Office Worker Employed by Canadian Consulate May Proceed in Tort Against Employer for Work-Related Injuries

In an unusual case testing the limits of the sovereign immunity enjoyed by our neighbor to the north, a divided First Circuit Court of Appeals reversed a decision by a federal district court that had dismissed a Boston office worker’s civil action filed against her employer—Canada [Merlini v. Canada, 2019 U.S. App. LEXIS 17313 (1st Cir., June 10, 2019)]. The majority disagreed with the district court’s determination that Canada was immune from suit under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.A. § 1602, et seq, finding instead that the "commercial activity" exception to sovereign immunity applied under the facts of the case.

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Georgia Restaurant Manager’s Gunshot Wound at Home During Attempted Robbery Was Compensable

A Georgia appellate court, reversing a decision of a state Superior Court, held that substantial evidence supported a finding by the State Board of Workers’ Compensation that a restaurant manager’s gunshot wound, sustained during an attempted robbery as the manager and the restaurant owner returned to their residence at the end of the work day, arose out of and in the course of the manager’s employment [Kil v. Legend Brothers, LLC, 2019 Ga. App. LEXIS 368 (June 21, 2019)]. The court said the record supported the Board’s finding that part of their daily routine included going over the receipts and daily operations when the two got home each day. Since the manager’s duties had not concluded for the day, his claim was not barred by Georgia’s version of the going and coming rule.

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Deeply Divided Oklahoma Supreme Court “Opts Out” of Legislature’s Definition of “intentional” Injury

“Substantially Certain” Doctrine Stays, in Spite of Specific Language to the Contrary

In a deeply divided decision, with three justices concurring specially with the majority’s opinion, and four justices dissenting, the Supreme Court of Oklahoma held that a workers' compensation claimant may maintain an intentional tort action against an employer in the state's trial courts under the so-called “substantially certain” theory of liability [see Larson's Workers' Compensation Law, § 103.04], notwithstanding clear wording in the state's Workers’ Compensation Act [Okla. Stat. tit. 85, § 12 (2001 and Supp. 2010) “the Act”] to the contrary [Wells v. Oklahoma Roofing & Sheet Metal, 2019 OK 45, 2019 Okla. LEXIS 43 (June 18, 2019)].

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Presumption of Correctness Afforded Florida’s EMAs Passes Constitutional Muster

§ 440.13(9)(c), Fla. Stat., which provides a presumption of correctness to the opinion of an expert medical advisor (“EMA”), is not violative of separation of powers, equal protection, and due process guarantees of the Florida and federal constitutions, held the state’s First District Court of Appeal yesterday, in Abreu v. Riverland Elementary School/Broward County School Board, No. 1D17-2755, 2019 Fla. App. LEXIS 9379 (Fla. 1st DCA, June 18, 2019).

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Kentucky’s Special Hearing Loss Threshold is Constitutional

Ky. Rev. Stat. § 342.7305, pursuant to which workers’ compensation claimants suffering hearing loss may not be awarded income benefits unless their whole person impairment rating (“WPI”)—as determined by converting their binaural impairment under AMA Guides—is at least 8%, does not violate the equal protection guarantees in the 14th Amendment to the U.S. Constitution nor relevant sections of the Kentucky Constitution, held a divided Supreme Court of Kentucky [Teco/Perry County Coal v. Feltner, 2019 Ky. LEXIS 210 (June 13, 2019)]. That other types of non-hearing loss traumatic injury claimants need not meet that same threshold impairment rating to qualify for income benefits is not problematic, held the majority of the Court, as there is a rational basis for treating hearing loss claimants differently from other types of traumatic injury claimants. With its decision, the high court reversed and vacated an earlier decision of the state’s Court of Appeals. Continue reading

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NJ Diabetic Teacher’s Failure to Accommodate Claim Not Barred by Exclusivity

In a decision discussing several employment-related law issues, a New Jersey appellate court held, in relevant part, that a bodily injury claim arising from an employer’s failure to accommodate allegation under the New Jersey Law Against Discrimination (LAD) [N.J.S.A. 10:5-1 to -49} was not barred by the exclusive remedy provision of the state’s Workers’ Compensation Act (the Act) in spite of the fact that the employee earlier had sought and recovered workers’ compensation benefits for her injuries [Richter v. Oakland Bd. of Educ., 2019 N.J. Super. LEXIS 84 (June 11, 2019)]. The court found the teacher had sufficiently stated an intentional injury claim against her employer. It softened the blow a bit, however, by adding that if the trier-of-fact later determined that the employer’s actions had been intentional, the employer could offset the compensation benefits previously paid to the extent that the civil damage award would serve as a double recovery.

