Legal Corner

Workers' Compensation
Supreme Court limits exceptions from Privette doctrine - California

The 1993 case that established the "Privette" doctrine set a clear presumption that the hirer of an independent contractor delegates all responsibility for workplace safety to the contractor. The courts have recognized two exceptions to the doctrine. One - when the hiring party retains control over part of the contractor's work in a way that contributes to a worker's injuries. Two - when the hiring party knew of a latent or concealed hazardous condition that the contractor could not have reasonably discovered and failed to warn the contractor.

Recently, in Gonzalez v Mathis the state's high court considered a third exception - when a hirer and contractor know of a hazard where there were no reasonable safety precautions to protect against the hazard. While the 2nd District Court of Appeal found a hirer can be held liable when a contractor (or its employees) is exposed to a known hazard that cannot be remedied through reasonable safety precautions, the Supreme Court disagreed and declined to create a third exception.

In so doing, the court recognized the strong presumption of delegation in Privette - the hirer presumptively delegates to the independent contractor the authority to determine how the work is performed; the contractor assumes the responsibility to ensure that the worksite is safe and the work is performed safely. The Court emphasized that its ruling does not apply to unknown and undiscoverable hazards; it is limited to hazards on the premises of which the independent contractor is aware or should reasonably discover.

Gig law ruled unconstitutional - California

Proposition 22, California's gig workers law, which allows companies like Uber and Lyft to treat workers as independent contractors, not employees, has been ruled unconstitutional and unenforceable by a Superior Court judge. The companies plan to appeal and all provisions of Prop 22 will remain in effect until the appeal process is complete.

Widow cannot proceed with tort action related to COVID-19 death until IAB determines if claim is compensable - Delaware

In Ingino-Cacchioli v. Infinity Consulting Sols, Inc, a widow argued that COVID-19 did not qualify as an occupational disease or any other "injury" covered by the Workers' Comp Act and she could proceed with a tort case in the COVID-19 related death of her husband. The employer contended the claims were barred by the exclusive remedy provision of the Act and that there was a jurisdictional issue of the appropriate decision-making body to make such a determination.

The Superior Court of Delaware (New Castle) agreed and held that the issue of whether the employee's fatal COVID-19 infection was an injury or occupational disease must be determined by the state's Industrial Accident Board (IAB) before the employee's widow could proceed with her tort action against the employer. Since a petition had been filed with the IAB to preserve the potential workers' compensation claims within the one-year statute of limitations, the tort action should be stayed, pending a final determination by the IAB.

Worker's fall at home not connected to employment - Georgia

In Express Empl. Professionals v. Barker, a worker injured his back and hip and received TTD benefits. A few months later following an MRI, he was placed on maximum medical improvement, provided full duty work release, with no follow-up requirements. Several months later, he fell at home injuring the same body area and he filed for reinstatement of benefits.

The Board of Workers' Compensation determined that he had recovered from the work-related fall, therefore, the subsequent slip and fall at his home was not connected with his employment and was the cause of his current back pain. While the superior court reversed this decision, an appellate court supported the Board's decision.

Long-term opioid use addressed by high court - Minnesota

In Johnson v. Darchuks Fabrications, the Supreme Court reversed earlier rulings that had allowed a worker to continue opioid use to manage his pain arising from a severe, work-related ankle injury. The worker suffers from complex regional pain syndrome and was prescribed pain medication in 2004 containing the opioid oxycodone, which is now regulated under state law. The worker sought to qualify as a "rare exception" to the treatment parameters put in place by the Department of Labor and Industries.

The case provides important guidance as to what is required to establish a "rare case." Lower courts had approved the "rare case" exception because the worker experienced unbearable pain and the medication reduced his pain by half, allowing him to engage more fully in the activities of daily living. However, the Supreme Court noted that merely demonstrating the treatment was reasonable and necessary to cure and relieve the effects of a work-related injury was not sufficient to warrant a rare case exception as this is required in all comp cases. The record did not establish that this was an exceptional case nor did it show that non-compliance with the parameters better achieved the objectives of the workers' compensation system - to cure and relieve the effects of his injury.

