October 04, 2016

California: The Use of a Special Master in Complex Discovery Disputes

In Von Ritzhoff v. Ogden Entertainment Food Services , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB rescinded the WCJ’s order appointing the applicant’s attorney as the special master assigned to monitor the depositions in the applicant’s workers’ compensation case. While the WCAB agreed with the WCJ that a special master should be appointed to facilitate the completion of discovery in this case...

October 04, 2016

The Grand Bargain on Life Support: What Is the Future of Workers’ Compensation?

By Richard B. Rubenstein, Esq., Rothenberg, Rubenstein, Berliner & Shinrod, LLC, Livingston, NJ On September 23, 2017, Rutgers University Law School in Camden, N.J. brought together a panel of academics, jurists, and practitioners to discuss the feared—and for some the perceived—demise of workers’ compensation, once called “The Grand Bargain” between labor, management, and government. Three separate panels discussed...

September 30, 2016

Missouri: Widow Recovers Death Benefits for Unexplained One-Vehicle Accident

A Missouri appellate court affirmed an award of workers’ compensation death benefits to an employee’s widow, finding substantial evidence supported the widow’s contention that her husband commonly traveled away from the employer’s primary office in order to call on customers and the employee was apparently involved in such work-related travel at the time of his fatal, one-vehicle accident. The appellate court added that...

September 30, 2016

Federal: Kentucky Widow May Not Sue Staffing Company Regarding Employee/Husband’s Death

The widow and the estate of a construction worker may not pursue a wrongful death action against a construction staffing company regarding the worker’s death in a work-related accident where the worker interviewed directly with one of the staffing company’s clients, completed an application on forms that had been supplied by the staffing company, and was killed on the second day of work when he fell down an...

September 30, 2016

Federal: Ohio Employee May Maintain Civil Action for PTSD Against Employer

Construing Ohio law, a federal district court in that state denied an employer’s motion for judgment on the pleadings in a civil action filed by an employee in which the employee alleged that he suffered severe mental pain and suffering and psychological injuries, including PTSD, after he witnessed a long-time co-employee sustain fatal injuries in a work-related incident. Citing Ohio Rev. Code § 4123.74, the...

September 30, 2016

North Carolina: Expert’s Accident Reconstruction Testimony Sinks Employee’s Claim

A North Carolina court affirmed a finding by the state’s full Industrial Commission that a patient food service technician’s torn rotator cuff did not arise out of and in the course of the employment where the Commission found compelling testimony by two experts in biomechanics and accident reconstruction who opined that the incident described by the technician likely could not have resulted in her injury. The technician...

September 26, 2016

California: CVC or “Addition Method” in SIBTF Cases?

Recently, there has been a significant uptick in the number of Subsequent Injury Benefit Trust Fund (SIBTF) cases being litigated before the WCAB. With these cases come some unique tweaks to existing case law. One of the more interesting issues that has arisen lately has been whether a party may use the simple “addition method” to combine impairments or whether a party is required to combine impairments using...

September 23, 2016

Missouri: Employee May Sue Co-Employee For Negligent Operation of Employer’s Forklift

A Missouri appellate court held an employee could maintain a tort action against a co-employee who was allegedly negligent in the operation of the employer’s forklift; the exclusive remedy provisions of the state’s workers’ compensation law did not bar his civil action. Under Missouri’s narrow co-employee immunity rule, an employee may be liable at common law for injuries to a co-employee caused by his or her negligent...

September 23, 2016

Arkansas: Benefits Denied to Worker Injured in an On-Premises Fall During Break

Arkansas’ “arising out of and in the course of the employment” rule is one of the narrowest of any states. Generally, a compensable injury does not include an injury that was inflicted on the employee “at a time when employment services were not being performed ” [Ark. Code Ann. § 11–9–102(4)(B)(iii), emphasis added]. Under Arkansas case law, an employee is performing employment services when he or she is doing something...

September 23, 2016

Kansas: Former University Employee Need Not Exhaust Administrative Remedies Before Filing Retaliatory Discharge Case

The Supreme Court of Kansas, affirming an unpublished decision of a panel of the state’s Court of Appeals, held that a former probationary employee had properly stated a claim for retaliatory discharge where she alleged that her former employer, Kansas State University, knew she was suffering from ill health as a result of the working conditions it provided and that because of this ill health, and in anticipation...

September 23, 2016

Illinois: In Third Party Action, Employer Owes 25 Percent Attorney Fee on Value of Future Medical Care

Where attorneys for an injured worker bring a successful action against a third party to recover damages for personal injuries sustained by the worker in the course of his employment, thereby enabling the worker’s employer to obtain reimbursement of the compensation benefits that it is obligated to pay under the Workers’ Compensation Act, the Act requires the employer to pay 25% of the gross amount it obtains in reimbursement...

September 23, 2016

Texas Workers’ Compensation Legal Trends for 2016

By Joe Anderson, Albert Betts, Jr. and Stuart Colburn The following provides a brief overview of some of the events and decisions impacting the Texas workers’ compensation system. Legislative Issues Unlike many other states, Texas’ legislature meets biennially and 2017 is a session year. Since the last session, there have been hearings before the House Business and Industry Committee discussing the designated...

September 21, 2016

California: MPN Treatment Resolution: Separate and Distinct vs. Part and Parcel

Did the Legislature intend for there to be two separate methodologies for resolving treatment disputes? By Brad Wixen, Esq. The essential question in Parrent v. SBC-Pacific Bell Telephone Company , 2016 Cal. Wrk. Comp. P.D. LEXIS --, is whether the Medical Provider Network (MPN) method of resolving disputes concerning medical treatment was meant to be an entirely separate system apart from the UR/IMR prescribed methodology;...

