Oregon Court Affirms Denial of Claim Due to Claimant’s Failure to Cooperate

On Wednesday, an Oregon appellate court affirmed the denial of an injured worker’s claim for workers’ compensation benefits on the grounds that she had, without an appropriate reason, failed to cooperate with the claims process, as required under ORS 656.262(15) [see Hopper v. SAIF Corp., 2014 Ore. App. LEXIS 1230 (Sept. 10, 2014)]. In doing so, the court agreed with the state’s Workers’ Compensation Board which had upheld an earlier denial on the basis that claimant failed to prove that her failure to cooperate was “for reasons beyond [her] control.” Continue reading

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Ohio Jury Uses MapQuest Data to Help Establish Significance of Claimant’s Deviation from Employment

An Ohio appellate court recently affirmed a jury’s determination that a home health care nursing director, who sustained injuries in an automobile accident as he drove from a restaurant to a pharmacy to retrieve a patient’s prescription, did not sustain an injury arising out of and in the course of his employment [Jones v. Multicare Health & Educ. Servs., 2014-Ohio-3724, 2014 Ohio App. LEXIS 3649 (Aug. 28, 2014)]. Noting that the jury considered, among other evidence, various data reports from MapQuest that showed the travel distance and travel times related to claimant’s purported personal deviation during a lunch break, the appellate found that even if the travel times were not fully authenticated, it amounted to harmless error since claimant had not objected to the admission of the reports at the time of trial. Continue reading

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California Court Says Plaintiff’s IIED Claim is Barred by Exclusivity

A California appellate court has sustained a demurrer to a complaint alleging, among other things, intentional infliction of emotional distress filed by a former employee of a car dealership against various coworkers, supervisors, and the owner of the dealership on the grounds that the claim was barred by the exclusive remedy provisions of the California Workers’ Compensation Act [see Yau v. Santa Margarita Ford, Inc., 2014 Cal. App. LEXIS 722 (Aug. 26, 2014)]. The plaintiff contended that he had been fired after complaining to the employer’s management about fraudulent warranty repair claims being submitted to Ford Motor Company. He filed a civil action for wrongful termination against the employer and an IIED claim against the individual defendants, claiming the latter were involved in the warranty fraud and that they caused plaintiff to suffer emotional distress after he complained about their nefarious activity. He claimed the actions of the employer and individual defendants contravened a fundamental public policy.

The appellate court cited Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal.4th 876, 188 P.3d 629, 80 Cal. Rptr. 3d 690, in which the state supreme court held that even severe emotional distress arising from outrageous conduct that occurred at the worksite, in the normal course of the employer-employee relationship is the type of injury that falls within the exclusive province of workers’ compensation. The appellate court indicated that the trial court accordingly did not err by sustaining the demurrer as to the cause of action.

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Divided SC Supreme Court Says Injuries Sustained Playing Kickball Were Compensable

In a divided decision, the Supreme Court of South Carolina today held that an employee’s injuries sustained in a game of kickball arose out of and in the course of the employment [see Whigham v. Jackson Dawson Communications, 2014 S.C. LEXIS 367 (Aug. 27, 2014)]. The majority held that under the facts of the case, the employee was required to attend the kickball game since he had organized it for the employer.

Whigham was employed as Director of Creative Solutions at his employer, a marketing, advertising, and public relations company. As part of his employment, Whigham attended meetings wherein the managers discussed, among other things, the importance of team-building events. Whigham conceived the idea of having a company kickball game. The idea was approved by Whigham’s superior and Whigham went about planning it. The employer budgeted $400 for special T-shirts, drinks, and snacks. Once the event was organized, Whigham used the company intranet to promote it and encourage attendance. Roughly half of the firm’s employees attended. Whigham was injured while playing the game, landing awkwardly on his right leg, shattering his tibia and fibula. He was taken away in an ambulance and eventually underwent two surgeries. His doctor later informed him he would need a knee replacement. The single commissioner denied compensability on the grounds that the injury did not arise out of or in the course of Whigham’s employment. Specifically, she found Whigham was neither required to attend the event, nor was there any benefit beyond general employee morale to the company. The full commission affirmed, essentially adopting the single commissioner’s order. The court of appeals affirmed in a memorandum opinion, citing cases involving the substantial evidence standard.

The majority disagreed. Quoting Larson’s Workers’ Compensation Law, § 22.01, the majority held that Whigham was impliedly required to attend the kickball game he organized; it became part of his services. The majority added that while the event may have been voluntary for company employees generally, the undisputed facts unequivocally indicated Whigham was expected to attend as part of his professional duties. According to the majority, because the event was part of Whigham’s employment, it did not need to consider whether the employer drew any level of benefit from the kickball event.