Overdose death not linked to work-related depression - New York

In Matter of Herris v. United Parcel Service Inc., a widower of a UPS worker was denied workers' comp benefits because there was no evidence of a link between the cause of death and the work-related injury. The worker had coronary artery disease that led to a heart attack and multiple surgeries because she did not heal properly. Later, she received workers' comp benefits for a lifting-related injury that led to multiple surgeries. The worker developed consequential depression and was eventually classified with a permanent partial disability. Her husband filed for death benefits when she died at home.

To receive death benefits the work-related illness does not have to be the sole or most direct cause of death, but there must be competent medical evidence of a causal connection between the death and employment. The husband argued that his wife died after a night of heavy drinking and that a narcotics overdose was suspected, but no autopsy was performed and the death certificate did not list a cause. The only evidence presented was from a physician who never treated the wife and developed his opinion from the husband's accounting of her lifestyle. This was rejected as unsupported and speculative.

Notice requirements for employers filing termination of indemnity benefits - Pennsylvania

In Raymour & Flanigan v. WCAB, the Commonwealth Court, in a case of first impression, ruled that an employer that filed a notice of temporary compensation payable was not required to file a notice termination or of denial when it sought to stop paying indemnity benefits. The employer first filed a notice of temporary compensation payable and a few weeks later issued a medical-only notice of compensation payable. The worker then filed a petition for penalties and reinstatement of her total disability benefits.

If the employer ceases making payments under a notice of temporary compensation payable, Section 406.1(d) requires that a notice be sent to the worker and the Bureau of Workers' Compensation within five days of the last payment. If temporary payments are stopped, an employer must file a notice stopping temporary compensation and a notice of compensation denial, a notice of compensation payable, or an agreement for compensation for disability or permanent injury. The court said that where a medical-only notice of compensation payable is filed, the employer is acknowledging the injury, and the worker does not need to file a claim to establish liability. Thus, the court reasoned, the notice requirements of Section 406.1 do not apply.

Wrongful discharge action allowed under Medical Marijuana Act - Pennsylvania

In Scranton Quincy Clinic Company, LLC, et al. v. Pamela Palmiter, the Superior Court found, as a matter of first impression, that medical marijuana users may maintain a private action under the Medical Marijuana Act (MMA). A medical assistant for a health system took an employment-related drug test, informed the laboratory that she was prescribed medical marijuana, and faxed a copy of her medical marijuana certification to the lab. She failed the test and her employer terminated her.

The court noted that while the act "did not expressly create a private right of action on behalf of an employee whose employer discriminates against her for medical marijuana use, it proclaimed a public policy prohibiting such discrimination." The law also notes employers are not required to provide an accommodation for certified medical marijuana users and that employers could discipline employees who are under the influence of medical marijuana at work.

Apparent training session injury leads to compensation for police officer's injury - Virginia

In City of Charlottesville v. Sclafani, a police officer who claimed he was injured while acting the role of a suspect in a training exercise but could not pinpoint the exact moment of the injury, was awarded benefits. During the SWAT team training, he played the role of a suspect and repeatedly was put on the ground and handcuffed and picked up while in handcuffs. At the end of the day, he had trouble moving his arm up and down and reported his injury the next day to his supervisor but did not seek medical treatment for several days. His shoulder eventually required surgery for rotator cuff tears and traumatic impingement syndrome. The case went through a series of appeals and ultimately the state Supreme Court agreed there is no proven precise moment of injury, it found that evidence of an injury at some point during training "was uncontradicted and we cannot say that it was inherently incredible or inconsistent with the other facts in the record."

Negligence suit over youth counselor's murder barred by exclusive remedy - Virginia

In Lopez v. Intercept Youth Services Inc., a counselor was strangled by a resident who had a history of mental health problems along with a criminal past that included the abduction and attempted rape of one of his therapists. Her family sued for negligence, alleging the facility created an unsafe work environment that included failing to ensure residents could not leave their rooms after curfew, failing to warn workers of the resident's violent past, and failing to maintain video surveillance.

A district court found and the state Supreme Court agreed that her death "had arisen out of and in the course of her employment" and therefore, the workers' compensation's exclusive remedy provisions applied.