Mississippi Executive’s Survivors Awarded Death Benefits in Spite of His Decision Not to Secure Required Coverage for Firm

The affirmative decision by the managing partner and president of a CPA firm not to secure workers’ compensation coverage for the firm, in spite of the fact that the firm had at least five employees and was obligated to secure coverage, did not operate as an executive officer’s rejection of coverage under Miss. Code Ann. § 71–3–79, so as to disqualify his surviving spouse and daughter from receiving death benefits following the partner’s death from a stroke, held a divided Court of Appeals of Mississippi recently. The statute, which states that an “executive officer may reject [the] coverage by giving notice in writing to the carrier of this election not to be covered as an employee,” was not ambiguous, indicated the court. Accordingly, the plain meaning of the provision had to be applied. At no point did the partner reject the coverage by giving notice in writing. The Commission’s finding that the partner did not opt out of coverage was, therefore, supported by substantial evidence, held the divided court.

The CPA firm had argued that it was hardly possible for the partner to give notice to a carrier since no carrier had been contacted to write any coverage. The firm contended that the partner’s “executive decision” not to secure coverage amounted to an executive “opt out.” The irony here is that had the partner secured coverage for the firm and given “opt out” notice to the carrier, his survivors would have had no viable claim. His decision, however, to withhold coverage from everyone meant his survivors could pursue and recover.

Posted in Case comment | Tagged , , , , , , , | Leave a comment

Nebraska Retail Worker Awarded TTD Benefits and Continued Medical Care to Deal With PTSD and Drug Dependency Following Work-Related Shooting

In a recent case with rather bizarre underlying facts, the Supreme Court of Nebraska affirmed an award of temporary total disability benefits for an employee’s PTSD condition and inpatient treatment for chemical dependency that worsened after the employee was shot at the employer’s premises [Kim v. Gen-X Clothing, Inc., 287 Neb. 927, 2014 Neb. LEXIS 59 (Apr. 11, 2014)]. Observing that the resolution of conflicting medical evidence was for the finder of fact, the Nebraska high court indicated it could not substitute its own findings for that of the Workers’ Compensation Court.  Continue reading

Posted in Case comment | Tagged , , , , , , , , , | 3 Comments

New York: Vehicle Owner Shielded from Contribution By Exclusive Remedy Defense

Answering a question certified to it by the U.S. Court of Appeals (2nd Circuit), the Court of Appeals of New York, in Isabella v. Koubek, 2014 N.Y. LEXIS 569 (Mar. 27, 2014), recently held that a defendant may not pursue a third-party contribution claim under N.Y. Vehicle and Traffic Law § 388–which renders a vehicle owner vicariously liable for injuries resulting from the negligent permissive use of a vehicle–where the driver’s negligence was a cause of the plaintiff’s injuries, but the driver is insulated, by reason of co-employee status, from a lawsuit by virtue of the exclusive remedy provisions of the New York Workers’ Compensation Law [N.Y. Work. Comp. Law § 29 (6)]. Continue reading

Posted in Case comment | Tagged , , , , , , | Leave a comment

What A Difference a Word Makes: Illinois Court Remands Case Because Settlement Agreement Ambiguous

Characterizing the language of a workers’ compensation settlement agreement that included a provision for a Medicare set-aside annuity (MSA) as “sloppy” and “imprecise” and quoting novelist Vladimir Nabokov’s advice to writers, “have the precision of a poet,” an Illinois appellate court reversed a trial court’s determination that an employer was to pay the injured employee the sum of $400,000 in addition to the amount of the MSA [Paluch v. United Parcel Serv., 2014 Ill. App. LEXIS 194 (Mar. 26, 2014). Refusing, however, to read the agreement in the manner suggested by the employer, the court held that the language was patently ambiguous and that the case must be remanded for an evidentiary hearing to determine what the parties had actually intended.  Continue reading

Posted in Case comment | Tagged , , , , , | Leave a comment

Virginia Court Requires Insurer to Provide Transportation to Doctor’s Office In Spite of Fact That It Already Paid to Modify Vehicle

It is one thing to modify an injured employee’s vehicle so as to accommodate his wheelchair or scooter. It is quite another to provide the employee with necessary transportation assistance in getting to his or her doctor. That such modifications have been provided by a workers’ compensation insurer does not mean that additional assistance in securing transportation related to medical care is not also required, held a Virginia appellate court on Tuesday in Howard Bros., Inc. v. Howard, 2014 Va. App. LEXIS 99 (Mar. 18, 2014). Quoting Larson’s Workers’ Compensation Law, § 94.03, the appellate court indicated in pertinent part that the employer had ignored the fact that the employee could not drive the modified vehicle himself. The employee’s wife could not be expected to provide transportation to the doctor on an indefinite basis. Credible evidence supported the Commission’s requirement that the employer/carrier provide for the payment of reasonable and appropriate transportation to medically-prescribed appointments.

