Husband/Wife Bakery Ends Up With Two Policies; Insurers Must Split Cost of Death Claim

Policy Procured “by Mistake” Remains in Force Since Cancellation Wasn’t Done According to Missouri Law

Cancellation of a workers’ compensation insurance policy, even when both the insured and the insurer contend the policy was issued by mistake, must be in conformity with state law as to cancellations, held the Eighth Circuit Court of Appeals [Employers Preferred Ins. Co. v. Hartford Accident and Indem. Co., 2019 U.S. App. LEXIS 851 (Jan. 10, 2019)]. Accordingly, where a husband and wife each procured workers’ compensation insurance policies for the Missouri bakery (“the Bakery”) they jointly operated, cancellation of “the wife’s policy” by the husband was ineffective, since it was not accomplished under the state’s cancellation statute. The bakery was deemed to have two policies of insurance and each insurer was responsible for one-half the benefits owed when a bakery employee sustained fatal injuries in a work-related automobile accident before the attempted “cancellation.”

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Florida Comp Act’s Drug-Free Workplace Program Statute Provides no Private Right of Action

Unsuccessful Job Applicant Sought to Utilize Statute After Passing Drug Test, But Not Getting Job

§ 440.102, Fla. Stat., which establishes a drug-free workplace program as part of Florida’s overall worker’s compensation scheme, does not provide a private right of action to a job applicant who is required by a prospective employer to take a drug test without offering him employment, held the Eleventh Circuit Court of Appeals in McCullough v. Nesco Res. LLC, 2019 U.S. App. LEXIS 411 (11th Cir. Jan. 7, 2019). The Court stressed that the Florida legislature’s statement of intent included no language regarding employees’ rights and none would be inferred.

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Kentucky Considers PTSD Benefits—but Only for First Responders

Animal Farm Logic: “All [workers] are equal, but some [workers] are more equal than others.”

House Bill 40, which would provide workers’ compensation benefits for post-traumatic stress disorders (PTSD), but only for certain specified first responders, was introduced into the Kentucky legislature on January 8, 2019. If passed into law, the bill would mark a significant change in the state’s existing workers’ compensation coverage. Currently, the Bluegrass State provides no benefits for work-related mental or psychological injuries unless they are accompanied by a physical injury (see Ky. Rev. Stat. § 342.0011(a); Larson’s Workers’ Compensation Law, § 56.06). If passed, Kentucky would join Florida and Washington (see RCW 51.08.142) in singling out one type of worker for favorable treatment, all the while ignoring PTSD conditions within the general workplace population.

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The Top 10 Bizarre Workers’ Comp Cases for 2018

Annual “Bizarre” List Began More Than 30 Years Ago

More than 30 years ago, my mentor, Dr. Arthur Larson, and I began a quirky New Year’s tradition. Early one January evening, we sat together in his home on Learned Place, near Duke University’s campus here in Durham, North Carolina, sipped an adult beverage, and compared our respective lists of the previous year’s “bizarre” workers’ compensation cases. We continued that tradition until his death. A few years later, I decided to reprise the annual list. Continue reading

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Ohio Bureau of Workers’ Comp Immune From Tort Liability for Alleged Faulty Inspections

An Ohio appellant court recently held that the state’s Bureau of Workers’ Compensation (“BWC”) was immune from tort liability in a civil action filed against it by the estate of a worker who sustained fatal injuries in an incident involving an extrusion press [Banks v. Ohio Bureau of Workers’ Comp., 2018-Ohio-5246, 2018 Ohio App. LEXIS 5559 (Dec. 27, 2018)]. The estate had contended that BWC was liable because it had negligently provided the worker’s employer with safety consulting services including, but not limited to, evaluating guarding and the safety of its extrusion press operations.

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Video Surveillance & Social Media Result in Misconduct Finding by NY Board

A determination by the New York Workers’ Compensation Board that a claimant made false representations regarding material facts in violation of N.Y. Workers’ Comp. Law § 114-a was supported by substantial evidence and would not be disturbed where videotape evidence and social media postings significantly contradicted claimant’s testimony as to his current physical condition [Matter of Papadakis v Fresh Meadow Power NE LLC, 2018 N.Y. App. Div. LEXIS 8673 (3d Dept. Dec. 20, 2018)].

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Immunity Afforded to Ohio Subcontractors Under Contractor’s Self-Insurance Plan is Constitutional

The grant of immunity afforded to subcontractors enrolled in an Ohio contractor’s self-insurance plan [see Ohio Rev. Code Ann. § 4123.35(O)] from claims by employees of another enrolled subcontractor does not violate right-to-remedy, right-to-jury, or equal-protection provisions of the Ohio Constitution, held the state’s highest court in Stolz v. J & B Steel Erectors, 2018-Ohio-5088, 2018 Ohio LEXIS 3011 (Dec. 20, 2018). This decision supplements an earlier one in which the Court found that the application of the immunity statute gave protections not only to the self-insuring general contractor, but to enrolled subcontractors.

