June 02, 2016

Will Increasing Wages Improve Worker Health?

Researchers Argue for Treating Low Wages as an Occupational Health Hazard When thinking of the most common occupational hazards, risks associated with things such as moving machinery, toxic chemicals, and repetitive or strenuous movements generally come to mind. However, there is a growing body of literature examining so-called “psychosocial” hazards, which includes detrimental aspects of work like job insecurity...

June 02, 2016

New York: Defendant in Civil Action Could Not Claim Collateral Estoppel Based on Board’s Earlier Decision as to Extent of Plaintiff’s Injury

A New York trial court properly denied defendants’ motion to dismiss plaintiffs’ personal injury suit on the ground of collateral estoppel, where the issue of whether the injured plaintiff sustained an acquired traumatic brain injury due to a work-related auto accident was not raised or considered by the Workers’ Compensation Board in the injured plaintiff’s earlier claim before the Board. In plaintiff’s...

June 02, 2016

Idaho: Claimant Fails to Show Accident Was Predominant Cause of Need for Psychological Care

Reiterating the rule that the state’s Industrial Commission has broad discretion in weighing medical evidence and determining the credibility of conflicting expert opinions, the Supreme Court of Idaho, in a split decision, affirmed a Commission decision that a claimant had failed to establish entitlement to benefits for psychological care. The majority noted that pursuant to Idaho Code Ann. § 72–451,...

June 02, 2016

Pennsylvania: WCJ’s Rejection of Uncontradicted Medical Evidence Offered by IRE Physician Was Appropriate

Emphasizing that with regard to expert medical testimony, one should not conflate the qualifications of the expert with the persuasiveness of the expert’s testimony, the Supreme Court of Pennsylvania reversed a decision by the state’s Commonwealth Court and held that a WCJ’s rejection of the expert medical opinion of the IRE physician was authorized where the WCJ found the IRE’s opinion was underdeveloped...

June 02, 2016

Florida: “Angry Thoughts” About Co-Worker Do Not Constitute Employee Misconduct

Statements made by a workers’ compensation claimant to her attorney that she felt like “punching the lights” out of a co-worker, whom the claimant felt had intentionally caused the claimant injury at work, were not the sort of acts that constituted employee “misconduct,” justifying the termination of workers’ compensation benefits under § 440.15(4)(e), Fla. Stat., held a Florida...

June 01, 2016

California Workers’ Comp Cases Roundup (6/1/2016)

CALIFORNIA COMPENSATION CASES Vol. 81 No. 5 May 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 headnotes...

May 31, 2016

National and State-by-State Workers' Comp News Powered by Larson's (5/31/2016)

WCRI Study Compares Outcomes of Injured Workers Across 15 States . US DOL Continues Investigation of Opt Outs to Workers Comp . AZ: Governor Signs HB 2240 Workers Comp Changes . AR: Court Finds WCC Lacks Exclusive Jurisdiction in Employee’s Personal Injury Lawsuit . CA: US Sup Ct Denies Cert in Angelloti Appeal . CA: DWC Posts Amendments to Draft of Home Health Care Fee Schedule Rules . CA: DWC Posts...

May 29, 2016

California: WCAB Panel Defines Violent Act for Psychiatric Injury Under SB 863 Reforms

In Larsen v. Securitas Security Services , 2016 Cal. Wrk. Comp. P.D. LEXIS -- (Appeals Board noteworthy panel decision), the WCAB panel affirmed the WCJ’s findings that the applicant security guard sustained a compensable psychiatric injury that resulted in 56 percent permanent disability, after apportionment and after combination with permanent disability to the applicant’s shoulders, and that the applicant’s...

May 27, 2016

Arkansas: Commission Resolves Conflicting Medical Evidence Against Employee

An Arkansas appellate court affirmed a decision by the state’s Workers’ Compensation Commission that denied an employee additional medical benefits for continued pain management where the court said the Commission considered the medical evidence, some of which was in conflict, and gave greater weight to the employee’s treating neurosurgeon who opined that the employee had reached MMI and released the employee to return...

