Wyoming Court Says Undocumented Worker Might Be Able to Employ Ingenious Argument to Avoid Exclusive Remedy Defense

The Wyoming Supreme Court, construing the statutory provision within the state’s Workers’ Compensation Act (“the Act”) defining “employee,” recently held that an an undocumented worker might be able to take advantage of his illegal status and sue his employer in tort, rather than settle for what he might otherwise have received via a workers’ compensation claim [see Herrera v. Phillipps, 2014 WY 118, 2014 Wyo. LEXIS 135 (Sept. 23, 2014)]. The court held that the injured worker had presented sufficient evidence to raise a factual issue as to whether the purported employer knew of the worker’s illegal status prior to the injury. If the employer had such knowledge, the tort action could move forward to a jury; summary judgment by the trial court favoring the “employer” was, therefore, improper. Continue reading

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

Oregon Home Health Care Worker’s Employment Is Broader Than Approved Task List

Like a number of other states, Oregon has a program through which its Department of Human Services provides home health care services to qualifying clients (state citizens), at state expense. Generally, once a client qualifies, a case manager prepares a “Service Plan” and a “Task List” setting forth the number of home health care service hours to which the client is entitled as well as a list of tasks for which compensation can be paid. At issue in SAIF Corp. v. Tono, 2014 Ore. App. LEXIS 1297 (Sept. 17, 2014), was whether ORS 656.039(5) limits the workers’ compensation coverage available to a home care worker funded by the state to only those injuries suffered by the worker while performing tasks on the approved task list. The Oregon appellate court concluded that it does not. The workers’ compensation insurance carrier, SAIF Corp., contended that the home health care worker was injured in an automobile accident as she drove the client to get breakfast, that the worker was not authorized to drive the client anywhere, and that accordingly, the worker’s injuries did not arise out of and in the course of the employment.

The appellate court held that nothing in the plain terms of the provision imposed any limitation on the scope of workers’ compensation coverage available to state-funded home care workers. The court added that if the legislature had intended to limit workers’ compensation coverage for home care workers to particular activities, it would have said so expressly, as it did in ORS 656.031, ORS 656.033, and ORS 656.041, by stating that home care workers were entitled to workers’ compensation benefits “provided the injury occurred while the home care worker was performing a state-funded duty,” or some similar wording. The legislature’s omission of that type of express limitation in ORS 656.039(5) indicated that it did not intend to impose one on workers’ compensation coverage for home care workers.

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

Ohio Court Clarifies Elements of Retaliatory Discharge Action Against Former Employer

In Onderko v. Sierra Lobo, Inc., 2014 Ohio App. LEXIS 4015 (Sept. 19, 2014), an Ohio appellate court recently held that in order to state a claim for retaliatory discharge, the former employee need not prove, as the first of three necessary elements, that he or she actually suffered a workplace injury; it is sufficient, as to that first element, that the former employee shows that he or she filed a workers’ compensation claim or otherwise initiated a proceeding (as the second and third necessary elements, the employee must show that (b) he or she was the subject of an adverse employment action and (c) that a causal link existed between the protected activity and the adverse action). Continue reading

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

Divided Washington Court Again Refuses to Adopt Substantially Certain Test

A divided Supreme Court of Washington, noting that in Birklid v. Boeing Co., 127 Wn.2d 853, 904 P.2d 278 (1995) [see Larson's Workers' Compensation Law, § 103.04[3][c]], it had earlier refused to adopt the “substantially certain” test in defining deliberate injuries within the workers’ compensation context, held a Boeing aircraft worker failed to raise a material issue of fact as to whether Boeing had actual knowledge of certain injury resulting from asbestos exposure at its facility [see Walston v. Boeing Co., 2014 Wash. LEXIS 764 (Sept. 18, 2014)]. Plaintiff contended her husband, a Boeing employee, died after contracting mesothelioma after being exposed to asbestos at Boeing’s hammer shop in 1985 during a special maintenance operation. Plaintiff contended Boeing knew the maintenance operation was hazardous, since Boeing’s maintenance workers wore protective clothing and used ventilators while performing their work. Plaintiff’s husband and others worked in the area below the ceiling without special clothing or breathing equipment.

The majority of the high court agreed that summary judgment in favor of Boeing was appropriate, that as the experts in the case had acknowledged, asbestos exposure is not certain to cause mesothelioma or any other disease. The majority added that asbestos exposure does cause a risk of disease, but that is insufficient to meet the Birklid standard. The widow was limited to relief under the state’s Workers’ Compensation Act.

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

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

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

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

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

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., 229 Cal. App. 4th 144, 2014 Cal. App. LEXIS 772 (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.

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

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.

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

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

Posted in Case comment | Leave a comment

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

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