Maine Home Treadmill Fatality Found Compensable

Illustrating the point that for telecommuting employees, who are often tethered to their employers by ubiquitous cell phones and tablets, the line between the employment world and private life is blurred—if it exists at all—Maine’s Supreme Judicial Court affirmed an award of death benefits to the widow of a financial advisor who died of a heart attack while exercising on a treadmill at his home [Estate of Sullwold v. The Salvation Army, 2015 ME 4 (Jan. 22, 2015)]. Finding the hearing officer and the Workers’ Compensation Appellate Division correctly found that the evidence triggered the presumption in 39-A M.R.S. § 327 correctly, the Court held that there was sufficient evidence for the hearing officer to find the employment contributed to the heart attack “in a significant manner.” § 327 generally provides that when an employee has been killed or is otherwise physically or mentally unable to testify, there is a rebuttable presumption that the employee received a personal injury arising out of and in the course of the employment. Continue reading

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New Mexico: Health Care Provider’s “Certification” of Medical Marijuana is Functional Equivalent of Prescription for Injured Worker

An authorized treating health care provider’s “certification” authorizing the use of medical marijuana under New Mexico’s Compassionate Use Act [N.M. Stat. Ann. § 26–2B–1 et seq.] is the functional equivalent of a prescription, held the Court of Appeals of New Mexico [see Maez v. Riley Industrial, 2015 N.M. App. LEXIS 7 (Jan. 13, 2015)]. Accordingly, medical marijuana, where so authorized, can be considered “reasonable and necessary medical care” under the state’s Workers’ Compensation Act. In so holding, the appellate court reversed a decision of a state workers’ compensation judge who found that since the marijuana was not actually prescribed by the injured worker’s health care provider (“HCP”), it could not be deemed reasonable and necessary medical care.

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South Carolina Supreme Court Adopts What Amounts to Positional Risk Standard in Slip and Fall Cases

The Supreme Court of South Carolina, reversing the state court of appeals, recently held that an office worker who sustained injuries when she fell as she walked down an unobstructed, carpeted hallway, can recover workers’ compensation benefits; her injuries arose out of and in the course of her employment [see Nicholson v. S.C. Dep’t of Social Servs., 2015 S.C. LEXIS 3 (Jan. 14, 2015)].  Continue reading

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Kentucky High Court Splits in Case Involving Personal Comfort Doctrine

In a split decision dealing with the application of the personal comfort doctrine described in Larson’s Workers’ Compensation Law, § 21.01, et seq., a majority of the Supreme Court of Kentucky reversed a decision of the state’s court of appeals which, in turn, had affirmed decisions of an administrative law judge and the state’s Workers’ Compensation Board [see US Bank Home Mortgage v. Schrecker, 2014 Ky. LEXIS 617 (Dec. 18, 2014)]. Quoting extensively from Larson, the majority held that a bank employee’s injuries sustained when, during a paid break, she was struck by a car as she crossed a busy street to get a quick bite of lunch did not arise out of and in the course of her employment. Giving lip service to the rule that the ALJ’s findings of fact should not be set aside “unless the evidence compels a contrary finding,” the high court found that in jay-walking (crossing the street between intersections) and failing to yield to an oncoming vehicle, the bank employee “voluntarily exposed herself to a hazard so completely outside those normally encountered” as to negate any authority the bank had over her.

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For Now, Exclusivity Does Not Bar Workers’ Tort Cases Against BP Products Following 2011 Chemical Release at Refinery

A Federal District Court in Texas has refused to grant a motion for summary judgment filed by Defendant BP Products North America, Inc. (“BP Products”) in a civil action arising out of an alleged chemical release at the BP refinery in Texas City in November 2011 [Boyd v. BP Prods N. Am. Inc., 2015 U.S. Dist. LEXIS 1017 (S.D. Tex. Jan. 6, 2015)]. More than 500 plaintiffs claim that they were injured by the release, and they brought a variety of tort claims against BP Products. Plaintiffs have been generally divided into two groups: “workers” at the refinery or at a Dow Chemical plant nearby and “community members” who lived near the plant.

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NY Employer’s Surveillance of Injured Worker Fails to Establish Fraud

A New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that an employer’s surveillance videos and testimony of its private investigator, which primarily showed a workers’ compensation claimant sitting or standing outside a café smoking, talking on a cell phone or drinking coffee did not establish that the claimant had violated N.Y. Work. Comp. Law § 114-a [see Lleshi v. Dag Hammarskjold Tower, 2014 N.Y. App. Div. LEXIS 8989 (Dec. 31, 2014)].

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New York Court Finds Worker’s Refusal of Light-Work Justified

A New York appellate court affirmed a decision of the state’s Workers’ Compensation Board that a claimant had not voluntarily withdrawn from the labor market by refusing a light duty position with the employer since there was a reasonable basis for the his refusal [see Jesco v. Norampac Mfg. Co., 2014 N.Y. App. Div. LEXIS 8850 (3rd Dept. 2014)]. The court noted that while claimant’s physician had generally released him to light-duty work, the employer, with only one day’s notice, directed claimant to report to its physician for an examination and to work for a light-duty assignment the following day. Under the circumstances, the refusal to comply with the employer’s demand was not unreasonable.

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Ohio Worker May Receive TTD Benefits In Spite of Positive Drug Test After Injury

Reiterating the Ohio rule that that a pre-injury infraction undetected until after the injury is not grounds for concluding that a claimant voluntarily abandoned his employment so as to preclude temporary total disability benefits, a state appellate court granted an injured worker’s mandamus request and vacated a decision by the state’s Industrial Commission that had found the worker was disqualified from temporary total disability benefits on the basis that he failed a post-injury drug test [see Cordell v. Pallet Cos., Inc., 2014-Ohio–5561, 2014 Ohio App. LEXIS 5374 (Dec. 18, 2014)].

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8th Circuit: Insurer’s Refusal to Pay for Injured Undocumented Worker’s Groceries and Cable TV Not Bad-Faith Denial of Insurance Benefits

In an action alleging bad-faith denial of insurance benefits filed by an undocumented worker who sustained severe injuries in a work-related accident, the Eighth Circuit Court of Appeals, construing Iowa law, affirmed summary judgment in favor of a workers’ compensation insurer that had stopped paying the benefits that were associated with plaintiff’s living expenses [see Paulino v. Chartis Claims, Inc., 2014 U.S. App. LEXIS 23964 (Dec. 19, 2014)]. Agreeing with the federal district court that the insurer had a reasonable basis for denying the claim because the expenses had included the worker’s rent, utilities, groceries, and cable television during his stay at a rehabilitation center, the court concluded that it was not readily apparent that those living expenses were similar to the medical services and supplies listed in Iowa Code § 85.27 or to the appliances found to be compensable in the Iowa Supreme Court cases.

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Kentucky Court Affirms Limitation of Attorney’s Fee in Comp Claim Involving Multiple Beneficiaries

The Court of Appeals of Kentucky, in Roberts v. Sticklen, 2014 Ky. App. LEXIS 186 (Dec. 12, 2014) held that the plain language of Ky. Rev. Stat. Ann. § 342.320(2)(a) limited an attorney’s fee to $12,000, in spite of his contention that he had negotiated five settlements and represented five clients: the estate of the deceased police officer, his widow, and the couple’s three children. The court affirmed a finding by an administrative law judge that the attorney had represented "multiple clients on one claim.
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