South Carolina Bill Would Make Workers’ Comp Coverage Optional for Most Employers

A bill introduced in the South Carolina Senate on April 16th (2015 Bill Text SC S.B. 674) would make workers’ compensation coverage optional for the vast majority of the state’s employers—not just those who choose to set up written alternative injury benefit plans like those allowed pursuant to Oklahoma’s new “opt out” arrangement or the somewhat similar opt out arrangement contained in a bill currently before the Tennessee legislature. Such a law would essentially parrot the workers’ compensation scenario in Texas, which is currently the only state that does not require employers to provide comp coverage of some type for employees.

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NY Claimant Fails to Show That Claim Filing Was Delayed by Hurricane Sandy

An employee’s inability to file a timely notice of claim based on his alleged inability to meet with counsel because of the onslaught and aftermath of Hurricane Sandy was an inadequate excuse where time sheets revealed that he had regularly attended work at a nearby Bronx railway yard during the relevant time and he did not dispute that he had traveled in and around the city by car [see Gonzalez v. City of New York, 2015 N.Y. App. Div. LEXIS 3444 (Apr. 28, 2015)]. Moreover, the employee did not allege that he had been prevented from using alternative methods of public transportation to reach the attorney’s office.

The employee alleged he sustained injury in a fall from the flat bed of a railroad car in the Bronx on August 14, 2012. Hurricane Sandy struck on October 29, 2012. It was conceded that the time to file a timely notice of claim expired on November 12, 2012, and that the employee’s proceeding seeking leave to serve a late notice was not commenced until January 9, 2013. The employee’s affidavit that he could not get gasoline for a vehicle was belied by strong evidence that he indeed had—and utilized on a number of occasions—a means of transportation at an appropriate time to prepare his claim.

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Oklahoma High Court Refuses to Fast-Track Case Challenging Constitutionality of Workers’ Compensation Opt Out Law

Yesterday (April 28, 2015), the Supreme Court of Oklahoma, in a 7–2 vote, declined to assume original jurisdiction in a civil action challenging the constitutionality of the state’s new and controversial law that allows employers to “opt out” of the state-run workers’ compensation system. I discussed the case in some detail in an April 13 post. Continue reading

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Arkansas Court Approves Award of Additional Medical Expenses Related to ER Visit Six Months After Initial Injury

An Arkansas appellate court affirmed a finding by the state’s Workers’ Compensation Commission that an employee was entitled to additional medical benefits when, some six months after an ankle injury, he presented to an emergency room complaining of shortness of breath and dyspnea [see Centria, Inc. v. Bailey, 2015 Ark. App. 271, 2015 Ark. App. LEXIS 333 (Apr. 22, 2015)]. Diagnostic tests consisting of a CT chest angiogram, ECG, and chest x-ray revealed no significant findings.

The employee had suffered a severe ankle injury when a bundle of sheet metal weighing approximately 1,200 pounds fell off a transfer cart and pinned his ankle underneath the bundle. He underwent multiple rounds of surgery and received extensive treatment, not only for his broken ankle, but for infection in his lower extremity. The employer and insurer refused to pay for the additional medical treatment and diagnostic testing, contending it was not related to the compensable injury.

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Who’s “Opting Out” of Workers’ Comp—Employers or the States Themselves?

Recent Federal District Court Discusses ERISA’s Strong Preemption Provisions

As I have noted on multiple other occasions, one of the distinctive features of the workers’ compensation “opt out” scheme is the employer’s establishment of an employee benefit plan (“EBP”) that not only meets the basic requirements of the opt out legislation, but also provides some additional benefits—e.g., periodic blood pressure screening, health club discounts, and/or flu shots—in order that the plan qualify under ERISA. By adding such benefits to the state law’s core workers’ compensation provisions, the employer’s plan should qualify under ERISA. ERISA qualification is important since with such qualification comes ERISA’s strong preemption provisions. Any dispute arising out of the plan’s administration will not be arbitrable in the Oklahoma’s courts and administrative bodies.

Of course, Oklahoma’s opt out scheme is too new to have spawned jurisdictional disputes (and Tennessee’s proposed opt out legislation has stalled for the moment), so the courts have not yet been called upon to determine just how the strong ERISA preemption will interact with opt out plans. Moreover, many workers’ compensation practitioners are understandably inexperienced in maneuvering through the federal court system—opt out proponents: isn’t taking advantage of that fact part of the overall plan? Well, in any event, a recent federal district court decision, Terry v. Pepsi Bottling Group, Inc. Long-Term Disability Plan, 2015 U.S. Dist. LEXIS 48753 (E.D. Ky., Apr. 14, 2015), provides at least a beginner’s course in what sorts of disputes can be determined by the states and what sorts must be passed on to the federal system.

