Legal Corner

Workers' Compensation
Exclusive remedy bars wrongful death suit following years of alleged harassment - California

In Coffman v. California State Department of Transportation, a long-time employee died of suicide after reporting incidents of verbal abuse, intimidation, and threats of physical abuse almost yearly from 2002 to 2015. Before the suicide, he had been placed on leave for emotional distress. The family sued the company and supervisor, asserting claims for wrongful death.

Workers' compensation exclusivity bars civil actions based on employer actions that are a normal part of the employment relationship, therefore, the issue was whether the incidents fell outside the compensation bargain. The court noted that yelling, humiliation, and the use of insults and profanities by an employer against an employee have also been treated as normal parts of the employment relationship when the conduct involved criticisms of job performance or other conflicts arising from the employment. The court found that each of Coffman's conflicts with his co-workers arose directly from his employment and the discharge of their collective work duties.

Contractor liable for injury to worker of subcontractor that let its insurance lapse - Florida

In Scott v. James A. Jones Construction Co., the workers' compensation policy of a siding subcontractor, Central Florida Siding Pros LLC (CFSP), was canceled due to non-payment effective Feb. 10, 2018. NorGuard Insurance Co. had issued the policy through the Paychex Insurance Agency, which issued a certificate of liability (COI) insurance for CFSP to the James A. Jones Construction Co, with an expiration date of April 28, 2018.

An employee of CFSP was injured on April 24, 2018, while working on the Jones project. The judge ruled that the policy was not in effect on the date of the accident and that Jones was liable for the claim as the general contractor.

Upon appeal, the court found that NorGuard had met the only stated condition precedent to cancellation by providing 10 days' notice to the policyholder. Further, NorGuard was not estopped from canceling the insurance policy because Jones relied on the COI.The COI had disclaimers, including a confirmation that the document was for "information only," and Jones' reliance on it was not reasonable.

$8 million verdict in stuntman's death overturned - Georgia

In Stalwart Films LLC, et al. v. Bernecker, et al., an $8 million verdict awarded to the family of a stuntman who died on the set of AMC Network's "The Walking Dead" in 2017 has been thrown out by the Court of Appeals. In awarding the verdict, a jury had determined that the stuntman was an independent contractor. The court said the family relied on the fact that Stalwart issued an IRS Form 1099 and did not withhold taxes as evidence that there was a question about Bernecker's employment status. But the court said the fact that an employer issued a 1099 rather than a W-2 and did not withhold taxes or provide insurance doesn't create a jury question regarding employee status.

The court found "undisputed evidence that Stalwart controlled the time, method, and manner of Bernecker's work" making it clear that he was an employee or borrowed servant of the company. Therefore, the Workers' Compensation Act that bars tort claims applies. An appeal is expected.

AG cleared to pursue lawsuit against Uber and Lyft - Massachusetts

A judge denied a bid to dismiss a lawsuit by the state's attorney general challenging Uber and Lyft classification of drivers as independent contractors rather than employees, depriving drivers of required minimum wages, overtime, and sick leave. The lawsuit is asking for a court order declaring that ride-hail drivers are employees.

Comp provider reverses denial of death benefits for police officer who died of COVID-19 - Missouri

The workers' compensation insurance provider for the city of Lebanon denied a claim from a police officer who eventually died from COVID-19 because it ruled his exposure and death were not compensable and did not meet the state's threshold for benefits. The decision was criticized by city officials for not adhering to the emergency statute that enacted a presumption for first responders who contract COVID-19 while at work. The Mayor announced the carrier had reversed its decision and will pay the family benefits.

Court wants explanation for denial of medical marijuana reimbursement - New Hampshire

In Appeal of Panaggio, the Supreme Court overturned an appellate court ruling that found an injured worker's use of medical marijuana "reasonable and medically necessary," but upheld the insurer's refusal to reimburse it because it's "not legal under state or federal law." The Supreme Court disagreed that reimbursement would aid and abet illicit purchase and possession, noting that aiding and abetting "requires voluntary participation" and that the insurer's compliance with a court or board order to reimburse would "not constitute voluntary participation." It remanded the case, demanding a better explanation.

