Maine High Court Blocks Employer’s Attempt to Challenge Continued Existence of Disability

Highlighting the fine line that exists, on the one hand, between a party’s attempt to relitigate an issue already decided and, on the other hand, a party’s contention that a change of condition or circumstances warrants revisiting the issue of an injured worker’s continued level of disability, the Supreme Judicial Court of Maine affirmed a decree of the state’s Workers’ Compensation Board Appellate Division that concluded that a 2007 determination of permanent impairment as of the date of MMI was final and, therefore, res judicata princples barred relitigation of the issue [Bailey v. City of Lewiston, 2017 ME 160, 2017 Me. LEXIS 170 (July 20, 2017)].

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Missouri Court Stresses Importance of Injury “by Accident” in Recent Horseplay Case

The Missouri Court of Appeals recently affirmed a decision of that state’s Labor and Industrial Relations Commission that had denied workers’ compensation benefits to a tire shop employee who sustained severe burns when he used a lighter to ignite a can of glue held in a coworker’s hand during an apparent lull in the workday [Hedrick v. Big O Tires, 2017 Mo. App. LEXIS 660 (June 29, 2017)]. Agreeing with the Commission, that the claimant’s intentional ignition of the glue was not an accident, as that term is defined in Mo. Rev. Stat. § 287.020 (2017), the Court stressed that it is the accident, and not the injury, that is the event which is unforeseen. The Court added, “It is therefore possible that an expected traumatic event may produce unexpected injuries, but that does not change the event from a non-accident to an accident” [2017 Mo. App. LEXIS 660, emphasis by the Court].

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Mississippi Officer’s High Speed Driving, Without Seatbelt, Did Not Amount to Willful Intent To Injure Himself

Although crash data indicated not only that a Mississippi patrol officer increased his speed steadlily from 53 mph to more than 90 mph in the twelve seconds prior to an accident, but that the officer was not wearing his seatbelt at the time of the accident—he sustained serious injuries when he was ejected from his vehicle—there was no credible evidence that the officer willfully acted with the intent to injure himself, held a Mississippi appellate court in City of Jackson v. Brown, 2017 Miss. App. LEXIS 382 (June 27, 2017). Accordingly, Miss. Code Ann. § 71–3–7(4) (Supp. 2016) did not bar his recovery of workers’ compensation benefits.

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Louisiana High Court Says Employer—Not Injured Employee—Has Right to Choose Pharmacy

Last Thursday, in a split decision, the Supreme Court of Louisiana held that the choice of pharmacy in a workers’ compensation case belongs to the employer, and not the employee [Burgess v. Sewerage & Water Bd. of New Orleans, 2017 La. LEXIS 1387 (June 29, 2017)]. Resolving a split in the state’s circuit courts of appeal, the Court acknowledged that La. Rev. Stat. § 23:1203 obligates an employer “to furnish all necessary drugs” to the injured employee. The statute did not, however, directly address who had the right to choose the pharmacy to dispense the drugs. The Court added that nowhere in the statute did the legislature provide the employee with the right to choose a pharmaceutical provider from which to obtain the necessary prescription drugs. By contrast, the legislature had specifically delegated to the employee the choice of physician [see La. Rev. Stat. § 23:1121(B)(1)]. The Court reasoned that had the legislature intended the employee to have the choice of pharmaceutical provider in § 23:1203(A), it could easily have done so.

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Rock and a Hard Place: Placing Injured Undocumented Worker on Unpaid Leave May Be Retaliatory Discharge

In a divided decision, the Supreme Court of Minnesota held that an injured undocumented worker had raised a genuine issue of material fact as to whether an employer had discharged him—and whether that discharge was motivated by the worker’s action of seeking workers’ compensation benefits—where the employer placed the worker on unpaid leave until the worker could show that his return to employment would not violate federal immigration law [Sanchez v. Dahlke Trailer Sales, 2017 Minn. LEXIS 372 (June 28, 2017)]. The Court also specifically found that federal immigration law does not preempt an undocumented worker’s claim for retaliatory discharge under Minn. Stat. § 176.82, subd. 1 (2016). Continue reading

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California: Apportionment Inappropriate Where PTD Results From Medical Treatment, Not the Underlying Condition

Where a California worker developed a number of conditions during her 26-year career with her employer, including carpal tunnel syndrome (CTS), which medical experts attributed 90 percent to industrial factors and 10 percent to nonindustrial factors, it was error for the state’s Workers’ Compensation Appeals Board to apportion the worker’s permanent total disability between the industrial and nonindustrial causes prior to issuing its award where the worker’s PTD was caused—not by her CTS—but by chronic regional pain syndrome (CRPS), resulting from a failed surgical intervention to treat the CTS [Hikida v. Workers’ Comp. Appeals Bd. (Costco Wholesale Corp.), 2017 Cal. App. LEXIS 572 (June 22, 2017)]. Continue reading

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California In-Home Caretaker Awarded Benefits for Injuries Sustained in Bicycle Accident

Observing that California’s “required vehicle” exception to the going and coming rule arises where the employee’s use of his or her own vehicle gives some incidental benefit to the employer, a state appellate court held that an in-home caretaker sustained injuries arising out of and in the course of her employment when she was struck and injured by a car as she rode her bicycle from one private home where she worked to another home where she was scheduled to work [Zhu v. Workers’ Comp. Appeals Bd. & Dep’t of Soc. Servs., 2017 Cal. App. LEXIS 564 (June 20, 2017)].

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Pennsylvania High Court Strikes Down Use of “Most Recent” AMA Guides

In a highly anticipated decision, Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 2017 Pa. LEXIS 1401 (June 20, 2017), a split Supreme Court of Pennsylvania yesterday held that the provision, found in Section 306(a.2) of the state’s Workers’ Compensation Act [77 P.S. § 511.2(1)], requiring physicians to apply the methodology set forth in “the most recent edition” of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), violates the state’s constitutional requirement that all legislative power “be vested in a General Assembly” [Pa. Const. art. II, § 1]. The majority added that in spite of the severability clause found within the Pennsylvania Workers’ Compensation Act (“the Act”) [77 P.S. § 1022], Section 306(a.2) was “a paradigmatic example of a law containing valid provisions that are inseparable from void provisions” [2017 Pa. LEXIS 1401]. Accordingly, the majority struck Section 306(a.2), in its entirety, from the Act.

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Kentucky IME May Use Clinical Skill and Judgment in Construing AMA Guides

Where an independent medical evaluator concluded that the active range of motion (ROM) measurements she obtained from an injured worker were implausible, indicative of poor effort, and insufficient to verify that an impairment of a certain magnitude existed, the physician could utilize passive ROM measurements as a part of her overall assessment of the impairment to the worker’s right shoulder [Cunningham v. Quad/Graphics, Inc., 2017 Ky. App. LEXIS 268 (June 16, 2017)].

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Ouch!: Live-in New York Domestic Worker’s Cut Finger Results in $86,000 Penalty To Employing Husband and Wife

In Matter of Castillo v Brown, 2017 N.Y. App. Div. LEXIS 4839 (June 15, 2017), a New York appellate court affirmed the imposition of an $86,000 penalty against a husband and wife who employed a live-in domestic to perform housekeeping and child care duties, but failed to maintain workers’ compensation insurance. The worker cut her hand on a broken piece of glass while washing dishes. Following hearings before a WCLJ, the worker’s case was established and she was awarded benefits. In addition, the WCLJ assessed a penalty of $86,000, pursuant to N.Y. Work. Comp. Law § 26-a(2)(b). Continue reading

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