Legal Corner – including new COVID-19 Work Comp Cases

Workers’ Compensation

Attorney General sues Uber and Lyft over misclassifying drivers – California

Attorney General Xavier Becerra sued Uber Technologies Inc. and Lyft Inc. for classifying its drivers improperly as independent contractors instead of employees, evading workplace protections and withholding worker benefits. Several cities joined the state in its lawsuit, saying the companies’ misclassification harms workers, law-abiding businesses, taxpayers, and society more broadly.

Appeals court allows apportionment of permanent disability – California

In County of Santa Clara v. Workers’ Compensation Appeals Board and Barbara Justice, an employee suffered a compensable injury in a fall at work and was granted a 100% permanent disability. The county appealed, arguing that documented degenerative conditions in her knee caused part of her permanent disability. Noting the unrebutted substantial medical evidence, the appeals court agreed. The rule is that apportionment is precluded only where the industrial medical treatment is the sole cause of the permanent disability.

PTD awarded 17 years after retirement – Florida

In Pannell v. Escambia County Sch. Dist., an appellate court ruled that a worker who retired for reasons unrelated to her workplace injuries before reaching maximum medical improvement was entitled to permanent total disability benefits after she exhausted her temporary total disability benefits. It noted that a JCC erred in focusing on her retirement date, as well as her age and disability status at that time, in finding that she did not qualify for PTD benefits.

To determine whether she qualified for PTD, the relevant date is either the date of overall MMI or the expiration of her entitlement to temporary benefits, whichever occurred first. She exhausted her entitlement to temporary benefits (TTD) as of December 30, 2004, well before she reached overall MMI in 2011. She had no substantial earning capacity when her TTD was exhausted and was incapable of gainful employment when she reached MMI. Therefore, she suffered a catastrophic injury and was entitled to PTD as of Dec. 31, 2004.

Phony COVID-19 medical note leads to business shutdown and arrest – Georgia

An employee with a past criminal record defrauded his employer with a phony medical excuse letter claiming COVID-19. The letter prompted the employer to stop business and sanitize the workplace, still paying other workers who were forced to stay home in quarantine, at a cost of over $100,000. The worker was arrested by the FBI.

McDonald workers file class-action suit over COVID-19 safety – Illinois

Five workers in Chicago filed a class-action lawsuit against McDonald’s accusing it of failing to adopt government safety guidance on COVID-19 and endangering employees and their families.The lawsuit does not seek money for sick staff, but compliance with health guidance such as not having to reuse masks, mandating face coverings for customers, and requiring the company to inform employees if a co-worker becomes infected.

Judge dismisses lawsuit over safety concerns at pork processing plant – Missouri

A U.S. federal judge has dismissed a worker advocacy group’s lawsuit accusing Smithfield Foods Inc., the world’s largest pork processor, of failing to adequately protect employees from the novel coronavirus at a plant in Milan. The judge ruled that the company was taking many of the health precautions asked for and that it was not the court’s purview to oversee working conditions. Under President Donald Trump’s executive order in April requiring meatpacking plants to remain open during the pandemic, the federal government is responsible for overseeing working conditions. The company said the lawsuit should be dismissed because OSHA is already investigating. The attorney for the workers did not rule out an appeal; however, he acknowledged that the lawsuit prompted beneficial changes at the plant.

Compensability sought for family of health care worker who dies from COVID-19 – Missouri

The family of a Kansas City nurse, Celia Yap-Banago, who died from COVID-19 has filed for death benefits with the Missouri Division of Workers’ Compensation.The claim could prove to be the first major test case on compensability for virus-sickened health care workers.

Missouri’s presumption law covers firefighters, law enforcement officers, and emergency medical technicians, but not nurses.

Fireworks injury not compensable – Nebraska

In Webber v. Webber, an appeals court upheld the denial of benefits to a self-employed truck driver who was injured in a fireworks mishap. The injury occurred when he was entertaining a warehouse manager on his route. On appeal, he argued he was responsible for rapport-building with clients as part of his job providing moving services and that this was work-related horseplay. The court found that was not grounds for a claim and lighting a firework at a warehouse was not within the scope of his job.