Police officer awarded coverage for medical marijuana - New York

In a case of first impression, Matter of Quigley v. Village of E. Aurora, an appellate court affirmed a decision by the state's Workers' Compensation Board allowing a variance to the state treatment guidelines for workers' compensation claims. It ordered an employer's workers' compensation carrier to reimburse an injured employee, who suffered continuing pain after a work-related injury, for medical marijuana expenses provided under the state's Compassionate Care Act.

The carrier argued that funding the worker's use of medical marijuana exposed it to civil and criminal liability under the federal Controlled Substances Act. Reimbursement is not expressly prohibited under the federal act and state law provides an exception for controlled substances that were obtained directly or with a valid prescription.

Fall during smoking break compensable - New York

In Shyti v. ABM, an employee of a cleaning service was provided a 15-minute break without restrictions under her union contract. When she crossed the street to smoke a cigarette and stop at a pizza shop, she slipped on the sidewalk and eventually filed a workers' comp claim. Although it was first denied as not work-related, The Appellate Division's 3rd Department found the claim compensable. It noted that accidents that occur during an employee's short breaks are considered to be so closely related to the performance of the job that they do not constitute an interruption of work. Further, there is no requirement that the activity directly benefits the employer or be done at the employer's direction for the injury to be compensable.

Subrogation of future benefits clarified - Pennsylvania

In Beaver Valley Slag Inc. v. Marchionda, a guardian of a seriously injured worker challenged subrogation of future medical benefits after the Supreme Court ruled in Whitmoyer v. WCAB that employers cannot subrogate future medical benefits after a third-party settlement is executed. While the Commonwealth Court ruled that Whitmoyer did not establish a new rule and could not be applied retroactively to the original date of a Third-Party Settlement Agreement, it applied to the subrogation of medical benefits from the date that Whitmoyer was decided. Therefore, the WCJ did not err by directing the employer to reimburse the worker's trust for any medical expenses the trust paid after June 19, 2018 (the date Whitmoyer was decided) and to pay 100% of medical expenses going forward.

Widow can obtain investigative report of fatal accident - Pennsylvania

In Virnelson v. Johnson Matthey Inc., a worker fell to his death at a pharmaceutical plant in Conshohocken. Following the accident, the company hired a consultant to investigate the accident. The widow sued asserting inadequate safety practices and during discovery learned of the report. The question arose as to whether the report was prepared in anticipation of litigation, which would prohibit disclosure under Rule of Civil Procedure 4003.3.

When the trial court ruled that the report was not prepared in anticipation of litigation but as a matter of business protocol to investigate the causes of the accident and prevent future accidents, the company filed a motion for a protective order. The Superior Court affirmed the trial court.

Original employer liable for medical care despite employee's violation of lifting restrictions - Tennessee

In Paris v. McKee Foods Corp., the Supreme Court of the Special Workers' Compensation Appeals Panel ruled that negligent post-injury conduct, such as exceeding lifting restrictions cannot, in and of itself, constitute an independent intervening cause that would relieve the original employer of its obligation for continuing workers' comp benefits. The worker had undergone multiple surgeries for an injury to her left wrist and several years later settled her claim. In the settlement, the company agreed to "reasonable and necessary authorized future medical expenses which are directly related to the subject injury."

The worker left her job and in two subsequent places of employment experienced pain in her wrist, which required treatment. The company refused to pay and after mediation failed the case went to court. A trial judge found that the worker had violated the lifting restrictions at both jobs and, therefore, broke the chain of causation. However, the appeals panel disagreed. It noted that where a worker exceeded her lifting restrictions, resulting in significant pain, but no new injury and no actual aggravation of the original injury, the original employer remained liable for medical treatment.