New York: Apportionment Inappropriate Where 1981 Injury Remained Symptomatic But Was Not Disabling

Where Claimant sustained a severe sprain to his right shoulder while working as a police officer in 1981 and returned to work without any schedule of loss (“SLU”) or other permanency related to that injury and again suffered a right shoulder injury in 2009, some 28 years later and some 20 years after Claimant left law enforcement for personal reasons, it was inappropriate to apportion any SLU that existed after the 2009 injury to Claimant’s preexisting conditions where the shoulder condition was symptomatic over the time period but was not disabling [see Levitsky v. Garden Time, Inc., 2015 N.Y. App. Div. LEXIS 2570 (3rd Dep’t, Mar. 26, 2015)]. Continue reading

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New York: Long-Term Exposure to Cold Found Insufficient to Support Occupational Disease Claim

A state park grounds-keeper, who worked outside—often in cold conditions—for more than 35 years, and who developed a diabetic ulceration with a secondary formation of osteomyelitis—an infection in a bone of his right foot—which required surgery and, later, partial amputation of his right foot, did not establish a claim for causally related occupational disease, held a New York appellate court [see Phelan v. Bethpage St. Park, 2015 N.Y. App. LEXIS 2577 (Mar. 26, 2015)].

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Pennsylvania Nurse Due Partial Benefits Because of Allergy to Hospital Floor Wax

Where a registered nurse suffered multiple allergic attacks caused by exposure to a chemical component of a floor wax product used by the hospital employing her, she was entitled to ongoing partial disability benefits in spite of the fact that she had no further signs or symptoms of respiratory disease, held a Pennsylvania appellate court in Little v. Workers’ Comp. Appeal Bd. (Select Specialty Hosp.), 2015 Pa. Commw. LEXIS 121 (Mar. 25, 2015).  Continue reading

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Surveillance Video Sinks Ohio Claimant’s Odd-Lot Claim

Surveillance video spanning a period of almost three years that showed that the claimant, a former dockworker and truck driver, engaged in numerous physical activities, including riding a motorcycle, attending football games, yard work, and some lifting and bending activities supported the Commission’s findings that the worker was not permanently and totally disabled under an odd-lot theory, held an Illinois appellate court [Lenhart v. Illinois Workers’ Comp. Comm’n, 2015 IL App (3d) 130743WC, 2015 Ill. App. LEXIS 188 (Mar. 20, 2015)]. Noting that one doctor, after viewing the video, concluded that the claimant could return to work with a 25-pound lifting restriction, the court found that although the claimant was entitled to a wage differential award—he suffered a partial incapacity that prevented him from pursuing his usual and customary line of employment—he could not recover PTD indemnity. Continue reading

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South Carolina Supreme Court Says Exotic Dancer Was an Employee of Nightclub

In a split decision, the Supreme Court of South Carolina, reversing a majority decision by the state’s Court of Appeals, held that an exotic dancer was an employee—not an independent contractor—of a nightclub and that she was, therefore, entitled to workers’ compensation benefits for injuries she sustained when she was hit by an errant bullet during an altercation at the club [Lewis v. L.B. Dynasty, 2015 S.C. LEXIS 118 (Mar. 18, 2015)]. Acknowledging that the burden of proving the relationship of employer and employee was upon the claimant, the majority held the evidence showed the club had sufficient right to control the claimant-dancer’s activities so as to create an employment relationship.

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Sunny Greetings from Isle of Palms, SC

Earlier today I had the pleasure of speaking at a “Spring Seminar” sponsored by Injured Workers’ Advocates, a group of South Carolina claimants’ attorneys who have gathered at the Isle of Palms resort near Charleston, SC for a few days of fun, sun, and CLE. Particularly today, the weather is exquisite. And while folks in the Palmetto State can’t necessarily match the fervor for college basketball enjoyed by my neighbors who live along Tobacco Road (Raleigh-Durham-Chapel Hill)—Go Devils!—there’s still plenty of excitement here related to yesterday’s bracket breakers in the 2015 men’s NCAA basketball tournament.

