Legal Corner

Wrongful death suit revived for failing to allow expert witnesses - California

In Garner v. BNSF Railway Co., the son of a long-term railway worker filed a wrongful death suit against BNSF Railway Co. after his father died from non-Hodgkin's lymphoma. He argued the lymphoma was caused by his father's occupational exposure to various toxic substances and carcinogens. Although the son presented the opinions of multiple experts that the substances listed in the complaint can cause non-Hodgkin's lymphoma, the railway moved to exclude the opinions of the son's experts and the trial judge agreed, effectively granting a nonsuit.

Upon appeal, the Court of Appeal for the 4th District overturned, noting, "This ruling reflects a misunderstanding of the law." There is "no requirement that a causation expert rely on a specific study or other scientific publication expressing precisely the same conclusion at which the expert has arrived." It takes an expert to "bridge the gap between association and causation" and "make that informed judgment." The testimony is admissible and the wrongful death suit was revived.

Reduction in attorney fee was improper - Florida

In Rudolph v. Smith, a Court of Appeals reversed a workers comp judge's decision to reduce an attorneys' fee from the requested $805,000 to $123,000 for representing a worker, who became a ventilator-dependent quadriplegic following a tragic workplace accident. The settlement for the case was $13,500,000. The Appeals Court found the judge relied on his subjective belief in evaluating the reasonableness of the fee and that the stipulated fee amount was already "substantially less than what (state statute) deemed as presumptively fair."

Death benefit for volunteer firefighter must be based on wage for similar services - Missouri

In Susan Hayes, v. City of Eldorado Springs, a volunteer firefighter was killed while transporting a fire engine when he was ejected from the vehicle in a rollover accident. He was paid per call, but not a fixed hourly wage. An administrative law judge awarded the widow the statutory minimum benefit of $40 per week, which the Labor and Industrial Relations Commission affirmed. However, the Court of Appeals noted the statutes provide that, when no hourly wage is available to calculate a benefit, the Labor and Industrial Relations Commission must use "the usual wage for similar services where such services are rendered," where usual means average, but not less than $40. The widow had presented evidence on the average wage of career firefighters and the Commission did not consider if the services were similar. The case was reversed and remanded.

Independent contractor or employee in vicariously liability case will be determined by jury - New York

In Karla Smith v. Richard Ryder, Jr., the Hearst Corporation and Hearst Communications, a newspaper delivery driver struck a woman in a crosswalk, causing serious injuries. She sued not only the driver but also Hearst Corp. as the employer. To be vicariously liable for the driver's negligence, there must be an employer-employee relationship and the company argued the driver was an independent contractor. In its defense, the company has relied upon the state Labor Law and Workers' Compensation Law, which excluded newspaper delivery persons when there is an independent contractor agreement.

While the statutes cover the relationship between the newspaper corporation and its delivery personnel when an employment issue exists, they are silent about whether a newspaper company is exempt from vicarious liability when its delivery personnel negligently injures a third party.

The Supreme Court, Albany division, refused to dismiss the lawsuit and a jury will decide if the driver is an employee.

Off-duty Law Enforcement Officer is joint employee - North Carolina

In Stephen Lassiter vs. Robeson County Sheriff's Department, a potentially precedent-setting case, the Court of Appeals addressed whether an off-duty law officer seriously injured while moonlighting for a bridge company working under a NCDOT contract is considered an employee of the law enforcement division or the private company. It also considered, for the first time, whether a moonlighting officer is considered an independent contractor and excluded from workers' compensation.

Reversing in part the ruling of the Industrial Commission that would have held the sheriff's office solely responsible, the court decided that the officer was jointly employed and both the sheriff's office and the bridge company were responsible for workers comp. Even though he was off duty, he was hired based on his official status and acted as a police officer conducting traffic, but he also was paid by and subject to the supervision of the bridge company.

The Industrial Commission did not err in its decision that the officer was not an independent contractor but was wrong in finding that the bridge company was not liable as a joint employer.

