Legal Corner

Workers’ Compensation
Trucker not independent contractor despite contract language – California

While unloading a tractor-trailer rig filled with latex paint, the driver suffered serious injury when a pressurized cap came off the trailer. The truck was owned by Ali’s Trucking; the trailer was owned by Trimac, which is a multi-national corporation that specializes in transporting liquid latex-based products from producer to buyer. The significant issue was the employment relationship with Trimac.

Ali’s Trucking owned two tractors purchased from Trimac that were leased back to Trimac for its business. A contract with Trimac, entitled “Lease Agreement Independent Contractor” designates Trimac as “Carrier” and Ali’s Trucking as “Independent Contractor.” Although the lease agreement gave the independent contractor control of its drivers, in practice, Trimac had substantial involvement in directing and controlling the drivers and it was found that the injured worker was an employee of Trimac. Trimac has appealed.

Social Security benefits must offset comp benefits in all cases – Kansas

Reversing a decision by the Court of Appeals, the state’s Supreme Court held that an injured worker’s compensation must be reduced by any social security retirement benefits simultaneously received by the worker even if the worker was already receiving Social Security retirement benefits prior to the date he was injured and in spite of the fact that those Social Security benefits were unaffected by his earnings due to amendments made to the Social Security Act in 2000. Hoesli v. Triplett, Inc., 2015 Kan. LEXIS 931 (Nov. 20, 2015)

Injured worker can collect TTD despite achieving MMI – Missouri

Prior to this ruling in Greer v Sysco Food Services, SC 94724 (Mo. 2015), courts used MMI as a benchmark that ended the employer’s obligation to pay TTD. The case involved a worker who crushed his foot in 2006, received treatment, and reached Maximum Medical Improvement (MMI). Several years later he had additional surgery performed and argued he was unable to work and entitled to benefits during his recovery.

The ALJ denied TTD, but the Commission awarded it, finding that the subsequent surgery was reasonably related to treatment for the injury and undergoing surgery was a rehabilitative process that triggered a statutory right to TTD. The employer objected to the commission’s award of about $19,000 in temporary benefits because the worker had reached MMI before the surgery. The court of appeals denied it, but the Supreme Court awarded it.

Letter with insufficient postage dooms appeal – Missouri

When delivery of a notice of appeal was refused by the U.S. Postal Service because of insufficient postage and the envelope was returned, then re-mailed with sufficient postage, and received two weeks after the expiration of the 30-day appeal period, the notice of appeal was untimely. While the employee argued that the original envelope, which had a private postage meter time date one day prior to the expiration of the 30-day period, was “received” by the Commission, but refused because the Commission refused to pay $.92 in additional postal charges, the appellate court disagreed. Because there was insufficient postage, there could be no presumption of delivery. Marciante v. Treasurer of Mo., 2015 Mo. App. LEXIS 1265 (Dec. 8, 2015)

Employee may obtain nunc pro tunc approval of settlement only if suit is actually filed – New York

Where an injured employee never commences a third-party action to recover for injuries arising out of the same incident as his or her workers’ compensation claim, but settles the claim for less than the amount of compensation he or she has received, a New York trial court is without authority to approve a settlement nunc pro tunc under N.Y. Work. Comp. Law § 29(5). Accordingly, where the third party’s liability insurance carrier tendered the limits of its policy ($25,000) to the injured employee and the employee accepted that sum without obtaining the permission of the workers’ compensation carrier, it was an error for the trial court to approve the settlement. Russo v. New Hampshire Ins. Co., 2015 N.Y. App. Div. LEXIS 8820 (Nov. 25, 2015)

Reasonable notice for attendant care – North Carolina

In Chandler v. Atl. Scrap & Processing, a worker suffered a closed-head brain injury and required round the clock care, which was provided by her husband for years, without pay, although doctors for the insurance company agreed on the need for attendant care. Retroactive compensation was approved and the insurance company appealed and lost. Then it contested the reasonableness of the delay in seeking payment for the attendant care, which they argued was implicit in the Supreme Court’s ruling because of a case cited in the ruling.

The decision provides guidance as what the Court will look at when determining whether a delay in requesting attendant care services is reasonable. These include: timing of the notice of the need for attendant care services, who selected the doctor who provided the medical opinion for attendant care services, whether the opinion regarding the necessity for attendant care services is unanimous, the mental functioning of the injured employee, and whether the employee made attempts to notify the employer of the need for attendant care.

Implications of a medical-only NCP addressed – Pennsylvania

In Ingrassia v. WCAB (Universal Health Services, Inc.) the Commonwealth Court clarified that when a Medical Only NCP is issued, it does not operate as a suspension of benefits, where the injured only has to prove that the loss of earnings was as a result of the work injury. Rather, when a Medical Only NCP is issued, the employee has the burden of proof on a Claim Petition, which requires medical evidence.

$1.7 million awarded in asbestos case – Pennsylvania

In Busbey v. ESAB Group, a Philadelphia jury has awarded a deceased factory worker and his wife $1.7 million, in what attorneys say was the first asbestos case tried against an employer since the state Supreme Court began allowing employees to try similar cases against their employers. The jury found the employer to be 100 percent liable for his mesothelioma and death and awarded the monies under the Wrongful Death Act and Survival Act. Previously, employers were only liable through the Workers’ Compensation Act.

Court allows termination of injured employee at end of FMLA leave – Texas

An employee sustained a work-related injury and was placed on “Family Medical Leave” (FMLA) by the employer while the employee was away from work due to his injuries. At the expiration of the 12-week FMLA leave, he had not been medically released to return to work and was fired. He claimed a retaliatory discharge but the appellate court held that the employee had presented no evidence that his termination resulted from anything other than the uniform enforcement of a reasonable leave policy. Kingsaire, Inc. v. Melendez, 2015 Tex. LEXIS 1083 (Dec. 4, 2015)

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