NC Employee’s Injuries From Fainting After Toking on E-Cigarette Did Not Arise From the Employment

The North Carolina Court of Appeals affirmed the denial of workers’ compensation benefits to a city employee who sustained serious injuries to his right hip, back, and head when he passed out and fell to the ground after getting choked on an e-cigarette [Brooks v. City of Winston-Salem, 2018 N.C. App. LEXIS 504, COA17-1208 (May 15, 2018)]. Noting that at the time of the injury the employee suffered from extremely elevated blood pressure and blood sugar levels and experienced a vasovagal response triggered by uncontrolled coughing, the court drew a sharp distinction between an unexplained fall, which generally is said to arise out of and in the course of the employment, and an idiopathic fall, which does not.

Continue reading

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

Alaska’s High Court Upholds Total Bar of Recovery for Non-Dependent Parents of Deceased Employees

Parent Faces “Catch-22”: Wrongful Death Claim Barred by Exclusivity, Yet No Workers’ Comp Benefits Available

The Supreme Court of Alaska, in Burke v. Raven Elec., 2018 Alas. LEXIS 64 (May 11, 2018), affirmed the constitutionality of the state’s broad exclusive remedy provision [Alaska Stat., § 23.30.055] that bars a parent from pursuing any tort recovery against an employer whose negligence causes the death of his or her employed child even in those instances in which the parent fails to qualify for workers’ compensation benefits because he or she was not dependent upon that child for support at the time of the injury or death. The holding, while consistent with other similar cases around the nation, seems to go against the basic rule that exclusivity applies only where some right to benefits is afforded under the state Act.

Continue reading

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

Divided OK Supreme Court Reverses Denial of Claim Involving Travel to Work Site

In a divided decision, the Supreme Court of Oklahoma reversed a lower court’s finding and held that a pipeline installation worker’s injuries sustained in a vehicular accident while traveling to the work site occurred within the course and scope of the employment in spite of the employer’s contention that the worker’s workday did not begin until he arrived on the site, attended a daily safety meeting, and signed a log acknowledging such attendance [Pina v. American Piping Inspection, Inc., 2018 OK 40, 2018 Okla. LEXIS 40 (May 8, 2018)].

Continue reading

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

Montana: Both Parties to Employee Leasing Arrangement Enjoy Exclusive Remedy of State’s Workers’ Compensation Act

Constitutional Provision Protecting Only “Immediate” Employers Does Not Limit Immunity

In a decision that has important implications for Montana firms that utilize professional employer organizations (“PEOs”) for their labor forces, the state’s Supreme Court, in Ramsbacher v. Jim Palmer Trucking, 2018 MT 118, 2018 Mont. LEXIS 143 (May 8, 2018), held that both parties — the employee leasing firm and its client — are immune from tort liability for injuries sustained by a leased employee in spite of language within the Montana Constitution that provides such immunity only to a worker’s fellow employees and his or her “immediate” employer [see Article II, § 16]. The plaintiff, an injured truck driver hired under Montana’s Professional Employer Organization law, could not, therefore, maintain a tort suit against a trucking firm that utilized his services after signing a PEO contract with an employee leasing company.

Continue reading

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

California High Court Narrows Rule For Classification of Workers as Independent Contractors

CA Employers: Stock Up on Your W-2s; Recycle Your 1099s

In a decision that continues California’s trend toward allowing the designation of a worker as an independent contractor only under rare circumstances, the state’s Supreme Court on Monday held that in determining whether to classify workers as employees or as independent contractors for purposes of California’s wage orders, the state’s “suffer or permit to work” standard requires a hiring entity asserting independent contractor status to establish each of the three factors of the ABC test: i.e., to show that a worker is free from its control, performing work outside the usual course of its business, and customarily engaged in independent work [Dynamex Operations West, Inc. v. Los Angeles County Superior Court, 2018 Cal. LEXIS 3152 (Apr. 30, 2018)]. While the decision has no direct impact in workers’ compensation cases, only a myopic employer can fail to see the writing on the wall. One cannot imagine many circumstances in which a worker that is categorized as an employee under California’s wage order rules would nevertheless be an independent contractor for purposes of workers’ compensation law.