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Virgin Islands: Going and Coming—Is Break Taken to Run Errands a “Lunch” Break

In what Professor Larson would have referred to as an “upside-down” exclusivity case—where the employee tries to prove that her injuries were not covered by the applicable workers’ compensation law in order that she might instead pursue a tort action against the employer—a federal judge, applying Virgin Islands law, recently held that injuries the employee allegedly suffered when she slipped and fell on a puddle of liquid on her employer’s premises floor, after she had clocked out for a scheduled lunch break, nevertheless arose out of and in the course of her employment, barring her civil action against the employer [see Harris v. Kmart Corp., 2015 U.S. Dist. LEXIS 49473 (Apr. 15, 2015)]. The employee offered a novel, although unsuccessful, argument: that since she did not intend to eat lunch on her authorized break, but rather to run errands with her daughter, the going and coming rule’s “on premises, off premises” distinction did not apply. She contended she had abandoned her employment as soon as she clocked out. While she was still on the employer’s premises at the time she was injured, she argued her injuries did not arise out of and in the course of her employment. Continue reading

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West Virginia High Court Crafts Narrow Exception to 6-Month Statute of Limitations in Death Claims

The Supreme Court of Appeals of West Virginia held that where a claimant delays the filing of a workers’ compensation death benefits claim because she was unaware, and could not have learned through reasonable diligence, that her husband’s cause of death was work-related, and the delay was due to the medical examiner completing and making available an autopsy report, the six-month time limitation on filing a claim in West Virginia Code § 23–4–15(a) [2010] is tolled until the claimant, through reasonable diligence, could have learned of the autopsy report finding that the decedent’s death was, in any material degree, contributed to by an injury or disease that arose in the course of and resulting from the decedent’s employment [see Sheena H. v. West Va. Office of Ins. Comm’r, 2015 W. Va. 521 (Apr. 10, 2015)]. The high court acknowledged that no such exception existed in the statute, but added that it was the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity.

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SC Court Signals That Uber Business Model Probably OK in the Palmetto State

E-businesses like Uber and Lyft, which utilize smartphone or tablet apps to connect passengers and drivers with vehicles for hire are beginning to carve out a niche within the economy. As I mentioned in an earlier post, the Uber/Lyft business model is under attack in California, the spawning ground of so many technology startups. As I also reported in a post last week, other states appear to be more business friendly. Indeed, proposed legislation in Alaska would clarify that in that state Uber and Lyft drivers would be excluded from coverage under Alaska’s Workers’ Compensation Act, in much the same way that casual laborers and part-time baby-sitters are currently excluded. Somewhat similarly, the Court of Appeals of South Carolina, in Ferguson v. New Hampshire Ins. Co., 2015 S.C. App. LEXIS 56 (Jan. 13, 2015)—a case in which neither Uber or Lyft were parties—signaled that the Uber/Lyft business model should have little trouble in the Palmetto state. Continue reading

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West Virginia Employee’s Unexplained Fall Was Idiopathic And Not Compensable

In a memorandum decision, the Supreme Court of Appeals of West Virginia affirmed the denial of workers’ compensation benefits to an employee who suffered a dislocation of his left knee and a tear of the meniscal cartilage while at work, finding that the injury was idiopathic in nature and not the result of any condition in the employment [Price v. Kingsford Mfg. Co., 2015 W. Va. LEXIS 245 (Apr. 6, 2015)]. All the testimony indicated that the employee was walking when he suddenly fell to the concrete floor. No one could identify any place where the employee slipped or tripped. He was not carrying any work materials at the time of the fall. The Office of Judges determined that the injury occurred while the employee was merely walking across the floor and his left knee gave out. This caused him to fall to the floor. The Board adopted the findings. The state high court also affirmed. While the injury occurred at work, it was in no way a result of the employee’s work. Since the injury was idiopathic in nature it was not error to reject the claim.

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PA: Native-American Marriage Ceremony Establishes “Widow’s” Common-law Marriage

On Tuesday, a Pennsylvania appellate court held that a claimant, whose purported husband had been killed in a work-related rollover accident at a ski resort, had presented clear and convincing evidence that the couple had joined in a common-law marriage when they exchanged traditional Native-American vows and gifts during an outdoor “ceremony” [see Elk Mountain Ski Resort, Inc. v. Workers’ Comp. Appeal Bd. (Tietz), 2015 Pa. Commw. LEXIS 146 (April 7, 2015)]. Noting that the “ceremony” occurred in June 2004, prior to January 1, 2005, when common-law marriages were prospectively abolished in Pennsylvania by an amendment to 23 Pa. Cons. Stat. § 1103, the appellate court agreed that the couple had created a valid common-law marriage by verba in praesenti, i.e., an exchange of words in the present tense. The claimant was the deceased’s surviving spouse. She was, therefore, entitled to death benefits.

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