September 16, 2016

Iowa: Injured Worker Fails to Show Her Injury Resulted in Injury to Body as a Whole

Where a bartender sustained an injury when she slipped and “did the splits” while working at her employer’s bar, the commissioner’s decision that the bartender sustained a scheduled injury to her leg, and not an injury to her body as a whole, was supported by substantial evidence. The Iowa appellate court stressed its task “is not to determine whether the evidence supports a different finding; rather, our task is to determine...

September 16, 2016

Idaho: Commission Has Discretion to Find Independent Medical Examiner’s Opinion More Persuasive

The Supreme Court of Idaho held substantial and competent evidence supported the Commission’s finding that the need for the claimant’s cervical spine surgery was not caused by a prior work-related accident where the Commission relied upon an IME’s opinion that the claimant’s symptoms were more probably related to preexisting cervical degenerative arthritis. As factfinder, the Commission was free to find the medical examiner...

September 16, 2016

Federal: Temporal Relationship Between Injury and Termination is Insufficient to Establish Retaliatory Discharge

A federal district court reiterated that under Tennessee law, an employer may terminate an at-will employee who is unable to perform satisfactorily because of physical infirmity, even though the physical infirmity resulted from an on-the-job compensable accident. The fact that a worker’s injury was eventually held to be work-related did not change the fact that the employer was within its rights to terminate the...

September 16, 2016

Washington: Worker’s “Innocent Misrepresentation” Leads to Erroneous Benefit Payments for Seven Years

Where an “unknown person” assisted an injured worker complete a report of injury soon after the work-related incident and, because of a language barrier and the fact that the worker was heavily medicated at the time, the form indicated the worker was married, with one child, when in fact he was unmarried and had no children, it was appropriate more than seven years later for the Department to issue an order assessing...

September 14, 2016

California: What Constitutes a Diminishment in a Benefit When It Comes to an ADR?

In Ramirez Farias v. Able Building Maintenance , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, in a split panel opinion, found that the applicant, who suffered an industrial injury to her neck, back, right wrist, and right shoulder from 2/28/2005 through 1/22/2014, and was treating outside of an alternative dispute resolution (ADR) agreement based on the denial of her claim by the defendant, was required to transfer treatment...

September 09, 2016

Examining the Causes and Effects of Obesity

A New Study Explores Obesity and Excess Weight Gain Among Nurses Over a 40-Year Period Obesity is clearly one of the biggest health issues in America today, not just because of the number of Americans who suffer from being overweight or obese, but because of the myriad adverse health consequences that obesity can fuel. Moreover, the struggle to control obesity is in a very real sense a struggle with the modern American...

September 09, 2016

California: Are All Claimed Psychiatric Injuries Barred by Criminal Conduct?

The Court of Appeal, Second District, recently denied defendant’s petition for writ of review in the matter of Ease Entertainment v. Workers’ Compensation Appeals Board , ADJ9392012. In the underlying case, applicant had filed a claim for psychiatric injury after a catastrophic accident while filming a motion picture in Georgia. Applicant was the first assistant director. She had been denied access to shoot...

September 09, 2016

Florida: When Worker Moves From Part-time To Full-Time Work, AWW Must be Based on Entire 13-Week Earnings

Where an employee had been working full-time for the employer for three weeks prior to her injury, but had worked part-time for the employer for substantially the whole of the 13 weeks prior to her accident, her AWW had to be computed using the 13-week method set forth in § 440.14(1)(a), Fla. Stat. (2003), in spite of the fact that had she not been injured she would have continued to have been employed at the higher weekly...

September 09, 2016

Federal: Intentional Tort Claim Fails Under Michigan Law

The Sixth Circuit Court of Appeals affirmed summary judgment in favor of an employer that had been sued by a deceased employee’s estate, finding that the estate could not prevail under the intentional-tort exception to Michigan’s workers’ compensation exclusive remedy provision [Mich. Comp. Laws Ann. § 418.131(1)]. The deceased was killed when a 1600-pound bag of materials fell from a mezzanine...

September 09, 2016

Florida: Unrelated Works Exception Does Not Apply to Employees of “Horizontal” Subcontractors

As is the case with the majority of jurisdictions, Florida employees generally may not sue co-employees in tort where the alleged tortfeasor was acting in furtherance of the employer’s business. Co-employee immunity is limited in Florida, however, where the co-employee is assigned primarily to unrelated works within private or public employment (the “unrelated works exception”). That exception does not apply where separate...

September 09, 2016

Hawaii: Board Must Provide Rational Basis for Reduction in Requested Hourly Rate For Employee’s Attorney

An appellate court in Hawaii reversed a decision by the state’s Labor and Industrial Relations Appeals Board (LIRAB) that allowed the employee’s attorney a fee computed at an hourly rate of $165 per hour, instead of the requested $210 per hour. The attorney for the employee contended that the $210 rate was reasonable, given the fact that he had 30 years of experience in workers’ compensation cases and had participated...

September 09, 2016

Conviction for Felony Is Required to Bar Psychiatric Injury Claim: Cal. Comp. Cases Advanced Postings (9/8/2016)

Here’s the latest batch of advanced postings for the September 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. Ease Entertainment Services, Starr Indemnity and Liability Company, administered by Broadspire, Petitioners v. Workers' Compensation Appeals Board,...