May 13, 2016

Michigan: Employer Establishes Workers Was Fired for Gossiping, Not Because Workers’ Compensation Claim Was Filed

In an unpublished opinion, the Court of Appeals of Michigan affirmed a trial court’s order granting summary judgment to plaintiff’s former employer on plaintiff’s claims of retaliatory employment discrimination—including workers’ compensation discrimination—where the former employer offered a legitimate, nondiscriminatory reason for terminating her employment (that the plaintiff violated...

May 13, 2016

Ohio: Court Rejects Uncorroborated Expert Testimony From Pulmonary Expert

An Ohio appellate court affirmed trial court’s decision granting summary judgment to an employer in a workers’ compensation matter in spite of what the worker contended was a conflict in the medical evidence. The worker was diagnosed with respiratory problems and claimed the condition was associated with various products that he mixed for his employer. The worker’s pulmonologist diagnosed the worker...

May 13, 2016

Pennsylvania: Late Notice of Employer’s Uninsured Status by Worker Limits Both Medical and Wage Loss Benefits

Pursuant to 77 Pa. Cons. Stat. § 2703(b), if an injured worker fails to notify the Uninsured Employers Guaranty Fund (Fund) within 45 days after the worker knows that the employer is uninsured, the Fund is not obligated to provide “compensation” from the date of the injury, but rather from the date the Fund gets notice of the claim. A Pennsylvania appellate court held that where a worker failed to provide notice to the...

May 13, 2016

New York: Apportionment in Carpal Tunnel Syndrome Claim Deemed Inappropriate Under Facts

Where a union carpenter was employed by several different employers from 1998 through 2009 and, in 2010, he filed a claim for bilateral carpal tunnel syndrome caused by repetitive work, it was error for the Board to apportion 45 percent of the liability to an earlier employer since the carpenter was not diagnosed with nor treated for the condition until 2010 and the worker’s medical expert failed to offer an opinion as...

May 12, 2016

Missouri: Commission Caps Fees in an Undisputed Death Case

The Commission capped attorney’s fees on a death case and found a contract for a 25% contingency fee was not fair and reasonable. Bynum, dec. v Bynum et al, 2016 MO WCLR Lexis 29 (May 3 2016) (Lexis Advance), 2016 MO WCLR Lexis 29 (May 3 2016) (lexis.com) involved a claimant who had a severe head injury when he fell from a ladder and died about two years later. The initial determination was that the death was...

May 11, 2016

The Compromise and Release and the Hidden Glitches of “Paragraph 3”

After a Compromise and Release (C&R) has been drafted, executed and approved, it is common for parties to feel confident that they have resolved all relevant issues in a case. Defendants proceed to close out their files and move on, only to be unpleasantly surprised a while later, when applicant files a claim for an injury, an injury that defendants were certain had already been settled by the C&R. How could...

May 11, 2016

Applicant’s Two Injuries Combined Met Requisite 51 Percent Causation Standard for Compensable Psychiatric Injury: Cal. Comp. Cases May Advanced Postings (5/10/2016)

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. State of California, Department of Corrections and Rehabilitation (California Mens Colony), legally uninsured, administered by State Compensation Insurance...

May 09, 2016

National and State-by-State Workers' Comp News Powered by Larson's (5/9/2016)

NCCI Posts Hartwig Presentation of Future of P&C Market and American Workplace . NCCI Posts Presentation of Insurance in an Exponential World . NCCI Posts Presentation for Affordable Care Act and Workers Comp . NCCI Posts Presentation on Prescription Drug 2016 Update . NCCI Posts Presentation on Workers Comp Excess Loss Development . NCCI Posts Legislative and Regulatory Trends Through April 2016 . CA...

May 06, 2016

Virginia: Employee Who Blacked Out While Driving Could Not Establish Workers’ Compensation Claim

A Virginia appellate court affirmed the denial of a workers’ compensation claim filed by an employee, who spent 75 percent of her working time driving in a car provided for her by her employer, and who sustained injuries in a single-car rollover accident resulting in memory loss. The employee testified that as she was driving her vision diminished and started blurring. The next thing she remembered was crawling...

May 06, 2016

Texas: Temporary Employee May Not Sue “Borrowing” Employer in Tort Following Injury in Work-Related Incident

A temporary employee of a staffing agency who was assigned to a tractor supply company was an “employee” of the latter and accordingly could not sue the supply company in tort following a work-related accident. The record showed that at the time of his injury, the employee was working on the tractor supply company’s premises, in furtherance of its business, and the details of his work that caused his...

May 06, 2016

Illinois: Claimant’s Self-Treatment of Foot Blister Does Not Break Chain of Causation

A claimant’s self-treatment in the form of lancing a blister on his foot with a sterilized needle was not an independent intervening act that would break the chain of causation between the work-related blister and a subsequent infection, held an Illinois appellate court, reversing a finding by the state’s Commission. The court utilized a “but-for” analysis, noting that the infection would not have...

May 06, 2016

Ohio: Employee Injured When Struck by Co-Employee’s Driverless Vehicle May Not Recover in Tort

An Ohio court affirmed a trial court’s summary judgment in favor of a defendant who had been sued by a co-employee who sustained injuries in a bizarre accident that occurred in the employer’s parking lot. The two employees had completed their shifts and were walking to their respective vehicles that were parked in the employee area of the store parking lot. The defendant’s vehicle had a manual transmission and also was...