Continue reading

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

Ohio Auto Insurers: Beware of Nascent Workers Comp Claims

High Court Says BWC Has Subrogation Interest in Spite of Denial of Claim

In a decision that should impact settlement procedures in virtually all personal injury cases within the state of Ohio, the Supreme Court of Ohio recently held that the subrogation rights of the state’s Bureau of Workers’ Compensation (“BWC”) arise at the time a claim is filed, not when the claim is allowed and payments made thereunder [Bureau of Workers’ Comp. v. Verlinger, 2018-Ohio-1481, 2018 Ohio LEXIS 868 (Apr. 19, 2018)]. Accordingly, where an injured worker sustained injuries in a vehicular crash, applied for workers’ compensation benefits from the BWC, and appealed the BWC’s denial to the state’s Industrial Commission, it was incumbent upon the worker — and two insurers on the risk via their automobile liability policies — to notify the BWC that a settlement had been reached in the separate tort claim, in spite of the fact that the BWC had expended no payments of benefits. Failure to do so meant the worker and the carriers were jointly and severally liable to the BWC for the full amount of its subrogation interest under Ohio Rev. Code § 4123.931.

Continue reading

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

NC Court Approves Medical Claim for Non-FDA-Approved Compound Cream

A North Carolina appellate court recently held that non-FDA-approved drugs could not be categorically excluded from medical compensation under the state’s workers’ compensation system [Davis v. Craven County ABC Bd., 2018 N.C. App. LEXIS 368 (Apr. 17, 2018)]. The court noted that the text of the Workers’ Compensation Act did not limit the types of drugs that might reasonably be required solely to those that are FDA-approved. The court stressed that instead, the statute indicates that whether a particular medical treatment “may reasonably be required to effect a cure or give relief” is a fact question that must be individually assessed in each case [N.C. Gen. Stat. § 97-2(19)]. The court concluded that were the court to create a categorical exclusion for non-FDA-approved medical treatments, it would, in effect, be adding an exception to the Act where one does not exist in the text.

Continue reading

Posted in Case comment | Tagged , , , | Comments Off on NC Court Approves Medical Claim for Non-FDA-Approved Compound Cream

PA Court Nixes Chiropractor’s Separate Charges for “Office Visits” in Connection with Treatments

A Pennsylvania appellate court has concluded that an examination involving no new medical condition, change in medical condition, or other circumstances that require an examination and assessment above and beyond the usual examination and evaluation for the treatment performed on the same date does not constitute “a significant and separately identifiable service” for which a chiropractor may be paid under 34 Pa. Code § 127.105(e) [Sedgwick Claims Mgmt. Servs. v. Bureau of Workers’ Comp., 2018 Pa. Commw. LEXIS 124 (Apr. 11, 2018)]. Accordingly, a chiropractor treating an injured worker was not entitled to payment for 39 “office visit” charges of $78 each on dates on which he provided chiropractic treatment to the worker and billed for the other treatments.

Continue reading

Posted in Case comment | Tagged , , , , | Comments Off on PA Court Nixes Chiropractor’s Separate Charges for “Office Visits” in Connection with Treatments

No Recovery For Swooning Virginia EMT

Repeat After Me: “Correlation Doesn’t Mean Causation”

The Virginia Court of Appeals recently reversed an award of workers’ compensation benefits to an emergency room paramedic who fainted, sustaining a skull fracture and hematoma, as the physician he was assisting began to insert a needle into a patient’s lumbar spine [Lynchburg Gen. Hosp. v. Foster, 2018 Va. App. LEXIS 90 (Apr. 10, 2018)]. The Court acknowledged that while the EMT’s injury certainly occurred in the course of his employment, he had failed to prove that the accident arose from that employment. Stressing the fact that Virginia used what its courts call the “actual risk test,” the Court noted that the causative danger must be peculiar to the work and not “common to the neighborhood.”

Continue reading

Posted in Case comment | Tagged , , , | Comments Off on No Recovery For Swooning Virginia EMT

20 Shades of Gray: NY Court Construes “Risks of Street Travel” Rule

Where a New York office worker sustained injuries when she tripped and fell while walking on a public sidewalk approximately 20 feet from the door to the building that contained her office, after she had parked her car in an employer-owned parking lot one block away, her injuries did not arise out of and in the course of her employment, in spite of New York’s special “gray area” rule, held a state appellate court [Matter of Brennan v. New York St. Dept. of Health, 2018 N.Y. App. Div. LEXIS 1851 (3rd Dept. Mar. 22, 2018)]. The appellate court observed that there was no evidence the worker faced any sort of special hazard on the uneven sidewalk where she fell.

Continue reading

Posted in Case comment | Tagged , , , , , , , | Comments Off on 20 Shades of Gray: NY Court Construes “Risks of Street Travel” Rule