Kentucky High Court Says “Concurrent” Wages May Only Be Considered for AWW Computation if Concurrent Employment Existed on DOI

Where an injured employee had but one employer on the date of injury, the employee’s average weekly wage must be computed by considering only the wages from that employer; “concurrent” wages earned during the relevant “look-back” period of time normally used to calculate the employee’s average weekly wage were not relevant, held the Supreme Court of Kentucky [Garrard County Fiscal Ct. v. Camps, 2015 Ky. LEXIS 1767 (Aug. 20, 2015)]. Reversing the state’s Court of Appeals, the Supreme Court held that Ky. Rev. Stat. Ann. § 342.140(5) specifically defined concurrent employment and that under the plain language of the statute, the wages to be considered must be the ones the employee earned at the moment she was injured.

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Tennessee Mattress Store Manager Prevails in PTSD Claim After Encounter with Purse Snatching Customers

The manager of a Tennessee mattress store, who alleged that she sustained a psychological injury (“PTSD”) when she pursued two persons into the employer’s store parking lot after they had stolen her her purse under a desk near the front of the the store, sustained a compensable mental injury, held the Special Workers’ Compensation Appeals Panel of the Supreme Court of Tennessee [Mattress Firm, Inc. v. Mudryk, 2015 Tenn. LEXIS 689 (Aug. 24, 2015)]. Noting that the trial court had awarded benefits after it utilized the so-called “street risk” rule, the panel indicated the court’s analysis was incorrect, although the court arrived at the correct determination.

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NC Employee’s Injury Playing Laser Tag Found Compensable

An employee who suffered a knee injury while playing laser tag at a company-sponsored marketing conference sustained an accidental injury arising out of and in the course of the employment, held the Court of Appeals of North Carolina recently [Holliday v. Tropical Nut & Fruit Co., 2015 N.C. App. LEXIS 703 (Aug. 18, 2015)]. The court agreed with the state’s Industrial Commission that the three-day conference had been planned by the employer, that the employee’s attendance at the conference was mandatory, that the employer encouraged participation in the laser tag activity and derived a business benefit from the conference as a whole—of which the outing to the laser tag location was an essential part. The court added that the employer benefitted from the team-building and networking opportunities generated through the conference and the recreational activity.

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Illinois Welder’s Knee Injury While Swiveling in Chair Found Compensable

Using a neutral risk analysis, an Illinois appellate court reversed a trial court’s decision that in turn had affirmed the denial of workers’ compensation benefits to a worker who injured his left knee while performing welding operations at his employer’s facilities [Adcock v. Illinois Workers’ Comp. Comm’n, 2015 Ill. App. LEXIS 628 (Aug. 14, 2015)]. For some three years prior to the injury, the worker performed his welding duties while sitting in a rolling chair that the employer provided in order to accommodate a condition of ill-being in the worker’s right knee. He testified that he injured his left knee when he used his left leg to maneuver the chair in order that he could continue welding. The Commission determined that the act of turning, even in a chair, was an activity of normal life and did not constitute a compensable injury under the Illinois Workers’ Compensation Act. Accordingly, the Commission found that while the injury was sustained in the course of the worker’s employment, it did not arise from that employment.

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NC: Surviving Spouse Loses Claim for Death Benefits Since She Neither Lived With Nor Was Dependent Upon Worker at Time of His Death

A surviving spouse was not entitled to receive workers’ compensation death benefits where evidence established that she left the family home several years prior to the deceased employee’s death, rarely spoke with him thereafter, did not rely upon him for financial or personal assistance, and had virtually no contact with him during the year prior to his death, held the Court of Appeals of North Carolina [In the matter of Easley (Deceased) v. TLC Cos., 2015 N.C. App. LEXIS 680 (Aug. 4, 2015)]. Accordingly, the court affirmed an Industrial Commission decision that all death benefits be paid to or for the benefit of the minor son of the deceased employee.