May 27, 2016

Alaska: Medical Evidence Supports Board’s Finding That Workplace Accident Was Not Substantial Cause of Employee’s Disability

Noting the considerable deference allowed to the state’s Workers’ Compensation Board when it comes to reconciling any differences in medical evidence, the Supreme Court of Alaska affirmed a decision that denied a former employee’s claim for additional benefits where substantial evidence supported the Board’s finding that the employee’s work-related injuries were not the substantial cause...

May 27, 2016

Wisconsin: Comp Insurer Need Not Defend Employee Accused of Sexual Assault on Co-Employee

An employer’s workers’ compensation insurer had no duty to defend an employee, Rydberg, who had been sued by af co-employee who claimed that Rydberg sexually groped her while both were at work on the employer’s premises. The Wisconsin appellate court indicated that the co-employee had essentially alleged an intentional tort had been committed upon her by Rydberg. The court added that, while the general...

May 27, 2016

Utah: High Court Says Labor Commission’s Fee Schedule I Unconstitutional

The Supreme Court of Utah held (a) that the statute delegating authority to the Labor Commission to regulate fees for attorneys representing claimants [Utah Code § 34A–1–309] and (b) the sliding-scale fee schedule (and cap on fees) crafted by the Commission and contained in Utah Admin. Code R602–2–4(C)(3) were both unconstitutional. The Court observed that under the Utah Constitution, the Supreme Court of Utah was vested...

May 26, 2016

Unresolved Lien Claims to Be Heard at Lien Trial Regardless of Whether Lien Was Listed on Declaration of Readiness: Cal. Comp. Cases June Advanced Postings (5/26/2016)

Here’s the latest batch of advanced postings for the June 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. David Payne, M.D., Petitioner v. Workers' Compensation Appeals Board, Saddleback RV Sales, State Compensation Insurance Fund, Teresa Cline, Respondents...

May 23, 2016

California: WCAB Panel Finds Request for Authorization Submitted by Secondary Treating Physician Triggered Utilization Review Process

Statutory scheme regarding the role of the primary treating physician is less than perfectly clear In Lopez v. City and County of San Francisco , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel affirmed the WCJ’s award of medical treatment recommended by the secondary treating physician Clement Jones, M.D., including disc replacement surgery, to the applicant police officer with a 3/13/2012 admitted industrial...

May 23, 2016

Workers’ Compensation Opt-Out Laws: No Escape From ERISA Preemption?

In ERISA Congress has created a “lock-box” in which it both carefully defines and limits state exclusions from the statute and aggressively sweeps up through preemption anything that remains. Thus, if an employee welfare benefit plan is not clearly and exactly excluded from ERISA, any state law “relating to” the plan is preempted.  By Michael C. Duff* Introduction - Vasquez As regular followers of the workers...

May 23, 2016

National and State-by-State Workers' Comp News Powered by Larson's (5/23/2016)

EEOC Issues Final Rules on Employer Wellness Programs . AR: Governor Seeks End to State’s Death, PTD Fund . CA: Frederick Dietrich Honored With Lifetime Achievement Award . CA: Michael Gerson Honored With Lifetime Achievement Award . CA: Joseph V. Capurro Honored With Applicants’ Attorney Award . CA: Mark Cartier Honored With Defense Attorney Award . CA: Hon. Paige S. Levy Honored With Judge of...

May 20, 2016

New York Appellate Court Finds Closure of Reopened Case Fund Unconstitutional

The New York State Supreme Court, Appellate Division First Department[fn1] rendered a decision on April 14, 2016 holding that the closing of New York’s Reopened Case Fund on January 1, 2014 was unconstitutional. Specifically, the Court held that the amendment to N.Y. Workers’ Compensation Law §25-a[1-a] enacted as part of the Business Relief Act of 2013, which closed the Reopened Case Fund to new claims effective 1/1...

