Georgia Comp Board Won’t Resolve Fee Dispute Between Attorneys Dissolving Their Firm

In a dispute involving the dissolution of a law partnership and the rights of two attorneys in attorneys’ fees resulting from the settlement of workers’ compensation cases, Georgia’s Board of Workers’ Compensation did not have exclusive jurisdiction over the claims since no rights of the claimants would be affected by the resolution of the attorneys’ dispute [Smith v. Williams, 2015 Ga. App. LEXIS 462 (July 14, 2015)]. The court held that while the Board had jurisdiction to resolve “ancillary issues” related to an employee’s compensation rights under the Act, where the rights of an employee in a pending claim were not at stake, the Board could disavow jurisdiction.

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Now California’s Pro Sports Cheerleaders are Employees

Anyone familiar with the FedEx, Uber/Lyft litigation going on at various levels in California’s courts and before the state’s administrative agencies knows that the Golden State appears to have “a thing” for businesses that utilize so-called “independent contractors.” Those of you who say that the use of independent contractors is essentially a modern form of indentured servitude will be glad to know that Sacramento has slayed yet another dragon in the fight to make everyone an employee of someone else. Indeed, to clear up any doubt as to the employment status of those who work as cheerleaders for California-based professional sports teams, Governor Brown signed into law A.B. 202 yesterday, extending the protection/reach of the state’s employment laws to the scores of oppressed workers who cheer on professional sports heroes. The enrolled and signed bill specifically designates the cheerleaders as employees and adds a new provision to the state’s Labor Law—§ 2754. The Raiderettes can rest easier knowing they’re now protected by the state’s wage and hour, workers’ compensation, and other specified employment laws. We can all check this one off our list of business abuses.

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Assault by Nebraska Employee Against Sex Offender Co-Employee Did Not Arise from the Employment

Where an employee (“Bates”) assaulted a co-employee (“McDaniel”) after Bates performed an Internet search and discovered that McDaniel was a registered sex offender, the assault did not arise out of and in the course of the employment in spite of the fact that the only contact the two had with each other was on the basis of their employment, held a Nebraska appellate court yesterday in McDaniel v. Western Sugar Coop., 2015 Neb. App. LEXIS 121 (July 14, 2015). Accordingly, McDaniel’s claim for workers’ compensation benefits for injuries to his nose, clavicle, and left shoulder was appropriately denied, held the Nebraska appellate court. Quoting Larson’s Workers’ Compensation Law, the court stressed that when the animosity or dispute that culminates in an assault is imported into the employment from claimant’s domestic or private life, and is not exacerbated by the employment, the assault did not arise out of the employment under any test.

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NY Cage Dancer Forfeits Right to Future Comp Benefits

A New York appellate court has refused to vacate a portion of a county court’s judgment that, following a defendant’s guilty plea to fraudulent practices (N.Y. Workers’ Comp. Law § 114), welfare fraud, and misuse of food stamps, in relevant part ordered a forfeiture of future workers’ compensation benefits for defendant’s existing back injury [People v. Hares, 2015 N.Y. App. Div. LEXIS 5667 (4th Dep’t, July 2, 2015)]. The defendant asked the appellate court to vacate the order of forfeiture as a matter of discretion in the interest of justice, but the court declined to do so, noting that that the order of forfeiture had been part of the People’s plea offer, which defendant voluntarily accepted. The court also noted that, despite defendant’s alleged back disability, she had been able to earn unreported income as a cage dancer, “which involved physical activity that included hanging upside down from bars.”

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How One State Bucked Trend of Allowing Former Spouse to Access Post-Divorce Workers’ Comp Benefits

With the divorce rate for U.S. marriages hovering at almost 50 percent, courts and legislatures are called upon to weigh two conflicting rules related to workers’ compensation benefits when it comes to the appropriate division of marital property. One the one hand, the personal nature of the benefits generally results in their being nonassignable under the typical act and generally beyond the reach of creditors. On the other hand, an important rationale for the workers’ compensation bargain in the first place was the protection of some modest level of income flow for those dependent upon the employee for their health, education and welfare. Why should the divorcing employee be freed from that obligation? As discussed in the state survey chart below, the strong recent trend among jurisdictions is to characterize the spouse and dependent children as something other than mere “creditors” and, therefore, to allow workers’ compensation benefits to be reached, at least in some instances, for the benefit of persons, such as spouses, children, or even former spouses, to whom the injured employee has an obligation to support [see Larson’s Workers’ Compensation Law, § 89.08]. A recent Washington case, In re Marriage of Persinger, 2015 Wash. App. LEXIS 1382 (June 30, 2015), bucks the trend, however, finding a couple’s 50–50 split of the husband’s pending, yet unliquidated, workers’ compensation claim void.

