August 11, 2016

Virginia: Commission Appropriately Authorized Change of Physician Where Resulted in No Improvement

The Workers’ Compensation Commission properly authorized an injured employee to change her treating physician pursuant to Va. Code Ann. § 65.2–603 because, while recognizing that there was a difference of opinion among the doctors, the Commission determined that the employee’s evidence that she continued to suffer pain was credible and there was credible evidence to support the Commission’s findings that inadequate treatment...

August 09, 2016

Award for Medical Treatment Did Not Include Dental Treatment: Cal. Comp. Cases August Advanced Postings (8/10/2016)

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. Linda Packard , Petitioner v. Workers' Compensation Appeals Board, San Joaquin County Mental Health, PSI, adjusted by Tristar Risk Management, Respondents...

August 08, 2016

California: The Settlement of the SJDB Voucher in the Post-1/1/13 Date of Injury Case

In Beltran v. Structural Steel Fabricators , 2016 Cal. Wrk. Comp. P.D. LEXIS – (cite pending), the WCAB panel rescinded the WCJ’s Order Approving Compromise and Release which disallowed the parties’ agreement to settle any claim the applicant laborer may have to a Supplemental Job Displacement Benefit voucher under Labor Code § 4658.7 [ LC 4658.7 ], in connection with the applicant’s industrial...

August 08, 2016

National and State-by-State Workers' Comp News Powered by Larson's (8/8/2016)

Aetna Calls Off Planned Expansion Into ACA Market . CA: WCIRB Posts Annual Report on State of Workers Comp Insurance System . CA: WCIRB Releases Aggregate Medical Payment Trends 2015 Update . CA: WCIRB Governing Committee to Meet Aug. 10 . CT: Widow’s Bystander Emotional Distress Action Barred by Exclusivity . CT: High Court Blocks Two Lawsuits by Injured Workers in Power Plant Explosion . IL: Court...

August 04, 2016

Illinois: Fire Lieutenant Entitled to Benefits for PTSD Following Fatal Fire

Where a fire lieutenant suffered from PTSD after witnessing a fellow firefighter die after a traumatic fire, the Commission’s decision that the claimant did not sustain accidental injuries that arose out of and in the course of his employment was against the manifest weight of the evidence. The court indicated that the lieutenant’s presence outside the house did not preclude the event from being traumatic...

August 04, 2016

Connecticut: Contractor With Contractor Controlled Insurance Program Enjoyed Immunity

A general contractor that implemented a contractor controlled insurance program (CCIP) to centralize the purchasing of workers’ compensation insurance for a major project has “paid compensation benefits” to the employees of its subcontractors, entitling it to “principal employer” immunity under Conn. Gen. Stat. § 31–2911 from further claims by those employees, held the Supreme Court of Connecticut. Plaintiffs, who sustained...

August 04, 2016

Texas: Deceased Worker’s Family Successfully Rebuts Marijuana Intoxication Presumption

Where lay witnesses testified that the decedent had the “normal” use of his mental and physical facilities on the day of an employee’s fatal accident, a jury could reasonably find that the deceased employee’s beneficiary had sufficiently rebutted the presumption of intoxication found in Tex. Lab. Code Ann. § 401.013(c). The verdict was not against the weight of the evidence in spite of the fact that a blood test and urinalysis...

August 04, 2016

Connecticut: Widow Who Discovers Husband’s Lifeless Body May Not Recover Emotional Distress Claim Against Employer

A widow, who discovered her husband’s lifeless body crushed beneath an all-terrain vehicle that he had been repairing at his employer’s facility—she had intended to bring him his lunch—may not recover in her bystander emotional distress action filed against her husband’s employer, held the Supreme Court of Connecticut. The high court stressed that the exclusive remedy provisions of the state’s Workers’ Compensation Act...

August 04, 2016

California Workers’ Comp Case Roundup (8/4/2016)

CALIFORNIA COMPENSATION CASES Vol. 81 No. 7 July 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...

August 01, 2016

Larson’s Workers’ Comp 101 Series: Physical Incapacity Plus Employee's Misconduct or Quitting

© Copyright 2016 LexisNexis. All rights reserved. This article is excerpted from Larson’s Workers’ Compensation Law , Ch. 84. Sometimes the causal problem of disability is further complicated by adding to medical and economic factors the further element of voluntary conduct on the part of the claimant contributing to the unemployment. This conduct usually takes the form of misbehavior leading to discharge or demotion...

August 01, 2016

California: What Does It Mean to Be “Blood Borne”?

An analysis of the infectious disease presumption By Brad Wixen, Esq. In Azoulay v. City of Orange , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel, reversing the WCJ, held that the applicant suffered a presumptively compensable injury AOE/COE in the form of blood-borne infectious disease while employed as a juvenile correction officer during the period 7/1/2001 through 6/11/2012. The agreed medical examiner,...

August 01, 2016

National and State-by-State Workers' Comp News Powered by Larson's (8/1/2016)

CA: Experts Discuss Three Key Cases Issued in California Workers Comp . CA: WCIRB Actuarial Committee to Meet Aug. 3 . CA: Employers Air Concerns for Bill to End Gender Bias in Workers Comp . CA: Bill Would Bar Convicted Medical Providers From Treating Comp Patients . CO: DWC Posts 2016 Legislative Changes . CO: Health Care Ballot Initiative Would Eviscerate Workers Comp Industry . FL: State Supreme...

July 28, 2016

Illinois: Pulmonologist’s Testimony Fails Under Frye Evidence Standard

Claimant’s pulmonologist’s causation opinion was inadmissible under Frye and Ill. R. Evid. 702, where it was not based on a scientific methodology or principle that had gained general acceptance in the relevant scientific community. Claimant, an acknowledged smoker, contended that he had been exposed to a butter flavoring ingredient that contained the chemical diacetyl over a period of 20 years while working for the employer...

