Larson’s Spotlight on Recent Cases: Claimant’s Right to Record Independent Medical Examination

Larson's Spotlight on Independent Medical Examination, Intoxication, Intentional Tort, and Defense Base Act. 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.

AZ: Carrier Not Entitled to Suspend Benefits When Claimant Tells MD That IME Will Be Recorded

An Arizona appellate court recently held, as a matter of law, that a workers' compensation claimant who expressed an intention to record an independent medical examination ("IME"), in the absence of any prior communication about recording, had not committed a "wrongful act" constituting obstruction of the IME under A.R.S. § 23-1026(C). Accordingly, a workers' compensation insurance carrier could not suspend the injured employee's benefits for obstructing the IME.  The court added that while an examining doctor was entitled to choose not to conduct IMEs that were recorded, the doctor's policy or preference did not trump a workers' compensation claimant's right to record the IME. The carrier's argument that claimant should have given prior notice of her intent to record fell on deaf ears as well. The carrier could not cite any authority for its contention.

See Kwietkauski v. Industrial Comm'n, 2012 Ariz. App. LEXIS 184 (Nov. 20, 2012).

See generally Larson's Workers' Compensation Law, § 127.10.

US: Workers' Intoxication, Not Concrete and Metal Slab Upon Which He Fell, Was "Cause" of Injury

Under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), no compensation is payable "if the injury was occasioned solely by the intoxication of the employee" [see 33 U.S.C. § 903(c)]. In a recent case, the 9th Circuit Court of Appeals found no error in the Benefit Review Board's determination that it was the injured worker's intoxication, and not the concrete and metal slab upon which he fell, that caused the injury. The court agreed with the Benefit Review Board's interpretation of the term "injury" to mean the cause of the accident rather than the mechanism of the injury. Citing earlier precedent, the court reasoned that including the mechanism of the injury as a cause in addition to intoxication would render the intoxication exception "insignificant, if not wholly superfluous."

See Schwirse v. Director, Office of Workers' Comp. Programs, 2012 U.S. App. LEXIS 22482 (Oct. 23, 2012).

See generally Larson's Workers' Compensation Law, § 36.03.

IL: Bank Teller's Intentional Tort Action Against Bank for Failure to Prevent Robbery Fails

An Illinois appellate court recently affirmed a trial court's dismissal of a bank teller's intentional tort action against her employer for personal injuries she alleged she sustained in a bank robbery based upon the employer's failure to provide adequate security to prevent the incident.  The appellate court indicated the dismissal was appropriate on two grounds: (a) that the teller had applied for and received workers' compensation benefits related to the incident, and (b) even if the employee had not accepted benefits, the employer did not act with specific intent to inflict injury; the robbers were not controlled in any way by defendants.

See Glasgow v. Associated Banc-Corp, 2012 Ill. App. LEXIS 951 (Nov. 21, 2012).

See generally Larson's Workers' Compensation Law, § 103.03.

US: Employer Supplies Sufficient Evidence to Rebut Presumption Against Suicide in Defense Base Act Case Arising Out of Saudi Arabia

Section 3(c) of the Longshore Act, which likewise applies to Defense Base Act cases, provides that "[n]o compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another," 33 U.S.C. § 903(c), although a rebuttable presumption exists that the injury was not due to intoxication or suicide, LHWCA § 20(c)-(d), 33 U.S.C. § 920(c)-(d). In a recent decision, the 1^st Circuit Court of Appeals agreed that an ALJ appropriately found that the presumptions had been rebutted by the employer's proffer of evidence that could persuade a reasonable factfinder a worker had committed suicide.  Evidence suggested that the deceased was ordinarily cautious during his time in Saudi Arabia, that he lived inside a guarded compound, and never ventured into a city alone because he considered it a fairly dangerous place to be. His co-workers shared similar safety concerns. The two obvious substantial possibilities causing the worker's death were two non-covered causes: suicide and misadventure. This was entirely sufficient to counter the presumption against coverage. Absent a showing that the employee's injury arose from employment or from a "zone of special danger" related to employment, the DBA provided no coverage.

See Truczinskas v. Director, Office of Workers' Comp. Programs, 2012 U.S. App. LEXIS 23946 (Nov. 20, 2012).

See generally Larson's Workers' Compensation Law, § 149.04.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

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