May 20, 2016

California: Do Collective Bargaining Agreements Preempt Labor Code Section 132a?

Undercurrents and Future Currents: Bargaining Outside the Law in Labor Code Section 132a By Brad Wixen, Esq. In the case of Salazar v. Leprino Foods , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the facts are straightforward. The employer was found after trial to have wrongfully discriminated against an applicant who had filed a workers’ compensation claim alleging violation of Labor Code Section 132a [ LC 132a ]. Based...

May 20, 2016

OCSLA Coverage Post-the Supreme Court’s Decision in Valladolid

By Mark A. Reinhalter, Counsel for Longshore, Office of the Solicitor, U.S. Department of Labor, Washington, D.C. Introduction In 2012, the U.S. Supreme Court addressed for the first time the scope of workers’ compensation coverage under the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C.S. § 1333(b), an extension of the Longshore and Harbor Workers’ Compensation Act (LHWCA or Longshore Act), 33 U.S.C.S. §...

May 19, 2016

Massachusetts: Judge Has Broad Discretion in Weighing Causation Evidence

The Massachusetts Industrial Accident Reviewing Board erred when it reversed an administrative judge’s decision that awarded benefits for a claimant’s left shoulder injury. The Board found that the judge had mischaracterized the findings of an impartial medical examiner (IME), who expressed “concern” that the claimant did not report left shoulder pain until one year after a workplace accident. The IME indicated that in...

May 19, 2016

New York: Employee Need Not Give Separate Notice for Additional Injuries Related to Original Accident

For purposes of N.Y. Work. Comp. Law § 18, “accident” is not synonymous with the term injury. Accordingly, where a medical surgical technician slipped on a wet floor while performing her duties and reported an injury to her left knee at that time, she was not required to give the employer a separate notice later under § 18 when she sought benefits with respect to her right knee, back and bilateral shoulders that she claimed...

May 19, 2016

Wisconsin: Injuries Sustained in Car Crash After Drinking Spree Were Within Scope of Employment

Injuries sustained by a sales manager for a beverage distributor in an auto accident as he and a co-employee returned home at 1:00 a.m., after delivering beer more than six hours earlier to one of their employer’s restaurant customers, and also after consuming more than 10 drinks in other locations arose out of and in the course of the sales manager’s employment. Accordingly, he could not maintain a negligence action...

May 19, 2016

Ohio: Court Strikes Down Provision Requiring Schedule Benefits to Be Paid Weekly, Instead of Lump Sum

Under the one-subject rule, set forth in the Ohio Constitution [art. II, § 15(D)], no bill may contain more than one “subject” and that subject must be clearly expressed in the bill’s title. An Ohio appellate court held that the portion of the 2012 “Mid-Biennium Budget Review Bill” [H.B. 487] that amended the period for paying scheduled loss benefits to injured workers under Ohio Rev. Code Ann. § 4123.57(B) violated the...

May 18, 2016

WCAB Lacked Jurisdiction for Out of State Injury When Contract of Hire Occurred in Georgia: Cal. Comp. Cases May Advanced Postings (5/18/2016)

Here’s the latest batch of advanced postings for the May 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. Ramonda Walker, Petitioner v. Workers' Compensation Appeals Board, Petrochem Insulation, Inc., Ace American Insurance Company, Respondents, lexis.com , Lexis Advance...

May 16, 2016

National and State-by-State Workers' Comp News Powered by Larson's (5/15/2016)

WCRI Publishes New Study on Ambulatory Surgery Centers . FDA Issues Three New Draft Guidances for Compound Drugs . EEOC Issues New Guidance on Employer-Provided Leave, ADA . AK: WCB Discusses Budget, HB 214 Workers Comp Appeals Commission . AZ: ICA to Hold Hearing on One-Half Percent Assessment for Special Fund . AZ: Governor Signs SB 1283 PDMP Bill . CA: DWC Announces New Search Tool for Independent Medical...