The Real Reason LeBron is Moving to the Lakers!

There are some who point out that LeBron is getting ready to pay the highest taxes in his life (with a $154 million contract, he can afford it), that he should have gone to one of the Florida or Texas teams to maximize his economic take, but I think I’ve unearthed the real reason LeBron is moving to the Lakers: He’s solidifying the jurisdictional issues regarding any potential workers compensation claim for repetitive motion injuries. As many of us know, California is a haven for professional athletes when it comes to comp claims — don’t think indemnity, remember lifetime medical benefits. Some athletes from teams outside of California, however, have been unsuccessful based on rulings that they have had insufficient contact within the Golden State. Playing a season or two in L.A. will make LeBron’s claim easy to file (let me know if you can’t feel me pulling on your leg).

Posted in Issue commentary | Tagged , , , | 1 Comment

Oklahoma High Court OKs Use of “Current Edition” of AMA Guides

Conflict with PA’s Protz Decision is Only on the Surface

The sections of Oklahoma’s Administrative Workers’ Compensation Act (AWCA) that require use of the “current edition” of the AMA’s Guides to the Evaluation of Permanent Impairment to determine PPD do not violate the Constitution, held a divided Supreme Court of Oklahoma on Tuesday, in Hill v. American Medical Response, 2018 OK 57 (June 26, 2018). At first blush, the decision would appear to be in total conflict with that of the Pennsylvania Supreme Court last year in Protz v. Workers’ Comp. Appeal Bd. (Derry Area School Dist.), 161 A.3d 827 (Penn. 2017), which generally held that the use of similar language in the Keystone State’s Act constituted an unconstitutional delegation of legislative authority to the AMA. A close reading of the majority opinion shows, however, a considerable level of consistency in the reasoning applied by the majorities of the two state supreme courts. Continue reading

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

Kansas Claimants’ Attorneys Face “Catch-22” in Appellate Work

No Provision for Court-Ordered Fees on Appeal

The Court of Appeals of Kansas recently reiterated that because of what amounts to a “Catch-22” in state law and appellate rules, an attorney representing a workers’ compensation claimant may not be awarded attorney’s fees for post-award work, even when prosecuting a successful appeal [see Pierson v. City of Topeka, 2018 Kan. App. LEXIS 33 (June 15, 2018)].

Continue reading

Posted in Case comment | Tagged , , , , | Comments Off on Kansas Claimants’ Attorneys Face “Catch-22” in Appellate Work

Maine Employer Need Not Pay for Injured Worker’s Medical Marijuana

In a case of first impression within the state, the Supreme Judicial Court of Maine, in a 5-2 decision, Bourgoin v. Twin Rivers Paper Co., LLC, 28 ME 77 (June 14, 2018), held that an employer may not be required to pay for an injured worker’s medical marijuana use. Indicating that it was deciding the case on “narrow” grounds, the majority reasoned that there was a “positive conflict” between the federal Controlled Substances Act (CSA) and the Maine Medical Use of Marijuana Act (MMUMA) [Opinion, ¶ 1] and that, under such circumstances, the CSA preempted state law. Continue reading

Posted in Case comment | Tagged , , , , | Comments Off on Maine Employer Need Not Pay for Injured Worker’s Medical Marijuana

California: Use of Preprinted C & R Form Does Not Waive Claims Outside Workers’ Comp Context

A California appellate court found a state trial court committed error when it granted summary judgment to an employer in an employment discrimination case filed by a former employee based on its finding that the former employee had released the employer from liability for any and all potential claims, including claims falling outside the workers’ compensation system, when the employee signed a preprinted compromise and release (C&R) form to settle a workers’ compensation claim [see Camacho v. Target Corp., 2018 Cal. App. LEXIS 529 (June 8, 2018)].

The Court noted that neither the form nor an addendum contained any reference to non-workers’ compensation claims. The Court added that the context of the release language, which appeared in fine print and which was not underlined, bolded, or capitalized, referred to other workers’ compensation claims that were identified as being settled elsewhere, not to the employee’s potential discrimination claim.

