Divided Court Adopts Minority Rule for Idiopathic Falls
Adopting the minority American rule that all work-related risk factors must be considered in determining the compensability of an idiopathic fall—even the hardness of the floor—the Supreme Court of Iowa, in a divided decision, held that a worker’s idiopathic fall to a level floor could be compensable, depending upon the facts of the particular case [Bluml v. Dee Jay’s Inc., 2018 Iowa Sup. LEXIS 101]. Accordingly, the majority of the Court reversed a decision of a state district court that (along with the deputy commissioner and the commissioner) had concluded, as a matter of law, that idiopathic falls onto level floors were not compensable. Quoting extensively from Larson’s Workers’ Compensation Law, the majority also provided a sweeping overview of the status of the law across the United States.
Where an employee sustained work-related injuries, reached maximum medical improvement (MMI), and, based on factual findings by Nebraska’s Workers’ Compensation Court (WCC), was adjudged to be permanently and totally disabled, a subsequent stroke that left her completely incapacitated and unable to care for herself did not result in the loss of her permanent total disability benefits, held the Supreme Court of Nebraska [Krause v. Five Star Quality Care, 301 Neb. 612, 2018 Neb. LEXIS 188 (Nov. 16, 2018). In its holding, the high court was not swayed by the employer’s argument that the employee’s continuing disability was caused by her stroke, and not the work-related injury.
In a decision that could have significant repercussions for a number of claimants under the New York Workers’ Compensation Law, a state appellate court affirmed a decision of the Workers’ Compensation Board that the state’s Medical Treatment Guidelines (“guidelines”) apply to medical treatment rendered to a nonresident claimant by an out-of-state provider [Matter of Gasparro v. Hospice of Dutchess County, 2018 N.Y. App. Div. LEXIS 7783 (Nov. 15, 2018)]. Acknowledging that the Board had departed from its own prior decisions on the issue, the appellate court said the Board had clearly set forth the reasons for making the change in its policy. Moreover, the change of policy was rational.
No Compensation Benefits for Injuries Sustained in Accident
A farm worker, who sustained serious injuries in a vehicular accident when he failed to yield the right of way to oncoming traffic as he crossed a road on an employer-owned all-terrain vehicle (ATV) from his employer-provided residence to the farm itself, was appropriately denied workers’ compensation benefits, held a New York appellate court [Matter of Button v Button, 2018 N.Y. App. Div. LEXIS 7753 (3d Dept., Nov. 15, 2018)]. Evidence supported the Board’s finding that the worker was engaged in a prohibited activity at the time of the accident and, therefore, his injuries did not arise out of and in the course of the employment.
Reiterating the important rule in New York, that where the availability of workers’ compensation benefits hinges upon questions of fact or upon mixed questions of fact and law, the parties may not choose the courts as the forum for resolution of the questions, but must instead look to the Workers’ Compensation Board for such determinations, a state appellate court recently held that a trial court’s determination that a worker was an independent contractor, and not an employee, must be reversed [Findlater v Catering by Michael Schick, Inc., 2018 N.Y. App. Div. LEXIS 7728 (2d Dept., Nov. 14, 2018).
Workers’ Compensation Emerging Issues Analysis, 2018 Edition
For the past six years, I have been pleased to be a primary editor and contributing author of an annual publication, Workers’ Compensation Emerging Issues Analysis, a “Larson Series” book published in late November/early December by LexisNexis. As with past editions, this year’s offering combines expert analysis, provocative commentary, interesting case summaries, and a discussion of important trends in key states. This year’s title is The Quiet Before the Storm. Here’s a link to my Foreword. I trust many of you will find this year’s edition informative.
Injuries Sustained in Nearby Parking Lot Were Compensable
Where an Ohio data entry worker had clocked out for lunch, exited the building, and fell in a nearby parking lot, breaking her arm, her claim for workers’ compensation benefits was not barred by the going and coming rule, held an Ohio appellate court in White v. Bureau of Workers’ Comp., 2018-Ohio-4309, 2018 Ohio App. LEXIS 4632 (Oct. 24, 2018). Her injuries were compensable under Ohio’s zone-of-employment exception to the coming-and-going rule [see Ohio Rev. Code § 4123.01(C); Larson’s Workers’ Compensation Law, § 13.01, 13.04].
Agent Scurries to Get Coverage After Workplace Accident
Where, following a workplace accident causing injury to an employee, the uninsured employer called its insurance broker regarding the expected workers’ compensation claim and the broker scrambled to obtain a policy from an insurer dated that same day, without disclosing the existing of the workplace accident, there could be no coverage for the accident, held a Florida appellate court recently [see Normandy Ins. Co. v. Sorto, 2018 Fla. App. LEXIS 15382 (1st DCA, Oct. 31, 2018)]. Reversing a contrary decision by the Judge of Compensation Claims, the appellate court stressed that Florida’s insurance laws preclude coverage for losses that have already taken place.
Driver’s Failure to Chock Wheels Results in Loss of Comp Benefits
A Virginia appellate court recently affirmed a finding by the state’s Workers’ Compensation Commission that a truck driver willfully violated known safety rules when he failed to chock the wheel on the employer’s truck during a stop [Callahan v. Rappahannock Goodwill, 2018 Va. App. LEXIS 288 (Oct. 23, 2018)]. Accordingly, under Va. Code Ann. § 65.2-306(A), the employee could not recover workers’ compensation benefits for injuries sustained when the truck suddenly rolled forward, causing the employee to fall from the truck bed.
While the term, “physician,” as defined by Neb. Workers’ Comp. R. 49(O) (2018), generally includes those practicing osteopathic medicine, chiropractic, podiatry, or dentistry, it does not include a physician assistant, held the Supreme Court of Nebraska in Bower v. Eaton Corp., 301 Neb. 311, 2018 Neb. LEXIS 170 (Oct. 12, 2018). Accordingly, it was not error for the state’s Workers’ Compensation Court to disregard a medical report indicating the injured worker suffered a 15 percent permanent impairment to the right upper extremity when the report was signed by an orthopedic surgeon’s physician assistant and not by the surgeon himself. Continue reading