January 01, 2022

Florida: Making an About-Face, Court Says Electric Co. Was Immune Contractor

Reversing itself, Florida’s Second District Court of Appeal held that a public utility’s obligation to maintain its equipment and facilities was the sort of activity that could be subcontracted to another firm and that when it had properly done so, the public utility was immune from liability as a statutory employer for work-related injuries sustained by the subcontractor’s employees. In October 2020...

January 01, 2022

Alaska: High Court Reiterates Limit of $10K in Benefits for Deceased Worker Who Had No Dependents

Despite the apparent harshness of the rule, the Supreme Court of Alaska affirmed a trial court’s decision granting a general contractor and building owner summary judgment in a wrongful death action filed by the estate of an apprentice electrician who suffered a fatal electrocution injury at an Alaska construction project. Having qualified as the personal representative of her son’s estate, his mother filed a tort action...

January 01, 2022

New York: Board Committed Error in Refusing to Reopen Case to Clear Up Discrepancy in Medical Form

A New York appellate court held that where a physician’s narrative report attached to a Board-adopted C-4.3 form (Doctor’s Report of Maximum Medical Improvement/Permanent Impairment) indicated the injured worker had sustained a 35 percent schedule loss of use (SLU) to the right shoulder—attributing 15 percent to the rotator cuff tear, 10 percent to the distal clavicle excision, and 10 percent to mild loss of internal...

January 01, 2022

Utah: High Court Remands Case to Determine If Lead Poisoning Was Occupational Disease or Physical Injury Claim

The Supreme Court of Utah noted that although the intentional tort exception to workers’ compensation exclusivity clearly applied to claims governed by the state’s Workers’ Compensation Act (WCA), the issue had never been decided for claims governed by the state’s Occupational Disease Act (ODA). Accordingly, where the worker sustained lead poisoning brought about, he contended, by intentional exposure...

January 01, 2022

Kentucky: State Supreme Court Affirms PTD Award Based on Combination of Physical and Mental Injuries

The Supreme Court of Kentucky, reiterating that for Kentucky workers’ compensation claims, mental or psychological injuries were not compensable unless they were the “direct result” of a physical injury, affirmed an award of permanent total disability benefits to a worker where the ALJ indicated that the worker’s “current emotional state prevents him, by itself, from returning to any type of employment.” The Court said...

December 27, 2021

Washington: Staffing Agency May Be Liable for Borrowing Employer’s Safety Violations

In a divided decision, the Supreme Court of Washington held that a staffing agency might, at least in some circumstances, be liable for the borrowing employer’s safety violations under the state’s Industrial Safety and Health Act (WISHA) if the agency had maintained sufficient control over the worker and his or her working environment such that the agency might reasonably have abated the safety hazards. The...

December 27, 2021

Texas: Court Utilizes Going and Coming Rule to Bar Recovery in Tort Action

A Texas appellate court held the so-called “going and coming” rule in the workers’ compensation sphere could be utilized to bar recovery against an employer in a civil action that alleged the employer’s employee was negligent in the operation of his motor vehicle as the employee drove home at the end of the workday. The employer was a rental car operation and allowed the employee to drive a car...

December 27, 2021

Illinois: Auto Insurance Carrier Entitled to Offset Comp Benefits Against its UIM Obligation

Where a gas station employee was struck and injured by a vehicle in a hit-and-run incident at his workplace and subsequently received more than $25,000 in workers’ compensation benefits, the employee’s auto insurance carrier was entitled, as a matter of law, to offset the full amount of benefits received by the policy-holder against its $25,000 obligation to pay uninsured motorist coverage, held an Illinois appellate...

December 27, 2021

Ohio: Commission Was Within its Powers to Reject Settlement in VSSR Case

Affirming a November 2020 decision by a lower appellate court, the Supreme Court of Ohio held the state Industrial Commission was within its powers when it rejected a proposed settlement agreement executed by representatives of an employer and an injured employee that purported to dispose of the employee’s violation of specific safety requirements (VSSR) claim. The high court agreed that the Commission had broad...

December 27, 2021

Connecticut: Benefits for Suicide Awarded under Chain-of-Causation Theory

Acknowledging that an employee’s death had resulted from acute intoxication, a Connecticut appellate court nevertheless held substantial evidence supported a finding that there was an unbroken chain-of-causation between the employee’s original work-related injury and his death. The court noted that the commissioner had determined that the employee developed severe depression following his injury, that his compensable...

December 27, 2021

Georgia: Subrogated Comp Insurer is not Claimant’s Fiduciary

Despite the right of the workers’ compensation insurance carrier to “assert the employee’s cause of action in tort” under some circumstances [see OCGA § 34-9-11.1), the Georgia carrier owes no fiduciary duty to protect the interests of the injured employee if it undertakes such action, held a Georgia appellate court. In the instant case, the employee died without pursuing a potential third...

December 27, 2021

Minnesota: High Court Nixes Mandatory Reimbursement for Medical Marijuana Claims

The Supreme Court of Minnesota, in a split decision involving two companion cases, held the federal Controlled Substances Act, 21 U.S.C.S. §§ 801-971, preempts an order made pursuant to the state’s Workers’ Compensation Law requiring an employer to reimburse an injured employee for the cost of medical cannabis used to treat a work-related injury. The majority said the state could not force an employer to facilitate an...

December 27, 2021

New Hampshire: High Court Says “Chain-of-Causation” Rule Applies to Suicide Claims

The Supreme Court of New Hampshire, in a case of first impression, held that the appropriate test to gauge the compensability of suicide claims should be the so-called “chain-of-causation.” In its ruling, the Court affirmed a ruling by the state’s Compensation Appeals Board that had denied death benefits to the widow of a worker who sustained a work-related injury and had to deal with excruciating pain during a prolonged...

