March 17, 2017

Georgia: Provision of Motel Room Over a Week-End Did Not Create “Continuous Employment” Scenario

A Georgia appellate court, in a divided decision, reversed a trial court’s determination that a worker was a “continuous employee” and, accordingly, was due workers’ compensation benefits for an injury sustained on a Sunday afternoon while he shopped for groceries. The Appellate Division of the state’s Board of Workers’ Compensation had found that the worker’s injury did not arise...

March 15, 2017

California: Face to Face With a Bunch of PQMEs

In early 2017, a PQME referral company hosted a continuing medical education (CME) program for its panel QME physicians in the Southern California area. The first three hours of the six hour program featured an applicant’s attorney, a defense attorney, and a workers’ compensation judge who separately presented a curriculum to over 100 doctors in various specialties that included topics that were requested...

March 15, 2017

Bad-Faith Failure to Pay Workers’ Compensation Benefits

Supreme Court of Oklahoma addresses “crafty gamesmanship” We have asked our expert in Oklahoma, Jacque Brawner Dean, Esq., at Jacque Brawner Dean Law, PLLC , about the recent decision in Meeks v. Guarantee Ins. Co . In that case, the Supreme Court of Oklahoma, in a divided decision, held that an employee could maintain a bad-faith action against a workers’ compensation insurer alleging that following an award of compensation...

March 10, 2017

WCRI Conference Focuses on Combating the Opioid Epidemic

By Deborah G. Kohl, Esq. The last several years have seen the “opioid epidemic” become the hot topic in the workers’ compensation industry. It is a problem that everyone from elected officials, government agencies, insurance carriers, doctors and ultimately families have had to address. The WCRI conference held in Boston on March 2, 2017 focused its attention on this important issue with two interesting sessions discussing...

March 10, 2017

California Workers' Comp Case Roundup (3/10/2017)

CALIFORNIA COMPENSATION CASES Vol. 82 No. 2 Feb 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...

March 10, 2017

California: Tricks of the Trade When Calculating Temporary Disability Rate

One of the primary benefits of California workers’ compensation is the payment of temporary disability (TD). Although not specifically defined in the California Labor Code, case law and customary usage has provided a sufficient perimeter for determining an injured workers’ temporary disability period. Essentially it is the time period from the date of injury until the worker reaches “Maximum Medical...

March 09, 2017

Virginia: Employee Must Show “Identifiable Incident” to Recover for Injury by Accident

Observing that the question of whether an employee had suffered an “injury by accident” presented a mixed question of fact and law and further, that in Virginia, gradually incurred traumatic injuries or cumulative trauma conditions are not compensable, a state appellate court held that the evidence supported the Commission’s finding that an employee failed to prove an “identifiable incident”...

March 09, 2017

United States: Wrongful Death Action Following Explosion of Mortar Shell Barred by Exclusivity

Construing Illinois law, a federal district court held that plaintiff’s wrongful death action against the decedent’s employer was barred by the exclusive remedy provisions of the Illinois Workers’ Compensation Act [see 820 ILCS 305/5] where the decedent was killed by the explosion of a live mortar shell that had been transferred from the U.S. Army’s National Training Center at Fort Irwin, California to the employer’s...

March 09, 2017

Rhode Island: Workers’ Comp Act Trumps CBA’s Arbitration of Reinstatement Disputes

Rhode Island’s Workers’ Compensation Court has exclusive jurisdiction concerning reinstatement disputes. Accordingly, where a union member employee sustained a serious ankle injury, underwent surgery 10 months later, did not request a leave of absence and had not returned to work some 15 months after the original injury, his right to reinstatement was lost under R.I. Gen. Laws § 28–33–47(c)(1)(vi). Where the employee...

March 09, 2017

South Carolina: Injured Employee Entitled to PTD Benefits For Significant Impairment to Back in Spite of Return to Work

Evidence that an injured employee has returned to work in some capacity, standing alone, does not rebut the presumption of total disability where the uncontradicted medical evidence indicates the employee sustained loss of use to his back that exceeded 50 percent, held a divided Supreme Court of South Carolina. Emphasizing that public policy supported a return to work where possible, the majority said the injured employee...

March 02, 2017

Ohio: For Going and Coming Rule Purposes, Home Health Care Aide May Not Have Been Fixed-Situs Employee

An Ohio home health aide who worked, at her employer’s direction, at the home of various clients and who sustained injuries in an auto accident as she traveled from one client’s home to that of another, was not as a matter of law a fixed-situs employee for purposes of the going and coming rule. It was error, therefore, for the trial court to grant summary judgment in favor of the employer with regard to the employee’s...

March 02, 2017

Colorado: $840,000 Fine For Failure to Insure Was Excessive

The imposition of more than $840,000 fine against an uninsured employer was unconstitutionally excessive under both the 8th Amendment to the U.S. Constitution and a similarly-worded provision of the Colorado constitution, where the fine was based upon a statutory formula, but did not take into consideration appropriate factors as to the size of the fine, including the size of the employer’s business and its ability to...

March 02, 2017

Oklahoma: “Crafty Gamesmanship” Earns Insurer a Date in Court for Bad-Faith Failure to Pay

The Supreme Court of Oklahoma, in a divided decision, held that an employee could maintain a bad-faith action against a workers’ compensation insurer alleging that following an award of compensation benefits by the state’s Workers’ Compensation Court (WCC), the insurer withheld employee’s benefits on 26 separate occasions. The insurer’s contention that the district court lacked jurisdiction to hear the case since the...

