2016 Opt Out Legislation: Is it as “Inevitable” as Some Have Hoped/Feared?

I read with great interest Bob Wilson’s post yesterday signaling that the Tennessee Opt Out “initiative” may be DOA this year.  Indeed, I’d been checking Bill Tracking Reports since the first of January and I had not seen any formal re-introduction of opt out legislation this year in either Tennessee or South Carolina. As indicated by Bob, the Tennessee Walker version of opt out seems to have stumbled out of the gate.

Last November, during the National Workers’ Compensation and Disability Conference held in Las Vegas, some—not nearly all—opt out proponents had bantered around the “i” word. You know it: “inevitable.” The talk was something like we sometimes see out of our nation’s capital. That is to say, some—again not nearly all—proponents were allowing that the opt out “alternative” was/is of obvious benefit; if some people disagree, it’s more a failure of the message than it is a failure of the merits.

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Tennessee Nurse’s PTSD Claim Fails In Spite of Flashback to Being Raped As Child

In an opinion not yet designated for publication [see Ireton v. Horizon Mental Health Mgmt., LLC, 2016 Tenn. LEXIS 3 (Jan. 19, 2016), a Tennessee appeals panel affirmed the denial of workers’ compensation benefits to a registered nurse of a psychiatric unit who contended that he suffered psychological injuries, depression and PTSD, after he attended an annual conference held by his employer during which a speaker told those attending that they should put themselves in the “patient’s shoes” and “imagine how it would feel when you’re asked, ‘Have you ever been physically, emotionally, or sexually abused’?” The nurse said he “freaked out” and had flashbacks of when he had been raped as a child by an older cousin. Soon thereafter, the nurse left his employment and did not return.

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Valley Fever Plaintiff Fails To Establish Comp Insurance Co.’s Extreme or Outrageous Conduct

Where a Mississippi resident contracted coccidiodomycosis (“Valley Fever”) at a job site in California and had received some indemnity and medical benefits under California’s Workers’ Compensation Act (“the Act”), he could not maintain a civil action for the insurance company’s alleged outrageous and extreme conduct in the form of statements made to him by one of the insurance company’s team leaders [see Powell v. Zurich Am. Ins. Co., 2016 U.S. Dist. LEXIS 8176 (S.D. Miss. Jan. 25, 2016)]. Plaintiff alleged that the leader asked him why African-Americans were more susceptible than others to Valley Fever, and also told the plaintiff that before he could approve payments to the plaintiff, he “had to understand more about Valley Fever.”

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Georgia M.D.’s Medical Report Indicating Claimant Was Threat to Doctor and Staff Not Libelous

Where an patient’s treating physician dictated a narrative report that became part of the patient’s worker’s compensation claim file indicating that the patient, through a translator, had made threatening statements during an appointment and that the doctor considered the patient a threat to the doctor and the doctor’s staff, such a statement was privileged as a matter of law and could not serve as a basis for a claim of libel, held a Georgia appellate court yesterday in Jasarevic v. Foster, 2016 Ga. App. LEXIS 26 (Jan. 26, 2016). Continue reading

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New Mexico Employer Need Not Accommodate Medical Marijuana Use

An employer need not accommodate a New Mexico employee’s use of medical marijuana, even when that use is sanctioned under the state’s Compassionate Use Act (“CUA”), held a federal district court judge recently in Garcia v. Tractor Supply Co., 2016 U.S. Dist. LEXIS 3494 (D. N.M., Jan. 7, 2016). The judge also was not persuaded that the plaintiff had stated a cause of action under the state’s Human Rights Act (“HRA”), which generally requires an employer to make reasonable accommodation for “serious medical conditions.” The court indicated that nothing in the text or history of the CUA suggested that the law addressed the respective rights and obligations of employers and employees. Moreover, the court said the HRA could not be read so as to require employers to accommodate the use of illegal drugs.

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Oregon Court Says Walking to Post Office Isn’t “Recreational” Just Because Employee Enjoyed the Activity

That an office worker enjoyed walking did not transform her trip to the post office during the workday into recreational activity, held an Oregon appellate court recently in Sedgwick Claims Mgmt. Servs. v. Norwood, 2015 Ore. App. LEXIS 1625 (Dec. 30, 2015). The worker’s claim for workers’ compensation benefits could not, therefore, be barred by Or. Rev. Stat. § 656.005(7)(b)(B), which excludes any injury “incurred while engaging in or performing, or as the result of engaging in or performing, any recreational or social activities primarily for the worker’s personal pleasure” [emphasis added].

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California Court Uses Firefighter’s Rule to Bar Negligence Action By UPS Driver

Applying the firefighter’s rule, a specialized assumption of risk doctrine under which, in its most classic form, a person who starts a fire is said to owe no duty of care to the firefighter who is employed to respond to fires [see Larson’s Workers’ Compensation Law, § 110.08], a California appellate court has affirmed summary judgment in favor of a university that had been sued by a UPS driver who was injured when he lifted a box with a shipping label prepared by a university employee that inaccurately stated the weight of the box [Moore v. William Jessup Univ., 2015 Cal. App. LEXIS 1161 (Dec. 28, 2015)].

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Nebraska Court: Injured Employee Failed to Establish Spinal Cord Stimulator Was Reasonable and Necessary

A Nebraska appellate court, in Yost v. Davita, Inc., 23 Neb. App. 482, 2015 Neb. App. LEXIS 204 (Dec. 29, 2015), affirmed a compensation court’s decision that an employer was not required to pay for the cost of an injured worker’s spinal cord stimulator where the injured employee’s own testimony revealed that while the stimulator alleviated some of the secondary symptoms the employee suffered, it did not actually alleviate the pain in her lower back—her primary ongoing medical condition. The appellate court added that while the injured employee offered medical evidence that the spinal cord stimulator was causally related, reasonable, and necessary to treat her work-related injuries, three other medical experts disagreed and it was for the compensation court to resolve the conflict in the medical evidence.

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Florida Supreme Court Delivers Coup de Gras to Padgett

In a short—yet stinging—Order issued late yesterday [December 22, 2015], the Supreme Court of Florida declined to accept jurisdiction and accordingly denied a petition for review that had been filed by a claimants’ group seeking to overturn the exclusive remedy provision of Florida’s Workers’ Compensation Law (“the Act”) [Fla. Stat. § 440.11]. Readers will recall that on August 19, 2014, the Circuit Court for Miami-Dade County, in what has become known as “the Padgett case,” held the exclusive remedy provision was unconstitutional, essentially on the grounds that the original “bargain” between employees and employers had been so eroded in favor of employers that the Act could no longer withstand constitutional scrutiny. Continue reading

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Iowa High Court Says Discovery Rule Applies to Single Trauma Injuries

In Baker v. Bridgestone/Firestone, 2015 Iowa Sup. LEXIS 103 (Dec. 18, 2015), the Supreme Court of Iowa recently held that the discovery rule in workers’ compensation law applies not only to cumulative injuries; it can also apply to injuries arising from a singular event. As readers recall, the “discovery rule” generally provides that the statute of limitations does not begin to run on a claim until the point that the claimant knows—or, with reasonable diligence, should know—the work-related nature of his or her injury. An earlier Iowa commissioner’s appeal decision in the case determined that the discovery rule was “categorically inapplicable” to workers’ compensation claims arising out of a singular event [emphasis added]. The Iowa high Court’s decision means that the two-year statute of limitations imposed by Iowa Code § 85.26 is not a bright-line rule in many cases where the initial injury appears relatively minor in nature and later progresses to cause disability. As noted below, however, the Court’s decision may be a Pyrrhic victory for this particular claimant. Continue reading

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