Arizona Social Worker Employed At Prison May Not Sue State for Slip and Fall Injuries

Where the State of Arizona, through its Department of Corrections, had an ongoing duty to insure that inmates received adequate health services and it contracted with an employment services provider to supply health care professionals to provide such services, retaining the right to control or supervise the work provided by an employment services provider, the Department of Corrections was the statutory employer of those health care professionals working in the state prisons. Accordingly, when a clinical social worker slipped and fell on an unmarked wet floor and sustained injuries, her exclusive remedy was to recover workers’ compensation benefits. She could not maintain a negligence action against the State of Arizona [Wagner v. State, 2017 Ariz. App. LEXIS 77 (Apr. 20, 2017)].

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

Disagreement Does Not Equal Clear and Convincing Evidence That Tennessee MIR Physician’s Opinion was Wrong

Where the opinion offered by an employee’s medical expert merely disagreed with the medical impairment registry (MIR) physician’s findings, yet did not show how that the MIR physician had used an incorrect method in assigning her impairment rating or had offered an inappropriate interpretation of the AMA Guides, the employee failed to offer the sort of clear and convincing evidence needed to overcome the statutory presumption of accuracy afforded an MIR physician’s impairment rating, held a Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court, in Williams v. Ajax Turner Co., 2017 Tenn. LEXIS 204 (Apr. 12, 2017). The Panel stressed that the employee’s expert utilized the range of motion test—and assigned a 20 percent permanent anatomical impairment to his left leg—because he was dissatisfied with the result generated by the diagnosis-based method, which had been utilized by both the employer’s expert and the MIR phyisican. Applying that latter method, both the employer’s expert and the MIR physician assigned a five percent impairment. The Panel said that while the employee’s expert have have had a sincere disagreement with the AMA Guides, such a disgreement did not affirmatively show that the MIR physician had erred in utilizing the diagnosis-based method.

Continue reading

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

New Jersey Has Jurisdiction to Hear Claim for Out-of-State Injury Where Employment Contract Completed Within the State

Where a New Jersey resident filed an online application for employment with a New York furniture company, received a phone call at his home to arrange an interview at the employer’s facility in New York and, following the interview, received a phone call at his home from a representative of the employer offering him a job as a warehouse worker, there was sufficient contact with New Jersey to support jurisdiction regarding the worker’s injury, in spite of the fact that the injury occurred in New York, held a New Jersey appellate court in Williams v. Raymours Furniture Co., 2017 N.J. Super. LEXIS 51 (Apr. 19, 2017), quoting Larson’s Workers’ Compensation Law, § 142.01.

Continue reading

Posted in Case comment | Leave a comment

Florida Correctional Department Successfully Rebuts Heart-Lung Presumption

A Florida appellate court ruled that a state judge of compensation claims erred when the JCC awarded benefits to a correctional officer under the state’s Heart-Lung statute, which generally provides firefighters, law enforcement officers, correctional officers, and certain others with a rebuttable presumption that heart attacks and pulmonary conditions arise out of and in the course of their employment [Department of Corr. v. Junod, 2017 Fla. App. LEXIS 5231 (Apr. 13, 2017)]. The Court said the JCC had improperly relied upon testimony offered by an expert medical advisor (EMA) who had admitted that he had assumed that Claimant worked as a correctional officer for at least two years before the heart attack at issue, when in fact, the heart attack occurred after only three months on the job. The Court also indicated the EMA improperly bolstered his opinion by relying upon scholarly epidemiological articles written by another physician. Continue reading

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

Arkansas Opt-Out Scenario—Still No Text in the Introduced Bill

As I indicated here in an earlier post (March 29, 2017), the Arkansas workers’ compensation “opt out” bill exists only as a shell, with literally no details contained in 2017 Senate Bill 653. As of today, that is still true. Whether we see a bill similar to the contentious Oklahoma law that was struck down on constitutional grounds by Oklahoma’s Supreme Court, some sort of Texas “opt-in” arrangement that allows all employers in the state to avoid workers’ compensation coverage altogether, or nothing at all, remains to be seen.

As most of you know, I’m not too plugged in with the various state legislatures. I do note that according to Statescape, a nationwide state legislative tracking service, the Arkansas legislature is currently in recess. Scheduled to reconvene on May 4, 2017, only to adjourn one day later, I wonder if passage of any opt out/opt in bill is even possible. Readers from the Razorback state, enlighten me (please). Am I missing some important political nuance?