March 02, 2017

Georgia: “Controlled Descent” Goes Out of Control; Board Should Have Made Fact Findings as to Worker’s Rashness

In Georgia, violation of express instructions or the mere doing of a hazardous act in which the danger is obvious does not constitute willful misconduct that disqualifies an injured employee from an award of benefits; the employer must also show that the intentional act was done either with the knowledge that it was likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences...

March 02, 2017

Virginia: Proving Employee’s Intoxication Insufficient to Defeat Claim

Proof that an employee was intoxicated at the time of his or her injury is not sufficient to defeat the claim, held a Virginia appellate court recently; the employer must also prove that the intoxication caused the accident resulting in injury. Where an employer introduced expert testimony that established that an injured employee’s blood alcohol content was most likely greater than 0.09 percent at the time the employee...

March 01, 2017

California: Negative Inference and Positive Presentation

Currying Judicial Discretion In Valdovinos v. Colormax Industries Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 676 , Applicant alleged primarily a continuous trauma injury based on some 30 years of employment because of exposure to chemicals. He suffered from diabetes and hypertension. (Note: Both of these conditions at an end-stage can seriously affect the eyes, which, in applicant’s case, did apparently produce blindness...

March 01, 2017

Kansas Recent Drug Test Case and Its Implications for Employers

Court held that providing an inadequate urine sample is not a refusal to take a drug test In Byers v. Acme Foundry, 2017 Kan. App. LEXIS 12 (Jan. 27, 2017), a Kansas appellate court recently held that the term “refusal,” as it is used in Kan. Stat. Ann. § 44–501(b)(1)(E)(2012), carries with it an element of willfulness. Accordingly, where an injured Kansas worker was unable to provide an adequate urine sample in a...

February 24, 2017

New Mexico: Six-Year Delay by Uninsured Fund to Reinstate Reimbursement Petition Was Untimely

A New Mexico trial court did not abuse its discretion in refusing to reinstate a 2006 Petition filed by the Uninsured Employers’ Fund (“UEF”) against an employer where the UEF’s Petition was initially dismissed, without prejudice, in 2008—for lack of prosecution—and the UEF then waited, according to the trial court, 2,555 days (six years) before filing a motion to reinstate. The appellate court indicated that it agreed...

February 24, 2017

Kentucky: Waitress was Variable Wage Employee in Spite of Unreported Income Issue

The Supreme Court of Kentucky held that while KRS 342.140(6) excludes unreported income from a workers’ average weekly wage calculation, it does not change the nature of the worker’s pay or the method to be used for calculating the AWW based upon the nature of the worker’s pay. Accordingly, where a waitress was paid $100 per week—plus tips—and her employer did not include any of those tips...

February 24, 2017

United States: Employer May Offset Workers’ Comp Benefits Against Amounts Owed Under Long-Term Disability Plan

The 9th Circuit Court of Appeals affirmed a decision by a U.S. District Court judge that held, as a matter of law, that an employer was entitled to offset an injured worker’s PPD workers’ compensation benefits against the worker’s long-term disability benefits owed under an ERISA plan (“the Plan”). The Plan provided that any long-term disability benefits owed would be reduced by “Other Income Benefits”—including workers...

February 24, 2017

Utah: IRS Employee May Not Sue Co-Employee for Parking Lot Injuries

An IRS employee, who sustained injuries in an auto-pedestrian accident that occurred in an employee-designated parking lot, may not maintain another IRS employee; workers’ compensation was her exclusive remedy, held a Utah appellate court. Quoting Larson’s Workers’ Compensation Law , the court observed that practically all jurisdictions now consider adjacent parking lots as part of the employer’s premises; the rule is...

February 24, 2017

New Jersey’s New Opioid Law: Concerns for Injured Workers

State ranks third in a nation for overdoses related to opioids Governor Christie recently signed SB 3 to set up a 5-day limit on initial opioid prescriptions in the State of New Jersey. We’ve asked Richard B. Rubenstein, the co-author of LexisNexis Practice Guide New Jersey Workers’ Compensation , what SB 3 is all about and what it could mean for injured workers in his state. LexisNexis: How bad is the...

February 22, 2017

Ag Claims, Physical Medicine and High-Cost Opioids All Common on California’s Central Coast

The California Workers’ Compensation Institute (CWCI) has issued a new “Regional Score Card,” the sixth in its research series that looks at workers’ comp claims experience in 8 different regions of California. The new Score Card provides detailed data from more than 127,000 claims for 2005–2015 injuries filed by residents of the Central Coast -- a 300-mile long region encompassing Ventura, Santa Barbara, San Luis Obispo...

February 22, 2017

California Hearings and Electronic Testimony: The Cost of Convenience

In Simmons v. Just Wingin’ It, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB rescinded the WCJ’s order requiring an out-of-state claims adjuster who administered the applicant’s temporary disability benefits in connection with his 9/22/2014 industrial right foot and ankle injury to appear physically rather than electronically at trial, when the defendant argued that requiring the claims adjuster...

February 17, 2017

How to Utilize a Medical Expert and Effectively Present Causation Opinions

The seminal causation paper will never be written. This fact provides the author at least some comfort as this paper briefly wades into the agenda-driven minefield of causation in a workers’ compensation claim. Causation, like beauty, is often in the eye of the beholder. The beholder in a workers’ compensation claim might be a doctor, adjuster, lawyer, or the ultimate fact-finder. Each of these groups has sub-groups...