California In-Home Caretaker Awarded Benefits for Injuries Sustained in Bicycle Accident

Observing that California’s “required vehicle” exception to the going and coming rule arises where the employee’s use of his or her own vehicle gives some incidental benefit to the employer, a state appellate court held that an in-home caretaker sustained injuries arising out of and in the course of her employment when she was struck and injured by a car as she rode her bicycle from one private home where she worked to another home where she was scheduled to work [Zhu v. Workers’ Comp. Appeals Bd. & Dep’t of Soc. Servs., 2017 Cal. App. LEXIS 564 (June 20, 2017)].

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Pennsylvania High Court Strikes Down Use of “Most Recent” AMA Guides

In a highly anticipated decision, Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 2017 Pa. LEXIS 1401 (June 20, 2017), a split Supreme Court of Pennsylvania yesterday held that the provision, found in Section 306(a.2) of the state’s Workers’ Compensation Act [77 P.S. § 511.2(1)], requiring physicians to apply the methodology set forth in “the most recent edition” of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), violates the state’s constitutional requirement that all legislative power “be vested in a General Assembly” [Pa. Const. art. II, § 1]. The majority added that in spite of the severability clause found within the Pennsylvania Workers’ Compensation Act (“the Act”) [77 P.S. § 1022], Section 306(a.2) was “a paradigmatic example of a law containing valid provisions that are inseparable from void provisions” [2017 Pa. LEXIS 1401]. Accordingly, the majority struck Section 306(a.2), in its entirety, from the Act.

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Kentucky IME May Use Clinical Skill and Judgment in Construing AMA Guides

Where an independent medical evaluator concluded that the active range of motion (ROM) measurements she obtained from an injured worker were implausible, indicative of poor effort, and insufficient to verify that an impairment of a certain magnitude existed, the physician could utilize passive ROM measurements as a part of her overall assessment of the impairment to the worker’s right shoulder [Cunningham v. Quad/Graphics, Inc., 2017 Ky. App. LEXIS 268 (June 16, 2017)].

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Ouch!: Live-in New York Domestic Worker’s Cut Finger Results in $86,000 Penalty To Employing Husband and Wife

In Matter of Castillo v Brown, 2017 N.Y. App. Div. LEXIS 4839 (June 15, 2017), a New York appellate court affirmed the imposition of an $86,000 penalty against a husband and wife who employed a live-in domestic to perform housekeeping and child care duties, but failed to maintain workers’ compensation insurance. The worker cut her hand on a broken piece of glass while washing dishes. Following hearings before a WCLJ, the worker’s case was established and she was awarded benefits. In addition, the WCLJ assessed a penalty of $86,000, pursuant to N.Y. Work. Comp. Law § 26-a(2)(b). Continue reading

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New York Church Volunteer’s Personal Injury Action Barred by Exclusive Remedy Rule

A church volunteer, who contended that she suffered injuries when she tripped and fell over an exposed power cord near or on the altar as she went to help distribute Communion, may not sue the church in tort as her civil action for negligence was barred by the exclusive remedy provisions of the New York Workers’ Compensation Law, held a state appellate court [Aprile-Sci v St. Raymond of Penyafort R.C. Church, 2017 N.Y. App. Div. LEXIS 4332 (2nd Dept., June 7, 2017)]. The court reiterated that in New York, primary jurisdiction for the determination of the applicability of the state’s Workers’ Compensation Law is vested in the Workers’ Compensation Board—and not the trial courts and that the employer, as well as the employee, may bring an injury to the Board’s attention. Once it does so, it is for the Board to determine the injured party’s eligibility for benefits.

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West Virginia Statute Barring Comp Benefits for Many—But Not All—Work Release Inmates is Constitutional

A provision in the West Virginia Workers’ Compensation Act [W. Va. Code § 23–4–1e(b)] that prohibits an inmate housed at a state work release center from receiving workers’ compensation benefits for injuries sustained while performing work for the state’s Division of Highways (DOH) does not violate the inmate’s equal protection rights in spite of the fact that such benefits are allowed if a similarly-housed inmate sustained injuries while working for a private employer, held the Supreme Court of Appeals of West Virginia, in Crawford v. West Va. Dep’t of Corr. Work Release, 2017 W. Va. LEXIS 433 (June 8, 2017).

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Those Holding Their Breath for Arkansas Opt Out Legislation Can Exhale

I should have noted this earlier, but anyone still holding his or her breath as to whether Arkansas might pass workers’ compensation opt out legislation during the Legislature’s 2017 session can now officially exhale. As I indicated here and here, the Arkansas workers’ compensation “opt out” bill was never more than an empty shell. The bill died in committee at the Legislature’s adjournment sine die. We’ll have to await a new legislative session for additional news.

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PA Employer Establishes Worker’s Loss of Earnings Claim by Creating Special Job That Paid Less

Where a workers’ compensation benefits claimant initially returned to work in a modified-duty position at no loss of wages and subsequently accepted a permanent light-duty position that the employer had specially created for her, which did result in lower wages, she suffered a loss of earnings and was entitled to partial disability benefits under § 306(b) of the Pennsylvania Workers’ Compensation Act, 77 Pa. Stat. Ann. § 512 [Holy Redeemer Health Sys. v. Workers’ Comp. Appeal Bd. (Lux), 2017 Pa. Commw. LEXIS 315 (June 6, 2017].

The Commonwealth Court distinguished the instant case from an earlier decision in which the Court had held a claimant’s loss of wages was not the result of claimant’s physical limitations from the work-related injury, but rather that earlier claimant’s voluntary decision to bid out of his pre-injury department where he had been working in a modified-duty position with no loss of earnings. Here, said the Commonwealth Court, the injured worker had not sought out and did not apply for the new permanent position. Rather, Employer specifically created the position and offered it to her. Continue reading

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Colorado Court Apportions Two-Thirds of Occupational Disease Claim to Overweight Mechanic

Has the State Established New Weight-Loss Program for Workers?

Emphasizing that within the Colorado workers’ compensation scheme, the employer does not necessarily take the employee as it finds him (or her)—at least when it comes to occupational disease and repetitive trauma claims—and that co-morbid factors such as obesity may require apportioning some percentage of permanent disability to the employee, a Colorado appellate court affirmed an order by the state’s Industrial Claim Appeals Office (“Panel”) that required the employer to pay no more than one-third of any medical benefits and other compensation due to the employee, since only one-third of the injured worker’s bilateral knee osteoarthritis was due to work-related factors [Hutchison v. Industrial Claim Appeals Office, 2017 COA 79, 2017 Colo. App. LEXIS 696 (June 1, 2017)]. That the job required the employee to spend half his work time over a 25-year period on his knees on concrete floors was not the controlling factor, indicated the Court. Multiple causal factors were at play, including perhaps, the employee’s genetic predisposition. With the decision, Colorado also joined California in allowing apportionment—at least in some cases—not only based upon comorbidity factors, but also on a worker’s genetic makeup.

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Death of Mississippi Worker Does Not Negate Settlement Agreement

In a split decision, a Mississippi appellate court reversed an order of the state’s Workers’ Compensation Commission that had granted an employer’s motion to reopen and vacate a prior order approving the settlement of a workers’ compensation claim where the injured employee died after signing the settlement agreement, but before it was actually approved by the Commission [Taylor v. Reliance Well Serv., 2017 Miss. App. LEXIS 296 (May 23, 2017)].

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