Legal Corner

Workers Compensation
High Court to review decision on petitions for reconsideration - California

The Supreme Court granted the Workers' Compensation Appeals Board's (WCAB) request to review the appellate court decision in Joseph Mayor v. WCAB, prohibiting the WCAB from acting on petitions for reconsideration more than 60 days after they were filed.

Important decision addresses off-duty medical marijuana use - Florida

In Giambrone v. Hillsborough County, a firefighter paramedic, who held a state-issued medical cannabis card, sued the county after being placed on unpaid administrative leave for failing a random drug test unrelated to a workplace injury. The paramedic argued that the county failed to provide him with a reasonable accommodation and his lawful off-premises use of medical cannabis law should not subject him to adverse employment actions.

The court agreed finding that the Medical Marijuana Law requires employers to allow off-site medical cannabis use under certain conditions, if it does not impair job performance, compromise workplace safety, or involve on-site use. Noting that the paramedic suffered from anxiety, PTSD, and insomnia, it suggested that off-site use tied to a disability could be protected under the state's Civil Rights Act. Further, there was no evidence of impairment and the county's policies did not indicate medical cannabis would be treated differently from other prescribed medications.

It's expected the county will appeal the decision.

Insurers and contractors allege massive fraud scheme under scaffold law - New York

Filed by captive reinsurer Ionian RE in federal district court, the lawsuit alleges fake unwitnessed falls on construction sites representing hundreds of millions of dollars in workers compensation payments and liability insurance settlements. The suit targets personal injury lawyers, law firms, medical practices, and 12 individuals who carried out the alleged unwitnessed staged accidents. Unlike most other states, the New York scaffold law makes construction companies and property owners 100 percent financially liable if a worker falls from any height and is injured on their jobsite.

High court clarifies standard for extended comp benefits - North Carolina

In Sturdivant v. North Carolina Department of Public Safety, a corrections officer injured his back and received temporary total disability benefits (TTD). In 2011, TTD benefits were capped at 500 weeks, but a worker could receive extended benefits if they proved "a total loss of wage-earning capacity." The Industrial Commission denied the extension of benefits for the corrections officer, arguing that the statutory requirement of a total loss of wage-earning capacity meant "a total loss of the ability to earn wages in any employment."

A Court of Appeals disagreed, noting "total loss of wage-earning capacity" was synonymous with "total disability." Both parties appealed and while the case was under appeal, the legislature amended the law to clarify that total loss of wage-earning capacity "shall mean the complete elimination of the capacity to earn any wages."

The Supreme Court agreed with the Industrial Commission's ruling, finding that "total loss of wage-earning capacity" means "a total loss of the ability to earn wages in any employment." Further, the high court found the corrections officer retained some wage-earning capacity, thus, he was not entitled to extended compensation.

Prior settlement of injury to same body part cannot bar claim for new injury - North Carolina

In Collins v. Wieland Copper Products, LLC, a worker had settled a claim for an injury to his right shoulder in 2009 and the claim was closed for future benefits. In 2020, the worker had another accident injuring his right shoulder while working for the same employer. His employer denied the new comp claim arguing that the prior settlement agreement for his right shoulder injury in 2009 barred any future workers compensation claims for the same body part.

The commission found that the 2020 injury was both a compensable injury by accident and a material aggravation of a preexisting shoulder condition and the Court of Appeals agreed, noting that the injuries arose from a new accident and the earlier settlement did not apply.

High court to review decisions on injury notice by sole proprietor and prohibitions on self-referrals - Pennsylvania

The Supreme Court has granted review of Erie Insurance Property & Casualty Co. v. Heater (WCAB) where the Commonwealth Court found a sole proprietor had not satisfied his statutory obligation to report an injury within 120 days when he reported the injury only to himself as his own employer. It will also review 700 Pharmacy v. State Workers' Insurance Fund (SWIF) that found the statutory prohibition on self-referrals prohibits physicians from sending injured workers to pharmacies in which they have a financial interest.

Compensation to surviving dependents is mandatory if petition pending and claim successful - Pennsylvania

In Riehl v. Beiler Bros., LLC., a worker was receiving TTD benefits for a disabling injury and filed a petition to convert his TTD benefits to specific loss benefits. While the petition was pending, the worker died. His widow continued the petition, but the Board said it was mooted by his death.

The Commonwealth Court disagreed noting the statute requires paying surviving dependents or an estate the compensation due if the claim is pending at the time of death. A WCJ had found that the deceased was entitled to TTD followed by specific loss benefits. The court also noted that there was no potential for a double recovery since the death occurred more than 300 weeks after injury and the widow would not receive death benefits.

Right of control key for statutory employer rule to apply - Tennessee

In Lowe v. Bridgestone Americas Tire Operations LLC, a millwright for an independent contractor was killed when a 2,200-pound tire mold fell on him. Cumberland Machine Co, the independent contractor, had dedicated space inside a Bridgestone plant where it repaired molds. The widow brought a negligence action against Bridgestone that claimed immunity under the exclusivity laws.

The court denied summary judgment, finding there were triable factual disputes regarding Bridgestone having the right to control the work conducted by the millwright and whether work done by the contractor was a regular part of its business or the same type of work usually performed by the company's employees.