December 27, 2021

New York: Employee is Disqualified from Further Benefits by Failure to Disclose Auto Accident on Medical Intake Form

Where an employee failed to disclose on an intake form at the office of a physician employed to conduct an independent medical examination that he had been involved in a motor vehicle accident after his work-related injury, the Board could exercise its discretion to disqualify the employee from receiving additional workers’ compensation benefits. The court was not persuaded by the employee’s contention that...

December 27, 2021

New York: Insurer’s Acceptance of Partial Reimbursement Did Not Negate its Lack of Consent to Third-Party Settlement

Where an employee has received workers’ compensation benefits for a work-related injury allegedly caused by a third-party, N.Y. Workers’ Comp. Law § 29(5) requires the employee to obtain the employer or insurer’s written consent prior to settlement and, except when the settlement is approved by a trial court on a nunc pro tunc basis, the failure to gain such prior consent disqualifies the employee from future workers...

December 13, 2021

California: First Responder PTSD Presumption: What RAND Reveals About Its Import and Effectiveness

Firefighting and law enforcement have long been recognized as two of the most stressful occupations. Each day on the job, firefighters and peace officers face unique and dangerous risks. They are frequently required to put their lives on the line to keep the public safe. As first responders, these safety officers may encounter horrific events that overtime can cause trauma-related injuries resulting in post-traumatic...

December 08, 2021

California: Application of Fitzpatrick on Permanent Total Disability Cases

In the just-issued Wilson v. Kohls Department Store (Board Panel Decision), the WCAB adopted most of the WCJ’s Report and Recommendation, but it omitted adopting the heavy critique of Dept. of Corrections & Rehabilitation v. WCAB (Fitzpatrick) (2018) 27 Cal. App. 5th 607 , 83 Cal. Comp. Cases 1680, and Applied Materials v. WCAB (2021) 64 Cal. App. 5th 1042 , 86 Cal. Comp. Cases 331 . Most notably, the WCAB adopted...

November 30, 2021

California Workers’ Comp COVID-19 Claim Volume Trending Down After Summer Surge

Oakland – The summer surge – or fourth wave – of COVID-19 claims that hit the California workers’ compensation system in July and August appears to have run its course as the number of claims reported to the state Division of Workers’ Compensation (DWC) in September and October has receded sharply, with the projected ultimate claim count for October falling to 3,621 cases, down nearly 56% from the 8,197 claims projected...

November 14, 2021

California: Exploring the Limitations on the WCAB’s Authority to Develop, Augment, and Reopen the Record Pursuant to Labor Code Sections 5701 and 5906

Introduction: The primary purpose of this article is to explore the conflicting tensions related to the legislative policies and purpose between the Workers’ Compensation Appeals Board’s power and authority to develop the evidentiary record pursuant to Labor Code sections 5701 and 5906 (all references are to the Labor Code unless indicated otherwise) and the pre-trial mandatory settlement conference closure of discovery...

November 09, 2021

California: Authentication of Evidence in a Digital World

Video footage taken from a dashboard video recorder (“dashcam”) or even a body worn video recorder may not be ubiquitous in workers’ compensation proceedings yet, but it isn’t that unusual either, which makes it all the more prudent for practitioners to become familiar with the legal standards for admissibility of such evidence. The recent panel decision, Johnson v. Lexmar Distribution dba LDI...

October 29, 2021

California: CWCI: California WC Hospital Stays Decline as COVID Affects the Quantity and Types of Admissions

Oakland – The latest update to California Workers’ Compensation Institute (CWCI) research on California workers’ compensation inpatient hospital stays shows the number of injured worker hospitalizations fell 17.2 percent in 2020 – the first year of the COVID-19 pandemic -- bringing the total decline since 2010 to 47.2 percent.   Using hospital discharge data compiled by the California Office of Statewide Health Planning...

October 27, 2021

California: WCAB Roadmap for New Rebuttable Presumptions for COVID-19

Rebuttable presumptions are not an unusual concept in workers’ compensation cases, but some may be unaware that new ones have been created. On 9/17/2020, as a result of the recent COVID-19 pandemic, Senate Bill 1159 added three rebuttable presumptions to the California Labor Code. Therefore, as of 3/19/2020, if an employee is injured by exposure to the COVID-19 virus at work, they are entitled to a rebuttable presumption...

October 25, 2021

California Compensation Cases October 2021

CALIFORNIA COMPENSATION CASES Vol. 86, No. 10 October 2021 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 2021 LexisNexis. All rights reserved. LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and...

October 21, 2021

Workers’ Compensation Reimbursement for Medical Marijuana Usage Reviewed

New review of state workers’ compensation laws shows possibility for reimbursement for approved medical marijuana usage in handful of states By Roger Rabb, J.D. In light of the current opioid crisis the United States, medical marijuana use as an alternative pain management treatment has never been more topical. Dating back to the 1990s, changing social perceptions about marijuana use in general have resulted in 36...

October 21, 2021

California: Stipulation to Use Agreed Medical Examiner

Here's a noteworthy panel decision (split panel) you should know about. Medical-Legal Procedure—Stipulation to Use Agreed Medical Examiner—WCAB, denying removal in split panel opinion, affirmed WCJ’s finding that applicant was not permitted to unilaterally withdraw from his agreement to utilize orthopedic agreed medical examiner Kenneth Sabbag, M.D., to evaluate his claims for orthopedic injuries incurred on 1/13...