Legal Corner

Workers’ Compensation

Failure to provide required notices means insurer must pay seven-year-old claim – California

In Truck Insurance Exchange v. Workers’ Comp. Appeals Bd, the Court of Appeal of California (2nd Appellate Dist.), affirmed an order of the WCAB, that an insurer must pay the employer’s claim for workers’ compensation benefits that was filed more than seven years after the accident. The Court, noting the employer received notification of the employee’s injury on the day after the injury occurred, said such notice was deemed to be notice to, or knowledge of, the insurer.

Since neither the employer nor insurer provided the employee with the required claim form and notice of potential eligibility for workers’ compensation benefits, there was no delay by the employee in filing the claim.

Indemnification clause obligates employer to pay injured employee tort claims – California

In Aluma Systems Concrete Construction of California v. Nibbi Bros. Inc, Aluma was sued by employees of Nibbi Bros. Inc., for injuries sustained on the job. Subsequently, Aluma sued Nibbi Bros. for indemnification based on a specific provision in the parties’ contract. The trial court sustained Nibbi’s demurrer to Aluma’s complaint without leave to amend, relying on the allegations in the underlying lawsuit of claims only against Aluma and not against Nibbi, the employer. Because the allegations in the underlying lawsuit are not determinative of Aluma’s claim for indemnity, the court of appeals rejected that analysis, reversed, and remanded.

Workers’ comp denied for veteran cop suffering PTSD after pulling bodies from Pulse nightclub – Florida

A 12-year veteran of the Orlando Police Department has been denied worker’s comp after being diagnosed with post-traumatic stress disorder after he helped pull bullet-riddled bodies out of the Pulse nightclub in June. The officer, who has spent ten years as a member of the OPD Hazmat team, filed a claim saying he is unable to do his job and suffers from nightmares and hypertension. However, under Florida law workers’ comp does not cover psychological treatments.

No exception to statute of limitations – Georgia

In Bell v. Gilder Timber Co., et al., No. A16A0300, the Court of Appeals held that a worker’s claim for permanent partial disability benefits was barred by the statute of limitations, which states a worker can file for permanent partial disability benefits no more than four years from the last payment of temporary total disability benefits or temporary partial disability benefits.

In 1992, a worker sustained a compensable injury to his neck and underwent cervical fusion surgery. He received temporary total disability benefits for four months until he returned to work but continued to experience neck pain and worked until he retired in 2009. In 2013, the employer paid for the worker’s second surgery, which was related to the 1992 injury. In 2014, he sought permanent partial disability benefits, but was denied. Although it recognized that the application of the statute of limitations led to a “harsh result,” the court declined to create an exception.

Fire lieutenant entitled to benefits for PTSD following fatal fire – Illinois

In a surprising workers’ compensation opinion, the Illinois Appellate Court reversed lower decisions and ruled that a senior fire official should receive benefits for post traumatic stress disorder (PTSD) following the line-of-duty death of a fellow firefighter. In Scott Moran v. the Illinois Workers’ Compensation Commission, et al., the appellate court found that the lieutenant’s presence outside the house did not preclude the event from being traumatic, because he was in command of the fire and the death of a co-worker had not previously occurred during his career. The court also noted that the employer must have agreed the incident was traumatic; none of the firefighters involved in the traumatic event were allowed to return to work without being cleared by a mental health professional.

Appeal in ‘popcorn lung’ workers’ comp case fails under Frye Evidence Standard – Illinois

The Illinois Fourth District Appellate Court’s Workers’ Compensation Commission Division has affirmed the denial of a “popcorn-flavoring lung disease” claim brought by a former Archer Daniels Midland Co. (ADM) employee. In Michael K. Durbin v. the Illinois Workers’ Compensation Commission (IWCC) et al., the court found the pulmonologist’s causation opinion was inadmissible under Frye and Ill. R. Evid. 702, where it was not based on a scientific methodology or principle that had gained general acceptance in the relevant scientific community.

Employee is not required to submit AMA Impairment Report for award of PPD benefits – Illinois

In Corn Belt Energy Corp. v. Illinois Workers’ Compensation Comm’n, 2016, the appellate court held that the express language of section 8.1b(a) did not limit the Commission’s ability to award PPD benefits where no AMA report was submitted. It merely requires that if an AMA rating report is provided, then the Commission must consider it, along with all the other four factors listed in section 8.1b(b), when determining permanent disability.