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Deeply Divided Oklahoma High Court Says Reduction of PPD Allowed Where Employer Paid Full Wages During Police Officer’s Disability Period

In a deeply divided (5-4) decision, the Supreme Court of Oklahoma recently held that a provision in the state’s workers’ compensation law [Okla. Stat. tit. 85A, § 89] allowing an employer—in this case a municipality—to receive a deduction to an injured police officer’s award of permanent partial disability based upon amounts paid during her temporary total disability period in excess of the temporary disability maximum is constitutional [Braitsch v. City of Tulsa, 2018 OK 100, 2018 Okla. LEXIS 109 (Dec. 18, 2018)]. The officer had argued that the statute violated her right to due process of law and, alternatively, that the state was a “special law” that could not stand a constitutional examination.

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South Carolina: In Dependency Case, Commission May Not Presume “Fornication” Occurred

In an ancient decision (one year older than me), Day v. Day, 216 S.C. 334, 58 S.E.2d 83 (1950), the Supreme Court of South Carolina, reflecting the general moral mindset of the time, held that a woman cannot be considered a dependent within the meaning of the state’s Workers’ Compensation Act if she is “lives in [an] illicit relationship with a man to whom she is not legally married” [216 S.C. at 345]. Sidetracking the subject of illicit, extramarital relationships with the skill of a well-known first century rabbi—see The Gospel of John, ch. 8: 1-11—the Court of Appeals of South Carolina, earlier this year, found that the single commissioner and the Appellate Panel erred when they concluded, without actual evidence in the record, that a woman who had lived for some time in a “tumultuous relationship” with the deceased worker, had engaged in fornication [York v. Longlands Plantation, 424 S.C. 280, 818 S.E.2d 215 (Ct. App. 2018)]. The case was remanded for further proceedings.

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Nevada Employer Need Not Show Knowledge of Specific Medical Diagnosis to Recover from Subsequent Injury Fund

In Nevada, under Nev. Rev. Stat. § 616B.578, in order for an employer to receive reimbursement from the state’s “Subsequent Injury Account,” it must prove that that it had knowledge of a preexisting permanent physical impairment that would support a rating of at least six percent whole person impairment. In a recent decision, the Supreme Court of Nevada clarified, however, that the statute cannot be reasonably interpreted to require knowledge of a specific medical diagnosis in order for an employer to seek reimbursement successfully [North Lake Tahoe Fire Prot. Dist. v. Board of Admin., 2018 Nev. LEXIS 107 (Dec. 6, 2018)].

Background

In 1981, the District hired an applicant as a paramedic and firefighter (the employee). For approximately 20 years, the employee worked without a documented injury. Between 2002 to 2007, however, the employee injured his back on numerous occasions while on duty and sought treatment following his injuries. Doctors diagnosed the employee with various back conditions, such as herniated nucleus pulposus (HNP), radiculopathy, back sprain, and lumbar disc abnormalities.

In November 2007, the employee then suffered a subsequent back injury while on duty, and following this injury, doctors specifically diagnosed the employee with spondylolisthesis. A few years later, the employee underwent back surgery for the condition, and a year after his surgery, the employee retired.

Shortly after the employee retired, Dr. David Berg conducted a PPD evaluation on the employee in response to the employee's November 2007 back injury and rated the employee with a 21 percent whole person impairment (WPI) with no apportionment for any preexisting condition. At the request of the third-party administrator, Dr. Jay Betz reviewed the employee's medical records and Dr. Berg's PFD evaluation. Dr. Betz disagreed with Dr. Berg's conclusion regarding no apportionment and instead found that the employee's spondylolisthesis was a preexisting impairment with a seven-nine percent WPI. Dr. Betz further found that at least half of the 21 percent WPI should be apportioned to the employee's preexisting conditions, and thus, 11 percent WPI should be apportioned to the November 2007 injury (10.5 percent rounded up).

Board’s Findings

The Board concluded, in pertinent part, that § 616B.578 required the employer to show that it knew specifically of the employee's spondylolisthesis condition prior to the subsequent injury in order to receive reimbursement from the Subsequent Fund. Accordingly, the claim for reimbursement was denied.

Supreme Court’s Decision

The Supreme Court said the Board's interpretation of § 616B.578 was reasonable in part. To qualify for reimbursement, indeed, the employer was required to establish by written record either that the employer (1) had knowledge of the permanent physical impairment at the time the employee was hired or (2) retained its employee after it acquired knowledge of the permanent physical impairment. The Court added that the employer need not prove, however, that it had specific knowledge of a specific medical diagnosis (here, spondylolisthesis) in order for it to successfully seek reimbursement. The Court stressed, however, that the employee's preexisting permanent physical impairment must be fairly and reasonably inferred from the written record. The Court concluded that here, there was a lack of clarity concerning the employer's specific knowledge. In that light, the Court reversed and remanded the cause.

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