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Delaware Supreme Court Says Injured Employees May Recover Under Employer’s Underinsured Motorist Coverage

The Supreme Court of Delaware, reversing earlier rulings by a state trial court, held that the exclusive remedy provisions of the state’s Workers’ Compensation Act (the Act), two workers who sustained work-related injuries in automobile accidents may proceed against their employer’s automobile liability insurer under the underinsured motorist provisions of the respective policies [Henry v. Cincinnati Ins. Co., 2019 Del. LEXIS 292 (June 11, 2019)]. The Supreme Court stressed that an insurance company that issues an automobile liability policy insuring an employer’s vehicles with coverage including underinsured-motorist coverage is not an “employer” under the Act. Readers should note that this decision is at odds with the recent decision of a U.S. District Court in Colorado that I recently discussed here.

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Seattle Delivery Service Hit With $1 Million in Workers’ Comp Premiums, Penalties and Interest

Two weeks ago I wrote about Amazon’s new “last-mile” delivery service. In that post, I pointed out that Amazon had carefully crafted the business model to assure that the delivery drivers would be characterized as employees—not its employees, mind you—but rather employees of hundreds of newly-formed (and to be formed) intermediaries known as “Delivery Service Partners.” I noted that in adopting that business model, Amazon would likely avoid many of the employment issues that have plagued Uber and Lyft in recent years (i.e., whether Uber/Lyft drivers are independent contractors or employees). A recent decision from Amazon’s back yard illustrates what can happen under the Uber/Lyft model. In Delivery Express, Inc. v. Department of Labor & Indus., 2019 Wash. App. LEXIS 1465 (June 10, 2019), a Washington appellate court affirmed a ruling by the state’s Department of Labor & Industries that had assessed almost $1 million in workers’ compensation premiums, penalties, and interest against a firm operating a Seattle delivery service that maintained its drivers were not employees, but rather independent contractors not subject to the workers’ compensation law.

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Federal Court in Colorado Holds Injured Employee May Not Recover Under Employer’s Uninsured Motorist Coverage

In a diversity insurance case that the court indicated was an issue of first impression, the U.S. District Court for the District of Colorado, construing Colorado law, held that an employee injured in a work-related automobile accident is not entitled to uninsured/underinsured motorist (“UM/UIM”) coverage under a policy of vehicle liability insurance procured by his or her employer [Employers Mut. Cas. Co. v. Trejo, 2019 U.S. Dist. LEXIS 91999 (June 3, 2019)]. Accordingly, the court granted the insurer’s motion for summary judgment in a declaratory judgment action filed against the injured employee seeking such a ruling.

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Colorado High Court Says 8th Amendment’s “Excessive Fines” Prohibition Protects Corporations, as Well as Individuals

Decision Calls Into Question Whether Per Diem Fines to Uninsured Employers Are Unconstitutionally Harsh

The Supreme Court of Colorado, with one justice dissenting in part, recently held that the Eighth Amendment’s prohibition against the imposition of “excessive fines” applies to fines levied against corporations, as well as individuals [Colorado Dept. of Labor and Empl., Div. of Workers’ Comp. v. Dami Hospitality, LLC, 2019 CO 47 (June 3, 2019)]. Additionally, the Court remanded the case to the Court of Appeals for return to the state’s Division of Workers’ Compensation, with instructions to develop a record sufficient to determine whether the $250-$500 fine that a business was required to pay for each day that it was out of compliance with Colorado’s workers’ compensation law—the computed fine totaled $841,200—was proportional to the harm or risk of harm caused by each day of noncompliance. The decision, while not binding, of course, beyond Colorado, calls into question similar per diem fines levied in other states.

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