I’ve Written a New Book from the “Other Side” of my Life

I am pleased to announce the recent publication of my new book entitled, Questions of Faith: Encountering Christ at the Point of Doubt and Confusion [Mazarin Press, Raleigh, NC; additional details below]. The title and subject matter may surprise many of you, since only a handful of my “workers’ comp” colleagues would know that for the past 32 years, I have not so delicately balanced an active professional “secular” life in legal scholarship with the sacred.

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Nevada Casino Employee’s Tort Action Against Employer for Delaying Stroke Treatment is Barred by Exclusivity

A housekeeping employee at a Las Vegas casino, who suffered a stroke just prior to the beginning of his work shift, and who contended his medical condition was exacerbated when his employer failed to seek special medical assistance within a “golden window” of diagnostic and treatment opportunity, may not maintain a civil action against the employer to recovery his alleged damages, held the Supreme Court of Nevada [Baiguen v. Harrah’s Las Vegas, 2018 Nev. LEXIS 70 (Sept. 13, 2018)]. The employee’s tort action is barred by the exclusive remedy provisions of the Nevada Industrial Insurance Act (“the Act”) and the trial court acted appropriately when it granted the employer summary judgment.

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Oklahoma Claimant Awarded Additional Benefits After Freak Accident at Medical Facility

If It Weren’t For Bad Luck, She’d Have No Luck at All

An Oklahoma workers’ compensation claimant is entitled to additional benefits following a bizarre incident in which she sustained further injuries to her knee in 2012 at a medical facility to which she had gone for treatment of a 2008 work-related injury [City of Tulsa v. Hodge, 2018 OK 65, 2018 Okla. LEXIS 68 (Sept. 11, 2018)]. The claimant, who had just received a steroid epidural injection to the cervical spine, was still under partial sedation when medical personnel placed her in a wheelchair to move her to the facility’s recovery area. The wheelchair had no foot rests. As they pushed her along, her feet drug on the tile floor and her knees went underneath the wheelchair, causing it to suddenly stop. The claimant was thrown forward, resulting in severe twisting to her knees and additional trauma to her spine.

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NC Worker’s Tort Claim Against Insurer for Malicious Prosecution May Move Forward

While a workers’ compensation insurer generally enjoys the same sort of immunity from tort liability afforded the employer [see Larson’s Workers’ Compensation Law, § 100.01], there are limits to that immunity. A decision issued Tuesday illustrates those limits. There, the Court of Appeals of North Carolina agreed that a plaintiff had stated a cause of action for malicious prosecution, abuse of process, Unfair and Deceptive Trade Practices, and punitive damages against an insurer that allegedly provided false information to local police, who subsequently charged the plaintiff/injured worker with insurance fraud, resulting in his arrest, temporary incarceration, and indictment on felony charges [Seguro-Suaraez v. Key Risk Inc. Co., 2018 N.C. App. LEXIS 888 (Sept. 4, 2018)].

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Maryland Cab Driver’s “Misclassification” Action Appropriately Dismissed

Misclassification of Workers is not Recognized as independent Tort

A Maryland cab driver, who sustained injuries in a work-related auto accident, may not maintain a civil action against the cab company for “independent contractor misclassification,” held a state appellate court recently [Awah v. Barwood, Inc., 2018 Md. App. LEXIS 853 (Aug. 31, 2018)].

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Recent Kansas AMA Guides Decision: Would the Court Prefer a Fault-Based System?

Jettisoning the Bath Water—Does the Baby Remain?

As someone who has, for the past 32 years, earned the bulk of his living reading—I’ll admit, often only skimming—some 2,500 appellate decisions each year in our field of workers’ compensation law, and commenting (in some form and fashion) upon, say 700 of them, I appreciate it when a judge or justice takes the time to write an imaginative opinion. One such opinion was penned recently by Judge Patrick McAnany, of the Kansas Court of Appeals, in Johnson v. U.S. Food Serv., No. 117,725, 2018 Kan. App. LEXIS 44 (Aug. 3, 2018). McAnany’s carefully crafted opinion employs rich metaphor—“death by a thousand paper cuts” [Opinion ¶ 22]. It also references comedic cinema—Monty Python’s famous “Black Knight” scene. Judge McAnany’s nod to powerful stage drama—Arthur Miller’s Death of a Salesman, has me wondering, however, if the judge might prefer that we jettison the entire workers’ compensation scheme and just move back to the days in which standard tort law governed the world of work-related injuries. If we throw out the proverbial bath water, what happens to the baby? Let me explain.

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Kansas Court Strikes Down Use of AMA Guides 6th Ed.

Decision Reinstates 4th Edition for Workers’ Comp Disputes

In a decision that quotes, among other authority, Linda Loman, wife of Willy Loman, of Arthur Miller’s Death of a Salesman, the Court of Appeals of Kansas earlier today struck down as unconstitutional the use of the 6th Edition of the AMA Guides for measuring permanent impairment of injured workers under the state’s Workers’ Compensation Act (“the Act”) [Johnson v. U.S. Food Serv., No. 117,725, 2018 Kan. App. LEXIS 44 (Aug. 3, 2018)]. Continue reading

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Alabama Accountant’s Fatal Shooting by Disgruntled Former Client Found Compensable

In a case with a bizarre fact pattern, an Alabama appellate court affirmed an award of workers’ compensation death benefits to the surviving spouse of an accountant who was stalked and then shot to death because her assailant blamed the accountant for tax problems in his business [Lawler & Cole CPAs, LLC v. Cole, 2018 Ala. Civ. App. LEXIS 115 (July 13, 2018)]. Construing Ala. Code § 25-5-1(9) and relevant case law, the appellate court agreed that the murder, although an intentional act on the part of the murderer, amounted to an accidental injury (death) arising out of the employment.

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The Real Reason LeBron is Moving to the Lakers!

There are some who point out that LeBron is getting ready to pay the highest taxes in his life (with a $154 million contract, he can afford it), that he should have gone to one of the Florida or Texas teams to maximize his economic take, but I think I’ve unearthed the real reason LeBron is moving to the Lakers: He’s solidifying the jurisdictional issues regarding any potential workers compensation claim for repetitive motion injuries. As many of us know, California is a haven for professional athletes when it comes to comp claims — don’t think indemnity, remember lifetime medical benefits. Some athletes from teams outside of California, however, have been unsuccessful based on rulings that they have had insufficient contact within the Golden State. Playing a season or two in L.A. will make LeBron’s claim easy to file (let me know if you can’t feel me pulling on your leg).

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Oklahoma High Court OKs Use of “Current Edition” of AMA Guides

Conflict with PA’s Protz Decision is Only on the Surface

The sections of Oklahoma’s Administrative Workers’ Compensation Act (AWCA) that require use of the “current edition” of the AMA’s Guides to the Evaluation of Permanent Impairment to determine PPD do not violate the Constitution, held a divided Supreme Court of Oklahoma on Tuesday, in Hill v. American Medical Response, 2018 OK 57 (June 26, 2018). At first blush, the decision would appear to be in total conflict with that of the Pennsylvania Supreme Court last year in Protz v. Workers’ Comp. Appeal Bd. (Derry Area School Dist.), 161 A.3d 827 (Penn. 2017), which generally held that the use of similar language in the Keystone State’s Act constituted an unconstitutional delegation of legislative authority to the AMA. A close reading of the majority opinion shows, however, a considerable level of consistency in the reasoning applied by the majorities of the two state supreme courts. Continue reading

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