Vermont High Court Again Refuses to Utilize “Substantial Certainty” Exception for Intentional Injury Cases

Reiterating its decision in Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980) (per curiam), in which the Supreme Court of Vermont held that nothing short of a specific intent to injure falls outside the scope of the state’s Workers’ Compensation Act, the Court affirmed a trial court’s decision to grant an employer and co-employees summary judgment (on exclusive remedy grounds) in an intentional tort action filed against them by a roofing employee who sustained severe injuries when he fell from a roof [Martel v. Connor Contr., 2018 VT 107, 2018 VT 107 (Oct. 12, 2018)]. The Court flirted with, but specifically refused to adopt the “substantial certainty” exception to the rule adopted by the majority of American jurisdictions that “intent means intent” [see Larson’s Workers’ Compensation Law, § 103.03, hereinafter “Larson”].

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Virginia Bus Driver’s Failure to Wear Seat Belt Constituted Willful Misconduct

A bus driver, who sustained serious injuries in an accident in which his bus was struck from behind, causing it to careen against a guard rail and then flip over, ejecting the driver, was appropriately found to have violated his employer’s safety policy requiring seatbelt use at all times and, therefore, disqualified from receiving workers’ compensation benefits under Va. Code § 65.2-306 [Mailloux v. American Transp., 2018 Va. App. LEXIS 260 (Oct. 9, 2018)].

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Affiliated NY Company Liable for Half of Driver’s Comp Benefits as Special Employer

In Matter of Mitchell v. Eaton’s Trucking Serv., Inc., 2018 N.Y. App. Div. LEXIS 6806 (3rd Dept., Oct. 11, 2018), a New York appellate court affirmed a decision of the state’s Workers’ Compensation Board that found that a truck driver was not only the general employee of the company that directly employed him; he was also a special employee of another closely-affiliated firm, making that second firm liable for 50 percent of the trucker’s workers’ compensation benefits.

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Employee’s Medical Bills Not Covered by “Medpay” Provision of Arizona Auto Policy Due to Exclusion for Workers’ Compensation Benefits

Where an employee was injured in a work-related auto accident, incurred $22,000 in medical expenses, a portion of which was paid pursuant to a workers’ compensation claim and the employee recovered $15,000 from a third-party tortfeasor but, under the Arizona subrogation law [Ariz. Rev. Stat. § 23-1023(D)], was required to reimburse the workers’ compensation insurer some $8,750, he could not proceed against his own automobile liability insurance carrier to recover $5,000 under the policy’s “medpay” provision since the policy also contained an exclusion providing for no medpay coverage when “workmen’s compensation benefits are required” [Doneson v. Farmers Ins. Exch., 2018 Ariz. App. LEXIS 159 (Oct. 3, 2018)].

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NY Employee’s Shoulder Injury While Scanning Parking Pass Not Compensable

An employee, who sustained a shoulder injury as she reached out of her car window to scan her parking pass at a parking garage near her place of employment, did not sustain an injury arising out of and in the course of her employment, held a divided New York appellate court in a decision affirming that finding by the state’s Workers’ Compensation Board [Matter of Grover v State Ins. Fund, 2018 N.Y. App. Div. LEXIS 6568 (3rd Dept., Oct. 4, 2018)].

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I’ve Written a New Book from the “Other Side” of my Life

I am pleased to announce the recent publication of my new book entitled, Questions of Faith: Encountering Christ at the Point of Doubt and Confusion [Mazarin Press, Raleigh, NC; additional details below]. The title and subject matter may surprise many of you, since only a handful of my “workers’ comp” colleagues would know that for the past 32 years, I have not so delicately balanced an active professional “secular” life in legal scholarship with the sacred.

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Nevada Casino Employee’s Tort Action Against Employer for Delaying Stroke Treatment is Barred by Exclusivity

A housekeeping employee at a Las Vegas casino, who suffered a stroke just prior to the beginning of his work shift, and who contended his medical condition was exacerbated when his employer failed to seek special medical assistance within a “golden window” of diagnostic and treatment opportunity, may not maintain a civil action against the employer to recovery his alleged damages, held the Supreme Court of Nevada [Baiguen v. Harrah’s Las Vegas, 2018 Nev. LEXIS 70 (Sept. 13, 2018)]. The employee’s tort action is barred by the exclusive remedy provisions of the Nevada Industrial Insurance Act (“the Act”) and the trial court acted appropriately when it granted the employer summary judgment.

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Oklahoma Claimant Awarded Additional Benefits After Freak Accident at Medical Facility

If It Weren’t For Bad Luck, She’d Have No Luck at All

An Oklahoma workers’ compensation claimant is entitled to additional benefits following a bizarre incident in which she sustained further injuries to her knee in 2012 at a medical facility to which she had gone for treatment of a 2008 work-related injury [City of Tulsa v. Hodge, 2018 OK 65, 2018 Okla. LEXIS 68 (Sept. 11, 2018)]. The claimant, who had just received a steroid epidural injection to the cervical spine, was still under partial sedation when medical personnel placed her in a wheelchair to move her to the facility’s recovery area. The wheelchair had no foot rests. As they pushed her along, her feet drug on the tile floor and her knees went underneath the wheelchair, causing it to suddenly stop. The claimant was thrown forward, resulting in severe twisting to her knees and additional trauma to her spine.

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NC Worker’s Tort Claim Against Insurer for Malicious Prosecution May Move Forward

While a workers’ compensation insurer generally enjoys the same sort of immunity from tort liability afforded the employer [see Larson’s Workers’ Compensation Law, § 100.01], there are limits to that immunity. A decision issued Tuesday illustrates those limits. There, the Court of Appeals of North Carolina agreed that a plaintiff had stated a cause of action for malicious prosecution, abuse of process, Unfair and Deceptive Trade Practices, and punitive damages against an insurer that allegedly provided false information to local police, who subsequently charged the plaintiff/injured worker with insurance fraud, resulting in his arrest, temporary incarceration, and indictment on felony charges [Seguro-Suaraez v. Key Risk Inc. Co., 2018 N.C. App. LEXIS 888 (Sept. 4, 2018)].

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Maryland Cab Driver’s “Misclassification” Action Appropriately Dismissed

Misclassification of Workers is not Recognized as independent Tort

A Maryland cab driver, who sustained injuries in a work-related auto accident, may not maintain a civil action against the cab company for “independent contractor misclassification,” held a state appellate court recently [Awah v. Barwood, Inc., 2018 Md. App. LEXIS 853 (Aug. 31, 2018)].

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