South Carolina: In Dependency Case, Commission May Not Presume “Fornication” Occurred

In an ancient decision (one year older than me), Day v. Day, 216 S.C. 334, 58 S.E.2d 83 (1950), the Supreme Court of South Carolina, reflecting the general moral mindset of the time, held that a woman cannot be considered a dependent within the meaning of the state’s Workers’ Compensation Act if she is “lives in [an] illicit relationship with a man to whom she is not legally married” [216 S.C. at 345]. Sidetracking the subject of illicit, extramarital relationships with the skill of a well-known first century rabbi—see The Gospel of John, ch. 8: 1-11—the Court of Appeals of South Carolina, earlier this year, found that the single commissioner and the Appellate Panel erred when they concluded, without actual evidence in the record, that a woman who had lived for some time in a “tumultuous relationship” with the deceased worker, had engaged in fornication [York v. Longlands Plantation, 424 S.C. 280, 818 S.E.2d 215 (Ct. App. 2018)]. The case was remanded for further proceedings.

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Nevada Employer Need Not Show Knowledge of Specific Medical Diagnosis to Recover from Subsequent Injury Fund

In Nevada, under Nev. Rev. Stat. § 616B.578, in order for an employer to receive reimbursement from the state’s “Subsequent Injury Account,” it must prove that that it had knowledge of a preexisting permanent physical impairment that would support a rating of at least six percent whole person impairment. In a recent decision, the Supreme Court of Nevada clarified, however, that the statute cannot be reasonably interpreted to require knowledge of a specific medical diagnosis in order for an employer to seek reimbursement successfully [North Lake Tahoe Fire Prot. Dist. v. Board of Admin., 2018 Nev. LEXIS 107 (Dec. 6, 2018)].


In 1981, the District hired an applicant as a paramedic and firefighter (the employee). For approximately 20 years, the employee worked without a documented injury. Between 2002 to 2007, however, the employee injured his back on numerous occasions while on duty and sought treatment following his injuries. Doctors diagnosed the employee with various back conditions, such as herniated nucleus pulposus (HNP), radiculopathy, back sprain, and lumbar disc abnormalities.

In November 2007, the employee then suffered a subsequent back injury while on duty, and following this injury, doctors specifically diagnosed the employee with spondylolisthesis. A few years later, the employee underwent back surgery for the condition, and a year after his surgery, the employee retired.

Shortly after the employee retired, Dr. David Berg conducted a PPD evaluation on the employee in response to the employee's November 2007 back injury and rated the employee with a 21 percent whole person impairment (WPI) with no apportionment for any preexisting condition. At the request of the third-party administrator, Dr. Jay Betz reviewed the employee's medical records and Dr. Berg's PFD evaluation. Dr. Betz disagreed with Dr. Berg's conclusion regarding no apportionment and instead found that the employee's spondylolisthesis was a preexisting impairment with a seven-nine percent WPI. Dr. Betz further found that at least half of the 21 percent WPI should be apportioned to the employee's preexisting conditions, and thus, 11 percent WPI should be apportioned to the November 2007 injury (10.5 percent rounded up).

Board’s Findings

The Board concluded, in pertinent part, that § 616B.578 required the employer to show that it knew specifically of the employee's spondylolisthesis condition prior to the subsequent injury in order to receive reimbursement from the Subsequent Fund. Accordingly, the claim for reimbursement was denied.

Supreme Court’s Decision

The Supreme Court said the Board's interpretation of § 616B.578 was reasonable in part. To qualify for reimbursement, indeed, the employer was required to establish by written record either that the employer (1) had knowledge of the permanent physical impairment at the time the employee was hired or (2) retained its employee after it acquired knowledge of the permanent physical impairment. The Court added that the employer need not prove, however, that it had specific knowledge of a specific medical diagnosis (here, spondylolisthesis) in order for it to successfully seek reimbursement. The Court stressed, however, that the employee's preexisting permanent physical impairment must be fairly and reasonably inferred from the written record. The Court concluded that here, there was a lack of clarity concerning the employer's specific knowledge. In that light, the Court reversed and remanded the cause.

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29-Month Delay in Filing North Dakota Claim Bars Recovery

The Supreme Court of North Dakota recently affirmed an ALJ’s finding that the filing of a worker’s claim some 29 months after the work incident was not timely, and, therefore, no compensation could be awarded [Lechner v. North Dakota Workforce Safety & Ins, 2018 ND 270, 2018 N.D. LEXIS 270].

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New York Court Says Attorney’s Ex Parte Text Message to Physician Was Harmless

In a divided decision, a New York appellate court recently held that the state’s Workers’ Compensation Board abused its discretion when it excluded from the record a physician’s medical report and his deposition testimony, based upon the fact that claimant’s attorney sent the physician a short text message one day before the physician’s deposition, without also send a copy of the message to the employer/carrier’s counsel [Matter of Knapp v. Bette & Cring LLC, 2018 N.Y. App. Div. LEXIS 8159 (Nov. 29, 2018)].

