Legal Corner

Workers Compensation
Workplace shooting lawsuit can proceed - Florida

In Bottling Group LLC. v. Giovanni Bastien, an appeals court ruled that Bottling's parent company, Pepsi Co. Inc., does not have workers compensation immunity in a lawsuit over a shooting at a packaging and distribution facility. When Bottling initially denied a work comp claim arguing the workers involved were not in the course and scope of employment, the wounded employee sued. The workers had gotten into an argument over union issues, agreed to fight, and clocked out of work. When one worker attempted to return to work without fighting, he was shot. The court noted if the employer denies a claim because the injury did not arise out of and in the course and scope of employment, it cannot then argue that it is shielded by workers' compensation exclusivity if the worker pursues a civil remedy.

Traveling inspector entitled to comp - Illinois

In Town of Cicero v. Illinois Workers' Compensation Commission, a blight inspector fell down the office stairs and injured himself on his way to get his town vehicle. He typically would report to the office to get his work phone and assignments and then go downstairs to get the employer-provided vehicle. The Workers' Compensation Commission (WCC) found that the injury arose out of and in the course of his employment. The town appealed, arguing that the inspector's injury did not arise out of his employment because the inspector was not a traveling employee and he was "not exposed to a risk to a greater degree than the general public."

The appellate court agreed with the WCC, noting that traveling was an essential component of his job, which required him to drive around inspecting properties, and descending the stairs was a job-related activity.

Negligence lawsuit against two subcontractors on jointly controlled job site can proceed - Michigan

In Michael Crispin v. Barton Malow Builders LLC and Saylor Inc., an appellate court ruled that the exclusive remedy doesn't apply when a worker who is injured on a jointly controlled job site seeks to sue a company other than his employer. The worker was employed by Universal Glass which was subcontracted to work on a project run by Rock Development Co. LLC. He was injured when a large piece of fireproofing material being applied by another subcontractor, Saylor's, fell on him and received comp benefits from Universal Glass. He then sued the subcontractor, Saylor, and the general contractor, Barton Malow.

The court noted that all workers, regardless of their place of employment, assisting with this project were covered by Bedrock Management's owner-controlled insurance program (OCIP) policy. The subcontractors argued that all employers covered by the OCIP policy are entitled to the immunity conferred by the exclusive remedy provision, but the court disagreed, stating "the reference to "the employer's insurer" refers to the policy as it relates to the entity that actually employs the injured person."

High court considers PTSD case - Minnesota

In Tea v. Ramsey County, a social worker alleged that she developed PTSD after hearing the grisly details of how one of her clients murdered his girlfriend. The county initially provided comp benefits but discontinued them after a licensed psychiatrist concluded that the social worker did not have PTSD, but was suffering from anxiety, depression, and burnout. A workers compensation judge (WCJ) found and an appellate court affirmed that the opinions of three treating providers were more credible than that of the psychiatrist hired by the county and awarded benefits.

Upon appeal, the Supreme Court noted that PTSD is compensable if a psychiatrist or psychologist has diagnosed the employee with PTSD and the professional based the employee's diagnosis on the latest version of the Diagnostic and Statistical Manual of Mental Disorders (DSM). While the WCJ was presented with competing expert reports with adequate foundation, the judge made a reasonable choice based on the evidence.

Unusual case involves "personhood" laws and comp exclusivity - Missouri

In Tonya Musskopf and Austin Jarvis v. Missouri Highways and Transportation Commission et al, a pregnant state employee was struck and killed in a work zone. The state's highest court recently held oral arguments and is weighing whether to allow a wrongful death lawsuit brought by her partner and her mother on behalf of the deceased fetus or if the death of the mother and fetus is covered exclusively by workers comp. The case has spurred legislative action. House Bill 2483 would clarify that an "unborn child" killed during work-related accidents wouldn't be subject to workers comp exclusivity.

Appeals court upholds $15 million award for seaman's death - Missouri

In Love v. Osage Marine Services Inc., the Court of Appeals upheld a $15 million award of damages on a Jones Act claim for a 22-year-old seaman's death. The worker and his supervisor were boarding a barge and there was cornmeal on deck. Both were wearing life jackets, but the seaman fell into the water and his recovered lifejacket was cut in half.

He lived with his mother who argued that the supervisory employee tested positive for drugs immediately after the incident and failed to act promptly to rescue her son. She also alleged that the equipment "was not reasonably fit for its intended use." The company initially contested liability but later took responsibility for his death and the trial proceeded on the question of damages. She sought damages for loss of financial support and conscious pain and suffering. The court said the Jones Act allows for damages covering the loss of support, and financial dependency is not required for damages for such loss. It also allows damages for pre-death pain and suffering and while there was only circumstantial evidence and reasonable inferences related to the seaman's death, it is more likely than not that he suffered.

