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September 02, 2016

Washington: Courier Drivers Were “Workers” and Not Independent Contractors

A state appellate court agreed with the Washington Department of Labor and Industries that 33 drivers who contracted with a company to perform courier services for third parties were “workers” within the meaning of Wash. Rev. Code § 51.08.180, and penalties assessed against the company were appropriate because of its failure to pay appropriate premiums for 2010, the year audited. The court held that the drivers’ use of...

September 02, 2016

Kentucky: ALJ Appropriately Disregarded Impairment Opinion That Was Not Based Upon AMA Guidelines

It was appropriate for the ALJ to disregard the portion of the injured worker’s medical expert witness testimony that related to visual impairment where the expert, in assessing the overall permanent impairment of the injured worker, based his that assessment on the conclusions of an ophthalmologist whose report reflected a “20% vision disability,” which is not a recognized impairment rating under the AMA Guide’s. The...

September 02, 2016

Texas: Manufacturer Was Statutory Employer of Worker Supplied by Personnel Staffing Firm

Where a worker was employed by a subcontractor who supplied staff to an employer that set the worker’s schedule, assignments, and training, the employer was the worker’s statutory employer and, since it was a workers’ compensation subscriber, the employer was immune from suit following the worker’s injury. The court noted that the worker performed his work on the employer’s premises and alongside...

September 02, 2016

Wyoming: Worker Fails To Show Pigeon-Toed Foot Led to Auto Accident

The Supreme Court of Wyoming affirmed a finding that an injured worker failed to establish a causal relationship between his original work-related injury which, after surgery, left the worker pigeon-toed, and injuries sustained in a subsequent automobile accident that the worker contended was caused when his affected foot slipped off the brake pedal as he attempted to slow his vehicle to avoid a turning car. The Court...

September 01, 2016

California Workers’ Comp Case Roundup (9/1/2016)

CALIFORNIA COMPENSATION CASES Vol. 81 No. 8 August 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 to read the complete headnotes and court...

September 01, 2016

Two Injuries Found Inextricably Intertwined: Cal. Comp. Cases Advanced Postings (8/31/2016)

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. Flowserve Corporation, Travelers Insurance Company, Petitioners v. Workers' Compensation Appeals Board, Cesar Espinoza, Respondents, lexis.com , Lexis Advance...

August 31, 2016

CWCI Models Formulary’s Impact on California Workers’ Comp Prescription Drugs

Oakland – A new California Workers’ Compensation Institute (CWCI) study uses data from 1.2 million drug prescriptions dispensed to California injured workers in 2014 to model the impact of the draft Medical Treatment Utilization Schedule (MTUS) Drug Formulary released by the Division of Workers’ Compensation last week. The draft MTUS Drug Formulary List classifies listed drugs as either “Preferred”...

August 26, 2016

Federal: Offshore Oil Platform Not a Vessel; No Longshore Benefits Due for Injury

An offshore oil platform nicknamed “Big Foot” was not a “vessel” since it had no means of self-propulsion, had no steering mechanism or rudder, and had an unraked bow, held the Fifth Circuit Court of Appeals. Noting also that the platform could only be moved by being towed through the water, and that when towed to its permanent location, it would not carry cargo, the court affirmed denial of benefits under the Longshore...

August 26, 2016

Federal: Retaliatory Discharge Action Fails Where No Evidence Official Knew of Plaintiff’s Workers’ Compensation Claim

A former employee’s Illinois Workers’ Compensation Act retaliatory-discharge claim failed as a matter of law because there was no evidence that the official who made the decision to terminate the plaintiff (and others) had any knowledge that plaintiff had earlier filed a workers’ compensation claim. Instead, the evidence tended to show that the decision to terminate the plaintiff was part of a reduction...

August 26, 2016

Alabama: Former Employee’s Civil Action Alleging Assault and Battery Barred by Exclusivity

A trial court should have dismissed a former employee’s assault and battery and tort-of-outrage claims against the former employer because they were barred by the exclusive remedy provisions of the Alabama Workers’ Compensation Act, held the Supreme Court of Alabama. The Court noted that plaintiff’s injuries arose out of her employment, that the assault incident was precipitated by the plaintiff’s...

August 26, 2016

New Jersey: Court Strikes Down Employment Contract Provision Limiting Employee’s Right to Sue Third Party

A provision in an employment contract that limited an employee’s right to sue a third party for negligence and instead required the injured employee to accept only the benefits that he could recover under the New Jersey Workers’ Compensation Act was against public policy and unenforceable, held an appellate court. The employee worked as a security guard for a firm that contracted with the defendant firm to provide security...

August 25, 2016

CWCI Scorecard Quantifies Workers’ Comp Claim & Payment Differences in L.A. County

Oakland -- The California Workers’ Compensation Institute has debuted a new series of research publications, “California Workers’ Compensation Regional Score Cards,” which use subsets of data from CWCI’s Industry Research Information System (IRIS) database to measure and analyze various aspects of claims experience within eight regions of the state. Score Cards for each region will profile...

August 24, 2016

California: If You’re Thinking Navarro, Think Claim Form!

In Parker v. DSC Logistics , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel rescinded the WCJ’s finding and held that the applicant forklift driver, who filed separate claims for a 10/30/2009 injury to his back, a 3/31/2014 injury to his back and neck, and a cumulative injury to his back and neck during the period ending on 5/14/2014, and underwent a Labor Code § 4060 medical evaluation on 1/9/2015 by a...

