Connecticut Police Officer’s Failure to File Timely Hypertension Claim No Bar to Subsequent Claim Related to Myocardial Infarction

Connecticut, like a host of other states, has a special presumption that aids police officers (and some other first responders) who pass a physical exam at the time of hiring that fails to reveal any evidence “of hypertension or heart disease,” and who later suffer a condition or impairment brought about by hypertension or heart disease [see Conn. Gen. Stat. § 7–433c]. Where a police officer passed a 1996 physical exam that revealed no evidence of hypertension or heart disease and was subsequently diagnosed with hypertension in 2009 (although he filed no claim for that condition), his claim for workers’ compensation benefits filed in 2011, four days after he suffered a myocardial infarction, was timely, held the Supreme Court of Connecticut [see Holston v. New Haven Police Dep’t, 2016 Conn. LEXIS 340 (Nov. 22, 2016)].

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IL Middle School Teacher’s Injury in Student/Faculty Basketball Game Was Compensable

A number of states, including Illinois, exclude workers’ compensation coverage for some recreational injuries that are deemed by statute to be outside the course and scope of the employment [see 820 ILCS 305/11 (West 2010); see also Larson’s Workers’ Compensation Law, § 22.02 et seq.]. Notwithstanding the statutory limitation, a state appellate court, in Calumet Sch. Dist. #132 v. Illinois Workers’ Comp. Comm’n, 2016 IL App (1st) 153034WC, 2016 Ill. App. LEXIS 774 (Nov. 10, 2016), recently held that an Illinois middle school science teacher, who suffered a left forearm fracture while participating in an after school student/teacher basketball game in the employer’s gymnasium, did not engage in a “voluntary recreational program,” as that term is used in the state’s Workers’ Compensation Act. The court found that the teacher had introduced sufficient evidence to show that he reasonably felt compelled by the school principal to participate in the game.

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South Carolina High Court Adopts Larson’s “Divided Premises” Rule

Adopting Dr. Arthur Larson’s “divided premises” rule [Larson’s Workers’ Compensation Law § 13.01[4][b]], in which an employee remains within the course and scope of the employment while traveling along or across a public road between two portions of the employer’s premises, the Supreme Court of South Carolina recently held that a university professor, who sustained injuries when she was struck by a vehicle on a public street that separated the school’s library—where she had been working—from one of the university’s parking lots—where she had parked her car—should have been awarded workers’ compensation benefits [see Davaut v. University of S.C., 2016 S.C. LEXIS 301 (Oct. 26, 2016)]. That the professor was not physically on university property when she was struck, did not control.
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Boys Will Be Boys: Winning Comp Claim Isn’t as Easy as Falling Out of a Tree

A Mississippi pipe fitter, who sustained five broken ribs and a spinal cord injury when he fell a distance of approximately 25 feet from the top of a gum tree during a lull in work, was appropriately denied workers’ compensation benefits, held the Court of Appeals of Mississippi recently in a split decision [see Haney v. Fabricated Pipe, Inc., 2016 Miss. App. LEXIS 722 (Nov. 8, 2016)]. The majority observed that the Commission had appropriately relied upon the four-point “Larson test” [see Larson’s Workers’ Compensation Law, § 23.01 et seq.].

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The Year of Equal Justice and Due Process

High Courts in Several States Strike Down Legislative Challenges to the Heart of the Workers’ Compensation System

As we put together last year’s edition of the Workers’ Compensation Emerging Issues Analysis series, I observed that 2016 would likely be a turbulent year, one that we could easily call “the year of the Opt Out.” That, of course, was a safe prediction, given the fact that battle lines had been so clearly drawn over Oklahoma’s controversial Opt Out law and that somewhat similar legislation had been introduced in the state houses of both South Carolina and Tennessee, with rumors that North Carolina would soon follow. Based on several constitutional challenges to the Oklahoma law, legislators in South Carolina and Tennessee allowed their sessions to expire without acting on the proposed laws.

Lex Larson and I posited that during 2016 those Oklahoma challenges would likely produce some of the most important case law in decades. That turned out to be true. As discussed below, in September 2016, the Supreme Court of Oklahoma, in a 7–2 decision, struck down the core provision of the Opt Out law as unconstitutional, doing so on the basis that the law favored one group of injured employees over another, based solely on whether the employer had chosen to stay within the classic, state-run system.

