Maine Employer Need Not Pay for Injured Worker’s Medical Marijuana

In a case of first impression within the state, the Supreme Judicial Court of Maine, in a 5-2 decision, Bourgoin v. Twin Rivers Paper Co., LLC, 28 ME 77 (June 14, 2018), held that an employer may not be required to pay for an injured worker’s medical marijuana use. Indicating that it was deciding the case on “narrow” grounds, the majority reasoned that there was a “positive conflict” between the federal Controlled Substances Act (CSA) and the Maine Medical Use of Marijuana Act (MMUMA) [Opinion, ¶ 1] and that, under such circumstances, the CSA preempted state law. Continue reading

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California: Use of Preprinted C & R Form Does Not Waive Claims Outside Workers’ Comp Context

A California appellate court found a state trial court committed error when it granted summary judgment to an employer in an employment discrimination case filed by a former employee based on its finding that the former employee had released the employer from liability for any and all potential claims, including claims falling outside the workers’ compensation system, when the employee signed a preprinted compromise and release (C&R) form to settle a workers’ compensation claim [see Camacho v. Target Corp., 2018 Cal. App. LEXIS 529 (June 8, 2018)].

The Court noted that neither the form nor an addendum contained any reference to non-workers’ compensation claims. The Court added that the context of the release language, which appeared in fine print and which was not underlined, bolded, or capitalized, referred to other workers’ compensation claims that were identified as being settled elsewhere, not to the employee’s potential discrimination claim.

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Texas Insurer Barred from Going After Third-Party Settlement Proceeds

Where a worker’s compensation insurance policy contained a clause in which the carrier waived its right to recover from any third party sued by the injured employee, that clause also prevents the carrier from recovering from the injured employee, once he or she has settled the third-party tort action, held a divided Supreme Court of Texas recently in Wausau Underwriters Ins. Co. v. Wedel, 2018 Tex. LEXIS 519 (June 8, 2018). The majority of the Court stressed that the carrier sought “the same money through the back door that it could not get through the front” [Opinion, p. 1].

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Kansas Worker Gets No Benefits For Early Morning Injuries While Walking to Hotel

A Kansas roofer, who sustained catastrophic injuries when he was struck by a drunk driver as the roofer walked from a bar to his hotel at 2:20 a.m., could not recover workers’ compensation benefits for his injuries.  The roofer’s injuries did not arise out of and in the course of the employment, held the Supreme Court of Kansas [Atkins v. Webcon, 2018 Kan. LEXIS 204 (June 8, 2018)].

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Pre-Shift Assault on NYC Train Conductor at Station Not Compensable

Claimant Fails to Establish Exception to Going and Coming Rule

Yesterday, a New York appellate court affirmed a decision of the state’s Workers’ Compensation Board that denied the claim of a Transit Authority conductor who sustained injuries when she was assaulted by commuter who was angered over the claimant’s refusal to open the station gate to let him in (without paying) on the basis that the claimant’s injuries did not arise out of and in the course of the employment [Matter of Rodriguez v New York City Tr. Auth., 2018 N.Y. App. Div. LEXIS 3842 (May 31, 2018)]. The Court agreed that the claim was barred by the going and coming rule, since, inter alia, the assault occurred approximately one hour prior to the beginning of the claimant’s shift and the employer did not require her to utilize public transit to get to her job.

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PA High Court Says No Subrogation Allowed Regarding Heart and Lung Benefits

Strong Subrogation Rights Exist Only as to Payments Made under WCA

Acknowledging that an employer/carrier’s outlay of workers’ compensation benefits entitles it to a subrogation lien on any recovery the injured worker enjoys against a third-party tortfeasor — including payments the injured worker receives pursuant to the state’s Motor Vehicle Financial Responsibility Act (“MVFRL”) — the Supreme Court of Pennsylvania recently held the employer/carrier had no such subrogation interest based on payments it made to a state trooper under Pennsylvania’s Heart and Lung Act (53 Pa. Stat. § 637) [Pennsylvania St. Police v. Workers’ Comp. Appeal Bd. (Bushta), 2018 Pa. LEXIS 2583 (May 29, 2018).

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NY Construction Worker’s Fatal Heart Attack Found Compensable

Death Benefits Awarded in Spite of Smoking Habit and High Cholesterol

A decision by New York’s Workers’ Compensation Board, which concluded that a construction worker’s death was causally-related to his employment, was recently affirmed by a state appellate court, in spite of preexisting risk factors such as decedent’s smoking habit and high, untreated cholesterol [see Matter of Pickerd v Paragon Envtl. Constr., Inc., 2018 N.Y. App. Div. LEXIS 3700 (3rd Dept., May 24, 2018)].

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Vermont “Volunteer” Driver for Transit Authority is not an Employee

Driver’s Mileage Reimbursement Did not Constitute “Wages”

Reimbursement for mileage driven at rates established by the Internal Revenue Service is not “wages” as defined by Vt. Stat. Ann. tit. 21, § 601(14), held the Supreme Court of Vermont recently in Perrault v. Chittenden County Transp. Auth., 2018 VT 58, 2018 Vt. LEXIS 57 (May 25, 2018) . Accordingly, a “volunteer” driver for a county transit authority, who sustained serious injuries in a vehicular accident while transporting a rider in the volunteer’s private vehicle, could not recovery workers’ compensation benefits; she was not a statutory employee for purposes of the state’s workers’ compensation laws. Quoting Larson’s Workers’ Compensation Law, the Court stressed that tests utilized to discern whether a claimant was an employee versus an independent contractor were not applicable to the circumstances in the instant case.

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Maryland High Court Says Bus Driver’s Accident Traveling to Training Session May Have Been “Special Mission”

Claim Not Barred, as a Matter of Law, by Going and Coming Rule

A county bus driver, who sustained injuries in an auto accident as she traveled to attend a mandatory training session held on a Saturday was not a traveling employee, held a divided Court of Appeals of Maryland in Calvo v. Montgomery County, 2018 Md. LEXIS 298 (May 21, 2018). She might nevertheless be entitled to workers’ compensation benefits under the special mission exception to the going and coming rule, since the mandatory training occurred on Saturday, her normal day off, and at another employer-owned facility, not the depot where she usually reported, indicated the majority of the Court. Summary judgment should not, therefore, have been entered by the state trial court.

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NC Employee’s Injuries From Fainting After Toking on E-Cigarette Did Not Arise From the Employment

The North Carolina Court of Appeals affirmed the denial of workers’ compensation benefits to a city employee who sustained serious injuries to his right hip, back, and head when he passed out and fell to the ground after getting choked on an e-cigarette [Brooks v. City of Winston-Salem, 2018 N.C. App. LEXIS 504, COA17-1208 (May 15, 2018)]. Noting that at the time of the injury the employee suffered from extremely elevated blood pressure and blood sugar levels and experienced a vasovagal response triggered by uncontrolled coughing, the court drew a sharp distinction between an unexplained fall, which generally is said to arise out of and in the course of the employment, and an idiopathic fall, which does not.

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