Injury incurred while hugging patron compensable – Michigan

In LaFave v. Blue Lounge, 30 MIWCLR 39 (Mich. W.C.B.M. 2016), the Michigan workers’ compensation magistrate awarded benefits to a bartender, who injured her back while hugging an overly enthusiastic bar patron. A video showed the two hugging and each woman lifting the other off the ground. Finding the incident did not fall within the social and recreational exclusion, the magistrate noted a bartender is expected to be pleasant and polite to the customers.

Changing vehicles due to potential bad weather was deviation from employment – Mississippi

In Bennett v. Mississippi State Dep’t of Health, the appellate court confirmed a worker’s travel to lunch and his personal errand home to exchange vehicles were outside the scope of his employment, even though the worker had a fixed place of employment and aspects of his work included travel to service locations. Although he was entitled to reimbursement for that travel, his position was not comparable to that of a truck driver or traveling salesman.

Reasonable degree of medical certainty means new compensable injury – North Carolina

In Harris v. Southern Commercial Glass, the North Carolina Court of Appeals ruled that an employee injured at work in both 2010 and again in 2014 while working at two different jobs is entitled to collect workers’ compensation from both. While the former employee’s medical expert candidly allowed that he could not offer a medical opinion to a degree of absolute certainty that removed all speculation, but that he could say, to a reasonable degree of medical certainty, this was a new injury that materially aggravated the prior back condition, his testimony was not mere speculation and the Industrial Commission did not err in relying in part on that expert testimony in awarding workers’ compensation benefits to the employee.

Subrogation lien limited to total amount of the judgment paid to worker in his injury lawsuit – North Carolina

In Dion v. Batten, the North Carolina Court of Appeal affirmed the amount of a workers’ compensation subrogation lien on a judgment obtained by an employee injured in an automobile accident, who sought monetary compensation from the driver who allegedly caused the wreck by failing to stop at a red light. The worker received $528,665 in workers’ compensation benefits for injuries sustained in the crash, but a substantially smaller amount – $285,000 – in his third party suit.

Ultimately, the trial court decided that the workers’ compensation lien could not exceed the amount of the judgment obtained in the negligence action after subtracting attorney fees, interest, and court costs.The subrogation amount was $190,000.

Firefighter must show his or her type of cancer is caused by exposure to “group 1” carcinogen – Pennsylvania

In City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek), the injured worker was a firefighter who developed a skin lesion on the back of his right thigh, which was found to be a malignant melanoma. While the Board found in favor of benefits, the Commonwealth Court of Pennsylvania stressed that “caused by,” must be considered and the Board erred in not doing so. Notably, this decision was vacated and remanded, not reversed. That means that the injured worker did not lose, but simply that the decision granting the Claim Petition used an incorrect standard and has to be reviewed again.

Benefits awarded for accident during personal errand – Pennsylvania

In Colquitt v. Starr Aviation, 31 PAWCLR 93 (Pa. W.C.A.B. 2016), the Workers’ Compensation Appeal Board affirmed the workers’ compensation judge’s finding that an airport ramp agent, who injured her left leg when the tug she was driving flipped over, was entitled to benefits. The agent was given permission between flight arrivals to drive the tug to the other side of the terminal to meet her mother, who was bringing her money and feminine hygiene products. The board explained that because the agent was simply going to meet her mother, her injury occurred during a temporary departure from work during regular business hours, and therefore, her work injury fell under the personal comfort doctrine. The board rejected the employer’s arguments whether the trip to meet her mother was necessary and if it was on the employer’s premises.

Exclusive remedy precludes supervisor’s suit against coworker in post-bar-hopping injury – Wisconsin

After a sales supervisor for a beer beverage distributor completed his regular shift, a coworker contacted him because a restaurant had requested beer.The supervisor and coworker decided to deliver the beer together in the supervisor’s company-owned vehicle, which he could also use for personal purposes, and planned to visit bars afterwards.

The supervisor drove to the restaurant, but the coworker then drove, since the supervisor had been cited for operating while intoxicated. They drank at four bars and then headed home.The coworker missed a curve, and the vehicle entered a ditch. The accident left the supervisor paralyzed and he sued the coworker and the coworker’s personal automobile insurer.

The Circuit Court granted summary judgment to the coworker, finding that workers’ comp exclusive remedy applied. The Court of Appeals concurred, noting that when a salesperson commences travel in the course of his employment, subsequently deviates from that employment, but later resumes his route, which he would have to follow in the pursuance of his employer’s business, the deviation has ceased and he is performing services incidental to and growing out of his employment. Ninedorf v. Joyal, et al., No. 2014AP2762 (Wis. Ct. App. 05/17/16), unpublished.

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