Court decision about "Red Book" prescription pricing standard could lead to lower comp drug costs - Pennsylvania

In Federated Insurance Co. v. Summit Pharmacy, the Commonwealth Court ruled against the state workers' compensation bureau's use of the "Red Book" standard for disputes over costs of prescription medications in workers comp claims. The Red Book average wholesale prices (AWP) are the manufacturer's suggested AWPs and do not reflect the actual AWPs charged by a wholesaler.

The court held that Red Book values did not reflect AWP as required by the statute and is requiring a new method to determine how much insurers must pay, based on industry average AWPs paid by all manufacturers or wholesalers. The court directed the Bureau to promptly identify and publish in the Pennsylvania Bulletin a different, nationally recognized schedule to be used to determine AWP.

The decision could set a precedent for more accurate and fair pricing practices in drug costs.

Officer who fell asleep behind wheel entitled to benefits - Pennsylvania

In Department of Corrections v. Pennsylvania State Corrections Officers Association, a corrections officer crashed his vehicle when he fell asleep behind the wheel during a mandatory overtime shift. The officer was a member of the bargaining unit known as the Pennsylvania State Corrections Officers Association, which has an agreement that calls for arbitration under the Heart and Lung Act (HLA), a comp alternative for officers. The department denied the claim for benefits because he was not injured "in the performance of his duties," since he was asleep at the time.

An arbitrator and Appeals Court disagreed, finding he was patrolling the perimeter of the prison that he was assigned to do and there was no willful intent to stop working.

Compensability of gradual hearing loss requires timely notice - Tennessee

In Ernstes v. Printpack Inc., an employee who worked for a packaging and delivery company was exposed to loud machinery over thirty-three years of employment. Although the employer provided annual hearing tests and provided protective equipment, there was no evidence that the company received the results of the screening. The employee testified she was not aware she may have work-related hearing loss, didn't notice her hearing loss until after she retired in 2019, and contributed it to old age.

When meeting with an attorney regarding her husband's hearing loss in 2021, she connected her hearing loss to her job and filed a comp claim, which the company denied as untimely. It argued the employee knew or reasonably should have known she had a work-related hearing loss, at the latest, when she was diagnosed in 2019. Workers with gradual or cumulative injuries are required to provide notice of injury within 15 days after they know or reasonably should know that the injury is work-related.

A judge found the notice was timely and awarded benefits, however, the Appeals Board determined the evidence did not support this finding and remanded the case asking if there was a reasonable excuse for the delay in reporting and if the company was prejudiced by the failure. There was no reasonable excuse but the company was not prejudiced. The judge reinstated the benefits but the Appeals Board rejected the decision, and the case went to The Supreme Court's Special Workers' Compensation Appeals Panel.

The former worker argued an exception to the timely notice requirement - that the employer had actual knowledge of the injury - was relevant since the employer conducted hearing tests and provided protective equipment. But the panel disagreed noting there was no evidence that the employer received the screening results, or that the screenings were conducted by expert medical professionals.

Extended premises doctrine entitles airline worker to benefits - Virginia

In United Continental Holdings Inc. v. Sullivan, the Court of Appeals upheld an award of benefits to an airline employee for her injuries from a fall under the extended premises doctrine. During the pandemic, airline employees were allowed to use a garage that was typically used by customers because it was closer to the terminal. She fell when she walked from her car through a covered walkway to her workstation. United did not own the garage nor was it responsible for the walkway's maintenance.

A deputy workers' compensation commissioner ruled that the injury did not arise in the course of her employment. The Workers' Compensation Commission reversed and the Court of Appeals concurred. Under the extended premise doctrine, injuries occurring in places where an employer "has some kind of right of passage" to and from a building, such as "common stairs, elevators, lobbies, vestibules, concourses, hallways, walkways, ramps, footbridges, driveways, or passageways through which the employer has something equivalent to an easement" are "generally considered to have taken place on the employer's premises."

School district files claim on behalf of teacher who was shot - Virginia

Even though the Newport News Public Schools is being sued for $40 million in civil court, it filed a workers comp claim on behalf of the teacher one year after she was shot. The teacher's legal team sees this as a move to force "schoolteachers to accept violence as a normal requirement for teaching our young children." The school's attorney maintains there is a two-year statute of limitations for comp benefits and that the Workers' Compensation Commission is the correct forum to determine the case.

A tentative trial date for the teacher's civil case is January 2025.