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

Tennessee Widow Loses Battle Related to Injured Worker’s Overdose Death

In a case that echoes the plight of all too many injured workers in the U.S., the Supreme Court of Tennessee has overturned a decision of a state chancery court and found that the death of an injured worker due to an overdose of oxycodone and an imprudent intake of alcohol was not causally connected to the worker’s original injury [see Kilburn v. Granite State Ins. Co., 2017 Tenn. LEXIS 198 (Apr. 10, 2017)]. Noting that a distinction must be drawn between an aggravation of an original injury, on the one hand, and a new and distinct injury, on the other, the Court observed that “the progressive worsening or complication of a work-connected injury remains compensable so long as the worsening is not shown to have been produced by an intervening nonindustrial cause” [quoting Larson’s Workers’ Compensation Law, § 10.01]. The court indicated, however, that it was uncontroverted that the decedent took greater doses of oxycodone than prescribed and, against his doctor’s orders, combined the opioid with alcohol. Continue reading

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

Arbitrator’s Decision in PA Heart and Lung Hearing is Not Binding on Workers’ Compensation Judge

While issue preclusion generally applies to the decisions of Workers’ Compensation Boards and Commissions, just as it does generally to court decisions [see, e.g., Larson’s Workers’ Compensation Law, § 127.07], the rule does not apply as broadly to decisions of arbitrators. Accordingly, an award of benefits by an arbitrator assigned to hear a Pennsylvania correction officer’s grievance of the denial of his Heart and Lung Act [53 Pa. Stat. Ann. §§ 637–638] did not collaterally estop a state workers’ compensation judge from making her own determination as to the claimant’s disability under the Workers’ Compensation Act [see Merrell v. Workers’ Comp. Appeal Bd. (Commonwealth Dept. of Corr.), 2017 Pa. Commw. LEXIS 94 (Apr. 3, 2017)].

Continue reading

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

Employer Not Prejudiced by Lack of Formal Notice When Supervisor Witnessed the Employee’s Injury

Where a highway construction worker, who had completed a strenuous shift of work on a hot summer day, lost consciousness, and fell to the ground in the presence of his supervisor, the worker’s failure to give his employer formal notice of his injury was excused, held the Supreme Court of South Carolina [see Nero v. South Carolina Dept. of Transp., 2017 S.C. LEXIS 62 (Mar. 29, 2017)]. The Court acknowledged that S.C. Code § 42–15–20 required that every injured employee or his representative give the employer notice of a job-related accident. It also noted, however, that the statute required no specific method of giving notice. In this case, the Court indicated the employer could hardly claim it had been prejudiced when the workers’ supervisor witnessed the incident and even visited the worker later in the hospital. Continue reading

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

New York: Nurse’s Stress Claim Tied to Bona Fide Personnel Decision is Not Compensable

Where a registered nurse claimed that she sustained work-related injuries consisting of insomnia, depression, post traumatic stress disorder, and severe social phobia when she was wrongfully terminated, reinstated, and then subjected to, among other things, harassment from her colleagues and supervisors, the state’s Workers’ Compensation Board did not commit error when it denied her claim on the basis that any stress-related mental injuries stemmed from her involvement in a disciplinary proceeding taken in good faith by her employer [see Matter of Novak v St. Luke’s Roosevelt Hosp., 2017 N.Y. App. Div. LEXIS 2437 (3rd Dept. Mar. 30, 2017)].

Continue reading

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

New York Deputy Sheriff’s Fatal Heart Attack at Home is Not Compensable

Acknowledging that N.Y. Work. Comp. Law § 21 provides a presumption of compensability where the decedent’s initial injury occurs while he or she at work, a New York appellate court held that the state’s Workers’ Compensation Board did not err when it concluded that a deputy sheriff’s fatal heart attack did not occur in the course of the employment where, although the decedent may have experienced some discomfort at work, the deputy died in his sleep at home [see Matter of Bordonaro v Genesee County Sheriff’s Office, 2017 N.Y. App. Div. LEXIS 2443 (3rd Dept., Mar. 30, 2017)].

Continue reading

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