Legal Corner

Workers Compensation
Two decisions related to Privette Doctrine yield different results - California

The Privette Doctrine is based on the presumption that the hirer of an independent contractor automatically delegates to that contractor the responsibility to perform the specified work safely. To defeat this presumption, at least one of three exceptions must be met: the hirer retains control and affirmatively contributes to injury, furnishes unsafe equipment, or fails to warn of latent or concealed hazardous condition.

In Delgadillo v. Hilmar Cheese Co., the cheese company contracts with dairies for the delivery of milk and ingredients for its cheese production and the dairies hire independent hauling companies. A driver for a hauling company suffered an injury when he fell into a pothole while making a delivery to Hilmar and filed an action for negligence and premises liability against Hilmar. A trial court judge granted a motion to dismiss based on the Privette Doctrine. The driver argued that the pothole was a concealed hazard, but the court said the record showed the condition had existed for several months before he fell, that he had ample opportunity to observe the asphalt during his repeated deliveries, and the pothole was visible to the naked eye. Therefore, the Privette Doctrine was unrebutted.

In Degala v. John Stewart Co., the Court of Appeal for the 1st District found that a property owner and general contractor were not entitled to summary judgment dismissing a tort claim by a subcontractor's employee under the Privette Doctrine. The worker sustained injuries from an attack by unknown assailants at the job site and received workers' comp benefits from the subcontractor. He sued the general contractor and property owner seeking damages based on negligence and premises liability. Although a trial judge granted motions for summary judgment, the Appeals Court found evidence that the defendants retained control over safety measures at the job site and exercised it. This was enough to give rise to a triable issue of whether those measures were unreasonable and whether the alleged unreasonableness contributed to the assault.

Employers' obligation to prominently display list of physicians from whom employees may seek treatment - Georgia

The Court of Appeals will soon decide whether strict liability applies to the legal requirement to prominently display the list of physicians from whom employees may seek treatment if injured at work. In Linda Lilienthal v. JLK, Inc., a daycare facility posted the panel of physicians in a locked resource room. To enter the room, workers had to obtain a key kept "in a closed metal box, in a closed drawer, in a desk used by administration."

An injured worker sought medical treatment from her preferred physician, who was not on the list. The court will decide whether the daycare's insurance must pay for her treatment. An administrative law judge determined it was "arguable that the employer did not post the panel in the best place," but that posting in the resource room was sufficient to satisfy the law. The appellant counsel for the injured employee argued the employer's placement of the panel in the locked resource room failed to comply with state law, which requires the employer shall "post the panel of physicians in prominent places on the business premises."

New trial granted for forklift operator who lost leg - Illinois

In Adelaida Anderson et al. v. The Raymond Corp., the 7th U.S. Circuit Court of Appeals reinstated a case involving a forklift operator who suffered injuries requiring the amputation of her leg, finding a lower court erroneously excluded expert testimony. The lower court had ruled the testimony did not pass the Daubert Test, referring to the U.S. Supreme Court's 1983 ruling in Daubert vs. Merrell Dow Pharmaceuticals Inc., which set guidelines for expert scientific testimony. The appeals court found the exclusion of the expert's opinion was erroneous and "substantially prejudicial to the case." In reversing the denial and remanding the case for further proceedings, it gave the forklift operator a second chance at convincing a jury that the forklift's manufacturer was at fault.

Two biometrics rulings could have major impact on employers - Illinois

In Tims vs. Black Horse Carriers. Inc., the Supreme Court ruled that claims under BIPA are governed by a five-year, rather than a one-year, statute of limitations. In Latrina Cothron v. White Castle System Inc., the Supreme Court ruled that employers violated the BIPA each time they collected fingerprints from an employee and disclosed that biometric information without consent.

Court of Appeals addresses question of first impression related to accident definition - Missouri

In Harper v. Springfield Rehab and Healthcare Center an RN attempted to move a heavy medicine cart, which she felt posed a hazard to patients of a rehab and healthcare facility. She experienced pain in her back and filed an injury report, but continued to work until the pain became unmanageable and she filed a comp claim. An ALJ found she was permanently and totally disabled and the Labor and Industrial Relations Commission affirmed, finding the nurse sustained "an unusual sprain." The health center appealed.

Missouri law defines an accident as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury." The Court of Appeals noted that "producing at the time objective symptoms of an injury" is a question of first impression but determined that the legislature intended it to mean an unusual strain producing indications perceptible by persons other than the worker of the existence an injury at or near the time of an injury. Her difficulty walking after moving the cart would have been perceptible to others, thus, the unusual strain "produced objective symptoms of injury."

Self-insured municipal employer cannot be reimbursed for salary payments to disabled retiree - New York

In Schulze v. City of Newburgh Fire Department, a self-insured municipal employer continued to pay an injured firefighter after he began receiving duty disability retirement. The firefighter was found permanently partially disabled after a work-related injury to his neck and back. The Fire Department, which was self-insured, paid his full salary during his disability and filed requests for reimbursement against any award of workers' compensation benefits. When he was approved for duty disability retirement benefits in the form of a pension, the Fire Department paid the differential between his pension and his regular wages.

