Longshore Division   BRB Statistical Update The Board began Fiscal Year 2017 in October 2016 with 97 pending Longshore/DBA appeals.  During the last fiscal year, which ended September 30, 2016, the Board received 152 appeals in cases under the Longshore and Defense Base Acts, 7 fewer than the year before.  The Board issued 163...

June 12, 2017

Workplace Injuries: Identification and Prevention – Risk Management Tips

Workplace Safety Goals. One of the most challenging aspects of occupational safety is goal setting. Goals that will be achievable and sustainable seem to be a mystery to many organizations. Historically in safety, setting a goal of having zero injuries was always seen as the obvious step to take, but think this through. Decades of worker injury statistics under the goal of “zero” has shown it is not “the” goal. Instead...

June 12, 2017

California: Helpful Tips When Considering a Third Party Credit

Recently, the WCAB issued three panel decisions addressing a defendant’s right to assert a third party credit. In the first case, Orozco v. Ronald McDonald Farms , 2017 Cal. Wrk. Comp. P.D. LEXIS 219 , the panel found that where the workers’ compensation insurance company, in this case Zenith, sells its lien rights to a third party, even where it sells its lien for less than the value of the workers’ compensation benefits...

June 08, 2017

Texas: No Retaliatory Discharge Where Employee Terminated as Part of Reduction in Work Force

A Texas appellate court affirmed a summary judgment order favoring the employer in a retaliatory discharge action under Tex. Lab. Code Ann. § 451.001(1). Although the superintendent and others were aware that the employee had been injured, none was aware that he had hired an attorney to prosecute a claim. Indeed, the employee returned to work the day of the injury (or the following day). Other evidence established...

June 08, 2017

New York: Inconsistent, Contradictory Testimony Leads to Decision Finding No Attachment to Labor Market

Substantial evidence supported the Workers’ Compensation Board’s finding that the claimant was not attached to the labor market because the claimant’s testimony regarding his search for employment was inconsistent, contradictory, and not credible. Moreover, the claimant did not present any documentation reflecting his attempts to seek work while he was in Puerto Rico. The appellate court also held substantial evidence...

June 08, 2017

Florida: Professional Football Player Injured During Tryouts Was Not Employee of League

A Florida claimant, who was injured during tryouts for a professional football team, was not entitled to workers’ compensation benefits from the Arena Football League when the League had not signed the standard player contract. While a claimant did not always need a formal employment contract to be considered an employee, such a contract could not be enforced against a nonsignatory. Here the player and the team signed...

June 08, 2017

Colorado: Two-Thirds of Osteoarthritis Claim Apportioned to Injured Employee

A Colorado appellate court affirmed an order apportioning two-thirds of an injured worker’s bilateral knee osteoarthritis to the employee, requiring the employer to pay just one-third of the worker’s medical expenses and other benefits, although the worker spent a 25-year career employed as a trailer mechanic, a job that required him to spend one-half of his work life on his knees. The court emphasized that the employer...

June 07, 2017

My Favorite Labor Code Section

By Robert G. Rassp, Esq. A number of years ago, a colleague of mine visited me at my vacation home. In fact, he and his wife visited us there every six months for 15 years. In any event, on a glorious 4th of July weekend, we were sitting on our balcony overlooking the national forest and in the midst of too many scotches, I asked him if he knows that there is a Labor Code section that says prior decisions of WCAB panels...

June 06, 2017

California: Apportionment of Permanent Disability Related to Genetics and Heredity: Is It A Causational Diversionary Red Herring?

The recent decision from the Court of Appeal in City of Jackson v. Workers’ Compensation Appeals Board (Rice) (2017) 11 Cal.App. 5th 109 , 2017 Cal.App. LEXIS 383 (certified for publication), has justifiably engendered wide spread controversy in the workers’ compensation community as evidenced by numerous articles and upcoming seminars related to analysis of the case as well as proposed litigation strategies all focused...

June 05, 2017

California Workers' Comp Case Roundup (6/5/2017)

CALIFORNIA COMPENSATION CASES Vol. 82 No. 5 May 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...

June 02, 2017

Challenging the Legality of an IMR Decision: The Final Chapter in Stevens

Does the WCAB’s interpretation of the Court of Appeal's language open up the possibility of successful appeals of IMR decisions in the future? In Stevens v. Outspoken Enterprises, Inc. , 2017 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, on remittitur from the Court of Appeal, rescinded the WCJ’s finding that the Administrative Director did not exceed her authority when she adopted an independent medical...

June 01, 2017

Ohio: For PTD Purposes, “Sustained” Employment Need Not Be Full-Time

Indicating that permanent total disability is defined as the inability to perform sustained remunerative employment due to the allowed conditions in the claim [Ohio Admin. Code § 4121–3–34(B)(1), emphasis added], the Ohio Supreme Court held that work is “sustained” if it consists of an “ongoing pattern of activity” [2017 Ohio LEXIS 993]. Indeed, the Court indicated that sustained work need not be regular or daily, but...

June 01, 2017

Minnesota: Workers’ Compensation Provides Exclusive Remedy for Teacher Injured in Fight at School

A Minnesota high school teacher and lunchroom supervisor, who sustained injuries when he tried to break up a fight between two students during a lunch period, may not maintain a civil action against his employer (and various officials) for negligence, held a U.S. District Court Judge in Minnesota. The teacher received workers’ compensation benefits following the injury and sued the school district, alleging negligence...

