Kentucky Court Affirms Limitation of Attorney’s Fee in Comp Claim Involving Multiple Beneficiaries

The Court of Appeals of Kentucky, in Roberts v. Sticklen, 2014 Ky. App. LEXIS 186 (Dec. 12, 2014) held that the plain language of Ky. Rev. Stat. Ann. § 342.320(2)(a) limited an attorney’s fee to $12,000, in spite of his contention that he had negotiated five settlements and represented five clients: the estate of the deceased police officer, his widow, and the couple’s three children. The court affirmed a finding by an administrative law judge that the attorney had represented "multiple clients on one claim.
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Alabama: Injuries Sustained While Seeking Medical Treatment For Earlier Injury Are Compensable

In a case of first impression in Alabama, a state appellate court recently held that injuries sustained while traveling to or from a location to receive treatment for an earlier work-related injury arise out of and in the course of the employment and, therefore, are also compensable [see Flexicrew Staffing, Inc. v. Champion, 2014 Ala. Civ. App. LEXIS 247 (Dec. 12, 2014)]. Following the rationale set forth in an early Kansas decision, Taylor v. Centex Construction Co., 191 Kan. 130, 379 P.2d 217 (1963) and quoting Larson’s Workers’ Compensation Law, § 10.07, the court reasoned that, like Kansas, Alabama’s workers’ compensation law provides that an employer subject to the Act must provide medical care to an injured employee [see Code of Ala. § 25–5–31 and § 25–5–51], and that an employee risks losing benefits under the Act if he or she refuses to submit to reasonable medical treatment [Code of Ala. § 25–5–77(b)]. The appellate court held, therefore, that the trial court correctly determined that the injuries the worker sustained as he was traveling from the work site to a health-care facility designated by his employer to obtain initial medical treatment for his work-related injury were compensable.

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Maine Employer May Suspend Comp Benefits to Employee Who Mysteriously Disappeared

In a case with a bizarre setting—the injured employee mysteriously disappeared in March 2012, after being awarded and receiving workers’ compensation disability benefits for almost three years—the Supreme Judicial Court of Maine has affirmed a decision by the state’s Workers’ Compensation Board Appellate Division that allowed the employer to suspend the employee’s benefits until she reappears and petitions for their reinstatement [Johnson v. The Home Depot, USA, Inc., 2014 ME 140, 2014 Me. LEXIS 150 (Dec. 11, 2014)].

Observing that following the disappearance, a Probate Court appointed the employee’s daughter as her temporary conservator with the power to act on her behalf in workers’ compensation matters, including the authority to receive and deposit her benefit checks, the high court indicated that here, by first segregating the employee’s benefits for her future use, and then only suspending the payment of benefits with a proviso that they would be available retroactively if she later claimed them, the hearing officer protected both the employer’s legitimate interest in stopping payments that were not being received by its employee, and the employee’s interest in collecting her full benefits if she is able to receive them in the future. The court said that “thoughtful and compassionate solution” in light of the difficult circumstances was not error.

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Florida Court Reverses Award Requiring Employer to Pay for Kidney Removal Based on Hindrance of Treatment Doctrine

A Florida appellate court recently reversed an order by a Judge of Compensation Claims requiring the employer/carrier to provide Claimant with treatment for a renal mass/cancer to the extent that it was a hindrance to treatment of a compensable lumbar spine injury [Sears Outlet v. Brown, 2014 Fla. App. LEXIS 19939 (1st DCA, Dec. 9, 2014)]. Observing that the JCC found the “self-help” medical treatment provision [§ 440.13(2)(c), Fla. Stat.] applicable based solely on the JCC’s determination that the E/C wrongfully denied the medical care, the court indicated § 440.13(2)(c) expressly provides that there must be a specific request for treatment or care, and the employer or carrier must be given a reasonable time period within which to provide the treatment or care, before a claimant is entitled to recover any amount expended for initial treatment or care. Here it was undisputed that there was no such request, nor was the E/C given the opportunity to provide the care. It was error, therefore, for the JCC to require the E/C to pay for the treatment.

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Dependents of Ohio Worker Who Lived 4.5 Hours After Fall Awarded 1,225 Weeks of PPD Benefits

Continuing a line of decisions that have awarded permanent partial disability benefits to dependents of workers who sustain fatal injuries in a work-related incident, but who survive the incident for brief periods of time, an Ohio court has affirmed an award of 1,225 weeks of PPD benefits to the widow of a 63-year-old demolition worker for loss of use of the worker’s arms, legs, eyes and ears pursuant to R.C. 4123.57(B), where the worker sustained catastrophic injuries to his head when he fell 30 feet from a roof and died four and one-half hours later [State ex rel. Arberia, LLC v. Industrial Comm’n, 2014-Ohio–5351, 2014 Ohio App. LEXIS 5177 (Dec. 4, 2014)]. The award was in addition to death benefits the widow was also awarded.

