April 12, 2017

Injured Worker’s Death Due to Overdose of Medication: Breaking the Chain of Causation

Key takeaways from a recent Tennessee case for both injured workers and employers When do an injured worker’s actions, which led to a tragic overdose of opioids in the Kilburn case, constitute an independent intervening cause and thereby release the employer of liability for subsequent injuries or death? The Supreme Court of Tennessee recently reversed a decision of a state chancery court that had found an injured...

April 11, 2017

CWCI Completes Regional Score Card Series With an Analysis of Claims Experience in the Sierras

Oakland - The California Workers’ Compensation Institute (CWCI) has released a new California Workers’ Comp Regional Score Card that examines the claims experience of workers living in the Sierras and compares it to the experience of injured workers from the rest of the state. The Sierra Score Card is the last installment of an eight-part series initiated last fall that uses subsets of data from CWCI’s Industry Research...

April 11, 2017

California Workers' Comp Case Roundup (4/11/2017)

CALIFORNIA COMPENSATION CASES Vol. 82 No. 3 Mar 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 to read the complete headnotes and court decisions...

April 10, 2017

The Majority Rule on Undocumented Workers Receiving Workers’ Comp Benefits

Undocumented worker can receive workers’ comp benefits in spite of false papers used in hiring process The Supreme Court of Kansas now follows the vast majority of states that the employer cannot accept the fruits of a worker’s labor and then claim that there is no existing contract with the worker when the worker is injured AOE/COE. Virtually every decision on this issue regarding undocumented workers, including now...

April 06, 2017

Washington: Health Care Benefits May Be Used to Compute Claimant’s Wage Basis Only When Employer Has Made Actual Contribution to Plan

Under Wash. Rev. Code § § 51.08.178(1), an employee is entitled to have the value of health care benefits included in his or her wage computation if, at the time of the injury, the employer had made payments or contributions toward such benefits on the employee’s behalf. Accordingly, where an employee was to qualify for health care benefits only after he completed a 90-day orientation period, and he sustained a work-related...

April 06, 2017

New York: Registered Nurse Could Not Recover for Mental Injury Where Genesis of Claim Arose from Bona Fide Personnel Action

Stressing that the state’s Workers’ Compensation Board was to be afforded significant deference to its decisions related to witness credibility, a New York appellate court affirmed a Board finding that a nurse’s work-related stress did not exceed that which could be expected in her normal work environment and that the actual genesis of her mental injuries was her involvement in a disciplinary proceeding...

April 06, 2017

New York: Presumption of Compensability Did Not Apply Despite Occurrence of Some Symptoms of Heart Attack While Still at Work

New York’s Workers’ Compensation Act includes a presumption of compensability if the employee’s injury occurs while he or she is at work [see N.Y. Work. Comp. Law § 21]. A state appellate court ruled that a widow could not take advantage of that presumption where her husband died from a heart attack while sleeping at home. She had continued that his initial discomfort and other symptoms related to his infarction occurred...

April 06, 2017

South Carolina: Formal Notice to Employer Excused Where Supervisor Witnessed Employee’s Injury

Acknowledging that S.C. Code § 42–15–20 requires that every injured employee or his representative give the employer “notice” of a job-related accident, but that no specific form of notice was actually required under the statute, the Supreme Court of South Carolina reversed the Commission’s Appellate Panel, finding that where a highway construction worker lost consciousness and fell to the ground in the presence of his...

March 31, 2017

Indiana: Worker Fired For Misconduct May Still Recover Temporary Disability Benefits

A worker who sustained an admitted back injury and who was later fired for misconduct may nevertheless be entitled to temporary disability benefits if he or she can show an inability to work because of the work injury, held an Indiana appellate court. The court stressed that generally speaking, it was irrelevant whether the injured employee had quit or was fired, so long as the inability to work was caused by the work...

March 31, 2017

California: Staffing Agency Operator Required to Pay $37,000 in Restitution Following Guilty Plea in Workers’ Comp Fraud Case

California’s restitution statute allows for recovery of a broad variety of economic losses resulting from a defendant’s criminal conduct. Accordingly, where the defendant, the operator of an employment staffing agency, pled guilty to workers’ compensation insurance fraud that was based on fraudulently misrepresenting that nurses who were placed in residential care and skilled-nursing facilities were...

March 31, 2017

United States: Surviving Spouse May Not Maintain Tort Action Against Employer Following Robbery and Murder

The surviving spouse of a woman who worked at a Virginia apartment complex and who sustained fatal injuries when she was attacked and stabbed by a robber cannot maintain a civil action against the employer; the tort action was barred by the exclusive remedy provisions of the Virginia Workers’ Compensation Act (VWCA), held a U.S. District Court in relevant part. The surviving spouse had claimed, among other things...

March 31, 2017

Kansas: Undocumented Worker Due Comp Benefits in Spite of False Papers Used in Hiring Process

The use of a false name and identification papers to apply for a job does not render a worker’s employment contract void ab initio , so as to preclude the worker from receiving workers’ compensation benefits following a work-related injury, held the Supreme Court of Kansas. The court stressed that the definition “employee” should be liberally construed to bring workers within the provisions of the Act. It also noted that...

March 30, 2017

California: 3rd District Upholds Validity of IMR Process

The 3rd District Court of Appeals has issued its decision in Ramirez v W.C.A.B ., again upholding the constitutionality of the IMR process for review UR determinations and providing, perhaps, some addition nuggets for potential challenges on the W.C.A.B. decision in Dubon II ( Dubon v. World Restoration, Inc . (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion)) concerning the authority of the W.C.A.B. to...

