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Workers' Compensation
Employer can't apportion liability for disability from unsuccessful surgery - California

In Hikida v. WCAB, an auditor developed carpal tunnel syndrome and underwent surgery, but her recovery did not go well and she became permanently and totally disabled. The Workers' Compensation Appeals Board (WCAB) asked the court to become involved because the case involved important issues of continuing public interest. Although the WCAB resolved the case and asked the court to dismiss it, the 2nd District Court of Appeal denied the motion and annulled the WCAB ruling. Under 2004 amendments, the permanent total disability was not apportionable because it was not caused by her carpal tunnel, but by the chronic regional pain syndrome resulting from the surgery. The employer is responsible for any disability arising directly from an unsuccessful medical intervention, without apportionment to any non-industrial causes for the underlying injury.

Required vehicle exception to going and coming rule applies for in-home caretaker - California

An appellate court overturned a denial of benefits to an in-home caretaker who suffered injuries in an accident while traveling on her bicycle between the residences of two different clients. The court noted the "required vehicle" exception to the going and coming rule, which exists when an employer requires that an employee bring a vehicle to and from work for use in her employment duties.

Judge cannot require Functional Capacity Evaluation (FCE) - Florida

In Lewis v. Dollar Rent A Car, a Florida appellate court noted that substantive rights under the workers' compensation law are established by the date of the accident. In this case, the 1988 law applied and it did not contain any provision that could compel an injured employee to undergo a FCE.

Going and coming rule nixes benefits; prescription card not compensation - Georgia

In Kendrick v. SRA Track, an employee was assigned to work on a project in Alabama and suffered injuries while riding his motorcycle there. After the accident, the comp carrier provided him with a prescription card he could use to obtain pain medication. About a year later he filed a comp claim. The carrier refuted the claim, asserting the accident had not occurred in the course of his employment and the courts, through several appeals, agreed that the accident occurred during the course of his travel to work.

Another consideration was the law gives an employer 60 days from the "first payment of compensation" to controvert a worker's claim. Since compensation is defined as income benefits, the prescription card was not "compensation."

Worker fired from job denied TTD before reaching MMI - Illinois

In Holocker v. IWCC (Komatsu America Corp.), the Appellate Court ruled that a worker who was fired before attaining maximum medical improvement (MMI) was not entitled to temporary total disability (TTD) benefits after he was fired. When the employee returned to work after being injured in a crane accident, he requested that he not be given any crane duties. For several months he worked as a forklift operator, but then was reassigned and suffered a panic attack when he attempted to operate the crane on which he was injured. When he asked to be reassigned, he turned down a janitorial position. A few months later he missed three days of work without calling in sick and was fired.

After several appeals, the Appellate Court noted the employee had been released to full-duty work and was back to work at his old job even though he had not reached MMI. He was able to re-enter the workforce and his injuries had no impact on his employment, therefore, the denial of TTD benefits was appropriate.

Chain-of-events principle means benefits for injured employee with pre-existing back problems - Illinois

A truck driver who had a history of significant back problems, slipped on a patch of ice while making a delivery. She never returned to work, was terminated, and continued to have treatment for her back.

An arbitrator found the fall to be a compensable accident, and allowed benefits for the temporary aggravation of her pre-existing back problems. However, the arbitrator opined that the need for the surgery hadn't been caused by the fall since her doctor had recommended the same procedure prior to the accident and no objective medical evidence revealed a change as a result of the fall.

The case went through the appeal process and ultimately the Appellate Court found that there was a change - she been able to work full time before her fall and wasn't able to work afterwards. It reasoned that the "chain-of-events" principle applied - so long as a worker was in a better condition before her injury than after "it is plainly inferable that the intervening accident caused the deterioration."

Going and coming rule does not bar compensation for a nurse traveling home - Massachusetts

This case involved a 71-year-old employee who worked as a nurse and was assigned to work at a facility in Vermont. She would travel to Vermont at the start of the workweek and return home to Massachusetts after her shift ended, five days later. Going home, she was in a serious auto accident. Determining that the employment contract and the witness testimony failed to clarify the terms of the agreement, a judge relied on case law to determine that her travel brought her within the class of traveling workers who are not barred from receiving compensation.

By paying late charge, employer avoids civil suit after comp is cancelled - Michigan

In a case of first impression, Lawrence W. Walrath, v Witzenmann USA LLC, the Court of Appeals ruled there's no requirement that an employer have insurance at the time the employee gets hurt and as long as the employer gets coverage and the employee gets benefits, the employer is in compliance with the Workers' Disability Compensation Act. In this case, the employer missed a premium payment and the insurance was cancelled. A month later, an employer suffered a traumatic injury and a few days later, the company wired a premium payment to the insurer. The policy was reinstated, retroactively.

The employee later filed a negligence suit, arguing that the company didn't have comp coverage when he was injured and that the language of the act afforded him a tort remedy. The company countered that it had complied with its obligations to provide coverage under the act by retroactively securing coverage and the court agreed.

'Common enterprise' rule squashes family's tort claim against subcontractor - Minnesota

In Kelly v. Kraemer Construction, the Supreme Court ruled that the family of an electrocuted construction worker could not pursue a tort remedy against the subcontractor allegedly at fault for the accident, since the subcontractor had been engaged in a common enterprise with the worker's employer. An employee of the general contractor was working with employees of a subcontractor, repairing a bridge when he was electrocuted. His dependents received workers' compensation benefits through the general contractor and filed a tort suit against the subcontractor.

