May 12, 2017

Florida: Appellate Court Overturns Trial Court’s Ruling That NCCI and OIR Violated Open Meetings Law

A Florida appellate court held that a state trial court erred when it declared the final order of the Office of Insurance Regulation (OIR) approving a 14.5 percent increase in workers’ compensation insurance rates void and in concluding that the OIR and the National Council on Compensation Insurance (NCCI) violated the state’s “Sunshine Law” [§ 286.011, Fla. Stat.], which generally prohibits governmental meetings to be...

May 12, 2017

Alabama: Trial Court Judge Rules State’s Workers’ Compensation Act 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...

May 05, 2017

California Workers' Comp Case Roundup (5/5/2018)

CALIFORNIA COMPENSATION CASES Vol. 82 No. 4 Apr 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...

May 05, 2017

Alabama: Worker Establishes Prima Facie Case of Retaliatory Discharge

The Supreme Court of Alabama held it was error for a trial court to grant summary judgment in favor of the employer in a former employee’s retaliatory discharge action where the employee’s evidence indicated that she was fired 20 days after she filed her worker’s compensation claim, that the supervisors who fired her knew about her claim, that one of them expressed a negative attitude about her injured...

May 05, 2017

Minnesota: TTD Benefits May Be Terminated Only Where Offer of Employment is Consistent with Rehabilitation Plan

In Minnesota, once a rehabilitation plan is approved, TTD benefits generally may be terminated when a job offer is refused. Where an employee tendered to her employer a notice of resignation that was to become effective at the end of a three-month period and she sustained a work-related injury prior to her departure date, an offer of employment by the employer that would have restored her to the same date-of-injury position...

May 05, 2017

Florida: Court Says Evidence Was Insufficient to Show Home Renovations Were Medically Necessary

An award of claims by a JCC for authorization of lawn care, attendant care, a podiatrist, an AFO brace, and evaluation of the need for specialized shoes was affirmed, but the award for home renovations was reversed because the evidence identified by the JCC did not constitute competent, substantial evidence of the medical necessity for the numerous home renovations awarded. The court reasoned that while the orthopedic...

May 05, 2017

West Virginia: Court Reiterates Narrow Rule in Aggravation Cases

In a divided memorandum decision, the Supreme Court of Appeals of West Virginia reiterated its narrow rule regarding the compensability of claims in which a compensable injury aggravates a preexisting condition. Citing Gill v. City of Charleston , 236 W. Va. 737, 783 S.E.2d 857 (2016), the majority of the court held that a noncompensable preexisting injury may not be added as a compensable component of a claim for workers’...

May 04, 2017

California: Applicant Strategies for Addressing Rice: Whether Apportionment to Genetics Is Appropriate

As reported by the LexisNexis California Workers’ Compensation eNewsletter on May 1, 2017 (see Jacobsmeyer article ), in the recent California Third District case of City of Jackson v. W.C.A.B. (Rice), 2017 Cal. App. LEXIS 383 , the court addresses an issue of national importance—apportionment to genetics. My practice specializes on depositions of medical doctors in both Workers’ Compensation and the civil arena which...

May 04, 2017

Does Medical Control Affect Overall Costs?

The Surprising Results of a Recent WCRI Study Often, the subject of attempts to reform workers’ compensation focuses on matters of choice. Injured workers and their advocates allege that by providing them more choice, better treatment can be obtained. The employer, on the other hand, wishes to retain medical control, believing that by so doing, there will be better containment on medical costs and the ability to return...

April 27, 2017

Texas: Temporary Staffing Agency Worker Barred from Suing Hiring Company for Negligence

A Texas trial court did not err when it found that a worker’s negligence and gross negligence claims were barred by the exclusive remedy provision of the Texas Workers’ Compensation Act where the worker was an employee of a temporary staffing agency that provided staffing to a waste disposal company, particularly where agreement between the agency and company provided that temporary employees like the injured worker would...

April 27, 2017

Arizona: Department of Corrections Was Statutory Employer of Staffing Employment Employee

The Arizona Department of Corrections was the statutory employer of a clinical social worker supplied to the department by means of a staffing agreement between the department and an employment services agency. Because the department retained the right to control or supervise provided by the staffing agency, the social worker could not sue the department in tort for injuries she sustained in a slip and fall incident at...

April 27, 2017

Tennessee: Court Stresses Clear and Convincing Evidence Required to Rebut MIR Physician’s Impairment Rating

Under Tennessee’s medical impairment registry (“MIR”) program, where there is a disagreement among examining physicians as to the worker’s level of impairment, either party may seek an additional evaluation by an independent medical examiner from the workers’ compensation administrator’s registry [see Tenn. Code. Ann. § 50–6–204(d)(5)]. The opinion given by the IME is presumed to be the accurate impairment rating. The...

April 27, 2017

New Jersey: Phone Call Offer of Employment to NJ Residence Sufficient to Support Jurisdiction for Out-of-State Injury

An employer and employee created an employment arrangement in New Jersey where the evidence indicated the employee, after filing an online application with a New York company, initially received a phone call at his home to arrange an employment interview at the employer’s New York operation and, following that interview, received another telephone call at his home from one of the employer’s representatives...