August 22, 2016

CWCI Study Measures the Impact of the RBRVS Fee Schedule in California Workers’ Comp

Oakland – A new study shows that as the California workers’ comp system began to transition to a Resource Based Relative Value Scale (RBRVS) fee schedule for physician and non-physician medical services, there was a major shift in where the medical dollars flow, so as intended, primary care providers now get a bigger share of covered fees and specialists get less. The California Workers’ Compensation...

August 22, 2016

Medical Marijuana Use as An Alternative to Opioid Use for Relief of Chronic Pain

A Michigan Survey Suggests That Medical Marijuana Patients Are Decreasing Opioid Use to Treat Chronic Pain Two topics that have received a great deal of attention in recent years regarding the medical treatment of chronic pain have been the use and abuse of opioids such as Vicodin and the legalization in many states of medical marijuana. Although one often-used argument for keeping marijuana use illegal has been that...

August 19, 2016

8 Myths and Facts About Workers’ Compensation (August 2016)

The LexisNexis Legal Newsroom Workers’ Compensation Law has interviewed leading experts from different segments of the workers’ compensation industry to tell us some common myths and facts about workers’ compensation. Note that the myths listed below are set forth in random order and not in order of importance, since the degree of “importance” depends on the reader and his or her stake in...

August 19, 2016

North Carolina: Cautious Medical Testimony Does Not Amount to Mere Speculation

Where the former employee’s medical expert candidly allowed that he could not offer a medical opinion to a degree of absolute certainty that removed all speculation, but that he could say, to a reasonable degree of medical certainty, that the former employee had experienced a new injury that materially aggravated the former employee’s prior back condition, his testimony was not mere speculation and the Industrial...

August 19, 2016

California: Seven-Year Delay in Filing Claim Excused Where Employer and Insurer Failed to Provide Injured Employee With Required Notices Regarding Rights to File

The Court of Appeal of California (2nd Appellate Dist.), affirming an order of the WCAB, held that affirmative defense of laches was not available to insurer in spite of the fact that the employer’s claim for workers’ compensation benefits was filed more than seven years after accident. Observing that the employer received notification of the employee’s injury on day after the injury occurred, the Court said such notice...

August 19, 2016

Alaska: Former Employee May Proceed Against Physician and Employer’s Attorney Involved in Attempt to Terminate Workers’ Compensation Benefits

In a split decision, the Supreme Court of Alaska held that where a plaintiff (a former employee) and his spouse sued the former employer, its workers’ compensation insurer, a private investigator, the employer’s attorney, and a doctor who performed an employer’s medical evaluation (EME), alleging various claims including abuse of process, defamation, liability under the Unfair Trade Practices Act, and negligent infliction...

August 19, 2016

Pennsylvania: Firefighter Must Show His or Her Type of Cancer is Caused by Exposure to “Group 1” Carcinogen

In order to take advantage of Pennsylvania’s firefighter’s presumption found in § 301(e) and (f) of the Workers’ Compensation Act, the firefighter must show that he has been diagnosed with a type of cancer “ caused by exposure to a known carcinogen which is recognized as a Group 1 carcinogen” [77 P.S. §27.1(r) (emphasis added by the court)]. The Board erred, therefore, when it interpreted § 108(r) of the Act to mean ...

August 17, 2016

California: Jurisdiction Issues That Could Sabotage Your Case

Quite a few WCAB Noteworthy Panel Decisions (NPDs) have issued lately on the question of jurisdiction. In each of them, the parties had petitioned to go forward on an issue, only to discover at the hearing level, that the WCAB might not have jurisdiction to decide the matter. Practitioners should be well-versed on this issue so as to not be caught unprepared to argue this issue in their client’s favor. Labor Code...

August 17, 2016

Employer Lacked Sufficient Notice of Alleged Industrial Injury to Trigger Duty to Provide Claim Form, Notice of Benefits: Cal. Comp. Cases August Advanced Postings (8/17/2016)

Here’s the latest batch of advanced postings for the August 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. Susan Ostini , Petitioner v. Workers' Compensation Appeals Board, Alma Rosa Winery and Vineyard, Inc., Endurance Insurance Company, adjusted by First Comp...

August 11, 2016

North Carolina: Employee’s Tort Action Against Plant Nurses Fails Because of Exclusive Remedy Defense

The Court of Appeals of North Carolina affirmed a dismissal of a plaintiff-employee’s medical malpractice action against two registered nurses who were employed at a packing company’s medical clinic where it appeared the plaintiff was also a packing company employee and she had sought treatment from the two nurses for a work-related injury. The court said that even if plaintiff’s allegations were treated as true, the...

August 11, 2016

Oregon: To Rebut Firefighter’s Presumption, Employer Must Meet Both Burden of Production and Burden of Persuasion

Where a firefighter established a prima facie case for compensability under ORS 656.802(4), Oregon’s “Firefighter Presumption,” both the burden of production and the burden of persuasion shifted to the employer to prove that the claimant’s condition or impairment was unrelated to the firefighter’s employment. Moreover, the employer was required to prove that fact by clear and convincing evidence. Reversing the Court of...

August 11, 2016

North Carolina: UIM Carrier Has Standing to Seek Determination of Subrogation Lien

Where the employer and its servicing agent paid $528,665.61 in workers’ compensation benefits to an injured employee and the employee was awarded a substantially smaller sum, $285,000.00, in his third party suit against the driver of another vehicle, an UIM insurer that owed excess coverage had standing under N.C. Gen. Stat. § 97–10.2(j) to seek a determination of the employer’s subrogation lien...