While Opt Out discussion often sucked the oxygen out of many workers’ compensation debates and conferences during 2016, there were other important challenges afoot in other states, particularly Florida. Earlier this year, the Florida Supreme Court handed down its long awaited decision in Westphal and another important decision in Castellanos, both discussed below as well. Continue reading

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New Mexico High Court Blocks Estate’s Attempt to Go After Employer’s Uninsured Motorist Coverage

No Coverage Where Tortfeasor Was Co-Employee

Answering a question certified to it from a federal district court sitting in New Mexico, that state’s Supreme Court held that an employee injured in the course of the employment by a co-employee operating an employer-owned vehicle is not entitled to seek uninsured/underinsured motorist coverage under the employer’s vehicle policy, because the injured employee is not “legally entitled to recover damages” from the co-employee [see Vasquez v. American Cas. Co., 2016 N.M. LEXIS 186 (Oct. 13, 2016)]. The court distinguished its earlier decision in Draper v. Mountain States Mut. Cas. Co., 116 N.M. 775, 867 P.2d 1157 (1994), on the basis that Draper involved a third-party tortfeasor and not a co-employee [see Larson’s Workers’ Compensation Law, §§ 110.05[1], 111.03].

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NY Correction Officer Fails to Link Bronchitis to Commercial Airline Flight

For many of us, it’s uncanny. Within a few days of flying on a commercial jet, we come down with some sort of cold or bronchial disorder. Our intuition tells us that there is a correlation between our time trapped in the flying tube and the sudden onset of our illness. Proving that connection is, of course, a more difficult task. Something more than a temporal correlation must be shown.  A New York appellate court recently discussed the difficulty of proving such claims and affirmed a decision by the state’s Workers’ Compensation Board denying benefits to a state corrections officer who claimed he contracted acute bronchitis while transporting a prisoner on a commercial airline flight. The appellate court acknowledged that the officer had presented two medical opinions loosely tying the sickness to the trip, but the court said that opinion was too speculative to be substantial evidence to prove the work-connectedness of the officer’s medical condition [see Matter of Donato v Taconic Corr. Facility, 2016 N.Y. App. Div. LEXIS 6421 (3rd Dept., Oct. 6, 2016)].

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Has the Other Shoe Dropped? New Report Signals Feds Are Losing Patience with State Workers’ Compensation Programs

On October 5, 2016, the U.S. Department of Labor released a widely anticipated report on the adequacy of state-based workers’ compensation programs. While the 41-page report does not go as far as to call for a federalization of state workers’ compensation programs, it is replete with criticism of the nation’s state systems, describing the current situation as “a race to the bottom” [pp. 13, 20]. The DOL concludes that in recent decades many states have decreased benefits, raised the employee’s burden of proof required to prove a claim, erected significant barriers to necessary medical care, and shifted costs to public programs, such as Medicare and Social Security Disability Insurance. It posits multiple points that should be discussed by and among all stakeholders, including whether to increase the federal role in oversight of state-based workers’ compensation programs. Continue reading

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Medical Marijuana: Reasonable and Necessary Medical Treatment for Pain?

Appellate Division of Maine’s Comp Board Orders Two Employers to Reimburse Workers for Treatment Costs

In two separate decisions, the Appellate Division of Maine’s Workers’ Compensation Board recently affirmed two ALJs’ decisions requiring employers to reimburse injured workers for the costs associated with the reasonable and proper use of medical marijuana authorized under the Maine Medical Use of Marijuana Act (MMUMA) [see Noll v. Lepage Bakeries, Inc., Me. W.C.B. No. 16–25 (App. Div. en banc Aug. 23, 2016) and Bourgoin v. Twin Rivers Paper Co., LLC, Me. W.C.B. No. 16–26 (App. Div. en banc Aug. 23, 2016)]. In both cases, the Appellate Division cast aside contentions by the employers that the ALJs’ orders put them at risk of federal prosecution because the purchase, sale, and possession of marijuana, even for medical purposes, remains illegal under the Controlled Substances Act, 21 U.S.C.A. §§ 801–904. The Appellate Division was also not persuaded that a provision in the MMUMA exempting “private health insurers” from paying for medical marijuana was sufficiently broad to aid the employers.

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Oklahoma Supreme Court Strikes Down State’s Opt Out Law

Earlier today (September 13, 2016), in Vasquez v. Dillard’s, Inc., 2016 OK 89, in a 7–2 decision, the Supreme Court of Oklahoma, in one of the most important workers’ compensation decisions in memory, held the core provision of the Oklahoma Employee Injury Benefit Act (the state’s Opt Out Law), Okla. Stat. tit. 85A, § 203, creates “impermissible, unequal, disparate treatment of a select group of injured workers” and, therefore, is an unconstitutional special law under the Oklahoma Constitution, art 2, § 59 [Opinion, ¶ 1]. Continue reading

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