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December 06, 2016

Noteworthy Workers' Compensation Legal Trends 2016: Part Two

This article surveys recent legal trends in the states of Maryland, New Mexico, Tennessee, Texas and Wisconsin as explained by our workers’ compensation experts below. MARYLAND: Four of the hottest topics in Maryland are as follows: 1. Opioid use and abuse. Like the rest of the world, Maryland has seen an uptick in opioid use and abuse. To that end, on March 24th, the Maryland Workers’ Compensation Commission...

December 06, 2016

California: The PQME Process and the Remote Medical-Legal Evaluation

What is the potential role of telemedicine when it comes to PQME evaluations? In Gonzales v. ABM Industries , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel, denying removal, affirmed the WCJ’s order instructing the Medical Director to replace the originally assigned qualified medical evaluator panel in the specialty of pain management, when the original panel included the qualified medical evaluator Behzad...

December 06, 2016

California Workers' Comp Case Roundup (12/6/2016)

CALIFORNIA COMPENSATION CASES Vol. 81 No. 11 Nov 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: You can link to your account on Lexis.com or Lexis Advance to read the complete...

December 02, 2016

Noteworthy Workers' Compensation Legal Trends 2016: Part One

This article surveys recent legal trends in the states of Arizona, California, Delaware, Georgia, and Kentucky as explained by our workers’ compensation experts below. ARIZONA The Arizona Legislature has enacted several new laws, all of them effective August 6, 2016: 1. A.R.S. §23-941 has been amended by adding new subsection (I). An interested party is now entitled to a one-time right to request a change...

December 02, 2016

Longshore Act: Use and Abuse of Authorizations Versus Subpoenas

The Challenge of Efficient and Informal Discovery Versus Privacy By Steven M. Birnbaum, Law Offices of Steven M. Birnbaum, San Rafael, California Increasingly, even though the Office of Administrative Law Judges has a rather simple procedure for issuing subpoenas, it seems that claimants are instead, or in addition, requested to sign authorizations to obtain medical records that would otherwise be protected by various...

December 02, 2016

Kentucky: Agricultural Exemption Applied to Claimant’s Work of Harvesting and Unloading Crops

A Kentucky appellate court found that the state Board erred in finding that the agriculture exemption did not apply to a claimant where it was undisputed that he was tasked with hauling the harvested crops and unloading them at the farm’s storage silos, testimony established that the farm only harvested and stored its own crops, the farm’s sole source of income was from the eventual sale of those crops at...

December 02, 2016

Virginia: Employee’s Trip and Fall in Employer’s Staircase is Not Compensable

Again indicating that the state utilized the “actual risk” test, a Virginia appellate court held that injuries sustained by a financial officer as he tripped on concrete steps at his employer’s premises, did not arise out and in the course of the employment. The court noted that in the claimant’s interrogatory answer, he had indicated that he tripped himself. He offered a similar explanation to health care providers after...

December 02, 2016

Delaware: Undocumented Worker Entitled to Total Disability Benefits as “Displaced” Worker

The Supreme Court of Delaware has held that a worker’s undocumented status is one factor that should be considered in determining whether a worker is deemed to be “displaced”—so disabled by a compensable injury that he or she will no longer be employed regularly in any well-known branch of the competitive labor market and will require a specially created job to be steadily employed. The employer contended that a worker...

December 02, 2016

Tennessee: Limitation on PPD Benefits for Undocumented Workers Found Unconstitutional

Where a Tennessee injured employee is unable to return to work because of his or her undocumented status, Tenn. Code Ann. § 50–6–241(e)(2) limits the employee’s PPD award to one and one-half times the medical impairment rating, rather than an amount that can be as high as six times the impairment rating if the employee has not had a meaningful return to employment. Affirming a decision of a state trial court, the Special...

November 30, 2016

California: Communications With the AME or PQME

When do communications with the AME or PQME have to be cleared by the opposing side? In Lopez Castaneda v. Forever 21 , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, in a split panel opinion, affirmed the WCJ’s finding that the applicant was entitled to a replacement qualified medical evaluator panel in orthopedic surgery based on an advocacy letter sent by the defendant to the panel qualified medical evaluator...

November 18, 2016

WCJ Erred in Not Applying Heart Presumption and Anti-Attribution Provisions: Cal. Comp. Cases Advanced Postings (11/9/2016)

Here’s the latest batch of advanced postings for the Nov 2016 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the case to read the complete headnotes and summaries. © Copyright 2016 LexisNexis. All rights reserved. County of Riverside, PSI, Petitioner v. Workers' Compensation Appeals Board, Alex Simmons, Respondents, lexis.com , Lexis Advance Presumption of Industrial...

November 18, 2016

Louisiana: Teacher’s Intentional Tort Action Against School Board Fails

A teacher, who was six-weeks pregnant at the time of a classroom incident that resulted in her injury, may not maintain a tort action against the school board; her allegations failed to raise an issue of intentional tort and her civil action was, therefore, barred by the exclusive remedy provisions of the Louisiana Workers’ Compensation Act. As the teacher tried to block the path of an unruly student, the student...

November 18, 2016

South Carolina: Under “Divided Premises” Rule, Injuries Sustained on Public Street Are Compensable

The South Carolina Supreme Court has held that a state university professor, who sustained injuries when she was struck by a car as she crossed a public road that separated the university’s library, where she had been working, and a university parking lot, where she had parked her vehicle, should be awarded workers’ compensation benefits under the Larson “divided premises” rule [see Larson’s Workers’ Compensation Law...

