November 04, 2016

California: Serious & Willful Misconduct: The Outlier Workers’ Compensation Issue

© Copyright 2016 LexisNexis. All rights reserved. (Publisher’s Note: Case citations link to Lexis Advance.) The majority of workers’ compensation trials these days seem to deal with injuries to the spine and how to accurately rate that impairment. But occasionally, an outlier issue comes along, that stumps the practitioner, and often throws a monkey wrench into their litigation game plan. One such...

November 03, 2016

Louisiana: Surveillance Video Nixes Worker’s Benefits

A Louisiana appellate court affirmed a decision by a state workers’ compensation judge that a worker forfeited his right to workers’ compensation benefits because he deliberately made false statements in order to obtain workers’ compensation [La. Rev. Stat. 23:1208]. Following a work-related incident, the worker complained to a physician that he could not tolerate walking or standing due to his “ten out of ten” pain,...

November 03, 2016

Pennsylvania: Retired Firefighter Did Not Show Work Connectedness of Prostate Cancer

The state’s Workers’ Compensation Appeal Board did not err when it denied benefits to a retired firefighter for his prostate cancer, where the Board determined that the claimant did not prove that his cancer was caused by exposure to 1ARC Group I carcinogens, for purposes of being an occupational disease under § 108(r) of the Workers’ Compensation Act [77 Pa. Stat. Ann. § 27.1(r)], or that it was caused by workplace exposure...

November 03, 2016

Illinois: Worker’s Injury in Fall From Rolling Chair Did not Arise From His Employment

The state’s Workers’ Compensation Commission did not err when it found that an employee’s alleged injury did not arise out of his employment where it appeared the employee fell from a rolling chair when he reached for a pen that he had dropped on the floor and the chair slid out from under him. The Commission found that no work-related task had contributed to his injury and that the risk from falling from a chair while...

November 03, 2016

Pennsylvania: Injured Worker May Not Sue Borrowing Employer

An employee may have more than one employer, held a Pennsylvania appellate court. Accordingly, where a worker was hired by a firm that supplied temporary workers to other businesses and governmental entities and, after being assigned to a township, the worker sustained injuries in a work-related accident, he could not sue the township in tort to recover for its alleged negligence. The court adopted the "well-articulated...

November 01, 2016

CWCI Study Highlights Differences Between Central Valley and Other California Workers’ Comp Claims

Oakland – A new California Workers’ Compensation Institute (CWCI) Regional Score Card finds that workers in California’s Central Valley have a distinctly different workers' comp claims experience than those from other regions in terms of notification and treatment lag times, mix of injuries, types of care, types of drugs used, levels of attorney involvement, incidence of permanent disability, average...

October 31, 2016

California Workers' Comp Case Roundup (10/31/2016)

CALIFORNIA COMPENSATION CASES Vol. 81 No. 10 Oct 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...

October 27, 2016

Putting a Human Face on a Catastrophe: DEEPWATER HORIZON

By Thomas C. Fitzhugh, III, Esq., Schouest, Bamdas, Soshea & BenMaier PLLC BP hired Transocean to drill in a well in 5,000 feet of water in Mississippi Canyon Block 252 (Macondo project) about 35 miles south of Venice, Louisiana. The semi-submersible, dynamically-positioned DEEPWATER HORIZON was assigned this job. This rig was built in a Korean shipyard in 2001, and the year before the disaster it had drilled the...

October 27, 2016

Permanent Total Disability Award Upheld; Sub Rosa Videotape Disallowed on Procedural Grounds: Cal. Comp. Cases Advanced Postings (10/26/2016)

Here’s the latest batch of advanced postings for the November 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. Allegis Group, Aerotek Commercial Staffing, insured by ACE American Insurance Company, administered by ESIS, Petitioners v. Workers' Compensation Appeals...

October 26, 2016

California: Is It the Defendant’s Job to Make Sure UR Has the Appropriate Treatment Records?

In McKinney v. Enterprise Rent-A-Car of San Francisco , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB reversed the WCJ’s finding that the defendant was liable for sanctions under Labor Code § 5813 for bad faith handling of requests for authorization (RFA) from the applicant’s treating physician seeking authorization for various treatment modalities to treat applicant’s 9/23/2014 industrial injury...

October 24, 2016

No California Jurisdiction Over Pro-Athlete Entertainer Found: Cal. Comp. Cases Advanced Postings (10/27/2016)

Here’s the latest batch of advanced postings for the November 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. Michael Wilson, Petitioner v. Workers' Compensation Appeals Board, Harlem Globetrotters, International, Travelers Property Casualty Company of America...

October 20, 2016

Oregon: Transcutaneous Electrical Nerve Stimulation Unit is not a “Prosthetic Device”

In a divided decision, the Court of Appeals of Oregon held that a transcutaneous electrical nerve stimulation (TENS) unit was not a “prosthetic device” under ORS 656.245(1)(c)(D). The majority added that the attending physician’s treatment of claimant’s compensable and medically stationary “arachnoiditis” was palliative, rather than curative, and as such was not compensable because the evidence had not established that...

October 20, 2016

Oregon: Court Clarifies Standards in Idiopathic Fall Cases

While a claimant certainly has the burden of proving compensability by a preponderance of the evidence, an injury that is unexplained and occurs in the course of employment is presumed, as a matter of law, to arise out of the employment. Accordingly, it was error for the Board to require that claim eliminate the possibility that her fall had occurred because of an idiopathic condition that she suffered. Indeed, claimant...