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2018’s Top 10 Workers’ Compensation Cases

In the Foreword of our forthcoming Workers’ Compensation Emerging Issues Analysis, 6th Edition [LexisNexis], due out in a few weeks, I note that in contrast to 2017, this year has been relatively calm for the workers’ compensation world. I caution that such quiet times will likely not continue and that 2018 might, therefore, appropriately be characterized as “the quiet before the storm.” In spite of the lack of overall turbulence, there have been some important court decisions in our field of interest this year. I take this opportunity to highlight what I think are the 10 most important workers’ comp decisions so far in 2018. The order presented is somewhat random. As I have said in previous years, “importance”—like beauty—is in the eye of the beholder. If you have a different list, by all means, share it with me.

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Divided PA Supreme Court Refuses to Allow Comp Carrier to Maintain Third-Party Action on Behalf of Injured Employee

Injured Employee Must Either Assign Cause or Join Litigation as Party Plaintiff

In Pennsylvania, a workers’ compensation insurance carrier may not maintain a third-party action against an alleged tortfeasor on behalf of an injured employee to recoup the amount paid in workers’ compensation benefits where the employee did not independently sue the tortfeasor, did not join in the insurer’s action, and did not assign her cause of action to the insurer, held a divided Supreme Court of Pennsylvania [Hartford Ins. Grp. ex rel. Chen v. Kamara, 2018 Pa. LEXIS 6033 (Nov. 21, 2018)]. With its decision, the majority of the Court indicated that it was reaffirming the well-settled proposition that in Pennsylvania, the right of action against the tortfeasor remains in the injured employee unless the injured employee assigns her cause of action or voluntarily joins the litigation as a party plaintiff.

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Massachusetts Retaliatory Discharge Statute Protects Employee’s Right to Sue Employer in Tort

A provision of the Massachusetts Workers’ Compensation Act (Act), Mass. Gen. Laws ch. 152, § 75B(2), and not the common law, affords an employee who was injured on the job and incurred a loss of earning capacity from the injury the right to pursue a third-party action against any person responsible for his or her injury after collecting benefits under the act. Accordingly, it was error for a state trial court to dismiss an employee’s civil action against her employer that alleged retaliatory termination under § 75B(2); she was exercising a right afforded by the act [Bermudez v. Dielectrics, Inc., 94 Mass. App. Ct. 491 (Nov. 16, 2018)].

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Idiopathic Fall to Level Floor May Be Compensable in Iowa

Divided Court Adopts Minority Rule for Idiopathic Falls

Adopting the minority American rule that all work-related risk factors must be considered in determining the compensability of an idiopathic fall—even the hardness of the floor—the Supreme Court of Iowa, in a divided decision, held that a worker’s idiopathic fall to a level floor could be compensable, depending upon the facts of the particular case [Bluml v. Dee Jay’s Inc., 2018 Iowa Sup. LEXIS 101]. Accordingly, the majority of the Court reversed a decision of a state district court that (along with the deputy commissioner and the commissioner) had concluded, as a matter of law, that idiopathic falls onto level floors were not compensable. Quoting extensively from Larson’s Workers’ Compensation Law, the majority also provided a sweeping overview of the status of the law across the United States.

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Massive Stroke After MMI Does Not Result in Loss of Nebraska PTD Benefits

Where an employee sustained work-related injuries, reached maximum medical improvement (MMI), and, based on factual findings by Nebraska’s Workers’ Compensation Court (WCC), was adjudged to be permanently and totally disabled, a subsequent stroke that left her completely incapacitated and unable to care for herself did not result in the loss of her permanent total disability benefits, held the Supreme Court of Nebraska [Krause v. Five Star Quality Care, 301 Neb. 612, 2018 Neb. LEXIS 188 (Nov. 16, 2018). In its holding, the high court was not swayed by the employer’s argument that the employee’s continuing disability was caused by her stroke, and not the work-related injury.

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NY’s Medical Treatment Guidelines Apply to Out-of-State Providers Treating Nonresident Claimants

In a decision that could have significant repercussions for a number of claimants under the New York Workers’ Compensation Law, a state appellate court affirmed a decision of the Workers’ Compensation Board that the state’s Medical Treatment Guidelines (“guidelines”) apply to medical treatment rendered to a nonresident claimant by an out-of-state provider [Matter of Gasparro v. Hospice of Dutchess County, 2018 N.Y. App. Div. LEXIS 7783 (Nov. 15, 2018)]. Acknowledging that the Board had departed from its own prior decisions on the issue, the appellate court said the Board had clearly set forth the reasons for making the change in its policy. Moreover, the change of policy was rational.

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