Legal Corner

Workers Compensation
Worker did not meet burden of competent evidence regarding full value of settlement - Florida

In Captain D's LLC v. Unified Brands Inc., the District Court of Appeal reversed a trial judge's decision to reduce a restaurant's workers compensation lien because the employee did not receive full value for her injuries in a third-party settlement. Under state law, if an injured worker obtains a recovery from a third-party tortfeasor, her employer is entitled to the full reimbursement of benefits paid unless she did not recover the full value of damages sustained. While her attorney stated that a fair value of the case was $1 million, the appeals court found there was no competent evidence presented to demonstrate that she had not received full value. Therefore, the case was remanded to recalculate the lien apportionment amounts.

Comp settlement doesn't bar civil suit against third parties - Georgia

In Hayes vs KSP Services LLC, the Court of Appeals overturned a trial court and ruled that the worker's settlement did not preclude pursuing a third-party negligence suit stemming from a workplace motor vehicle accident. A lawn care worker was driving a vehicle for his employer when he was struck by a vehicle driven by a KSP Services worker. He filed a work comp claim, which he later settled as a "no liability" settlement, where the parties stipulated that he did not suffer compensable injuries.

He then filed a negligence action against the driver and KSP and they moved for summary judgment, arguing it should be barred by judicial estoppel - since the work comp settlement had stipulated that he had not been injured he could not take a contrary position in the civil case. While a trial court agreed, the appeals court said a "no liability" workers comp settlement between an employee and employer does not bar the injured worker from bringing tort claims against a third party.

Workers comp provides statutory employer immunity from civil lawsuit - Georgia

A crane oiler was assisting in removing a crane from an American Tower site when the operator hit a power line, electrocuting the worker and causing a serious injury that later required a partial amputation of his foot. SAC Wireless LLC had contracted with Maxim Crane Works for the use of a crane and an operator for four days. The crane oiler received comp benefits from Maxim and sued SAC for negligence and punitive damages.

A district court granted summary judgment in favor of SAC and upon appeal the federal Eleventh Circuit agreed. The court emphasized SAC's reliance on Maxim's services, including personnel to complete the project, and confirmed the protection of exclusive remedy as a statutory employer.

Widow's wrongful death suit against parent company dismissed - Illinois

In Mesenbring v. Rollins Inc., a worker who was employed by Industrial Fumigant Co. (IDC), a pest control company, inhaled a toxic dose of methyl bromide following the transfer from a large to smaller cylinder. His widow filed a wrongful death suit which was heard by the U.S. 7th Circuit Court of Appeals. The federal court said generally a parent company is not liable for the acts of its subsidiary, but the state courts have adopted a narrow exception known as 'direct participant liability'. A parent company may be held liable for the acts of its subsidiary if it "specifically directs an activity where injury is foreseeable." Although Rollins was responsible for IFC's facility lease and had budgetary oversight, it was IFC that controlled the policies, training, and procedures on methyl bromide. Therefore, Rollins cannot be liable for IFC's acts under a theory of direct participant liability.

Appeals court allows reimbursement to insurers in "run-off" situations - Massachusetts

In Arrowood Indemnity Co. v. Workers' Compensation Trust Fund, an appeals court determined precedent on reimbursement is no longer relevant and vacated a decision by a review board that had found Arrowood was not entitled to reimbursement from the Trust Fund. The court said when insurers enter a run-off period and no longer issue new policies in the state but still collect premiums from existing policies, they are entitled to trust fund reimbursements. Arrowood had stopped issuing new policies in 2003, but still was paying benefits on older claims.

The only exception to reimbursement is cases involving self-insurance groups who have chosen not to participate in the trust fund, not insurers who have stopped issuing policies, but still collect premiums from existing policies.

Contractor and subcontractor can be sued for negligence - Michigan

In Shareef El-Jamaly v. Kirco Manix Construction LLC, the state's high court reversed an Appeals Court ruling that granted summary judgment to a contractor and subcontractor sued for negligence by a worker who was electrocuted on the job. The Supreme Court noted while general contractors are typically not liable for subcontractor negligence, there are exceptions to the rule. In this case, there was a "factual discrepancy" over the actual height and condition of the power lines and whether the defendants took reasonable steps to ensure workers were protected from dangers. The case was remanded to the trial court.

MMI dispute does not warrant delaying indemnity payments - Nebraska

In Mosher v. Whole Foods Market Inc., the state high court ruled that an employer was properly penalized for failing to make an indemnity payment to an injured worker because of a dispute over when and if she had reached maximum medical improvement (MMI). Although both the independent medical evaluator and employee's physician agreed that the worker had sustained compensable injuries, they disagreed if she had reached MMI.

