January 20, 2017

New York: Claimant’s Counsel Fees Reduced to $450 Where OC–400 Form Found to be Deficient

A New York appellate court affirmed a decision of the state’s Workers’ Compensation Board that reduced the attorney fees to a claimant’s counsel from $2,800 to $450, where the Board determined that the attorney had filed a deficient Form OC–400. Noting that the Board had broad discretion in approving an award of counsel fees and that an attorney was required to utilize the specified form, the appellate court agreed that...

January 20, 2017

Alabama: Asbestos-Related Claim Extinguished by Worker’s Death

An Alabama employee’s claim for workers’ compensation benefits is extinguished by his or her death and the surviving spouse may not be substituted as a plaintiff under Rule 25 of the Alabama Rules of Civil Procedure, held a state appellate court. Accordingly, a trial court should have dismissed the employee’s claim where the employee died, allegedly due to work-related asbestosis, before the claim was adjudicated or settled...

January 20, 2017

Missouri: County Investigator’s COPD Tied to Pigeon Droppings on Courthouse Roof

An investigator working for a Missouri county prosecutor’s office, who claimed that he suffered chronic obstructive pulmonary disease (“COPD”) as a result of breathing fungus and a bacteria associated with pigeon droppings, and further, that he had been exposed to anhydrous ammonia while investigating a mobile meth lab in 2002, sustained an injury arising out of and in the course of his employment, held a Missouri appellate...

January 20, 2017

Louisiana: Worker Awarded Benefits for West Nile Virus

A Louisiana worker, who contended he contracted the West Nile virus from a mosquito bite that occurred in his employer’s break room, sustained an accidental injury that arose out of and in the course of his employment. Affirming a factual finding by a state workers’ compensation judge, the Louisiana appellate court acknowledged a deep conflict in the evidence, but concluded that the worker had successfully...

January 20, 2017

California: Union Activities and Employment

In Mason v. S.E.I.U. Local 721 , 2016 Cal. Wrk. Comp. P.D. LEXIS 618 (Lexis Advance), the WCAB, reversing the WCJ in a split panel opinion, held that the applicant who worked for the County of Los Angeles, Department of Children and Family Services and was member of a S.E.I.U. Local 721 was acting as an employee of S.E.I.U. Local 721 at the time she suffered an injury to her left upper extremity, when the applicant’s...

January 20, 2017

California Workers' Comp Case Roundup (1/20/2017)

CALIFORNIA COMPENSATION CASES Vol. 81 No. 12 Dececember 2016 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 2016 LexisNexis. All rights reserved. LexisNexis Online Subscribers for LEXIS ADVANCE ONLY. You can link to your account on Lexis Advance to read...

January 20, 2017

New York Workers’ Compensation: The Year in Review 2016

By Ronald E. Weiss, Esq. and Ronald Balter, Esq. The year 2016 started with some expectation of substantial “reform” being enacted in the Workers’ Compensation Law. As part of his executive budget, Governor Cuomo proposed some of the most extensive substantive and procedural changes to the Workers’ Compensation Law since the 2007 Workers’ Compensation Reform Bill. Labor and the bar opposed almost all provisions of...

January 14, 2017

Washington: Employee Can Sue Co-Employee in Tort for Injuries Sustained in After-Hours Accident

Adopting the dominant rule discussed in Larson’s Workers’ Compensation Law , Ch. 111, § 111.03, the Supreme Court of Washington held that a co-employee enjoys immunity under the exclusive remedy provisions of the state’s workers’ compensation law only when that co-employee is acting within the course and scope of the employment. Accordingly, the Court affirmed a decision allowing one co-employee, Entila, to maintain a...

January 14, 2017

Pennsylvania: Firefighter Fails to Show Causal Connection Between Cancer and Employment

In order for a Pennsylvania firefighter to recover occupational disease benefits related to cancer, he or she must not only show that the firefighter was exposed to Group 1 IARC carcinogens (“Group 1 carcinogens”) and that the firefighter contracted cancer, the firefighter must also show that the type of cancer contracted is a type of cancer typically associated with such Group 1 carcinogens. Accordingly, the appellate...

January 14, 2017

New York: Opera Singer Can Sue Metropolitan Opera House for Injuries Sustained in Fall

A prominent opera singer at the Metropolitan Opera House is not an employee of the entertainment facility that featured her in more than 500 performances during his 23-year career; her employment contract was with her personal holding company and not the opera house, held a New York appellate court. Noting that N.Y. Work. Comp. Law § 2(4) provided generally that a professional musician or a person engaged in the performing...

January 14, 2017

Tennessee: Insurer Gets Stung for $27,000 in Attorney’s Fees In $187 Utilization Review Dispute

A workers’ compensation insurer for a Tennessee employer, who sought utilization review regarding two trigger point injections, totaling $187, to treat an injured worker’s back pain and who stood its ground when the UR provider opined that the injections were medically unnecessary, has been ordered to pay the worker’s lawyer more than $27,000 in attorney’s fees and expenses following a trial court’s decision that the...

January 13, 2017

California: Commonly Missed Regulations and Rules

Familiarity with the Labor Code and the WCAB/DWC regulations is a fundamental necessity for practicing workers’ compensation law in the State of California. Given this fact, it is surprising how many attorneys show up on the day of trial without knowing the applicable Labor Code section or regulation upon which their position is based. Set forth below are just a few examples. (Publisher’s Note: All citations...

