Legal Corner

Workers’ Compensation

Qualified medical evaluator’s findings lead to higher impairment rating – California

In Prell v. Cedar Fair, 2016 Cal. Wrk. Comp., the WCAB rescinded the WCJ’s finding that the applicant suffered a 2 percent permanent disability as result of industrial injury to her left shoulder while employed as performer/greeter/park character on 9/17/2013, and found permanent disability in accordance with the panel qualified medical evaluator’s finding of 15 percent whole person impairment. The court found the doctor, who thoroughly explained why the strict rating under the AMA Guides was inaccurate to describe the applicant’s actual disability, noting that the applicant was young and would probably need repeat surgeries, that based on table 16-4 in AMA Guides, the applicant had equivalent to 25 percent total loss of function for the upper extremity, had presented sufficient evidence to rebut the strict AMA Guides .


Miami Beach police appealing denial of comp for Zika – Florida

The Miami Beach police union is appealing to lawmakers to provide workers’ compensation for police officers who contract the Zika virus after two officers reportedly were denied workers’ comp for hospital bills related to Zika. The officers work in an identified Zika zone but they live in an area where the virus has not been identified as active.

Zika claims are complicated by the burden of proving that a worker contracted the virus while he or she was on duty. According to the Miami New Times, the Miami Beach City Manager said in a letter that the officers must provide proof that they contracted the virus while on duty and “identify the specific infected mosquito” that caused their illnesses.


Widow can proceed with wrongful death suit because of ambiguous denial by employer – Florida

In Gil v. Tenet Healthsystem North Shore, a widow was denied workers’ comp death benefits for her husband who worked as a carpenter for a hospital and was exposed to hazardous materials and, allegedly as a result, died of cancer. The hospital denied the claim arguing the death was not a result of a work-related illness and the widow filed a wrongful death suit. The appellate court panel said the denial notice did not indicate that there was a compensable injury but instead asserted the claim was denied because employment was not the major contributing cause of death. “If an employer takes a position in a workers’ compensation proceeding that an employee is not owed benefits because the injury did not occur in the course and scope of employment or that there was no employment relationship, the employer can be estopped from claiming immunity under the Workers’ Compensation Act.”


Comp claim exclusive remedy even for uninsured employer – Georgia

In Saxon v. Starr Indemnity & Liability Co., an injured worker who decided it was pointless to file a workers’ compensation claim against his uninsured employer cannot pursue a tort action, as the employer is still protected by exclusive remedy. The Georgia Court of Appeals argued that the worker had not filed a workers’ comp claim and not proven that he was left unprotected because his employer had not purchased workers’ compensation insurance.


Teacher’s injury in student/faculty basketball game compensable – Illinois

Although many states, including Illinois, exclude workers’ compensation coverage for some recreational injuries that are considered to be outside the course and scope of the employment, there can be exceptions. A state appellate court in Calumet Sch. Dist. 32 v. Illinois Workers’ Comp. Comm’n, recently held that a middle school science teacher, who suffered a left forearm fracture while participating in an after school student/teacher basketball game in the employer’s gymnasium, did not engage in a “voluntary recreational program,” and found that the teacher had introduced sufficient evidence to show that he reasonably felt compelled by the school principal to participate in the game.


Injury from wiping tables compensable for waitress – Illinois

In Steak ‘n Shake v. IWCC (Anderson), the Appellate Court upheld benefits to a waitress for a hand injury while wiping down a table. After reporting the injury, she was diagnosed with edema and received anti-inflammatory medication and a hand brace, and was told to stay off work for 10 days. When the condition did not improve, the leave was extended to three weeks, but she continued to experience pain. Eventually, she went through four surgeries.

An arbitrator found she had suffered an industrial injury to her hand that had aggravated a pre-existing arthritic condition in her thumb. The Workers’ Compensation Commission affirmed this decision, as did a trial court judge and the Appellate Court.The lower court used the “neutral risk” argument – that something about the worker’s employment increased her potential to be harmed by this risk – more than an ordinary member of the public – because of the speed with which she had to perform this task to keep up with the flow of customers at the busy restaurant. The Appellate court found her injury was the result of an employment-related risk because she was injured while engaged in an activity that the employer might reasonably have expected her to perform in the fulfillment of her job duties.


Undocumented worker workers’ comp case to watch – Indiana

In many states immigrants without legal status in the U.S. are treated no differently in determining their right to workers’ compensation benefits. A number of other cases have arisen in recent years that challenge an employer’s responsibility to continue the payment of benefits, particularly in the long term. The Indiana Supreme Court is slated to hear oral arguments in the case of Escamilla v. Shiel Sexton Co., which asks about the types of relief to which undocumented workers are entitled – and for how long – when they are injured on the job.


Worker who fell out of tree while on break denied comp – Mississippi

In Haney v. Fabricated Pipe, Inc., the Court of Appeals found that a pipe fitter, who sustained five broken ribs and a spinal cord injury when he fell a distance of approximately 25 feet from the top of a gum tree during a lull in work, was appropriately denied workers’ compensation benefits.