Benefits denied to worker injured in car accident riding to lunch with boss – New York

In Matter of Scriven v. Davis Ulmer Sprinkler Co., an appellate court overturned previous rulings and found an employee who was injured in a car accident while riding to lunch with his supervisor is not eligible for workers compensation. The court noted that he was not paid during his lunch break and that he was not “obligated” to go to lunch with his supervisor, along with three co-workers. Lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee.

“Gray area” rule does not apply to worker struck by car while crossing public street – New York

In Matter of Johnson v. New York City Tr. Auth., an appellate court ruled that a worker was not entitled to benefits for his injuries when he was struck by a car as he was crossing a street to get to work. At the time of the accident, the worker had arrived more than one hour early for his shift, had not yet reported to work, and was not approved for overtime. The case falls under York’s special “gray area” rule, where the mere fact that the accident took place on a public road or sidewalk did not ipso facto negate the right to compensation.

Under the rule, injuries will be compensable only if there was a special hazard at the particular off-premises point and a close association of the access route with the premises, so far as going and coming are concerned. In this case, the court concluded that the risk of getting hit by a car while crossing the public road was unrelated to the worker’s employment and a danger that “existed to any passerby traveling along the street in that location.”

Industrial Commission erred in dismissing claim – North Carolina

In Lauziere v. Stanley Martin Communities LLC, a real estate agent claimed an injury which her employer contested. The company sought medical records, moved to compel her to respond, and ultimately challenged the sufficiency of the documents. More than one year passed and she did not act so the company moved to dismiss the claim because of failure to prosecute. The Industrial Commission granted the motion and dismissed the case.

Upon appeal, the court overturned, noting the company had not been materially prejudiced. The company offered no evidence to show how the delay impaired its ability to locate witnesses, medical records, treating physicians, or any other data. The company argued it was prejudiced because it was unable to direct the agent’s medical care, however, the court said the company didn’t have the right to control since it had not accepted her claim as compensable.

Protz decision applies to cases pending at time of decision – Pennsylvania

In Weidenhammer v. Workers’ Comp. Appeal Bd., the Commonwealth Court ruled that an injured worker was not entitled to the automatic reinstatement of her total disability compensation after Protz II struck down Section 306(a.2) [77 P.S. §511.2(1)] of the state’s Workers’ Compensation Act as unconstitutional because the statute’s language requiring use of “the most recent edition” of the AMA Guides amounted to an impermissible delegation of legislative power to the American Medical Association. It noted that since the high court’s decision was not fully retroactive, it applied to all parties in all cases still pending at the time the decision was announced and only where the issue of the statute’s constitutionality had been raised and preserved at all stages of litigation.

Section 413 of the Workers’ Compensation Act provides that no award can be modified or reinstated unless a petition is filed within three years of the most recent payment of compensation. She had filed her reinstatement petition almost four years after her last payment. Since her petition was not so pending at that time of the decision and more than three years had passed since her last receipt of benefits, her petition was properly denied.

Exclusive remedy prohibits sexual harassment claim – Tennessee

In Karen Potter v. YAPP USA Automotive Systems Inc., an appeals court ruled that workers’ compensation exclusive remedy provision prohibits a woman from filing sexual harassment and hostile worker environment claims under state human rights law because her injury did not involve previously reported harassment. She had suffered injuries when a co-worker, who she had previously reported for sexual harassment, spit on and pushed her. The court found, however, that her physical injuries did not involve sexual harassment and began with a discussion about work.

PPD award based on functional loss before hip replacement surgery – Virginia

In Loudoun County v. Richardson, a divided Supreme Court ruled that a firefighter was entitled to permanent partial disability benefits based on the extent of his impairment before undergoing hip replacement surgery. A physician determined that a loss-of-use rating of 74% before surgery and 11% after surgery. Affirming lower court decisions, the court noted that using a pre-surgery loss-of-use rating recognizes that a work-related injury has permanently deprived the employee of natural functionality and that hip replacement procedure came with the expectation that the prosthetic will eventually fail and require subsequent surgical revision. It acknowledged the irreplaceable loss of the natural joint, the nonmonetary costs associated with the corrective surgery, and the permanent restrictions on the employee’s activities resulting from the work-related injury.


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