Divided Supreme Court reinstates COVID-19 occupational disease claim - Nebraska

In Thiele v. Select Medical Corp.,a nurse liaison who worked remotely was designated as an essential healthcare worker and required to report to the hospital in March 2020. Three weeks later she tested positive for COVID-19 and experienced continuing severe medical issues and was rendered unable to work. A lower court denied the comp claim, noting that COVID "is a disease of ordinary life."

Upon appeal, the Supreme Court said an occupational disease does not have to exist exclusively in a particular employment. "It has been observed that the heightened risk of the workplace provides the nexus between the disease and employment and makes the diseases appropriate subjects for an award of workers' compensation." Moreover, the determination of "a disease of ordinary life" should be based on conditions at the time of the infection in April 2020. There was evidence that the virus was rare in early April 2020, and sick individuals were instructed to seek care at a hospital. Therefore, in a 4-3 decision, the court found a genuine issue of material fact as to whether Thiele's COVID-19 infection contracted in early 2020 was an occupational disease or a disease of ordinary life.

Employers can reimburse workers for medical marijuana without violating federal law - Pennsylvania

In Catherine D. Iskra, v. Aussie Pet Mobile Bux-Mont, the Commonwealth Court ruled that the Workers' Compensation Appeal Board erred by affirming a judge's ruling that paying or reimbursing an injured employee for her medical marijuana costs would subject an employer/WC carrier to prosecution under federal law. The case involved an employee who sustained injuries from a work-related accident with Aussie Pet Mobile Bux-Mont, leading to chronic pain and subsequent treatment including medical marijuana.

While the employer accepted liability for the injury and paid for the worker's ketamine treatments, medical marijuana costs were excluded due to perceived federal legal risks. Citing precedents, the court said ordering employers to reimburse for injured workers' medical marijuana does not equate to the employer engaging in the manufacture, distribution, or dispensing of a controlled substance and, therefore, doesn't violate federal drug laws. The Commonwealth Court remanded the case to the workers comp board for further proceeding.

Fall in parking lot returning from break compensable - Pennsylvania

In Pennsylvania Liquor Control Board v. Berardi, a liquor store clerk left the store on a lunch break to pick up pizza. When he returned, he parked in the parking lot of the shopping center where the liquor store was located and walking to the store tripped on a concrete barrier and fell, injuring his knee and elbow. The Workers' Compensation Board found that the claim arose out of employment and was compensable and the state liquor board appealed.

Upon appeal, the Court found that the worker was on the employer's premises when he fell and he was furthering the business or affairs of his employer. The court pointed out that the term "premises" is not limited to the property that the employer owns or controls. Parking lots may be considered part of the employer's premises if they are integral to the employer's workplace or constitute a reasonable means of ingress to or egress from the workplace. Also, getting to the place where he worked in the store was a necessary part of the clerk's employment, and thus furthered the employer's interests.

High court calls Workers' Compensation Commission's denial of repetitive trauma injury "troubling" - South Carolina

In Dale Brooks v. Benore Logistics System Inc., a "switcher" truck operator filed a comp claim for a disc protrusion in his vertebrae. The company declined to use its doctors and instead commissioned an ergonomics report to assess whether the job was repetitive. An employer cannot use an ergonomics report, showing that a work injury is statistically unlikely, to deny a workers' compensation claim, the Supreme Court said. "Individual cases must be decided by the facts of the case and applicable law, not statistical probabilities."

Employee injured in crosswalk not entitled to benefits - Virginia

In Audra L. Poole v. Quest Diagnostics Inc., Travelers Property Casualty Company, a phlebotomist for Quest Diagnostics, who suffers from multiple sclerosis, suffered multiple injuries when she slipped and fell in a crosswalk on her way to work. The courts determined that her fall did not meet the exceptions allowed under the going and coming rule because the path was not the sole and exclusive means of ingress and egress, nor was it constructed by the employer. The court also considered the extended premise doctrine, but cited another case that concluded, "a publicly used traffic lane connecting a parking lot to an employer's workplace does not extend the employer's workplace under the doctrine."

School shooting case to head to trial - Virginia

The Court of Appeals dismissed a pretrial appeal by the Newport News School Board, which argues a $40 million lawsuit by former teacher, Abigail Zwerner, after being shot by a 6-year-old should be barred because of workers comp exclusivity. The decision paves the way for a January 2025 trial start date.

High court agrees some Amazon drivers are employees - Wisconsin

The Supreme Court will not overturn a lower court order declaring Amazon Flex delivery drivers are employees rather than contractors, meaning the company could be on the hook for more than $200,000 in delinquent unemployment taxes. The Amazon Flex program hires workers (Amazon considers independent contractors) to deliver small packages out of their cars. In a unanimous decision, the Supreme Court dismissed the case, saying its review was "improvidently granted" (shouldn't have accepted the appeal in the first place) by justices.

Although this case deals with unemployment taxes, the decision was based on how many tests of the state's multipart standard for determining the status of an employee or independent contractor that Amazon could show it had met. The court found it did not meet six of the nine definitions, which is needed to qualify as an independent contractor. The decision can set the ground for litigation regarding a wide variety of issues, including minimum wage payments and workers compensation.