The majority concluded that the pipefitter’s tree climbing was a deviation from the course of his employment under the Larson test for a number of reasons:

  • His action was a serious enough deviation from the workday that his coworkers became alarmed and called for him to climb down.
  • The deviation from employment was complete, as none of the actual duties of the job could have been “commingled” with tree climbing.
  • There was no evidence that such conduct “had become an accepted part” of work at the employer’s work sites. For example, no one had ever climbed trees at work before this incident.
  • Finally, although the nature of employment might invite some horseplay during lulls in the workday, the employer also had a policy against unsafe activities and horseplay and conducted safety meetings to warn against the same.


Appellate court reverses Commission twice in same case – Mississippi

In Logan v. Klaussner Furniture Corp., an employee was injured when she fell after her foot got caught in fabric fibers at work. An administrative law judge found that Logan had not suffered any industrial loss of use of her left leg and on appeal, the Commission affirmed, but the Court of Appeals overturned finding she suffered a loss of wage-earning capacity and that she was either permanently partially or permanently totally disabled. Upon remand she was granted a 60% loss of industrial use to her lower extremity, entitling her to 105 weeks of permanent partial disability, however, she again appealed and the Court of Appeals found her to be permanently and totally disabled by the accident, entitling her to 450 weeks of benefit.

The court ruled that the commission’s decision was based on her leg as a scheduled member rather than the fact that her disability was permanent and had resulted in a loss of wage-earning capacity.


Court denies benefits to widow under ‘Schoemehl Doctrine’ — Missouri

For a very brief time, Missouri espoused a rule, known as the “Schoemehl doctrine,” that allowed for a permanently and totally disabled worker’s weekly benefits to be passed on to his dependents upon his death.The doctrine is limited in application to claims that were in existence as of January 2007, the date of the Missouri Supreme Court’s decision in Schoemehl v. Treasurer, and had not yet been fully resolved by June 2008, when the legislature then abrogated the doctrine by expressly providing that “the right to unaccrued compensation for permanent total disability of an injured employee terminates on the date of the injured employee’s death.”

In this case, an injured employee was issued an award of PTD benefits in 2009 that provided he was entitled to receive benefits from the Second Injury Fund “for so long as (he) remains disabled,” but it made no mention of his dependents. The Court of Appeals noted, “an employee’s dependents are determined at the time of the employee’s injury and not at the time of the employee’s death.”


Fall while hanging speakers compensable – New York

In Goodwin v. Dix Hills Jewish Center, a carpenter who was injured when he fell off a ladder while reinstalling speakers may pursue his Labor Law Section 240 claim against the premises owner, the Appellate Division of the New York Supreme Court ruled. The worker was hired to restore and install wood paneling in a temple. He was asked to rehang two speakers that had been removed during the process and he fell off the ladder while installing the second speaker.

He filed suit under Labor Law Section 240, but the Jewish Center argued he was not engaged in the “altering” of a building at the time of the accident. The Appellate Division, 2nd Department said that the act of re-installing the speakers was ancillary to the purpose of altering the building where the accident occurred and therefore is afforded protection under Section 240.


Funds in worker’s MSA can’t eliminate eligibility for Medicaid – North Carolina

The Court of Appeals ruled that money in an injured worker’s Medicare set-aside account could not be considered “liquid assets” that brought her net worth above the threshold for eligibility for Medicaid assistance. Since there are legal restrictions on her ability to access the funds in the MSA, the court said the money could not be included in the calculation of the resources available to the 68-year old widow. Williford v. North Carolina Department of Health and Human Services


Comp limit for undocumented workers struck down – Tennessee

A limit on workers’ compensation benefits for undocumented workers is unconstitutional because it prevents them from being eligible for the same comp benefits afforded to legally employed workers in the state, the Tennessee Supreme Court ruled in Martinez v. Lawhon. A day laborer suffered serious injuries to his arm when he fell and lost control of a lawn mower. He underwent five surgeries and his surgeon placed work and activity restrictions on him. Because of these restrictions and because federal law prohibits employers from rehiring undocumented workers once their work status has been revealed, he was unable to return to his job.

Tennessee law says that undocumented workers may receive maximum permanent partial disability benefits of 1.5 times their medical impairment rating, provided that the worker’s employer did not knowingly hire the person when they were ineligible or not authorized to work in the United States. However, a Chancery Court ruled he should receive comp benefits worth 3.5 times his 24% medical impairment rating. The court found that the state cap for undocumented workers amounted to a “state immigration policy,” thereby attempting to legislate an area over which the federal government has sole power.

On appeal, the Supreme Court Special Workers’ Compensation Appeals Panel said that the law limits PPD benefits to 1.5 times a worker’s impairment rating when an injured worker has a meaningful return to work. But a worker’s award can be increased to six times his or her medical impairment rating when a worker doesn’t have a meaningful return to work because of circumstances beyond their control. Additionally, the court found that limiting PPD benefits for undocumented workers could provide an incentive for employers to hire undocumented employees.


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