In Georgia, Co-Habitation Without Marriage = No Death Benefits

Within the context of a Georgia workers’ compensation claim, a meretricious relationship works to deny dependency benefits, even if actual dependency exists, held a state appellate court on Tuesday [see Sanchez v. Carter, 2017 Ga. App. LEXIS 465 (Oct. 17, 2017)]. Accordingly, where claimant lived continuously with the employee from 2002 until his death in 2015, was wholly dependent upon him because of her own disability, and yet claimant and the deceased employee had never ceremonially married (nor established a valid common law marriage), she could not recover death benefits under OCGA § 34-9-13 [see Larson’s Workers’ Compensation Law, §§ 96.02, 97.06, 98.04].

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Employer and Co-Employees Not Liable in Tort Following Holiday Party Fatality

In a case with bizarre underlying facts, a New York appellate court held a trial court erred in denying an employer’s summary judgment motion in a tort action filed against it by the surviving spouse of an employee who died of alcohol intoxication and positional asphyxia following a holiday party [Gillern v. Mahoney, 2017 N.Y. App. Div. LEXIS 7069 (1st Dept., Oct. 5, 2017); see Larson’s Workers’ Compensation Law, § 22.04].

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Kentucky Driver Who Keeps Tractor-Trailer Rig at Home is Traveling Employee

Where a long-haul truck driver kept one of his employer’s tractor-trailer units at his home because he lived near an interstate highway and the employer’s facility was one hour away and off the driver’s usual route from Frankfurt, Kentucky, to Ada, Oklahoma, the driver was a “traveling employee,” for purposes of workers’ compensation law, and his action in keeping the rig at his home was a “service to the employer.” Accordingly, where the driver sustained serious physical injuries in an accident as he drove home, rather than complete his driving assignment—he had become ill—his claim was not barred by the ordinary going and coming rule [First Class Servs. v. Hensley, 2017 Ky. App. LEXIS 621 (Oct. 13, 2017); see Larson’s Workers’ Compensation Law, § 14.01].

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NY Employer Does Not Always Take Employee as it Finds Him

Apportionment Allowed for Prior Nonwork-Related Knee Injury

A New York appellate court affirmed a finding by the state’s Workers’ Compensation Board that apportioned a claimant’s 30 percent right leg schedule loss of use (“SLU”) between claimant’s February 2007 work-related injury and his 2005 nonword-related injury, showing, that at least in limited circumstances, an employer does not necessarily take an employee as it finds him or her [Matter of the Claim of Sanchez v. STS Steel, 2017 N.Y. App. Div. LEXIS 7001 (3rd Dept., Oct. 5, 2017)].

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Virginia Case Shows “On-the-Job” Injuries May Not be Compensable

The phrase is used quite often, even by attorneys: “He [or she] was hurt ‘on-the-job.’” The typical implication is that a worker who sustains an “on-the-job” injury deserves workers’ compensation benefits. Such use of imprecise language leads many claimants to assume their injuries are covered when, indeed, they may not be. For example, in Nelson v. Town of Christiansburg, 2017 Va. App. LEXIS 248 (Oct. 3, 2017), a Virginia appellate court affirmed the denial of benefits to a utility supervisor who sustained a back and lower extremity injury when, while performing his typical duties (i.e., “on-the-job”), he stood from a squatted position, twisted to his right, and felt a pop in his back, which sent him to the ground.

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Oregon: Traveling Employee’s Death While Returning From Shopping Trip Was Not Compensable

A person in the status of a traveling employee is continuously within the course and scope of the employment while traveling, except when the person is engaged in a distinct departure on a personal errand, held the Court of Appeals of Oregon. Accordingly, where a Coos Bay resident was temporarily working some distance away in Newport, and was killed in an automobile accident as he and a co-employee returned to their Newport hotel following a Christmas shopping excursion to a nearby town, the employee’s surviving spouse was not entitled to workers’ compensation death benefits [Beaudry v. SAIF Corp., 2017 Ore. App. LEXIS 1179 (Oct. 4, 2017)]. Quoting Larson’s Workers’ Compensation Law, current § 25.01, et seq., extensively, the Court stressed that here the employee’s activities were unrelated to the employee’s work-related travels.

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Vermont College’s “Tuition Benefit” Should Be Used in Average Weekly Wage Computation

In Haller v. Champlain College, 2017 VT 86, 2017 Vt. LEXIS 107 (Sept. 29, 2017), a divided Supreme Court of Vermont affirmed a determination by the Commissioner of the state’s Department of Labor that concluded tuition benefits provided by employer—and used by claimant—was an “other advantage” that constituted part of claimant’s wages [see 21 V.S.A. § 601(13)], and should, therefore, be used in calculating the injured employee’s average weekly wage. Quoting Larson’s Workers’ Compensation Law, § 93.01(2)(a), the majority held the tuition benefits received by the injured employee constituted real economic gain.

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Another One Bites the Dust: Oklahoma Supreme Court Kills Provision of State’s Workers’ Comp Act

Yesterday (Oct. 3, 2017), in a divided decision, the Supreme Court of Oklahoma struck down Okla. Stat. tit. 85A, § 57 of the Administrative Workers’ Compensation Act (AWCA), which disqualifies an injured employee from continued benefits if he or she misses two or more scheduled appointments for treatment [Gibby v. Hobby Lobby Stores, Inc., 2017 OK 78]. Continue reading

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PA Legislative Bill Would Require Use of 6th Edition of AMA Guides

Yesterday (October 2, 2017), a cadre of 29 Pennsylvania legislators introduced a bill—House Bill 1840—that would require physicians to apply the methodology set forth in “the sixth edition” of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), when determining the degree of medical impairment sustained by an employee who has sustained an injury compensable under the state’s Workers’ Compensation Act [“the Act”]. If passed in its present form, the bill would essentially reinstate former Section 306(a.2) of the state’s Workers’ Compensation Act [77 P.S. § 511.2(1)], which had been declared unconstitutional by a divided Supreme Court of Pennsylvania, in Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Pa. 2017). Continue reading

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Oklahoma High Court Finesses Constitutional Issue as to Retaliatory Discharge Statute

In Young v. Station 27, Inc., 2017 OK 68, 2017 Okla. LEXIS 69 (Sept. 12, 2017), the Supreme Court of Oklahoma finessed the constitutionality of the state’s current retaliatory discharge statute, 85A O.S. § 7, holding that the trial court had favorably passed upon the constitutionality of the wrong statute. The Court stressed that because plaintiff’s work-related injury occurred on January 29, 2013, prior to the February 1, 2014 effective date of the new statute, the former version of the retaliatory discharge statute, 85 O.S. 2011 § 341, applied to plaintiff’s claim. The Court did hold that plaintiff’s claim was not a Burk tort [see Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24], since an adequate statutory remedy had been provided by the Legislature to protect the public policy at issue.

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