March 29, 2017

California: Direct Injuries vs. Compensable Consequences

The Importance of Knowing the Difference Between Direct Injuries and Compensable Consequences For dates of injury prior to 1/1/2013, injured workers were entitled to full workers’ compensation benefits for injuries to all body parts, regardless of whether the injury was a result of a “direct industrial injury” or a “compensable consequence of a direct industrial injury.” (See Labor Code...

March 29, 2017

Reinstatement of Job: Workers’ Compensation Statute Trumps Collective Bargaining Agreement

Rhode Island case provides cautionary tale for injured workers By Deborah G. Kohl, Esq. In a cautionary tale, an injured worker can lose his job even while undergoing approved medical treatment while on weekly benefits and even when covered under a union Collective Bargaining Agreement. The Rhode Island Workers’ Compensation Act provides a right of reinstatement for injured workers to return to their former jobs...

March 23, 2017

Arkansas: Commission, Not Trial Court, Must Determine if Claim is Barred by Exclusive Remedy Provisions of the Workers’ Compensation Act

Based upon its “vast expertise” in determining whether an injury is covered by the Arkansas Workers’ Compensation Act, the state’s Workers Compensation Commission—not the state’s trial courts—have exclusive jurisdiction to determine whether the Act applies to any particular case. Accordingly, where a convenience store worker alleged that she had been sexually assaulted by the store manager while the two were at work,...

March 23, 2017

New York: Evidence Supported Finding That Worker Was Entitled Only to 15 Percent Loss of Wage-Earning Capacity

The Workers’ Compensation Board properly ruled that a worker sustained a permanent partial disability not amenable to a schedule award and a 15% loss of wage-earning capacity under N.Y. Work. Comp. Law § 15(3)(w)(xii)—a finding that set a maximum benefit duration of 225 weeks—because the worker failed to cite any determinative authority for the proposition that the Board must define the specific impact of the factors...

March 23, 2017

Washington: Employee of Staffing Agency May Not Sue Agency’s Client Following Injury

Where an employee of a staffing agency signed an agreement that provided, in relevant part, that he would be considered an employee of the agency’s client “for Workers’ Compensation purposes only,” the employee could not maintain a tort action against the client; under the state’s workers’ compensation laws, the employee would also be considered the client’s employee. The court acknowledged that the employer-employee...

March 23, 2017

Delaware: For Non-Sponsored Recreational Events, Compensability Substantial Direct Benefit to Employer

Reiterating that to determine whether a company-sponsored recreational event occurs within the course and scope of one’s employment, Delaware has adopted the four-factor standard set forth in Larson’s Workers’ Compensation Law [§ 22.04], but that for recreational activity not sponsored by the employer, the state utilizes the standard set forth in State v. Dalton , 2005 Del. Super. LEXIS 15, aff’d , 878 A.2d 451 (Del....

March 20, 2017

Examining Occupational Risks for the Gig Worker

Is enough being done to protect this growing segment of the workforce? By Roger Rabb, J.D. Last November, I wrote about a recent report describing health and safety issues that face workers in nontraditional work relationships, including independent contractor relationships and workers assigned through temp or staff servicing agencies. As described, that report found that these nontraditional work relationships...

March 20, 2017

California: SB 863: New Panel Decision on Psychiatric Disability for Violent Act

Rumors of the death of psychiatric permanent disability in post-1/1/2013 date of injury cases have been greatly exaggerated In Madson v. Michael J. Cavaletto Ranches, 2017 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB rescinded the WCJ’s award of 39 percent permanent disability and instead awarded the applicant 60 percent permanent disability for orthopedic and psychiatric injuries incurred in a serious truck accident...

March 17, 2017

California Workers’ Comp IMR Volume Hit a Record High in 2016, But Outcomes Showed Little Change

Oakland – An analysis of the California workers’ comp independent medical review (IMR) process used to resolve medical disputes finds that in 2016, IMR physicians once again upheld about 90% of utilization review (UR) physician’s modifications or denials of treatment, yet IMR volume continued to grow, climbing 6.5% last year. The California Workers’ Compensation Institute (CWCI) analysis is based...

March 17, 2017

Florida: Dental Assistant’s Retaliatory Discharge Action May Move Forward

A Florida trial court erred when it dismissed a former employee’s complaint against her former employer for failing to state a cause of action in her retaliatory discharge civil action [see § 440.205, Fla. Stat.], where she alleged that from the time she stopped working as a dental assistant due to her work-related injury until the employer fired her, the employer engaged in actions that demonstrated a negative...

March 17, 2017

New York: Golf Club Attendant May Sue Co-Employee for “Errant” Swing of Golf Shaft

Applying New York’s rule regarding co-employee immunity—that in order for a co-employee to be shielded from liability, the co-employee must (a) have been acting within the scope of his or her employment and (b) not have been engaged in a willful or intentional tort—a state appellate court held that a country club locker room attendant could proceed with a civil action against the club’s manager where the attendant alleged...

March 17, 2017

Pennsylvania: Personal Comfort Doctrine Saves Injury Claim of Airport Employee

An airport employee, who was seriously injured when she flipped her luggage transport “tug” on the airport tarmac as she drove to a terminal area to meet her mother, whom the employee had summoned to deliver feminine hygiene products and other personal items, is entitled to workers’ compensation benefits under the personal comfort doctrine, held a Pennsylvania appellate court. Co-workers indicated that at the time of...