July 28, 2016

Mississippi: Switching to Jeep From Motorcycle Due to Potential Bad Weather Was Deviation From Employment

The state’s Workers’ Compensation Commission did not err in reversing the administrative judge’s determination that a worker was acting in the scope of his employment when, in anticipation of bad weather, he rode toward his house after lunch to switch from his motorcycle to his jeep before returning to his office. The appellate court held the worker was on a personal errand to exchange vehicles unconnected to a business...

July 28, 2016

Maryland: Police Offer’s Injuries Avoiding His 2-Year-old Found Not Compensable

A Prince George’s County police detective, who sustained ankle and knee injuries when he jumped to the side near the front door of his residence to avoid his two-year-old child as he exited his residence en route to retrieve his police cruiser, did not sustain an injury arising out of and in the course of the employment, held a Maryland appellate court. Accordingly, a decision by a county circuit court that would have...

July 28, 2016

Ohio: In Retaliatory Discharge Action, Former Worker Need Not Establish Compensable Injury

Ohio’s retaliatory discharge statute, Ohio Rev. Code Ann. § 4123.90, seeks to protect the state’s employees on a no-fault basis from adverse employer actions following their the pursuit of benefits; there need not be any actual award of benefits to support the worker’s retaliatory discharge civil action, held a divided Ohio Supreme Court. The worker sought workers’ compensation benefits, but...

July 27, 2016

Applicant’s Cumulative Trauma Claim Not Time Barred: August Cal. Comp. Cases

Applicant’s Cumulative Trauma Claim Not Time Barred: August Cal. Comp. Cases (7/27/2016) Here’s the latest batch of advanced postings for the July 2016 issue of Cal. Comp. Cases. Lexis subscribers can link to the case to read the complete headnotes and summaries. © Copyright 2016 LexisNexis. All rights reserved. Illinois Midwest Insurance Agency, Inc., on behalf of Star Insurance Company, insurer...

July 26, 2016

California: Panel Confirms That Not All Actions Taken by an Employer Will Constitute “Personnel Actions”

In Ferrell v. County of Riverside , 2016 Cal. Wrk. Comp. P.D. LEXIS --, a WCAB panel affirmed the WCJ’s findings that the applicant suffered injury AOE/COE to her psyche while employed as a community improvement specialist from 7/12/2011 to 11/22/2011, and that the defendant failed to prove that her claim was barred by the “good faith personnel action” defense in Labor Code § 3208.3 (h) [ LC 3208...

July 26, 2016

Update from the Benefits Review Board (July 2016)

By Karen Koenig, Associate General Counsel, Longshore Division BRB Personnel News Last year, I reported on the retirement of Judges Dolder, Smith and McGranery, and the appointments of Judges Buzzard and Gilligan.  In July 2015, the Secretary of Labor appointed Jonathan Rolfe as the Board’s fifth member.  Prior to his appointment, Judge Rolfe served in DOL’s Office of the Solicitor for six years, representing the...

July 26, 2016

Opioid Abuse Reduction Efforts in Workers' Compensation Claims Examined

A New Report Looks at the Early Data in 25 States to See How Opioid Abuse Reform Efforts are Faring in Workers' Compensation Claims In light of the epidemic in deaths caused by prescription opioid overdoses and abuse building since at least the 1990s, reforms targeting the abuse of opioids for pain management have been taking place for several years now, both at the state and federal levels, and the question arises...

July 21, 2016

Latest Developments in State Handling of AMA Guidelines

Currently, 32 states require physicians to use some edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“Guides”) in making their assessments of permanent impairment for injured workers. Of the remaining states, 15 more allow the use of Guides. Praised by some as providing at least a somewhat objective basis for determining medical impairment, yet derided by others who argue...

July 21, 2016

Pennsylvania: Dual Capacity Tort Claim Fails Against Boss Who Owned Both the Bar and the Building

A Pennsylvania appellate court affirmed a trial court’s entry of a compulsory non-suit in plaintiff’s civil action filed against the defendant premises owner on the grounds that the lawsuit was barred by the exclusive remedy provisions of the Pennsylvania Workers’ Compensation Act. Plaintiff, who worked at a bar owned by the defendant, contended that defendant owed a separate duty to plaintiff as the premises owner. The...

July 21, 2016

Washington: Statute of Limitations For Claims Begins Day After Injury

Claimant’s application for workers’ compensation benefits was timely when he injured his back while working for the employer on September 29, 2010 and filed his application on September 29, 2011 in spite of the language in Wash. Rev. Code § 51.28.050 that claims for benefits must be filed “within one year after the day upon which the injury occurred,” held the Supreme Court of Washington. The Court concluded that legislature...

July 21, 2016

Minnesota: Settlement Agreements May Close Out Future Consequential Injuries

Reversing the state’s Workers’ Compensation Court of Appeals, the Supreme Court of Minnesota held that a workers’ compensation settlement agreement may close out not only the injury that was the subject of the agreement, but also conditions and complications arising out of the injury; it is not necessary that the condition or complication be specifically referenced in the settlement agreement. The Court indicated the...

July 21, 2016

Nebraska: Turning Ankle in Company Parking Lot is Not an “Unexplained” Injury

A worker who twisted her ankle when she took a step after exiting her vehicle in the employer’s parking lot did not sustained the sort of “unknown” cause of harm that would warrant the use of the positional risk doctrine to award her workers’ compensation benefits, held the Court of Appeals of Nebraska. Citing Larson’s Workers’ Compensation Law extensively, the Court indicated the mechanism of the employee’s twisted ankle...