November 18, 2016

Illinois: Teacher Recovers for Injury Sustained in After School Basketball Game

An Illinois appellate court reversed a decision by a county circuit court and reinstated an award of benefits to a state middle school science teacher, who suffered a left forearm fracture while participating in an afterschool student/teacher basketball game in the employer’s gymnasium. The court indicated there was sufficient evidence to support the Commission’s finding that the activity had not been “voluntary” on the...

November 18, 2016

Mississippi: Pipefitter’s Injuries From 25-Foot Fall From Tree Not Compensable

In a divided decision, the Court of Appeals of Mississippi held that a pipefitter, who sustained severe injuries when he fell some 25 feet from the top of a gum tree, was engaged in inappropriate horseplay at the time of the injury, such that the injury did not arise out of and in the course of his employment. Relying upon the four-point “Larson test” [see Larson’s Workers’ Compensation Law , § 23.01, et seq .], the majority...

November 16, 2016

New Jersey Workers’ Compensation Trends for 2016

By Richard B. Rubenstein, Esq. Assembly Bill 3401, signed into law on November 14, 2016, mandates that workers’ compensation carriers and third-party administrators adopt a method for processing electronic bills for medical treatment rendered on New Jersey workers’ compensation cases. It mandates the promulgation of Rules and Regulations for the format of electronic billing for most, if not all, procedures. Section...

November 15, 2016

California: Loss of Function Rating Prevailed Over Strict Anatomic Loss of Motion Rating

A recent case reflects how crucial it is for an evaluating or treating physician to point out all objective medical findings as a result of an industrial injury, and then there has to be a correlation between those objective medical findings and the ultimate WPI impairment rating. In Prell v. Cedar Fair , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB rescinded the WCJ’s finding that the applicant suffered a 2 percent...

November 10, 2016

Arkansas: Commission Has Substantial Discretion in Weighing Medical Evidence

The Workers’ Compensation Commission did not err in finding that claimant had sustained a compensable injury to his left big toe where the employee, a diabetic, testified that in performing his work duties, coolant constantly spilled onto his feet, soaking his boots and socks, that the coolant affected the performance of his boots, that he noticed a small blister on his toe, notified his supervisor, sought medical attention...

November 10, 2016

Wyoming: Commission Did Not Err In Accepting Seven Medical Expert’s Opinions Instead of Claimant’s Non-Expert Theory of Causation

Where the record established that the potential causes of a worker’s syncopal episodes were numerous and complex, the Wyoming Medical Commission did not abuse its discretion by accepting the evidence from seven medical experts, including the worker’s treating physician, and discounting the worker’s contrary non-expert opinion, held the Supreme Court of Wyoming. The worker had suffered a compensable neck injury at work...

November 10, 2016

Utah: Cervical Surgery Not Compensable Where it was Required to Treat Preexisting Condition, But Not Results of Accidental Injury Itself

Stressing that injuries are compensable under the Tennessee workers’ compensation laws, the work-related accident must not only be the legal cause of the injury, it must also be the medical cause as well. Accordingly, where five physicians concluded that a worker’s neck surgeries were unnecessary to treat a work-related accident, but were necessary to treat the worker’s preexisting conditions, the Commission did not err...

November 10, 2016

Arkansas: Termination of Parental Rights After Compensable Injury Does Not Affect Dependency Rights of Minor Children

A divided Court of Appeals of Arkansas held that the clear language of Ark. Code Ann. § 11–9–527 did not allow for termination of a minor child’s survivor benefits upon termination of the employee’s parental rights or adoption. Six years before his death, the deceased employee suffered a catastrophic work-related injury that rendered him a quadriplegic and permanently and totally disabled...

November 10, 2016

California: To Be or Not To Be Present: That Is The Question

When should a claim be dismissed for lack of appearance? In the case of Nunez v. Petrochem Insulation, Inc ., 2016 Cal. Wrk. Comp. P.D. LEXIS --, applicant alleged a CT injury ending in 2009. In April 2011 there was a “stipulation” signed in court that applicant did sustain injury, but apparently not finally determining nature and extent. This was based on an AME report. (See Weatherall v. Worker’...

November 09, 2016

CWCI Report Looks at Implications of Legalized Marijuana on California Workers’ Comp

Oakland – The California Workers’ Compensation Institute (CWCI) has published an analysis on the implications of the passage of Proposition 64, which legalized recreational use of marijuana in California, on employers, workers’ compensation insurers, and the state’s work force.  Twenty years ago, California led the nation in legalizing medical marijuana, but with voters approving Proposition 64 this week, the state...

November 09, 2016

Health and Safety Issues Facing Temporary or “Gig” Workers Who Lack Regular Employment Status

A NIOSH Commentary reviews the current research and paints a troubling picture for nonstandard workers It is no secret that more and more work is being performed by American workers outside of the traditional employer-employee relationship. Employers are increasingly turning to nonstandard work relationships, whether in the form of independent contractors, workers provided by temp or staff servicing agencies, part...

November 07, 2016

Vocational Expert’s Opinion Did Not Rebut Scheduled Rating: Cal. Comp. Cases Advanced Postings (11/7/2016)

Here’s the latest batch of advanced postings for the Nov 2016 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the case to read the complete headnotes and summaries. © Copyright 2016 LexisNexis. All rights reserved. Charles Edwards, Petitioner v. Workers' Compensation Appeals Board, Forbes Security, Inc., American Guarantee and Liability Insurance Company, administered...