Larson’s Workers’ Comp Case Roundup (8/26/2018)

The following are some noteworthy cases that are being reported in an upcoming release of Larson’s Workers’ Compensation Law.

Assaults. In one bizarre and tragic Alabama case, the court awarded death benefits to the surviving spouse of an accountant who was stalked and then shot to death by an assailant who blamed the accountant for tax problems in his business [see Lawler & Cole CPAs, LLC v. Cole, 2018 Ala. Civ. App. LEXIS 115 (July 13, 2018), Larson’s Workers’ Compensation Law, Ch. 8, § 8.01[2], n. 51.1]. An increasing number accept the idea that the strain of enforced close contact may in itself provide the necessary work connection. Accordingly, in an Arizona case [see Ibarra v. Industrial Comm’n of Ariz., 2018 Ariz. App. LEXIS 122 (July 31, 2018), Larson’s Workers’ Compensation Law, Ch. 8, § 8.01[6][a] n. 146], the court adopted the Larson Treatise's "Friction and Strain" Doctrine and awarded compensation for injuries sustained in a fight between two corrections officers who had no contact with each other outside the workplace.

Kinds and Elements of Disability. In one recent decision, the Supreme Court of Oklahoma held that the sections of the state’s Administrative Workers’ Compensation Act that require use of the “current edition” of the AMA’s Guides to determine permanent partial disability do not violate the Constitution [see Hill v. American Medical Response, 2018 OK 57 (June 26, 2018)], Larson’s Workers’ Compensation Law, Ch. 80, § 80.08[2] n. 6.3].

Hospital and Medical Benefits. The Supreme Judicial Court of Maine recently held that an employer may not be required to pay for an injured worker’s medical marijuana use. Indicating that it was deciding the case on “narrow” grounds, the majority reasoned that there was a “positive conflict” between the federal Controlled Substances Act (CSA) and the Maine Medical Use of Marijuana Act (MMUMA) and that, under such circumstances, the CSA preempted state law [see Bourgoin v. Twin Rivers Paper Co., 2018 ME 77, 2018 Me. LEXIS 79 (June 14, 2018], Larson’s Workers’ Compensation Law, Ch. 94, § 94.06 n. 27].

Utilizing California’s “Posse Law, Private Citizens Were Barred From Suing County for Police Force’s Actions. In a case involving an utterly bizarre fact pattern, a California appellate court held that a civil action for negligence and misrepresentation filed by two private citizens against a California county was barred by the exclusive remedy provisions in Cal. Labor Code § 3366 (California’s “posse” law). The two citizens, a husband and wife, did not work for the county. They were telephoned by a Trinity County deputy who asked them--because of their proximity to the incident--to “check on” a neighbor who had placed a 911 call for help. According to the plaintiff’s allegations, the deputy told them the call was likely related to inclement weather. The deputy also omitted information that suggested potential criminal activity. Plaintiffs unwittingly walked into a murder scene and were brutally attacked by the man who apparently had just murdered their neighbor and her boyfriend. Under § 3366, any person “assisting any peace officer in active law enforcement service” is deemed to be an employee of the public entity for whom he or she is “serving,” and workers’ compensation benefits are the exclusive remedy afforded for any injury [see Gund v. County of Trinity, 2018 Cal. App. LEXIS 522 (June 4, 2018), Larson’s Workers’ Compensation Law, Ch. 28.03[1], n. 4.2].

Office Worker’s Mold Exposure Does Not Qualify as Occupational Disease. A Louisiana appellate court affirmed a ruling by a workers’ compensation judge that the claimant, an office worker, had not suffered an occupational disease within the meaning of the state’s Workers’ Compensation Act related to her alleged exposure to mold in the office. Citing prior authority, the court indicated that mold exposure in the workplace generally falls outside the compensation scheme based upon the meaning of occupational disease within the statutes [see Lyle v. Brock Servs., LLC, 18-50 (La. App. 5 Cir. 07/31/18), 2018 La. App. LEXIS 1477 (July 31, 2018), Larson’s Workers’ Compensation Law, Ch. 52, § 52.03[1] DIGEST n. 3].

Hearing Impairment Limitation Ruled Unconstitutional. A Kentucky statute, Ky. Rev. Stat. Ann. § 342.7305(2), which provides workers’ compensation benefits for occupational hearing loss only where a claimant’s binaural hearing impairment, converted to impairment of the whole person, results in impairment of more than eight percent pursuant to the AMA Guides, is unconstitutional, said the Court of Appeals of Kentucky [see Napier v. Enterprise Mining Co., 2018 Ky. App. LEXIS 108 (Mar. 23, 2018), Larson’s Workers’ Compensation Law, Ch. 52, § 52.05[3], n. 24.1].

Injured Worker’s “Undocumented” Status is Economic Factor to Be Considered in Determining Level of Permanent Disability. In a split decision, the Supreme Court of Idaho held that the plain wording of Idaho Code Ann. §§ 72-425 and 72-430 require that all personal and economic circumstances that diminish the ability of the claimant to compete in an open labor market must be considered when determining whether an injured employee is entitled to permanent disability benefits, including his or her status as an undocumented immigrant. The Court reversed a Commission decision that the claimant’s undocumented status should not be considered. Here, the claimant illegally immigrated from Mexico, purchased a social security card, and used it (and a subsequently purchased second card) to get a series of jobs until he was seriously injured in a painting accident. The dissent argued that the multiple illegal acts of both the claimant and the employer should not be ignored [see Marquez v. Pierce Painting, Inc., 2018 Ida. LEXIS 155 (Aug. 3, 2018), Larson’s Workers’ Compensation Law, Ch. 66, § 66.03 n. 42.3].

Placement of Rods and Screws Did Not Constitute Continued Remedial Treatment; Statute of Limitations Not Tolled. A Florida court held that the orthopedic surgical placement of rods and screws within the injured worker’s spine to aid in stabilization was not the sort of continuing remedial treatment that would toll the statute of limitations [see Ring Power Corp. v. Murphy, 238 So.3d 906 (Fla. 1st DCA 2018), Larson’s Workers’ Compensation Law, Ch. 126, § 126.07[8], n. 40.2].

No Claimant’s Attorney Fees Available for Appellate Work in Kansas Comp Case. The Court of Appeals of Kansas held that attorneys representing claimants at the appellate court level in the state fall between the cracks when it comes to awards of attorney’s fees, even when successfully representing their clients [see Pierson v. City of Topeka, 2018 Kan. App. LEXIS 33 (June 15, 2018), Larson’s Workers’ Compensation Law, Ch. 133, § 133.02, DIGEST n. 4].

© Copyright 2018 LexisNexis. All rights reserved. This article was excerpted from an upcoming release of Larson’s Workers’ Compensation Law (LexisNexis).