I spoke this morning on “opt outs,” providing an overview of the 2013 Oklahoma legislation that became effective February 1, 2014, and the somewhat similar/somewhat different bill that is currently pending in the Tennessee legislature. Rumor has it that additional opt out bills have been prepared and may soon be introduced in both North and South Carolina. I haven’t seen either proposal yet, so I’ll reserve judgment for if and when the bills are actually introduced.

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Colorado Employer and Carrier Need Not Disclose if They Made Gifts to State Comp Judges

A Colorado workers’ compensation insurer and an employer’s counsel need not respond to a discovery request made by a workers’ compensation claimant that they disclose whether any of them had given any gifts “of monetary value” to anyone working for the various offices administering and adjudicating the state’s workers compensation law, held a state appellate court [see Kilpatrick v. Industrial Claim Appeals Office, 2015 COA 30, 2015 Colo. App. LEXIS 348 (Mar. 12, 2015)]. The employer had declined to provide the information on the grounds that the request was overly burdensome and harassing. The claimant moved to compel, arguing that district court judges were required to disclose their financial contributions, while workers’ compensation prehearing administrative law judges (PALJs), administrative law judges (ALJs) and members of the Industrial Claim Appeals Office were not. The claimant responded that because he could not obtain the financial information “automatically” through public financial disclosure, his discovery request was the “only way to obtain this information.” The state appellate court, affirming the Industrial Claim Appeals Office, disagreed.

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Juries Will Decide if Uber and Lyft Drivers are Employees

Supplementing my earlier post, in separate rulings yesterday, both Uber and Lyft failed to satisfy United States District Court judges that their drivers are independent contractors and not employees [see Cotter v. Lyft Inc., 13-cv–04065, and O’Connor v. Uber Technologies Inc., 13-cv–03826, U.S. District Court, N.D. Cal.- San Francisco]. The result is that the technology firms will now have to convince juries that they do not exert sufficient control over the drivers so as to make them employees. If the juries find that the drivers are employees, Uber and Lyft (and perhaps other firms that have similar business models) will be required to pay employment taxes, provide workers’ compensation benefits, and be subjected to other California employment laws as well. Originally, the plaintiffs in both cases sought class certification on behalf of all drivers nationwide. Earlier, however, both courts ruled that the litigation should affect only California drivers.

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MN High Court Gives Math Lesson to Lower Court: “2/3 Does Not Equal 1/2”

Holding that the factual findings of a workers’ compensation judge were “self-contradictory,” the Supreme Court of Minnesota has, for the second time, reversed and remanded an award of benefits to an employee who fractured her ankle while traversing a staircase at her workplace [Arrowhead Senior Living Community v. Kainz, 2015 Minn. LEXIS 106 (Mar. 4, 2015)]. The case had earlier been reversed and remanded following the high court’s decision in Dykhoff v. Xcel Energy, 840 N.W.2d 821 (Minn. 2013), in which the Court found that an employee must show that her workplace exposed her to a risk of injury greater than that faced in her everyday life“—in other words, a ”special hazard.” 840 N.W.2d at 827.

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Tell-Tale Web Page on Employee’s Blackberry Spells Doom for South Dakota Comp Claim

An employee’s injuries sustained in a one-car auto accident while he drove down a dead-end road some 2.5 miles from his office did not arise out of and in the course of his employment in spite of some evidence that the employer often allowed its employees to attend to personal matters while on the clock, held the Supreme Court of South Dakota in Terveen v. South Dak. Dep’t of Transp., 2015 S.D. 10 (March 4, 2015). The employee worked as a journey transportation technician for the Department of Transportation and testified that he could not remember why he had driven down the road prior to the accident. The Court was unconvinced by the employee’s argument that the ten-minute detour was insubstantial, considering he had traveled 840 miles to and from Yankton, South Dakota that day on Department business.

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