The case went through several appeals, but ultimately it was decided that the contractor and subcontractor were engaged in a "common enterprise." Under Minnesota law, when a third party is engaged in a common enterprise with the employer, the worker must choose between a recovery of workers' compensation benefits or a tort remedy. Since the family accepted workers' compensation benefits, they lost their ability to pursue a civil action.

Employer must receive some portion of subrogation lien - Nebraska

In Kroemer v. Omaha Track Equipment, an employee sustained a 95% loss of vision in his eye in a spot-welding incident. He settled his workers' compensation claim and filed a tort suit against The Tie Yard and Omaha Track, which manufactured the equipment. The company documented that his conduct contributed to the injury and he settled for $150,000, despite the objections of his employer. A judge found the settlement reasonable and allocated approximately $95,000 to the employee, $55,000 for attorney fees, and $0 for the employer.

The employer appealed and asked to bypass review by the Court of Appeals. The Supreme Court granted the request and found the settlement to be reasonable, but said the employer deserved some of the settlement and ordered a trial judge to determine what was fair and equitable.

Volunteer's tort suit barred by exclusive remedy - New York

In Aprile-Sci v. St. Raymond of Penyafort R.C. Church, a volunteer at a Roman Catholic church tripped and fell over an exposed power cord near the church altar while distributing the Eucharist. The church was self-insured with coverage extended to church volunteers, and the Workers' Compensation Board determined she was eligible for benefits. Through her attorney, the volunteer received notice of the hearing, but did not attend and instead filed a personal injury action against the church. The Appellate Division's 2nd Department found the determination of the Board was sufficient to bar her from bringing a civil action against the church, and the church's motion for summary judgment should have been granted.

Couple fined $86,000 for failure to provide comp benefits for live-in domestic worker - New York

In Castillo v. Brown, a live-in domestic housekeeper and child-care provider cut her right hand on a piece of glass while washing dishes and filed for comp benefits. The couple did not have insurance and WCLJ assessed a penalty of $1,000 for each 10-day period of non-compliance, totaling $86,000. While there are alternate ways to determine the penalty, the appellate court indicated the employers had not raised the argument as to the method of computing the penalty before the WCLJ, nor did they present any testimony with respect to their failure to obtain workers' compensation coverage. The $86,000 penalty was, therefore, appropriate.

Decision on causation presumption expected to have major implications - North Carolina

In Wilkes v. City of Greenville, the Supreme Court held that once the employee meets the initial burden of showing that an injury is the result of a compensable accident, a presumption arises that additional medical treatment for any symptoms, conditions or injuries is directly related to the work accident. In this case, the employee sustained serious injuries in a work-related vehicle accident and sought additional medical treatment for anxiety and depression. While the Industrial Commission ruled that he had failed to show the need for such treatment was causally related to the original injury, the Court of Appeals reversed and the Supreme Court agreed, holding (under Parsons) that it was an error to place the burden on the injured worker to prove causation each time he or she sought medical care.

Supreme Court decision leads to suspension of impairment rating process - Pennsylvania

The Bureau of Workers' Compensation has suspended all independent rating evaluations (IRE) in reaction to the Supreme Court decision striking down the IRE process as unconstitutional. The bureau sent a notice to stakeholders through its electronic claims filing system indicating that the agency will no longer designate physicians to perform IREs. The court did not indicate whether the decision was retroactive and this is expected to generate the revival of many older cases.

In Mary Ann Protz v. Workers' Compensation Appeal Board, the Supreme Court affirmed an earlier decision by the Commonwealth Court, finding the statute contained an impermissible delegation of legislative authority to the American Medical Association. According to both the high and appeals courts, the problematic provision is the requirement that doctors use the "most recent" version of the AMA Guides for the evaluation of permanent impairment in rating a worker's disability.

Accepting a lower paying job can mean loss of earning power - Pennsylvania

In Holy Redeemer Health System v. WCAB (Lux), a nurse injured her back while at work, did not miss any work after her accident, although she had to change to a light-duty position at the same wage. Sometime later, the hospital created a permanent care management position and offered her the job. She accepted the position, although it paid less. She later filed a claim petition seeking compensation for her lost wages.

While the Commonwealth Court acknowledged that it had previously held that a worker was not entitled to compensation for a loss in wages after switching from a modified-duty position to a new job that paid less (Shenango v. WCAB (Weber)) the court said the facts were different. Here, she did not seek the position, but the health system decided to create the lower-paying job and offer it to her. The court said it could not allow employers "to evade the payment of pre-injury wages or partial disability benefits by creating and offering permanent, lower-paying positions to claimants that are within the restrictions imposed by the claimants' work-related injuries."

Tennessee courts can oversee claims of Arkansas-based employer - Tennessee

In James and Elizabeth Russell v. Transco Lines Inc, a husband-and-wife truck driving team from Tennessee was injured when their truck rolled down an embankment in Louisiana. They wanted the claims managed in Tennessee, believing benefit awards to be higher than in Arkansas, but the employer was based in Arkansas.

Ultimately, the Supreme Court's special workers' compensation panel supported a lower courts decision in their favor. Tennessee courts have jurisdiction over workers' compensation cases if the injured worker is a resident and one of the following conditions is met:

The court found that the third condition was met because they stored their truck at home, they received job assignments at home, for several years they traveled through Tennessee every other week, and every one of the routes began and ended in Tennessee.