SC Court Affirms Finding That Maintenance Worker Was Not Statutory Employee of Manufacturer

$14 Million Verdict Stands, Worker’s Duties, Although “Essential,” Were Not Part of Defendant’s Business

In a South Carolina wrongful death action, the state’s Court of Appeals recently affirmed a trial court’s denial of a corporate defendant’s motion for judgment notwithstanding the verdict. In its decision, the appellate court agreed that the deceased maintenance worker was not a statutory employee of the defendant’s predecessor in interest (“Celanese”) [Keene v. CNA Holdings, LLC, 2019 S.C. App. LEXIS 20 (Feb. 13, 2019)]. The appellate court’s ruling let stand a $14 million mesothelioma verdict against the former textile manufacturer.

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NJ Supreme Court Says Unemployed Volunteer Firefighter Deserves Temporary Disability Benefits

Reverses Lower Court That Disallowed TD Benefits Since Firefighter Had No Lost Wages

Earlier today, reversing a late 2017 decision of the state’s Appellate Division [see my earlier discussion of that case here], the Supreme Court of New Jersey held that a volunteer firefighter, injured while performing her duties, may receive temporary disability benefits under the state’s Workers’ Compensation Act (“the Act”), in spite of the fact that the firefighter was unemployed at the time of the volunteer-related injury and thus had no lost wages [Kocanowski v. Township of Bridgewater, (A-55-17) (808510) (N.J., Feb. 19, 2019)]. The Court noted the language of the operative statute—N.J.S.A. 34:15-75—was unclear, but stressed the statute’s legislative history indicated a strong intent to provide temporary disability coverage to volunteer firefighters at the maximum compensation provided for in the Act.

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Divided Kansas Court Says Lab Test Results Showing Marijuana Were Admissible

Rules of Evidence Do Not Strictly Apply to Comp Hearings

Stressing that in workers’ compensation hearings, the Kansas Rules of Evidence do not apply and that even hearsay evidence may be admitted if it is sufficiently reliable, a divided Kansas appellate court held that the state’s Workers Compensation Appeals Board abused its discretion when it refused to admit into evidence the results of a lab test from a federally certified drug-testing lab since an adequate foundation for the evidence had been offered by the employer [Woessner v. Labor Max Staffing, 2019 Kan. App. LEXIS 11 (Feb. 15, 2019)].

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Nurse Case Management Fees Not Part of Employer’s Subrogation Lien

Tennessee Employer Does Enjoy Lien for Disability Indemnity & Medical Expenses

In a case of first impression, a Tennessee appellate court recently held that an employer does not enjoy a workers’ compensation subrogation lien for nurse case management expenses under Tenn. Code Ann. § 50-6-112(c)(1) [Memphis Light Gas & Water Div. v. Watson, 2019 Tenn. App. LEXIS 82 (Feb. 13, 2019)]. Brushing aside the employer’s argument that case management of an injured employee’s claim is mandatory under Tennessee law, the court looked to the language of Tenn. Code Ann. § 50-5-123, which states that employers “may, at their own expense, utilize case management, and if utilized, the employee shall cooperate with case management.” That the Commissioner of Labor, by rule, retained a requirement for case management after a case reached an appropriate threshold did not alter the situation, said the Court. Moreover, the Court stressed that case management was not primarily for the benefit of the injured employee.

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Last Injurious Exposure: What Does “Impossible” Mean?

Oregon Court Says “Impossibility” May be Established by Medical “Probability”

Oregon, like the majority of American jurisdictions, employs the “last injurious exposure” rule to assign liability among multiple employers in occupational disease cases. Under the state’s case law, a presumptively responsible employer may nevertheless shift responsibility to a prior employer by establishing that it was “impossible” for conditions at its workplace to have caused or worsened the disease. Parsing its words carefully, an Oregon appellate court recently reiterated that proof of “literal impossibility” is not what Oregon’s case law requires [Liberty Metal Fabricators, Inc. v. SAIF Corp. (In re Alcorn), 2019 Ore. App. LEXIS 154 (Jan. 30, 2019)]. An employer can show “impossibility” even where there is some question as to medical causation. Continue reading