The firefighter filed a motion arguing that his permanency classification entitled him to retroactive workers' compensation awards after the award of duty disability retirement benefits. The Department requested a credit against any workers' compensation awards based on its supplemental pension payments. Although the Workers' Compensation Law provides for the reimbursement of "any salary or wages paid" to a firefighter against any workers' compensation award, he was not an employee when the supplemental payments were made, he was a retiree. Because the supplemental retirement benefits paid by the employer were not wages, the workers' compensation awards were not reimbursable to the employer.

Appeals court rules exclusive remedy nixes $5.59 million jury award - Pennsylvania

In Yoder v. McCarthy Construction Inc., the Superior Court struck down a $5.59 million jury award for a former roofer who suffered catastrophic spinal injuries after falling 20 feet through an unmarked hole in a roof. The Norwood Public Library contracted with McCarthy Construction for roof repair and McCarthy subcontracted work to Yoder's employer, RRR Contractors Inc. The injured roofer received workers' compensation benefits from RRR and filed a negligence suit against McCarthy. McCarthy argued Yoder's claims were barred by the exclusive remedy since it was his statutory employer.

A lower court judge found that McCarthy failed to qualify as a statutory employer and that Yoder was an independent contractor. The jury returned a unanimous verdict in favor of Yoder for $5.6 million. In reversing the entire judgment and remanding the case to the lower court to enter judgment for McCarthy, the Superior Court found that McCarthy was a statutory employer and immune from tort liability. Further, the roofer should have been prohibited from claiming independent contractor status since he previously claimed to be an employee and was able to secure workers compensation benefits after the workplace injury.

The court explained McCarthy met the conditions of the state's five-part test to determine whether a party qualifies as a statutory employer. It was under contract with an owner, it occupied or controlled the premises where the accident occurred, it had a subcontract with the injured worker's employer, it entrusted part of its regular business to the subcontractor, and the roofer was an employee of the subcontractor.

Claims for occupational diseases manifesting four years after the last date of workplace exposure not protected by exclusive remedy - Pennsylvania

In Herold v. University of Pittsburg, the Commonwealth Court ruled that an occupational disease that manifests more than four years after an employee's last exposure to hazards causing that disease is not subject to the exclusive remedy mandate of the Occupational Disease Act (ODA). It also rejected the argument that employees must first exhaust administrative relief from the Workers' Compensation Board before filing an ODA claim.

The case involved a worker who was exposed to asbestos from 1976 to 2004 at his job. In April 2019, he was diagnosed with mesothelioma, a form of cancer linked to asbestos exposure. The court noted that the state Supreme Court has held that latent occupational diseases that manifest beyond the 300-week limitations period in the Workers Compensation Act (WCA) are not subject to the exclusivity remedy. Similarly, the exclusive remedy mandate in the ODA extends only to those claims asserting compensable disability or death resulting from occupational disease and manifesting within four years after the last workplace exposure. Therefore, the former worker may proceed with his common law claims against the University.

Supreme Court rules missed deadline not sufficient reason to dismiss appeal - South Carolina

In Misty Morris vs. BB&T Corp., a worker suffered a debilitating illness from mold found inside the bank and she filed a comp claim. Her lawyer asked for $41,000 in fees but was only granted $26,000 and filed an appeal within the deadline. However, he failed to file the appellate brief by the date set by the commission and the Workers' Compensation Commission's judicial director dismissed the appeal. Apologizing and noting a calendaring mistake in his office, he filed a motion to reinstate the appeal, which was denied without explanation.

The Supreme Court reversed the commission's decision, finding that denying the Motion to Reinstate without considering whether there was good cause for the missed deadline was arbitrary and an abuse of discretion. "The failure to accurately calendar a filing deadline will not constitute good cause for reinstating an appeal in every instance," the opinion concludes. "We have reviewed the record in this case, however, and we find Proffitt (the lawyer) demonstrated good cause." The compensation commission's appeals panel must now hear arguments on the merits on increasing the fee.

Power to control key in determining independent contractor status - Virginia

In Dunn v. Cityscape, LLC, an employee of a subcontractor hired a business owner who specialized in cabinet and hardware installation, woodworking, and trim. The subcontractor worked for a general contractor, Cityscape. Cityscape employees, including the superintendent worked at the jobsite. The business owner sustained a right hip injury and sought workers comp benefits, arguing he was an employee of Cityscape because he was paid an hourly wage, the jobsite superintendent dictated when he worked, and he had to submit his hours to the job site superintendent to get paid.

In rendering its decision that the worker was not an employee, the court noted there is no "hard and fast rule" for deciding whether a worker is an employee versus an independent contractor, but four factors are considered:

Selection and engagement of worker
Payment of worker's wages
Power to dismiss the worker
Power of control over worker's actions (specify the desired result and control the means and methods by which the result is to be accomplished)

The court added it's the potential power to control the worker, not the actual exercise of that control, that is important.

Specifically, the court found he was not closely supervised by Cityscape, he could determine the means and methods by which he accomplished his tasks, he used his tools, and he held himself out to the public as a business owner performing the same work independently as the work he did for Cityscape.