May 05, 2016

California: Labor Code Section 4662 and Vocational Experts

Labor Code Section 4662 was modified by the legislature in AB 1847 in 2014. Contrary to popular belief, it was not amended in SB 863. The older version of Section 4662, adopted in 2007, created the conclusive presumption of permanent total disability as follows: (Publisher’s Note: Citations link to lexis.com; bracketed cites to Lexis Advance.) “Any of the following permanent disabilities shall be conclusively presumed...

May 05, 2016

Despite Recent Declines, Opioids Continue to Top the List of California Workers’ Comp Drugs

Oakland - The use of opioids in California workers’ compensation has declined in recent years, along with the associated payments, yet these potentially addictive painkillers remain the number one therapeutic drug group used in the system according to a new California Workers’ Compensation Institute (CWCI) study. The CWCI research, based on pharmaceutical data from 10.8 million prescriptions dispensed to...

May 04, 2016

IAIABC Taking Part in Shaping the Future of Workers’ Compensation

By Jennifer C. Jordan, Esq., General Counsel, MEDVAL, LLC On April 20, 2016, the IAIABC kicked off the National Conversation on the Future of Workers’ Compensation at its Forum in Santa Fe, New Mexico. In a three hour session, questions were presented to about 100 attendees to debate in round table format and then share with the group as a whole. One thing for certain was reflected in this effort and that was...

May 02, 2016

National and State-by-State Workers' Comp News Powered by Larson's (5/2/2016)

CDC Posts Annual Workers Memorial Day 2016 Message . CDC Examines Impact of Hearing Loss on Quality of Life . CDC Examines Convenience Store Compliance to Reduce Workplace Violence . AZ: ICA Discusses Implementation of RBRVS-based Fee Schedule . CA: Lawsuit Claims Insurance Companies Illegally Hacked Injured Worker Files . CA: WCIRB C&R Committee to Meet May 10 . FL: State Expects Rate Hikes After Sup...

April 29, 2016

New York: Claimant’s Motorcycle Riding Disqualifies Him From Benefits

The Board was justified in finding claimant had violated N.Y. Work. Comp. Law § 114-a and should be disqualified from receiving wage replacement benefits where the claimant represented to an orthopedic surgeon that he could not do anything more than sedentary activity, and then only with the use of significant amounts of narcotic pain medication, and that he needed help for all of his activities of daily living when,...

April 29, 2016

California: Claimant’s Psychiatric Injury Was Not “Extraordinary” Under the Circumstances

Under Cal. Labor Code § 3208.3(d), where the employer has employed an employee for less than six months, the employee may not recover for a psychiatric injury unless the injury is caused by a “sudden and extraordinary employment condition.” A California appellate court held that an employee was not entitled to recover for a psychiatric injury where, after 74 days of employment, he slipped and fell on...

April 29, 2016

Florida: Supreme Court Strikes Down Mandatory Attorney Fee Schedule for Claimants

The Supreme Court of Florida, in a split decision, held that the mandatory attorney fee schedule contained in § 440.34, Fla. Stat., which precludes any consideration of whether the fee award is reasonable to compensate the attorney, is unconstitutional under both the Florida and the United States Constitutions as a violation of due process. In the underlying case, through the assistance of an attorney, Castellanos...

April 29, 2016

California Workers’ Comp Case Roundup (4/29/2016)

CALIFORNIA COMPENSATION CASES Vol. 81 No. 4 April 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...

April 27, 2016

Does Violation of the QME Regulations Make a Report Inadmissible?

When policy, practice, and punishment collide and the art of discretion By Brad Wixen, Esq. In the case of Chaides v. The Kroger Company , 2016 Cal. Wrk. Comp. P.D. LEXIS --, the Panel Qualified Medical Evaluator (QME) on the case evaluated the applicant several times and issued many supplemental reports and was likely on the verge of finalizing his opinions when his deposition was set. He advised the parties that...

April 27, 2016

Age and Length of Disability for Eight Chronic Conditions

Does an aging American workforce mean more time lost due to chronic conditions such as arthritis, cancer, chronic pulmonary disease, coronary artery disease, diabetes, depression, hypertension, and low back pain? It is no secret that the American population as a whole is getting older, which also means that it is generally more susceptible to chronic health conditions and longer periods of disease and illness. An estimated...

April 26, 2016

Court Denies Petition for Writ of Mandate in Lien Activation Fee Lawsuit: Cal. Comp. Cases April/May Advanced Postings (4/26/2016)

Here’s the latest batch of advanced postings for the April and May 2016 issues 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. Petition for Writ of Mandate or Other Relief Denied Judicial Review California Lien Professionals Association, Inc. v. California Department of...

April 25, 2016

National and State-by-State Workers' Comp News Powered by Larson's (4/25/2016)

Uber Seeks to Settle Employee Status Lawsuits for $100M; Judge to Review Terms . CMS Releases April 2016 Version of WCMSA Reference Guide . CA: DIR Reports 2014 Fatal Occupational Injuries . CA: DWC Posts Workers’ Comp Fact Sheets, Claim Form in Four Additional Languages . CO: DWC to Conduct Annual Review of Surcharge . CO: DWC Welcomes John Steininger, New Prehearing Judge . CT: House Approves Firefighter...

April 23, 2016

California: Appellate Court Reverses W.C.A.B. Award of Psychiatric Injury

The First Appellate District Court of Appeal has closed what could have turned into a significant expansion of the concept of “sudden and extraordinary employment condition” contained in Labor Code § 3208.3(d) with a reversal of a W.C.A.B. decision awarding benefits for a psychiatric injury in Travelers Casualty and Surety Co v. W.C.A.B. (Dreher). The applicant in this case, was employed as a live-in...