Washington Public Defender May Be Able to Recover in Tort for Work-Related PTSD

Restrictive “Mental-Mental” Coverage in State’s Comp Act Opens Door to Potential Liability

In a case with a bizarre fact pattern, a King County (Washington) public defender, who contended that she suffered post-traumatic stress disorder (PTSD) after she was stalked and harassed by a criminal defendant she represented, may proceed against her employer in a civil action alleging a hostile work environment and negligence [LaRose v. King County, 2019 Wash. App. LEXIS 646 (Mar. 19, 2019)]. In pertinent part, the Court said her civil action was not barred by the exclusive remedy provisions of the state’s Industrial Insurance Act (IIA) since a genuine issue of fact existed regarding whether her PTSD and related injuries constituted a compensable “injury” under the IIA.

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Ohio Widow’s Action Against Ford for Failure to Implement Substance Abuse Policy is Barred by Exclusivity Defense

Post-Mortem Shows Marijuana, Fentanyl, and Alcohol in Deceased Employee’s System

In what appears to be the first case of its kind—an action filed against an employer for its allegedly inadequate measures in implementing the company’s substance abuse policy—an Ohio appellate court recently held that the exclusive remedy provision of the state’s Workers’ Compensation Act [see Ohio Rev. Code § 4123.74] barred a wrongful death action filed against Ford Motor Company following the death of one of its employees who had collapsed while on duty at work and who later was found to have marijuana and fentanyl in his system, as well as a blood alcohol level of .08 at the time of his death [Parker v. Ford Motor Co., 2019-Ohio-882, 2019 Ohio App. LEXIS 959 (Mar. 15, 2019)]. The employee’s widow had alleged, in relevant part, that Ford had a company policy prohibiting substance abuse, that Ford had failed to implement the policy in the workplace, and that Ford’s failure to implement the policy induced employees like her husband to possess and use drugs and alcohol in the workplace.

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Aggressive Kentucky Bus Driver Denied Benefits for Injuries Sustained in Fight with Passenger

The Supreme Court of Kentucky, affirming a lower court’s decision denying workers’ compensation benefits to a bus driver who alleged that he sustained injuries in an altercation with a passenger, held that if a claimant’s aggressive or inflammatory behavior proximately causes violence, thus resulting in injury to the claimant, the claimant is not entitled to compensation under Kentucky’s workers’ compensation laws [Trevino v. Workers’ Compensation Bd. Transit Auth. of River City, 2019 Ky. LEXIS 122 (Mar. 14, 2019); see Larson’s Workers’ Compensation Law, § 8.01, et seq.].

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Colorado ALJ May Not Find MMI Without Appropriate Expert Medical Opinion

A Colorado appellate court recently held that a workers’ compensation claimant may not be placed at the point of maximum medical improvement (MMI) where neither the claimant’s treating physician nor the physician conducting the division-sponsored independent medical examination (DIME) has placed the injured worker at MMI. Accordingly, the state’s Industrial Claim Appeals Office (“Panel”) erred when it upheld an ALJ’s order doing so [Burren v. Industrial Claim Appeals Office, 2019 COA 37, 2019 Colo. App. LEXIS 347 (Mar. 7, 2019)].

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NH High Court Issues Ruling on Medical Marijuana for Injured Worker—Sort of

Opinion Raises as Many Questions as It Answers

Last Thursday (March 7), the Supreme Court of New Hampshire handed down a decision that reversed, in pertinent part, a state Appeals Board decision that had refused to require a workers’ compensation carrier to reimburse an injured worker for charges related to medical marijuana dispensed under a state-approved program [Appeal of Andrew Panaggio, N.H. Comp. Appeals Bd., 2019 N.H. LEXIS 35 (Mar. 7, 2019)]. The high court deftly danced around the nagging question in medical marijuana cases—it’s still illegal under federal law. It said that the Board had erred in finding reimbursement was prohibited under a specific provision of the state’s medical marijuana law, but it remanded the case for additional consideration, indicating the Board had failed, among other things, to analyze whether the carrier’s compliance with an order to reimburse would actually violate any federal laws.