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New Mexico Court Finds State’s “Farm and Ranch Laborer” Exclusion Unconstitutional

In Rodriguez v. Brand West Dairy, 2015 N.M. App. LEXIS 69 (June 22, 2015), a divided Court of Appeals of New Mexico recently held that the exclusion of coverage afforded to employers of farm and ranch laborers [N.M. Stat. Ann. § 52–1–6(A)], violates the affected workers’ rights to equal protection under the New Mexico Constitution.  Continue reading

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Florida Appellate Court Throws Out Judge Cueto’s “Padgett” Decision on Procedural Grounds

Earlier today (June 24th), Florida’s Third District Court of Appeal reversed and completely repudiated the decision of Judge Jorge E. Cueto, Circuit Court for Miami-Dade County, that had, on August 19, 2014, held the exclusive remedy provision of the state’s Workers’ Compensation Law [Fla. Stat. § 440.11] was unconstitutional [see State of Florida v. Florida Workers’ Advocates, et al., Case No. 3D14-2062, Lower Tribunal No. 11-13661, 2015 Fla. App. LEXIS 9531 (“Padgett”)]. Noting that the initial claims and parties in the case at its inception in 2011 were “transformed” by the present appellants and their counsel into a “completely different set of claims and parties” over the three years that followed, the Court said that in the process, the case lost:

  1. the essential elements of a justiciable “case or controversy,”
  2. an identifiable and properly-joined defendant, and
  3. a procedurally proper vehicle for the trial court’s assessment of the constitutionality of § 440.11.

That’s, of course, what happens when a trial judge insists that a case move forward against an empty chair.

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Maryland: Electronic Submission of Claim Does Not Toll Statute of Limitations

In Hranicka v. Chesapeake Surgical, Ltd., 2015 Md. LEXIS 413 (June 18, 2015), the Court of Appeals of Maryland held that an employee’s claim was time-barred under Md. Code Ann., Lab. & Empl. § 9–709(b)(3) where the claim was electronically submitted to the Commission before expiration of the two-year limitations period, but not filed on paper with the Commission until after expiration of the two-year period. Stated otherwise, the Court held that, under the relevant statutes and regulations, electronic submission of a claim does not constitute “filing” pursuant to Code of Maryland Regulations (“COMAR”) 14.09.02.02A, and the Commission erred in ruling that the filing date of a claim could, for purposes of the statute of limitations, be the date of the claim’s electronic submission. A claim that is submitted electronically is not considered filed until the signed claim form is received by the Commission.

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Colorado High Court Ok’s Firing of Worker For State-Authorized Use of Medical Marijuana

Earlier today, the Supreme Court of Colorado, affirming a split decision of the state’s Court of Appeals, held that under the plain language of Colo. Rev. Stat. § 24–34–402.5, Colorado’s “lawful activities statute,” the term “lawful” refers only to those activities that are lawful under both state and federal law [Coats v. Dish Network, 2015 CO 44 (June 15, 2015)]. Employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are accordingly not protected by the statute.

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Iowa Court Affirms Rejection of “Uncontradicted” Expert Testimony

An commissioner’s award of permanent total disability benefits to an HVAC employee who claimed he suffered an electric shock while servicing a unit at a customer’s residence was supported by substantial evidence in spite of the fact that the employer presented what it contended was uncontroverted expert evidence that no such shock could have occurred, held an Iowa court recently [H.J. Heating & Cooling v. Dahlen, 2015 Iowa App. LEXIS 499 (June 10, 2015)]. The court agreed that the expert testimony had not been controverted by expert testimony provided by any of the employee’s witnesses, but the court indicated the commissioner had provided detailed reasons for rejecting the employer’s expert and, under the circumstances, the commissioner was free to accept or reject an expert’s opinion in whole or in part.

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