Posted in Case comment | Tagged , , , , , | Leave a comment

PA Court Refuses to Consider Independent, Board-Certified MD’s Opinion Because of Her Practice “Mix”

When is the opinion of a board-certified (occupational medicine) physician, with years of experience and special training in the utilization of the AMA Guides, and who has performed numerous Impairment Rating Evaluations (IREs) under both the 5th and 6th editions of the AMA Guides nevertheless deemed incompetent as to an injured employee’s MMI status and whole person impairment rating? Answer: When the mix of her medical practice isn’t sufficiently “clinical” so as to satisfy the determinations of a group of Harrisburg, Pennsylvania bureaucrats. At least, that’s my take after reading a recent Commonwealth Court decision [Verizon Pennsylvania Inc. v. Workers’ Comp. Appeal Bd. (Ketterer), 2014 Pa. Commw. LEXIS 162 (Mar. 12, 2014)].  Continue reading

Posted in Case comment, Issue commentary | Tagged , , , , , , | 2 Comments

Minnesota High Court Says PTSD is No “Brain Injury”

Reiterating the Minnesota rule that so-called “mental-mental” injuries–mental injuries associated with mental stimulus, as opposed to physical stimulus–are not compensable and that it is for the state’s legislature, and not its courts, to change the rule, the Supreme Court of Minnesota recently affirmed the denial of benefits to a police officer who developed post-traumatic stress disorder (PTSD) after he had responded to an accident at the local high school–a young woman had fallen out of a pickup truck–and realized he knew the young victim well [Schuette v. City of Hutchinson, 2014 Minn. LEXIS 97 (Mar. 5, 2014).

Continue reading

Posted in Case comment, Issue commentary | Tagged , , , , | Leave a comment

Benign Neglect: Can Failure to Follow Doctor’s Advice Be Fatal to Injured Worker’s Claim?

Within the workers’ compensation arena, it is axiomatic that the medical consequences and sequelae that flow from the primary injury are themselves compensable. [see Larson’s Workers’ Compensation Law, § 10.01]. It is uniformly held, therefore, that aggravation of the primary work-related injury by medical or surgical treatment is compensable. A distinction must be drawn, however, between those incidents that actually flow from the original injury and others that flow from an independent, intervening cause, such as rash conduct on the part of the injured employee that impedes recovery or the employee’s refusal of reasonable treatment. These latter instances are often held to break the chain of causation between the aggravation and the original injury and relieve the employer/carrier of further responsibility.

A classic early case, Kill v. Industrial Comm’n, 160 Wis. 549, 152 N.W. 148 (1915), illustrates the principle. There a claimant, whose hand was healing nicely, rashly decided to get into a boxing match, during which he tore open the wound, which then became infected. The court held that the claimant could not attribute the aggravation to his employment.

But what about something much more passive? Can benign neglect of a claimant’s condition break the chain of causation as well? A recent Nebraska decision, Boger v. Magnus Co., 2014 Neb. App. LEXIS 54 (Feb. 25, 2014), warns that claimants who fail to follow the advice of their doctors can sometimes be disqualified from benefits. Continue reading

Posted in Case comment | Tagged , , , | Leave a comment

Compromise and Settlement: May An Employer Include a Penalty Clause to Ward Off Further Vexatious Claims?

Each year I read–or at least scan–more than 1,500 workers’ compensation cases that make the appellate reporter system around the nation. As large as that number sounds, it’s really fewer than five per day. And yet, as we all know, only a small fraction of claims filed make it even to a hearing, much less an appellate court. The vast bulk of claims are handled either without controversy or they are settled by the parties. Indeed, the entire workers’ compensation system requires that virtually all cases be dispatched without any sort of formal hearing or appellate process. If every injury produced a contested hearing, the system would crash around us. Just how free are the parties to settle a truly disputed claim? May the employer include a penalty clause requiring substantial liquidated damages to be paid by the worker if further litigation is initiated? A decision last week from Louisiana, Ayro v. Willstaff, Inc., 2014 La. App. LEXIS 433 (Feb. 19, 2014), provides some important insight.  Continue reading

Posted in Case comment, Issue commentary | Tagged , , , , , | Leave a comment

Ohio: Comatose Injured Worker’s Additional Claim for Loss of Vision and Hearing Fails

The Supreme Court of Ohio, reversing an earlier decision by an intermediate appellate court, recently affirmed the state Industrial Commission’s denial of a loss of vision and hearing claim under Ohio’s scheduled injuries provision, Ohio Rev. Code § 4123.57, filed by (on behalf of) a worker who, following complications from surgery related to a compensable injury, remains in a persistent vegetative state [see State ex rel. Smith v. Industrial Comm’n, 2014-Ohio–513, 2014 Ohio LEXIS 265 (Feb. 18, 2014)].  Continue reading

Posted in Case comment | Tagged , , , , , | Leave a comment