June 01, 2017

Mississippi: Approval of Settlement Agreement After Worker’s Death Sustained

Where an injured employee and the employer (and carrier) executed a settlement agreement, forwarding it on to the state’s Workers’ Compensation Commission for approval and the employee died from unrelated causes two days before the agreement was formally approved, the employee’s death did not constitute a material mistake of fact that would allow the employer to reopen the case and negate the settlement, held a state...

June 01, 2017

New York: Amputation of Fingers and Thumb Results in Award That Exceeds Amount for Total Loss of Hand

Where an employee sustained a severe injury to his right hand that resulted in the amputation of all four fingers and his thumb—surgeons were able to reattach part of the thumb, but it had no pinching ability—the Board did not err when it made an award for 100 percent loss of use of the thumb, although the employer and employee had already agreed to a 100 percent schedule loss of use of the right hand. The divided appellate...

May 31, 2017

Medicare Secondary Payer Concerns in 2017: A Perfect Storm Could Be Brewing

Medicare secondary payer (MSP) compliance issues remain a hot topic at insurance industry conferences and the 2017 RIMS Annual Conference did not disappoint those seeking the latest MSP news. As the annual RIMS gathering generally serves as a barometer for issues anticipated in the upcoming year, this year’s indication is that the most problematic MSP issues will be liability Medicare set-asides (LMSAs), Medicare...

May 19, 2017

Idaho: Award of Attorney’s Fees Was Erroneous Where Claimant Was Not Entitled to Compensation Benefits

The Supreme Court of Idaho, in a split decision, held that in order to award attorney’s fees under the third instance of Idaho Code Ann. § 72–804, the Industrial Commission must determine that an employer or surety, without reasonable grounds, discontinued payment of compensation that was justly due and owing . Accordingly, where the Commission found that the workers’ compensation insurer had engaged in unreasonable conduct...

May 19, 2017

Texas: Court Affirms $600,000 Judgment Against Non-Subscribing Employer

In a civil action against a non-subscribing employer, a Texas appellate court affirmed a judgment awarding the injured employee almost $300,000 in past medical expenses, $150,000 in past pain and mental anguish, and $150,000 in past physical impairment. The employee, a truck driver, sustained a back injury lifting a 175-pound frozen cow carcass. The employer contended on appeal that (1) the medical expenses awarded are...

May 19, 2017

New York: Third-Party Defendant Claim For Contribution Against Employer Fails Under “Grave Injury” Statute

In New York, absent an express agreement to the contrary, a defendant sued in tort by an injured employee may seek contribution or indemnification from the employer only if the employee suffered a "grave injury, as that term is defined in N.Y. Workers’ Comp. Law § 11. A New York appellate court held that where an employer/third-party defendant established a prima facie case that the plaintiff/employee had not sustained...

May 19, 2017

Massachusetts: Indicted EMT Allowed Workers’ Compensation Benefits While Under Indictment

Mass. Gen. Laws ch. 268A, § 25, which generally allows Massachusetts municipalities to suspend “compensation” while an employee is under indictment for malfeasance, did not proscribe the receipt of workers’ compensation benefits by an EMT/paramedic who had been suspended from his position while under indictment on charges relating to misuse of controlled substances intended for EMS patients, held the Supreme Judicial...

May 17, 2017

California: Dividing Up Injuries Based on Date of Knowledge

SPECIAL ALERT: On May 26, 2017, the WCAB, on its own motion, issued an order granting reconsideration for further study and decision in the Gravlin case. For the latest news about Gravlin , subscribe to our newsletter at www.lexisnexis.com/wcnews (select California Edition). In Gravlin v. City of Vista, 2017 Cal. Wrk. Comp. P.D. LEXIS 133 , applicant, a fire fighter for some 27 plus years, developed both skin cancer...

May 12, 2017

Judge Strikes Down Alabama Workers’ Compensation Act as Unconstitutional

An Alabama Circuit Court Judge found unconstitutional two separate provisions of the Alabama Workers’ Compensation Act—the $220 cap on weekly PPD benefits [Ala. Code § 25-5-68] and a 15 percent cap on attorneys’ fees [Ala. Code § 25-5-90(a)]. Because the Alabama Legislature inserted a non-severability statute [Ala. Code § 25-5-17] into the Act in 1984, Judge Pat Ballard indicated the effect...

May 12, 2017

California: Apportionment Determinations and Petitions to Reopen: A Primer on Methodology

A persistent problem area for workers’ compensation practitioners, physicians, and WCJs is to understand and apply the proper methodology to determine apportionment related to Petitions to Reopen for New and Further Disability under the WCAB’s en banc decision in Vargas v. Atascadero State Hospital (2006) 71 Cal.Comp.Cases 500 (WCAB en banc). The recent case of Wilson v. 20/20 Administrative Services, The Hartford...

May 12, 2017

New York: Board’s Failure to Apportion Liability for Asbestos-Related Condition Affirmed

The New York Workers’ Compensation Board appropriately refused to apportion liability for claimant’s asbestos-related disease despite some evidence that the claimant had exposure to asbestos at multiple employers over a long period of time. The appellate court noted that an X-ray taken in May 1999 revealed the presence of pleural plaque consistent with exposure to asbestos. At that time, claimant was employed by ABB Combustion...

May 12, 2017

Washington, D.C.: Absence of Wage Loss May be Considered in Determining Schedule Award

Addressing the question directly for the first time under the current version of the District of Columbia Workers’ Compensation Act, the D.C. Court of Appeals held that the Compensation Review Board (CRB) reasonably concluded that wage loss (or the absence thereof) may be considered, along with other factors, in considering whether a claimant is entitled to a schedule award for permanent partial disability under D.C....