Posted in Case comment | Tagged , , , , , | Comments Off on California: Use of Preprinted C & R Form Does Not Waive Claims Outside Workers’ Comp Context

Texas Insurer Barred from Going After Third-Party Settlement Proceeds

Where a worker’s compensation insurance policy contained a clause in which the carrier waived its right to recover from any third party sued by the injured employee, that clause also prevents the carrier from recovering from the injured employee, once he or she has settled the third-party tort action, held a divided Supreme Court of Texas recently in Wausau Underwriters Ins. Co. v. Wedel, 2018 Tex. LEXIS 519 (June 8, 2018). The majority of the Court stressed that the carrier sought “the same money through the back door that it could not get through the front” [Opinion, p. 1].

Continue reading

Posted in Case comment | Tagged , , , , , , , , | 2 Comments

Kansas Worker Gets No Benefits For Early Morning Injuries While Walking to Hotel

A Kansas roofer, who sustained catastrophic injuries when he was struck by a drunk driver as the roofer walked from a bar to his hotel at 2:20 a.m., could not recover workers’ compensation benefits for his injuries.  The roofer’s injuries did not arise out of and in the course of the employment, held the Supreme Court of Kansas [Atkins v. Webcon, 2018 Kan. LEXIS 204 (June 8, 2018)].

Continue reading

Posted in Case comment | Tagged , , , , , , , | Comments Off on Kansas Worker Gets No Benefits For Early Morning Injuries While Walking to Hotel

Pre-Shift Assault on NYC Train Conductor at Station Not Compensable

Claimant Fails to Establish Exception to Going and Coming Rule

Yesterday, a New York appellate court affirmed a decision of the state’s Workers’ Compensation Board that denied the claim of a Transit Authority conductor who sustained injuries when she was assaulted by commuter who was angered over the claimant’s refusal to open the station gate to let him in (without paying) on the basis that the claimant’s injuries did not arise out of and in the course of the employment [Matter of Rodriguez v New York City Tr. Auth., 2018 N.Y. App. Div. LEXIS 3842 (May 31, 2018)]. The Court agreed that the claim was barred by the going and coming rule, since, inter alia, the assault occurred approximately one hour prior to the beginning of the claimant’s shift and the employer did not require her to utilize public transit to get to her job.

Continue reading

Posted in Case comment | Tagged , , , , , , | Comments Off on Pre-Shift Assault on NYC Train Conductor at Station Not Compensable

PA High Court Says No Subrogation Allowed Regarding Heart and Lung Benefits

Strong Subrogation Rights Exist Only as to Payments Made under WCA

Acknowledging that an employer/carrier’s outlay of workers’ compensation benefits entitles it to a subrogation lien on any recovery the injured worker enjoys against a third-party tortfeasor — including payments the injured worker receives pursuant to the state’s Motor Vehicle Financial Responsibility Act (“MVFRL”) — the Supreme Court of Pennsylvania recently held the employer/carrier had no such subrogation interest based on payments it made to a state trooper under Pennsylvania’s Heart and Lung Act (53 Pa. Stat. § 637) [Pennsylvania St. Police v. Workers’ Comp. Appeal Bd. (Bushta), 2018 Pa. LEXIS 2583 (May 29, 2018).

Continue reading

Posted in Case comment | Tagged , , , | Comments Off on PA High Court Says No Subrogation Allowed Regarding Heart and Lung Benefits

NY Construction Worker’s Fatal Heart Attack Found Compensable

Death Benefits Awarded in Spite of Smoking Habit and High Cholesterol

A decision by New York’s Workers’ Compensation Board, which concluded that a construction worker’s death was causally-related to his employment, was recently affirmed by a state appellate court, in spite of preexisting risk factors such as decedent’s smoking habit and high, untreated cholesterol [see Matter of Pickerd v Paragon Envtl. Constr., Inc., 2018 N.Y. App. Div. LEXIS 3700 (3rd Dept., May 24, 2018)].

Continue reading

Posted in Case comment | Tagged , , , , , | Comments Off on NY Construction Worker’s Fatal Heart Attack Found Compensable