Legal Corner

compensation was, therefore, the exclusive remedy.

Payloader not motor vehicle – Connecticut

In Connecticut, there are several exceptions to the exclusive remedy provisions of workers’ comp, including if injuries are based on a fellow employee’s negligence “in the operation of a motor vehicle.” An appellate court recently held that a “payloader” – a type of front-end loader – was the sort of “special mobile equipment” not included within the meaning of “motor vehicle” and a wrongful death action was barred by the exclusive remedy rule.

Abendroth v. Moffo, 2015 Conn. App. LEXIS 139

Truck driver is employee and subject to exclusive remedy – Michigan

An appellate court found that a driver who leased a semi-truck and trailer from one firm and, through an arrangement with a transportation broker, transported steel for a company was the latter’s employee for purposes of workers’ compensation and could not sue for negligence. The driver did not maintain a separate business, did not hold himself out to and render service to the public, and was not subject to the Michigan Worker’s Disability Compensation Act (WDCA) as an employer.

Hodnett v. Alro Steel Corp., 2015 Mich. App. LEXIS 814 (Apr. 21, 2015)

Obesity defense of broken chair fails – Missouri

While the Second Injury Fund denied a claim of a worker who hurt his back when a chair in the lunch room broke, the ALJ rejected the defense that the worker failed to prove a work risk that he was not equally exposed to away from work. The worker’s obesity had not caused other chairs to collapse.

Wright v. Roto-Rooter, 2015 MO WCLR Lexis 29 (, 2015 MO WCLR Lexis 29 (Lexis Advance) (April 7, 2015).

Worker had unusual strains from routine work and entitled to benefits – Missouri

This important case involved a statutory interpretation of what the legislature meant when it redefined “accident” and eases the burden to prove “accident.” A worker in his 50s tore three tendons in his right shoulder in 2009 after he lifted himself about two feet into his truck. Rejecting the defense that the worker must show an abnormal activity or abnormal performance of a normal activity, the majority of the Western District as a matter of first impression found the worker established he had an “accident” even though he performed the normal duties of ascending his truck in a usual fashion. The majority found what matters is the fact that an injury occurred and not what preceded it.

Duever v All Outdoor, 371 S.W.3d 863 (, 371 S.W.3d 863 (Lexis Advance) (Mo. App. 2012).

Freight broker liable for workers’ compensation – North Carolina

In Atiapo v. Goree Logistics, Inc., a freight broker contracted with an interstate motor carrier to handle transportation needs for its shipper customer. One of the carrier’s employee drivers was injured during the shipment, and initially filed a workers’ comp claim against the carrier. The motor carrier had fewer than three employees, and therefore, is not subject to workers’ compensation jurisdiction. The employee then sued the freight broker, contending he was a contractor under North Carolina law, making the broker liable for coverage. The North Carolina Court of Appeals concluded that a freight broker is liable when its selected carrier failed to provide workers’ compensation insurance coverage to an injured driver.

Attorney gets less than 10% of requested fee – North Carolina

A North Carolina appellate court affirmed a decision of the state’s Industrial Commission awarding $3,000 in attorney fees rather than the $37,537.50 the attorney had requested. The undisputed case involved a truck driver who was killed in a vehicular accident and included a short evidentiary hearing to establish the identity of the deceased employee’s dependent beneficiaries.

The court acknowledged the attorney and the deceased employee’s surviving spouse had entered into a 25 percent contingency fee agreement; however, the court noted that the attorney’s fee application that only generally cataloged 107.25 hours and requested $350.00 per hour contained entries that were not appropriate. Furthermore, the attorney had failed to appeal the Commission’s decision as to the reasonableness of fees to the senior resident judge of the superior court in the county in which the cause of action arose or in which the claimant resides.

Payton v. Barnes Transp., 2015 N.C. App. LEXIS 244 (Apr. 7, 2015)

Ski resort worker’s common law wife entitled to benefits – Pennsylvania

An employee of a ski resort died as a result of multiple injuries he suffered in a work-related accident. The company agreed that his daughters’ weekly death benefits of $180.18 would be paid to their mother as their legal guardian, but did not resolve if she was legally married to the deceased. According to records, the couple entered into a common-law marriage contract (six months prior to when common-law marriages were prospectively abolished )and had a traditional Native American marriage ceremony. Through several appeals each court found that she was entitled to death benefits.

Elk Mountain Ski Resort, Inc. v. Workers’ Comp. Appeal Bd. (Tietz), 2015 Pa. Commw. LEXIS 146 (April 7, 2015).

NFL concussion class action settlement approved – Pennsylvania

In a seven-page ruling, a federal judge in Philadelphia granted final approval to a settlement in a class action lawsuit brought by more than 4,500 former players against the NFL for concussion-related injuries. Under the settlement, younger players already suffering from symptoms of neurodegenerative disorders like Parkinson’s and Lou Gherig’s diseases will receive more money – up to $5 million each – than older players. Players will receive an average of $190,000. Some players have opted out of the settlement and there may be future appeals.

Judge rules that state law limiting comp benefits for undocumented workers is unconstitutional – Tennessee

Noting the U.S. Constitution gives the federal government the authority to set immigration policy and not the state legislature, a Nashville judge ruled that a state law limiting the amount of workers’ compensation benefits undocumented workers can receive is unconstitutional. The judged awarded $45,000 in benefits to a Guatemalan man whose left arm was severely injured when he fell and it was run over by a lawnmower.

It’s not clear whether the state will appeal.

Employee fired after filing workers’ comp claim can proceed with retaliation claim – Tennessee

A server at Waffle House sought workers’ compensation benefits and a change to her work assignments after she felt a “pop” in her shoulder while lifting dishes from a dishwasher to an overhead shelf. Her doctor advised Waffle House that she should not perform lifting and dishwasher-emptying duties. When she was terminated less than three months after she requested work restrictions,the court determined there were credibility questions regarding the restaurant’s claims since the employee had never been disciplined in 20 years of employment and held that a jury could conclude that her workers’ compensation activity was a “substantial factor” in her termination.

Graves v. Waffle House Inc., No. 3:12-cv-0414 (M.D. Tenn. 03/06/15)

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