January 10, 2017

How to Help Injured Workers Reduce Opioid Dependency

Massachusetts implements new opioid diversion track By Deborah G. Kohl, Esq. The significance of opioid dependency is clear to all participants in the field of workers’ compensation. The real issue facing the parties is how to deal with this problem. Should an insurer stop paying for the opioids? Should a judge determine if the injured worker should remain on opioid medication or enter into some type of weaning...

January 06, 2017

Iowa: Employee May Collect Both PPD and PTD at Same Time For Successive Injuries

The Supreme Court of Iowa held that Iowa workers’ compensation law does not prohibit an employee from collecting both PPD benefits and PTD benefits at the same time where the employee suffers successive injuries at the same workplace. The court indicated the general assembly removed the legal barrier to this outcome in 2004. The court said it generally could not apportion the benefits from two successive work-related...

January 06, 2017

Idaho: Negligent Employer is Not Entitled to Subrogation Rights Involving Employee’s Third-Party Tort Claim

Idaho’s 1987 adoption of comparative negligence [see Idaho Code § 6–801] and the abrogation of joint and several liability did not affect the rule established in Liberty Mutual Insurance Company v. Adams , 91 Idaho 151, 417 P.2d 417 (1966), that an employer who is concurrently negligent in the worker’s injury is not entitled to subrogation against the injured worker’s third-party recovery. The court indicated that to...

January 06, 2017

New York: Premises Owner/Employer Might Be Liable for Negligence in Parking Lot Injury

A New York employer, who, in her individual capacity, also owned the building where the employer and other tenants leased space, was not entitled to summary judgment on the employee’s negligence claim since questions of fact existed concerning whether the parking lot area—where the employee slipped and fell on a patch of ice—was within the employer’s exclusive control. The appellate court acknowledged that where a defendant...

January 06, 2017

Ohio: Worker May Receive TTD Benefits In Spite of Positive Drug Test After Injury

The Supreme Court of Ohio, in a divided decision, held that a worker who tested positive for marijuana after seeking medical treatment for a work-related injury was nevertheless eligible for TTD benefits in spite of the fact that he had been fired after the injury for violating the employer’s drug-free workplace policy. The majority concluded that the worker’s use of the marijuana, while contrary to the employer’s...

January 05, 2017

Workers’ Compensation Premium Rates Continue Downward Trend

Oregon Report Provides Additional Evidence of a Continuing Downward Trend in Workers’ Compensation Premiums As states compete not just with foreign job markets but with each other to attract new business development, the cost of labor is often a primary concern to potential business suitors. While employee wages are very important to the calculation, the cost of workers’ compensation coverage can also be...

January 04, 2017

California: Top 25 Noteworthy Panel Decisions (July through December 2016)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2016. The list features a number of decisions addressing medical-legal issues such as assignment, selection and reporting requirements applicable to qualified medical evaluators. Additionally, there are several new cases discussing the...

January 02, 2017

California: Do All Physicians Within the MPN Need to Be Specifically Designated?

How and when to make an argument By Brad Wixen, Esq. In Rivas v. North American Trailer , 2016 Cal. Wrk. Comp. P.D LEXIS 572 , Applicant sustained a clearly significant injury when a chain and hook struck him in the head, causing a loss of consciousness, skull fracture, five days of hospitalization, and the surgical installation of a titanium plate into the skull. Continuing symptoms included dizziness, unsteadiness...

December 13, 2016

California Workers’ Comp Medical Mileage Rate Will Decline Slightly for 2017 Travel

The Internal Revenue Service has announced that the standard mileage rate for business miles will decline 0.5 cents per mile to 53.5 cents per mile as of January 1, 2017.  The California Workers’ Compensation Institute (CWCI) notes that this means the mileage rate that California workers’ compensation claims administrators pay injured workers for travel related to medical treatment or evaluation of their injuries will...

December 07, 2016

Ohio: Light Duty Worker Entitled to Wage Loss Benefits for Lack of Overtime

In a divided per curiam decision, the Supreme Court of Ohio held that the state’s Industrial Commission did not abuse its discretion in awarding compensation for working-wage loss attributed to claimant’s lack of overtime earnings while working in light-duty position. The majority held that the record contained evidence that claimant was placed in a light-duty program because of medical restrictions causally related to...

December 07, 2016

New York: Failure to Disclose Lawn Mowing Activities Constitutes Violation of Employee Fraud Statute

Substantial evidence supported the Workers’ Compensation Board’s decision that the claimant’s failure fully to describe and disclose his lawn mowing activities, after he was classified as temporarily totally disabled and remained out of work, constituted knowing false statements to obtain workers’ compensation benefits within the meaning of N.Y. Work. Comp. Law § 114-a. The Third Department of the New York Appellate Division...

December 07, 2016

Alaska: Employer Hit For Attorney’s Fees When IME Request Delays Surgery

The Alaska Workers’ Compensation Board appropriately awarded an injured worker attorney’s fees pursuant to Alaska Stat. § 23.30.145(b), where a school bus driver underwent two spinal surgeries following a work-related accident and, about the same time that the driver was scheduled to undergo a third surgery, the employer scheduled an IME, delaying the planned surgery. The Court indicated the employer could have pursued...

December 07, 2016

Tennessee: Court Awards PTD Benefits for Migraines in Spite of AMA Guides (6th ed.)

The Special Workers’ Compensation Appeals Panel of the Supreme Court of Tennessee affirmed an award of PTD benefits to an X-ray technician who contended her migraine headaches were triggered by exposure to chemicals at a medical clinic where she worked. The panel noted the sharp disagreement in the medical evidence testimony offered by the technician and her employer, but said it was for the trial court to weigh...