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Kentucky Cap on Claimant Attorney’s Fees Applies In Spite of Multiple Proceedings to Recover Benefits

The $12,000 cap on claimant’s attorney’s fees contained in KRS 342.320(2)(a) applies to the entire “original claim,” including any interlocutory proceedings, such as as a medical fee dispute, held a Kentucky appellate court in Watts v. Danville Housing Auth., 2014 Ky. LEXIS 345 (Aug. 21, 2014). The interlocutory proceeding cannot be considered separate from the employee’s claim for income benefits in order to support approval of additional fees. Continue reading

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Informal Arrangement Regarding Boarding of Horses Did not Create Employer-Employee Relationship

An oral agreement whereby one party (Cornett) was allowed to board horses on property owned by another (Schumacher) and pay the latter a portion of the boarding fees received as rent for the stables did not create an employee-employer relationship, agreed an Ohio appellate court in Cornett v. Administrator, Ohio Bureau of Workers’ Comp., 2014-Ohio-3559, 2014 Ohio App. LEXIS 3500 (Aug. 18, 2014). That Cornett was required to purchase her hay from Schumaker, was required to clean the stalls regularly and was further required to be on the premises when the farrier or veterinarian would come did not change the arrangement into one for hire, indicated the court. The court accordingly affirmed a decision of the Bureau of Workers’ Compensation that Cornett was not entitled to workers’ compensation benefits for injuries sustained when she was trampled by a horse on the ground that she was not Schumaker’s employee. Continue reading

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Annual Service Bonus is Part of Iowa Employee’s Average Weekly Wage Computation

Where the only conditions precedent to receiving an annual bonus was simply being an “active employee on November 30th of the year the bonus was paid and the condition precedent to receiving the quarterly bonus was being employed on the last day of the quarter, the bonuses were sufficiently regular so as to be included in computing an injured employee’s average weekly wage, held an Iowa appellate court in Pella Corp. v. Minar, 2014 Iowa App. LEXIS 826 (Aug. 13, 2014). The court acknowledged that the annual bonuses varied from year to year, but stressed that a bonus had actually been paid for many years. While the annual bonus is question was not paid until after the claimant’s actual injury, the claimant’s right to that bonus vested five days prior to the incident. The commissioner’s inclusion of the annual service bonus in the rate calculation was not ”irrational, illogical, or wholly unjustified,” said the court.

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Louisiana Claimant Gets Hit With Forfeiture of Benefits and Stiff Penalties for Misrepresentations

A Louisiana appellate court has affirmed an Order of the state’s Office of Workers’ Compensation that heavily sanctioned a workers’ compensation claimant for fraud in violation of La. R. S. 23:1208 [Borders v. Boggs & Poole Contracting Group, Inc., 49,228 (La.App. 2 Cir. 08/13/14); 2014 La. App. LEXIS 1963]. The OWC’s Order dismissed the worker’s demand for benefits, required that the worker repay all benefits paid through a certain date, as well as all costs of litigation, and further ordered the worker to pay $1,000 to the Kids Chance Scholarship Fund, a fund specified in the state’s workers’ compensation fraud statute.

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Nebraska High Court Clarifies “Manifestation” Date in Repetitive Trauma Cases

The Supreme Court of Nebraska recently held that for purposes of assigning liability among several employers for a dental hygienist’s repetitive trauma injury, the injury manifested itself on the day she first missed work due to pain and not the date several years earlier when she first began to feel discomfort while working and first sought medical treatment. Accordingly, the employer and the employer’s carrier on that latter date were liable for all of the hygienist’s medical expenses and compensation benefits [see Potter v. McCulla, 288 Neb. 741, 2014 Neb. LEXIS 124 (Aug. 1, 2014). Continue reading

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Divided California Supreme Court Says In-Home Caregivers May Not Sue Alzheimer’s Patients For Injuries

Acknowledging that agitation and physical aggression are common late-stage symptoms of Alzheimer’s disease, that injuries to caregivers are not unusual, and that California and other jurisdictions had previously established the rule that Alzheimer’s patients were not liable for injuries to caregivers in institutional settings, the California Supreme Court yesterday extended that rule to in-home caregivers [see Gregory v. Cott, 2014 Cal. LEXIS 5460 (Aug. 4, 2014)]. Drawing an analogy to the “veterinarian’s rule,” which generally bars a kennel employee, on assumption of the risk grounds, from recovering in tort from the owner of the dog that bites the employee, the majority of the high court ruled the caregiver’s action should also be barred. Continue reading

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