Month: August 2020

Workers’ Compensation
Contractor cannot be sued for death of subcontractor’s employee – California

In Sherry Horne et al. v. Ahern Rentals, Inc., an employee of 24-Hour Tire Service Inc. was crushed to death while changing a tire on a forklift. His family received workers’ comp death benefits and sued Ahern Rentals, alleging that it had contributed to the collapse of the forklift by failing to provide a stable and level surface, allowing the tire change to proceed with the forklift’s boom raised, and failure to train employees.

However, an appeals court noted that to be liable the contractor had to actively direct the contractor or contractor’s employee to do the work in a particular way. It noted that “passively permitting an unsafe condition does not amount to actively contributing to how the job is done.”

85-year-old precedent upended by Supreme Court – Georgia

In Frett v. State Farm Employee Workers’ Compensation, an insurance claims associate slipped and fell in the break room while taking her mandatory lunch break. An appeals court had found that the injury was not compensable because it took place on her lunch break, and therefore, did not arise out of her employment, but out of a purely personal matter. This followed the reasoning of a 1935 decision regarding “off-the-clock” injuries.

However, the Supreme Court found that she was injured on the premises of her employer, in the middle of her workday, while preparing to eat lunch. This activity, being reasonably necessary to sustain her comfort at work was, “incidental to her employment and is not beyond the scope of compensability under the Act.” Acknowledging the similarity to the 1935 “Farr” case, the court said the reasoning of Farr was unsound, and it was “completely untethered from the analytical framework consistently employed by this Court in workers’ compensation cases for nearly a century.”

One time change of physician rule bumped to Supreme Court – Florida

The First District Court of Appeal, in City of Bartow v. Flores, ruled that under statute 440.13(2)(f), which allows for a one-time change of physician, it isn’t enough for an employer/carrier (E/C) to provide the name of the alternate physician within five days as specified in the statute. The court held, that it must supply access to the physician by setting up an appointment and inform the injured worker of that date.

In this case, the worker was not notified of an appointment for 56 days. Therefore, the court determined he could be treated by the physician of his choice.

Noting the importance of this decision, the appellate court certified to the Supreme Court the question of whether an E/C’s duty to furnish timely medical treatment under 440.13(2)(f) is fulfilled solely by timely authorizing an alternate physician for treatment, or whether the E/C must actually provide the injured worker an appointment date with the authorized alternate physician.

Judge rules on class-action lawsuit of McDonald’s employees related to COVID-19 – Illinois

In Massey v. McDonald’s Corp, Chicago-area McDonald’s workers sought to require the company and the franchises named in the complaint to comply with health guidance and provide proper protective equipment for workers. A judge found that two of the franchises named in the suit failed to comply with the Governor’s Executive Order on mask requirements and failed to properly train workers on social distancing.

Although the judge found the franchisees provided sufficient masks, gloves and sanitizer to workers and adequately monitored virus cases and symptoms among employees, she ordered the store owners to enforce all mask-wearing policies when employees are not six feet apart and to train workers on social distancing.

Out-of-state worker cannot file tort suit in Missouri – Missouri

In Hill v. Freedman, an employee of the University of Kansas School of Law was riding with her supervisor to a work-related event in Missouri. During the drive an argument ensued and the supervisor alleged slammed the vehicle into a concrete barrier when he parked the car. She received workers comp benefits for her injuries through the Kansas system.

A few years later she sued the supervisor in a Missouri state court. The court of appeals noted Missouri follows the law of the state where a worker has been compensated, so Kansas law governs all the issues related to her injury. Under Kansas law, a worker who recovers benefits for an on-the-job injury from an employer cannot maintain a civil action for damages against a fellow employee.

Attorney fee awards clarified – Nebraska

In Sellers v. Reefer Systems, Inc., the Supreme Court ruled that an appellate decision erred in denying attorney fees to an injured worker because the affidavit did not provide details of the fee agreement. State statute 48-125(4)(b) states that reasonable attorney fees will be allowed to the employee by the appellate court if the employer appeals a workers compensation award and fails to obtain a reduction in the awarded amount.

The court determined that reasonable attorney fees do not depend on the terms of the fee agreement, but on the extent and value of the services provided. In this case, the affidavit contained sufficient justification to make a meaningful determination of the reasonable attorney fees to which the employee was entitled.

Son’s death does not meet exception of workers compensation – New York

In Smith v. Park, a 14-year-old boy who was working illegally died while operating a skid steer. The farm accepted the injury claim and was directed by the workers compensation board to pay increased death benefits as a result of the illegal employment. The mother filed a lawsuit against the farm claiming the owner engaged in criminal conduct that was related to her son’s death. The court found that although the owner may have been negligent in his supervision, there was no evidence that he acted out of “a willful intent to harm.”

Reckless driving not enough to nix claim – New York

In McGee v. Johnson Equip. Sales & Serv., a truck driver was injured in a rollover crash as she exited the highway at a speed of 67 mph in a 35-mph speed limit zone. The carrier and employer contented that she willfully intended to injure herself. It also contended that there was cocaine in her system, but there was no evidence of the level of cocaine or when it was ingested.

While the court noted that benefits will not be awarded for deliberate injuries, there is a presumption that a worker is entitled to benefits. It can be overcome by substantial evidence, but the employer did not meet the burden of proof.

Decision to be stay-at-home Dad nixes benefits – Pennsylvania

In Respironics v. Workers’ Comp. Appeal Bd.(Mika), the Commonwealth Court upheld a WCJ ruling that had been reversed by the WCAB suspending the employee’s wage loss benefits when he decided to stay at home and care for his children. He resigned from his modified duty position and the employer argued he voluntarily left the workforce.

The worker needed to show that his loss of earning power was due to his injury and not his personal decision to remain out of work. However, he acknowledged that his decision was in part a financial one – his wife had greater earning power and child care expenses could be avoided. The court found that his testimony was enough to establish he had left the job market and benefits had to be suspended after that date.

Irritable bowel syndrome compensable – Virginia

In an unpublished opinion, Farrish of Fairfax and VADA Group Self-Insurance Association v. Faszcza, the Court of Appeals unanimously affirmed a Workers Compensation Commission decision granting workers compensation benefits to a worker who contended he developed Crohn’s colitis, a type of inflammatory bowel disease (“IBD”), as a result of taking medications prescribed for a work-related foot infection. He suffered from diabetic neuropathy and, at the time of his injury, did not realize he had stepped on an automotive fastener and injured his foot.

His injury became infected and required prolonged antibiotic use, which according to a physician, contributed to his IBD. An appellate court affirmed the Commission’s decision of compensability, noting that there was credible evidence supporting the assertion that the IBD was a result of the puncture wound.

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