The Workers' Compensation Court found she had not reached MMI and was entitled to temporary total disability benefits and medical care. It awarded a waiting time penalty and attorney fees as well. Whole Foods argued that it should not have to pay any waiting time penalties because there was a reasonable controversy if MMI had been reached.

However, the Supreme Court said that when there is "no reasonable controversy that the employee has been injured in a workplace accident and is entitled to some indemnity benefit, the employer is not excused from timely payments thereof."

Death benefits awarded to widow of EMT with preexisting heart condition - Pennsylvania

In Prospect Medical Holdings Inc. v. R.C. Reeder, Decedent, the Commonwealth Court agreed with a Workers' Compensation Judge and the state's Workers' Compensation Appeal Board and awarded death benefits to the spouse of a chief emergency medical technician who died of a heart attack while working at a charity event for his employer. While the employer had denied benefits over the man's preexisting heart condition, the courts found the widow's expert witness, a doctor who opined that patients with coronary artery disease are at a substantially higher risk of cardiac events during times of emotional or physical stress, more credible.

The doctor said that the "physical stress of (his) climb up the steps at the stadium with approximately 50 to 60 pounds of medical equipment, coupled with the emotional stress of managing an understaffed department and working overtime hours, substantially contributed to (his) heart attack, which caused his death."

Worker's lies basis to set aside employer's stipulation of facts - Pennsylvania

In VNA of St. Luke's Home Health/Hospice Inc. v. Ortiz (WCAB), a Stipulation of Facts was reached with a worker who had injured her left shoulder, expanding the work injury to include "a left rotator cuff tear and biceps tendon injury." Once a Stipulation of Facts is approved by a WCJ and the appeal period has passed, it normally can't be disturbed. When the VNA filed two modification petitions asserting that the worker had failed to respond in good faith to modified-duty job offers, the insurer became aware of medical records showing that the injured worker had a prior left shoulder injury several months before the 2017 work injury. The insurer sought to set aside the Stipulation of Facts.

A WCJ granted the Modification Petition but denied the request to set aside the Stipulation of Facts and the WCAB affirmed. Upon appeal, the Commonwealth Court said the Stipulation of Facts should have been set aside as the worker repeatedly misled VNA, her surgeon, and the workers' compensation tribunal as to preexisting left shoulder issues.

Offset of work comp payment for uninsured motorist coverage remanded - Tennessee

In Jones vs Craddock, Jones suffered injuries in an auto accident and sought uninsured motorist coverage from Erie Insurance exchange. Erie argued that the accident occurred while Jones was working and that he had received comp benefits from his employer, and they were entitled to a setoff.

A trial judge granted the offset to Erie, but the Court of Appeals reversed the ruling. Since Jones continued to seek treatment and incurred bills after the claim was closed, there was a triable question as to whether he was entitled to additional comp benefits and the case was remanded for further proceedings.

Jury awards $687,000 to ex-BlueCross employee fired for refusing COVID-19 vaccine - Tennessee

In Tanya Benton vs.BlueCross BlueShield of Tennessee, a federal jury awarded $687,000 in back pay and damages to a bio-statistical research scientist who was terminated for refusing a COVID-19 vaccine based on religious grounds. The jury found BlueCross failed to provide reasonable accommodation for the scientist, who did most of her work from home and claimed a religious exemption to the mandate.

Cumulative trauma injury not compensable - Virginia

In Camille Vestres V. Amazon.Com Services LLC, an Amazon distribution center worker whose job entailed repetitive lifting and stowing, suffered rotator cuff tears and was denied work comp benefit. It is not enough to prove her injury was caused by repetitive and cumulative tasks at work. The Workers' Compensation Commission (VWCC) found that "a condition that results from cumulative trauma is not a compensable injury by accident." To meet the burden of proving an 'injury by accident,' "a claimant must prove that the cause of injury was an identifiable incident or sudden precipitating event and that it resulted in an obvious or sudden mechanical or structural change in the body."

Trapped in elevator does not meet 'sudden shock or fright' needed for compensability - Virginia

In Nancy France V. Anthem Inc., a health insurance company employee was trapped in an elevator for about 30 minutes and sought comp benefits for medical expenses and periods of temporary total disability related to psychological issues including insomnia, headaches, and thoughts of feeling trapped. The VWCC affirmed the denial of benefits by a deputy commissioner, noting for a purely psychological injury to be compensable as an injury by accident, it must be causally related to a physical injury or be causally related to an obvious "sudden shock or fright" arising in the course of employment.