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Kansas Court of Appeals Jettisons 82-Year-Old Supreme Court Precedent

Employer’s Payment of Medical Charges Revives Expired Statute of Limitations

Reversing the state’s Workers’ Compensation Board, which had relied upon what it thought was established precedent (i.e., a 1936 decision by the state’s Supreme Court), a Kansas appellate court recently ruled that nothing within the plain language of Kan. Stat. Ann. § 44-534(b) prevents a revival of an expired two-year statute of limitations to file an application for a hearing, where the employer makes a payment of compensation to the employee. Accordingly, the appellate court held that where a firefighter for the City of Lawrence filed a claim for benefits more than six years after his original work-related injury—but within two years of the City’s payment of medical charges related to the firefighter’s chronic back condition—the Commission erred when it found the claim was untimely filed [Schneider v. City of Lawrence, 2019 Kan. App. LEXIS 9 (Feb. 8, 2019)].

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Virginia Worker’s “Short-Cut” Results in Denial of Benefits

Violation of Known Safety Rule Prevents Recovery for Injuries

A decision to enter a fenced area at the employer’s facility through an unapproved opening, instead of through the approved interlock gate that would have deactivated machinery inside the fence, proved costly for a team leader at a commercial laundry, held a Virginia appellate court. The Court affirmed a finding by the state’s Workers’ Compensation Commission that the employee’s action constituted a violation of a known safety rule, that the violation was the proximate cause of his subsequent serious injury to a leg, and that the worker, therefore, could not recover workers’ compensation benefits [Jones v. Crothall Laundry, 2019 Va. App. LEXIS 35 (Feb. 12, 2019)]. Continue reading

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Virginia Court Affirms Professional Football Tryout’s AWW of $783.63

Potential $435K Annual Compensation Under Standard Contract Deemed Too Contingent

The Court of Appeals of Virginia recently affirmed a determination by the state’s Workers’ Compensation Commission that fixed a professional football player’s average weekly wage at $783.63, despite the terms of the NFL’s standard contract, under which the player might have been paid as much as $435,000 for the team’s 17-week schedule [Jones v. Pro-Football, Inc., 2019 Va. App. LEXIS 31 (Feb. 12, 2019)]. The AWW determination was important, since it meant the former player received only $522.42 per week, for a period of 20 weeks, for his 10 percent permanent partial disability to the right arm (shoulder separation). Continue reading

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Virginia Commission Should Have Considered Employment-Related Risks of Assault

Where an overnight attendant at a rest area was stabbed in the face by a former co-worker whose motive could not be determined—the assailant committed suicide later the same day—the attendant might still prevail on his workers’ compensation claim if he could show that the employment placed him at a greater risk of assault than the general public, held the state’s Court of Appeals [King v. DTH Contract Servs., 2019 Va. App. LEXIS 26 (Feb. 5, 2019)]. The Court acknowledged that the attendant had the burden of showing that his injuries arose out of and in the course of the employment, but noted the Commission had failed to consider the entire range of possibilities.

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Arizona High Court Says Nebraska Law Prevents Absolute Assignment of Injured Worker’s Third-Party Claim

Dueling Statutes: Which State’s Subrogation Law Should Apply?

Variables within America’s mobile economy often produce complex choice of law issues, particularly when it comes to employer/insurer subrogation interests. For example, some states (e.g., Arizona), provide for absolute assignment (to the employer/insurer) of the injured worker’s cause of action against negligent third parties if the worker fails to file suit within a specified time period [see Ariz. Rev. Stat. § 23-1023(B)/one year], while others do not [see Larson’s Workers’ Compensation Law, § 116.01, et seq.]. Illustrating the complexity of balancing the choice of law issues, the Supreme Court of Arizona recently held that in as much as workers’ compensation benefits had been paid pursuant to Nebraska law, that state’s subrogation rules—not those for Arizona—controlled whether a worker, who sustained injuries in a work-related Arizona vehicle crash, had an interest in a last-minute, third-party action filed—in an Arizona trial court—by the employee against an allegedly negligent driver [Jackson v. Eagle KMC L.L.C., 431 P.3d 1197 (Jan. 2, 2019)].

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