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Commentary: Florida Supreme Court Hints at How It May Decide Constitutionality of Florida Comp Act

In a decision handed down last Thursday [Morales v. Zenith Ins. Co., 2014 Fla. LEXIS 3555 (Dec. 4, 2014)], the Supreme Court of Florida may well have tipped its hand on how it would rule if, and when, the controversial Padgett case reaches the high court’s docket. Readers will recall that in August 2014, Circuit Court Judge Jorge E. Cueto found that the Florida Workers’ Compensation Law, as amended effective October 1, 2003, did not provide a reasonable alternative remedy to the tort remedy it supplanted and that it was, therefore, unconstitutional [see Florida Workers’ Advocates, et al. v. State of Fla., Case No. 11–13661 CA 25 (11th Judicial Circuit, Miami-Dade County, Aug. 13, 2014)(hereinafter “Padgett”)].

Although the constitutionality of the Florida Act was not at issue in Morales, dicta in the Supreme Court’s opinion indicates that it will not likely affirm Judge Cueto’s decision, should Padgett reach the high court. As I argue below, Padgett stands on such unstable procedural ground that the Third District Court of Appeals will likely reverse Judge Cueto without a meaningful discussion of the case’s merits and if Morales is any indication as to the sentiments of the Supreme Court of Florida, in the unlikely case Padgett got beyond the Third District Court of Appeal, Judge Cueto’s decision would have very short “shelf-life.” And yet a problem larger than Padgett looms within Florida. In spite of the shortcomings in Judge Cueto’s decision, in spite of is procedural stance, Padgett points to an unsettling problem—that steady erosion of injured employee’s workers’ compensation recovery rights in the Sunshine state has produced a climate in which many injured workers would rather jettison the existing system in spite of the fact that the alternative would be to reintroduce a fault-based system. Perhaps the Florida legislature should step to the forefront, do its job, debate the respective rights and remedies of all the constituencies and not require the state courts to legislate from the bench.

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Michigan Supreme Court Clarifies Independent Contractor-Employee Distinction

In a 6–1 decision, the Supreme Court of Michigan has reversed a 2013 decision of a special panel of the state’s Court of Appeals, finding that a landscape worker was an independent contractor and not an employee of the defendant landscape company [Auto-Owners Ins. Co. v. All Star Lawn Specialists Plus, Inc., 2014 Mich. LEXIS 2161 (Nov. 25, 2014)]. Finding that the Court of Appeals had erred in construing the provisions of MCL 418.161(1)(n), the high court clarified that if a purported employer could not show that each of the three statutory criteria were true for an injured worker performing service in the course of the trade, business, profession, or occupation of the “employer” at the time of the injury, the worker would be deemed an independent contractor. Continue reading

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NY: Co-employee Immunity Bars Exercise Rider’s Suit For Crushed Foot From Falling Anvil

A civil action filed by one equestrian exercise rider against another for injuries sustained when an anvil owned by the defendant fell from defendant’s vehicle and crushed plaintiff’s foot is barred by the exclusive remedy provisions of the New York Workers’ Compensation Law, held a state appellate court [see Correa v. Anderson, 2014 N.Y. App. Div. LEXIS 8056 (Nov. 20, 2014)]. The court was unconvinced by plaintiff’s argument that her action was viable because defendant had no work-related reason for storing the anvil in his vehicle and that he was not “acting within the scope of his employment” when he placed it there.

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Illinois Widow Gets Death Benefits after Husband Succumbs to Neisseria Meningitides Contracted on Brazilian Business Trip

In a decision that may provide some indication as to how the court might decide a claim involving Ebola exposure, an Illinois appellate court has affirmed a finding by the state’s Workers’ Compensation Commission that a business executive’s death from Neisseria meningitides arose out of and in the course of his employment where evidence tended to show that the executive died within a few days of returning home from a business trip to Sao Paulo, Brazil [see Omron Electronics v. Illinois Workers’ Comp. Comm’n (Bauer), 2014 IL App (1st) 130766WC, 2014 Ill. App. LEXIS 793 (Nov. 14, 2014)]. The executive had also spent time in China and Japan prior to his Brazilian excursion.

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Delaware Employer’s Inability to Rehire Undocumented Worker Following Injury is Its Worry, Not the Worker’s

Observing that the employee must must be taken as he or she was hired, that in determining an employee’s “earning power” following an injury, Delaware courts are authorized to consider other relevant factors in addition to those that are related to the claimant’s injury, including the claimant’s age, education, general background, occupational and general experience, the Supreme Court of Delaware, in Campos v. Daisey Constr. Co., 2014 Del. LEXIS 543 (Nov. 13, 2014) recently held that a claimant’s undocumented status was an additional factor that could be considered. Accordingly, where federal law prevented the injured worker from accepting a new position with the employer following his injury, the employer could not terminate workers’ compensation benefits on the grounds that it had offered to rehire him. The court disagreed that the employer’s offer of a job to the claimant constituted sufficient proof of job availability. Consistent with federal law, it could only hire the claimant if the claimant could present authorization to work, which he cannot do. The record thus established that a job at the employer was not in fact available to the claimant, who does not have a valid social security card. Thus, the employer’s offer to re-hire him was not a bona fide offer.

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