October 20, 2016

Pennsylvania: Firefighter’s Cancer Claim Found to be Time-Barred

A Pennsylvania appellate court affirmed the denial of workers’ compensation benefits relating to the occupational disease of cancer suffered by a firefighter because the claim was not brought within 600 weeks of the firefighter’s last exposure to workplace hazards while working as a firefighter for a city, as required by § 301(f) of the Workers’ Compensation Act. The court stressed that the state utilized a two-tiered...

October 20, 2016

Virginia: Police Body Camera Dooms Officer’s Slip and Fall Claim

A Virginia police officer was appropriately denied workers’ compensation benefits for an injury he sustained when he slipped on a stairway while investigating a potential burglary at a private residence. The appeals court, following Virginia’s “actual risk” rule, indicated that an employee who trips on a staircase at work could not recover compensation unless something about the steps (or some other condition of the workplace...

October 17, 2016

Innovations in Workers’ Compensation Regulation From the IAIABC Conference, 2016

By Elizabeth Connellan Smith, Counsel, Verrill Dana LLP, Portland, ME Innovation isn’t always the first word associated with the regulation of workers’ compensation, but innovation was in the forefront of the Commissioners and Associate Members Roundtable on Tuesday, September 27, 2016 at the 102nd IAIABC Conference, held in Portland, Maine. The conference, which ran from September 26, 2016 through September...

October 17, 2016

California: Two Separate Medical Review Processes Available to an MPN Treatment Recommendation

By LexisNexis California WCAB Noteworthy Panel Decisions Reporter Staff In De Leon v. Safeway, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, reversing the WCJ, held that the request for authorization to provide medical treatment by the applicant’s MPN treating physician was subject to utilization review (UR) and independent medical review (IMR) because the Legislature did not exclude MPN treatment from those...

October 13, 2016

Federal: Building Materials Supplier is Statutory Employer of Truck Driving Making Deliveries

Where a truck driver was employed by a trucking company that, in turn, contracted with a building materials supplier to provide delivery services related to materials purchased at the supplier’s stores, the building materials supplier was the driver’s statutory employer for purposes of the Kentucky Workers’ Compensation statute. Accordingly, he could not sue the supplier in tort following an injury on...

October 13, 2016

Federal: Commercial Liability Insurer’s Investigation of Employment Status is Not “Bad Faith” Refusal to Pay

Where a worker sustained fatal injuries in a ditch cave-in and the worker’s widow filed a tort action against the owner of a masonry business alleging negligence, it was appropriate for the insurer under the business’ commercial general liability policy to investigate whether the deceased worker was an employee under Pennsylvania law—which would have meant it owed no duty to defend. There was conflicting evidence as to...

October 13, 2016

Florida: Self-Help Physician May Not “Bootstrap” Medical Necessity of Treatment into Evidence

§ 440.13(5)(e), Fla. Stat., by its plain language, excludes from workers’ compensation proceedings the medical opinions of any doctor (other than independent medical examiners and expert medical advisors) who has not been authorized by the employer/carrier. Accordingly, the medical opinions of an unauthorized self-help doctor were not admissible unless and until it was established— by other admissible...

October 13, 2016

Montana: Oklahoma Employer May Not Intervene to Recover its Lien Until Worker is Made Whole

Relying upon § 90 of the Restatement (Second) Conflict of Laws, a divided Supreme Court of Montana held that because of the strong public policy against subrogation in the state, courts in Montana will not entertain actions involving workers’ compensation subrogation prior to an injured worker’s full recovery of his or her damages, even where they would be allowed under the state where the injured worker resides. Here...

October 12, 2016

Injury AOE/COE From Tuberculosis: Cal. Comp. Cases October Advanced Postings (10/12/2016)

Here’s the latest batch of advanced postings for the October 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. OneBeacon America Insurance Company, insurer for Internet Corporation for Assigned Names and Numbers, Petitioner v. Workers' Compensation Appeals Board...

October 12, 2016

Laborer in Work Release Program Was Employee of County: Cal. Comp. Cases Advanced Postings October 2016

Here’s the latest batch of advanced postings for the October 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, Guadalupe Sanchez, Respondents, lexis.com , Lexis Advance Employment Relationships—County...

October 12, 2016

California: Are Voucher Penalties Based on the Actual or the Potential Loss?

Interesting Ramifications of Labor Code Section 5814 By Brad Wixen, Esq. In Garcia v. Sara Lee Corporation , 2016 Cal. Wrk. Comp. P.D. LEXIS – (Board Panel Decision), applicant received an independent medical review (IMR) overturning a utilization review (UR) denial for medications. Defendant produced no evidence at trial that the authorization was submitted within five days of the IMR decision pursuant to 8...

October 05, 2016

CWCI Score Card Examines Inland Empire/Orange County Work Comp Claims

Oakland – The California Workers' Compensation Institute (CWCI) has issued its second Regional Score Card, offering detailed data on claims filed by workers from San Bernardino, Riverside, Orange and Imperial Counties for job injuries that occurred between 2005 and 2015. The Scorecard, based on data from more than 360,000 claims that resulted in $6.2 billion in payments for medical and indemnity (lost-time)...