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Five Recent Workers’ Comp Cases You Should Know About (9/9/2011) - Worker Fails to Show Wage Loss, Asbestosis Claim Fails

September 09, 2011 (7 min read)
Larson's Spotlight on Asbestosis, Subrogation, Joint Employee, Pension, and Intentional Misrepresentation. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.
SC: Worker Fails to Show Wage Loss, Asbestosis Claim Fails
While a worker proved that he sustained an occupational disease in the form of asbestosis following fifteen years of labor for a former employer, he could not recover permanent partial disability where the evidence also showed he earned higher wages after he left the post with the employer at which he was exposed to asbestos and, indeed, was still employed at higher wages at the time of the hearing before the Workers' Compensation Commission, held the South Carolina Supreme Court recently.  Because the worker's asbestosis was a pulmonary disease, it was not compensable under S.C. Code Ann. § 42-9-30—the more general occupational disease statute—and was only compensable under § 42-9-20, which required a showing of lost wages.
FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 S.C. LEXIS 287. Then click on the red button Search for Free. Note: If you haven’t registered for free at lexisONE, you will be prompted to do so in order to access the free case law.
FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 52.01.
ID: Group Health Insurance Carrier Has Subrogated Interest In Worker's Lump Sum Settlement Against Workers' Compensation Carrier
A group health insurance carrier is a subrogee, and not a creditor of an injured worker, and as such could recover its outlay of benefits from the worker's subsequent recovery of a lump sum settlement against the carrier providing workers' compensation insurance to his employer, held the Supreme Court of Idaho recently.  The worker had suffered two injuries to his left shoulder while employed by a plumbing company and underwent two surgeries.  When the workers' compensation carrier, the State Insurance Fund, refused to continue to provide benefits to cover a portion of the medical expenses, $31,195 in medical bills were submitted to Blue Cross under a group policy.  After making contractual adjustments, Blue Cross paid $11,181.  The worker subsequently entered into a lump sum settlement agreement with SIF whereby claimant received $70,000 in exchange for releasing SIF from any and all claims associated with industrial accidents.  While workers' compensation benefits are exempt from the claims of creditors, the court held that Blue Cross was a subrogee, not a creditor.
FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Ida. LEXIS 126. Then click on the red button Search for Free. Note: If you haven’t registered for free at lexisONE, you will be prompted to do so in order to access the free case law.
FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 116.01.
MA: Construction Worker Was Joint Employee of Both Developer and Contractor Where Both Controlled Assignment of His Work
A Massachusetts appellate court recently concluded that a construction worker, who sustained injuries when he fell from a scaffold, was a joint employee of both the developer and the contractor and was not an independent contractor in spite of the fact that seven of twelve criteria for determining the issue favored independent contractor status.  Citing Larson's Workers' Compensation Law, Ch. 68, § 68.03, the court indicated the trial judge, In a careful opinion, had compared the twelve criteria and had indicated that greater weight had been assigned to the five that favored an employment relationship.  Both the developer and the contractor controlled the assignment of claimant's work and were receiving the benefit of it at the time and place of the injury.
FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Mass. App. LEXIS 1156. Then click on the red button Search for Free. Note: If you haven’t registered for free at lexisONE, you will be prompted to do so in order to access the free case law.
FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, §§ 61.02, 68.03.
US: ERISA Committee Offsets Workers' Compensation Benefits Against Worker's Pension
The Seventh Circuit Court of Appeals recently held that there was rational support for a decision by an employer's ERISA committee to offset a worker's pension by the amount he had received in settlement of a workers' compensation claim for permanent partial disability; the worker need not be "totally disabled" under the terms of the ERISA plan in order for the offset to apply. The employee had argued that the definition of disability used in the offset section meant "totally" disabled so as to prevent further employment as it was defined elsewhere in the plan and as it was to apply throughout. The Seventh Circuit found that the offset provision, when read in relation to the remainder of the plan, was sufficiently ambiguous that its meaning could not be ascertained from its plain language or from the structure of the document. ERISA permitted the interpretative process to be entrusted to the committee. The committee's decision that the "totally disabled" definition did not apply to the offset provision had rational support.
FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 U.S. App. LEXIS 18284. Then click on the red button Search for Free. Note: If you haven’t registered for free at lexisONE, you will be prompted to do so in order to access the free case law.
FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 157.05.
LA: Exaggeration of Symptoms and Abilities Was Not Intentional Misrepresentation That Would Disqualify Claimant from Benefits
Evidence that an injured worker had exaggerated his symptoms and had misstated regarding his ability to perform strenuous activities, as shown by videotaped surveillance offered at trial by the employer, did not require that the worker forfeit his right to benefits where the WCJ acknowledged the exaggerations, but found that the evidence "did not present significant credibility issues," held a Louisiana appellate court recently.  The appellate court noted that the judge's decision was supported by deposition testimony of the worker's physician, who indicated that the worker had disclosed to the physician that he was able sometimes to perform somewhat strenuous activity.  The doctor indicated, for example, that the worker sometimes rode a horse, an activity that usually produced a flare-up of pain.  The activity was enjoyable, however, and typical of what patients who had suffered injuries sometimes did.
FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 La. App. LEXIS 1023. Then click on the red button Search for Free. Note: If you haven’t registered for free at lexisONE, you will be prompted to do so in order to access the free case law.
FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 130.05.
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law
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