April 27, 2017

California: 3rd District Rules Apportionment to Genetic Factors Permissible

The Court of Appeals in the 3rd District has issued a blockbuster opinion on apportionment in City of Jackson v W.C.A.B. (Rice) regarding the requirements for substantial medical evidence in worker’ compensation cases. In reversing the W.C.A.B., the Court laid out its analysis of why a QME’s apportionment to genetic factors was well supported and legally sufficient. The applicant in this case was a relatively...

April 22, 2017

Mental Health in the Workplace

A recent webinar discussed mental health and well-being in the workplace and looked at some of the impacts on workers’ compensation Concerns with workplace safety and worker health are obviously not new among workers’ compensation system participants, but traditionally most of that concern has been for the physical health and safety of workers. However, as recognized in a recent webinar on “ The Impact...

April 20, 2017

Ohio: Nurse Injured as She Walked to CPR Class Should Recover Benefits

A nurse, who sustained injuries when she fell in a pedestrian crossing as she returned to a cardiopulmonary resuscitation (“CPR”) training class, after retrieving forgotten class materials from her car, should recover workers’ compensation benefits, held an Ohio appellate court. The court indicated that under the standard set by Ohio Rev. Code § 4123.512, the trial court correctly found that her injuries were incurred...

April 20, 2017

Kansas: Firefighter’s Rule Barring Most Suits Against Third Party Extended to Police Officers

In a deeply divided decision, the Supreme Court of Kansas extended the firefighter’s rule to law enforcement officers. The rule, which is applied in more than half the states [see Larson’s Workers’ Compensation Law , § 110.08], prohibits firefighters from suing the person who was negligently responsible for causing the fire or other hazard for injuries they suffer in responding to and quelling that hazard, subject to...

April 20, 2017

New York: Worker Has No Continued Attachment to Labor Market Where Job Search was Inadequate

Noting that labor market attachment is a factual issue for the New York Board to resolve, a state appellate court affirmed a decision that denied additional benefits to a claimant on the basis that she had failed to demonstrate continued attachment to the labor market. While the claimant applied for services with the Office of Adult Career and Continuing Education Services-Vocational Rehabilitation (hereinafter ACCES...

April 20, 2017

Florida: Heart-Lung Presumption Successfully Rebutted in Corrections Officer Claim

A Florida judge of compensation claims improperly credited the testimony offered by an expert medical advisor (EMA) where the physician based his opinion on an assumption that a correctional officer suffered a heart attack after several years of working in the stressful occupation—the officer had only worked three months and had a host of non-employment factors that lead to the attack, according to other expert medical...

April 19, 2017

California: Revisiting Navarro: When Is A New Panel QME Required?

From the limited information in the record in Hasley v. Frito-Lay, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS --, it appears that applicant, pro per, sustained injury to one or both of her hands. She did not initially file a claim form but instead filed an application. That application apparently listed a specific injury indicating the date that, "the hand started hurting." Injury was accepted and applicant was provided...

April 17, 2017

California: Medicare Settlement Agreements: The Perils of Unanticipated Problems After Settlement

What exactly is the role of the WCAB, not to mention the parties to the C&R, in addressing unanticipated problems that come up with an MSA after settlement? In Muniz Villalpando v. Doherty Brothers , 2017 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, in a split panel opinion, rescinded the WCJ’s order denying the applicant’s request to transfer the administration of his Medical Set-Aside Account (MSA) from...

April 14, 2017

West Virginia: Tennessee Worker’s Death at Kentucky Coal Mine Not Governed by West Virginia Workers’ Compensation Law

In a divided memorandum decision, the Supreme Court of Appeals of West Virginia affirmed a circuit court’s finding that the widow of worker killed in a forklift accident at a Kentucky coal mine may not maintain a deliberate intent action against the West Virginia employer under W. Va. Code § 23–4–2(d)(2) where the decedent was a resident of Tennessee at the time of his death, the employer was engaged in the business of...

April 14, 2017

Mississippi: Employer and Carrier Estopped From Utilizing Statute of Limitations Defense

In a divided decision, the Court of Appeals of Mississippi reversed a decision of the state’s Workers’ Compensation Commission and found that the employer and its carrier were estopped from arguing the statute of limitations as an affirmative defense where the uncontroverted testimony indicated that on several occasions the injured employee was assured by the carrier’s adjuster that the carrier would “take care of everything...

April 14, 2017

Pennsylvania: Decision in Heart and Lung Claim Not Binding on Workers’ Compensation Judge

Reiterating the rule that in Pennsylvania, the doctrines of collateral estoppel and res judicata generally apply to workers’ compensation cases, but that the doctrines only apply where there is substantial identity in issues before the respective trial tribunal, a state appellate court held that a workers’ compensation judge was not bound by a prior decision awarding benefits under the state’s Heart and Lung Act [53 Pa...

April 14, 2017

Tennessee: Injured Worker’s Death Due to Overdose Was Not Compensable

Reversing a decision of a state chancery court that had found an injured worker’s death due to acute oxycodone overdose, coupled with alcohol use, to be compensable, the Supreme Court of Tennessee held that the actions of the worker, in taking more of his opioid medication than prescribed and consuming alcohol while taking the pain medication—both specifically against his physician’s orders—amounted...