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Ohio Worker’s Claim Suspended After Refusal to Undergo Psychological Testing

An Ohio appellate court recently held that the state’s Industrial Commission did not err when it suspended the claim of an injured worker based on his refusal to undergo psychological testing [State ex rel. Calhoun v. Industrial Comm’n of Ohio, 2019-Ohio-720, 2019 Ohio App. LEXIS 770 (Feb. 28, 2019)]. Noting that the claimant had objected to the testing based on a provision of the Industrial Commission’s medical examination manual which purportedly allowed claimant to refuse, the court stressed the issue was not whether the claimant had the right to refuse psychological testing. Rather, the question was whether claimant had good cause for such refusal under Ohio Rev. Code § 4123.651(C). The court concluded the claimant had failed to show such good cause and that his claim had appropriately been suspended.

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Injured Delaware Worker May Not Recover Toll and Parking Charges Associated with Traveling to Medical Appointments

A Delaware appellate court affirmed a finding by the state’s Industrial Accident Board that pursuant to the Workers’ Compensation Act, an injured worker was not entitled to reimbursement for tolls and parking expenses associated with her travel to receive medical treatment for her injuries [Failing v. State, 2019 Del. Super. LEXIS 109 (Feb. 25, 2019)]. The worker, who had been reimbursed $761.20 for mileage over a ten-month period, sought an additional $114.75 for tolls and parking expenses. The Court reasoned that the wording of Del. Code Ann. tit. 19, § 2322 was clear and unambiguous. The employee’s reimbursement was limited to 40 cents per mile.

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Virginia Counselor’s Injuries While Attending Mandatory Off-Site Training Were Not Compensable

Appeals Court Says She Was Not Subject to Special Risk of Injury

A Virginia appellate court reversed an award of workers’ compensation benefits to a licensed professional counselor who was injured when she tripped and fell over raised tree roots near a community college building where she was to attend off-site mandatory training [City of Va. Beach v. Hamel, 2019 Va. App. LEXIS 44 (Feb. 26, 2019]. The court stressed that while the counselor may have been mandated to be on campus, the employer had not instructed her where to park or which route to take to the building. Her risk of falling was equal to that of any member of the general public [see Larson’s Workers’ Compensation Law, § 3.03].

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Claim Under Minnesota’s Human Rights Act Not Barred by Exclusive Remedy Rule

In a split decision, the Supreme Court of Minnesota held that an employee, who sustained a work-related injury and who was receiving workers’ compensation benefits, may proceed against his employer under the state’s Human Rights Act (“HRA”) for discrimination against him by allegedly failing to accommodate his disability and retaliating against him for seeking an accommodation [Daniel v. City of Minneapolis, 2019 Minn. LEXIS 92 (Feb. 27, 2019). The action is not barred by the exclusive remedy provisions of the state’s Workers’ Compensation Act (“WCA”).

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NY Worker’s Estate Entitled Only to Portion of Posthumous Schedule Loss of Use Award

In New York, where an injured employee dies without leaving a surviving spouse, child under 18 years old or dependent, only that portion of the employee's schedule loss of use (“SLU”) award that had accrued at the time of the death is payable to the estate, reiterated a state appellate court in Matter of Estate of Youngjohn v Berry Plastics Corp., 2019 N.Y. App. Div. LEXIS 1315 (Feb. 21, 2019). That rule applies, said the court, even when the SLU award is posthumous and in spite of the 2009 statutory amendments to N.Y. Workers’ Comp. Law §§ 15(3) and 25(1)(b), in which the Empire State’s Legislature—responding to Matter of LaCroix v Syracuse Exec. Air Serv., Inc., 8 NY3d 348, 866 N.E.2d 1004, 834 N.Y.S.2d 676 (2007)—authorized full payment of SLU awards in one lump sum at the request of the injured employee.

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