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Under DC Comp Act, Emailing Order to Employer Does Not Start 10-Day Period for Payment Without Penalty

Virtually all workers’ compensation acts impose a penalty for late payment of benefits. For example, D.C. Code § 32–1515(f) provides for a 20 percent penalty if any compensation is not paid within 10 days “after it becomes due.” The D.C. statute does not, however, indicate when a payment “becomes due.” The District of Columbia Court of Appeals recently held that compensation becomes due—and the ten-day period for payment without incurring the penalty begins—on the date the the Office of Workers’ Compensation (or the Hearings and Adjudication Section) serves the employer with a copy of the compensation order and not an earlier date when the employer’s counsel received a copy of the order sent via email by the worker’s attorney [Daly v. District of Columbia Dep’t of Emp. Servs., 2015 D.C. App. LEXIS 359 (Aug. 6, 2015)].

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Average Wage Calculation Must Be Computed For Nevada Self-Employed FedEx Driver

The lack of a salary associated with typical employment does not necessarily prevent an average monthly wage calculation for a self-employed injured Nevada worker, held the state’s Supreme Court last Thursday [Mensah v. CorVel Corp., 2015 Nev. LEXIS 64, 131 Nev. Adv. Rep. 60 (Aug. 6, 2015)]. Reversing a district court order denying a petition for judicial review in a workers’ compensation case, the Court held that the calculation should be based upon the injured worker’s earnings, which include more than just the worker’s salary, and should take into consideration a self-employed individual’s business profits and expenses.

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Georgia Comp Board Won’t Resolve Fee Dispute Between Attorneys Dissolving Their Firm

In a dispute involving the dissolution of a law partnership and the rights of two attorneys in attorneys’ fees resulting from the settlement of workers’ compensation cases, Georgia’s Board of Workers’ Compensation did not have exclusive jurisdiction over the claims since no rights of the claimants would be affected by the resolution of the attorneys’ dispute [Smith v. Williams, 2015 Ga. App. LEXIS 462 (July 14, 2015)]. The court held that while the Board had jurisdiction to resolve “ancillary issues” related to an employee’s compensation rights under the Act, where the rights of an employee in a pending claim were not at stake, the Board could disavow jurisdiction.

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Now California’s Pro Sports Cheerleaders are Employees

Anyone familiar with the FedEx, Uber/Lyft litigation going on at various levels in California’s courts and before the state’s administrative agencies knows that the Golden State appears to have “a thing” for businesses that utilize so-called “independent contractors.” Those of you who say that the use of independent contractors is essentially a modern form of indentured servitude will be glad to know that Sacramento has slayed yet another dragon in the fight to make everyone an employee of someone else. Indeed, to clear up any doubt as to the employment status of those who work as cheerleaders for California-based professional sports teams, Governor Brown signed into law A.B. 202 yesterday, extending the protection/reach of the state’s employment laws to the scores of oppressed workers who cheer on professional sports heroes. The enrolled and signed bill specifically designates the cheerleaders as employees and adds a new provision to the state’s Labor Law—§ 2754. The Raiderettes can rest easier knowing they’re now protected by the state’s wage and hour, workers’ compensation, and other specified employment laws. We can all check this one off our list of business abuses.

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Assault by Nebraska Employee Against Sex Offender Co-Employee Did Not Arise from the Employment

Where an employee (“Bates”) assaulted a co-employee (“McDaniel”) after Bates performed an Internet search and discovered that McDaniel was a registered sex offender, the assault did not arise out of and in the course of the employment in spite of the fact that the only contact the two had with each other was on the basis of their employment, held a Nebraska appellate court yesterday in McDaniel v. Western Sugar Coop., 2015 Neb. App. LEXIS 121 (July 14, 2015). Accordingly, McDaniel’s claim for workers’ compensation benefits for injuries to his nose, clavicle, and left shoulder was appropriately denied, held the Nebraska appellate court. Quoting Larson’s Workers’ Compensation Law, the court stressed that when the animosity or dispute that culminates in an assault is imported into the employment from claimant’s domestic or private life, and is not exacerbated by the employment, the assault did not arise out of the employment under any test.

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