Kansas Court of Appeals Jettisons 82-Year-Old Supreme Court Precedent

Employer’s Payment of Medical Charges Revives Expired Statute of Limitations

Reversing the state’s Workers’ Compensation Board, which had relied upon what it thought was established precedent (i.e., a 1936 decision by the state’s Supreme Court), a Kansas appellate court recently ruled that nothing within the plain language of Kan. Stat. Ann. § 44-534(b) prevents a revival of an expired two-year statute of limitations to file an application for a hearing, where the employer makes a payment of compensation to the employee. Accordingly, the appellate court held that where a firefighter for the City of Lawrence filed a claim for benefits more than six years after his original work-related injury—but within two years of the City’s payment of medical charges related to the firefighter’s chronic back condition—the Commission erred when it found the claim was untimely filed [Schneider v. City of Lawrence, 2019 Kan. App. LEXIS 9 (Feb. 8, 2019)].

Continue reading

Posted in Case comment | Tagged , , , | Leave a comment

Virginia Worker’s “Short-Cut” Results in Denial of Benefits

Violation of Known Safety Rule Prevents Recovery for Injuries

A decision to enter a fenced area at the employer’s facility through an unapproved opening, instead of through the approved interlock gate that would have deactivated machinery inside the fence, proved costly for a team leader at a commercial laundry, held a Virginia appellate court. The Court affirmed a finding by the state’s Workers’ Compensation Commission that the employee’s action constituted a violation of a known safety rule, that the violation was the proximate cause of his subsequent serious injury to a leg, and that the worker, therefore, could not recover workers’ compensation benefits [Jones v. Crothall Laundry, 2019 Va. App. LEXIS 35 (Feb. 12, 2019)]. Continue reading

Posted in Case comment | Tagged , , | Leave a comment

Virginia Court Affirms Professional Football Tryout’s AWW of $783.63

Potential $435K Annual Compensation Under Standard Contract Deemed Too Contingent

The Court of Appeals of Virginia recently affirmed a determination by the state’s Workers’ Compensation Commission that fixed a professional football player’s average weekly wage at $783.63, despite the terms of the NFL’s standard contract, under which the player might have been paid as much as $435,000 for the team’s 17-week schedule [Jones v. Pro-Football, Inc., 2019 Va. App. LEXIS 31 (Feb. 12, 2019)]. The AWW determination was important, since it meant the former player received only $522.42 per week, for a period of 20 weeks, for his 10 percent permanent partial disability to the right arm (shoulder separation). Continue reading

Posted in Case comment | Tagged , , , , | Leave a comment

Virginia Commission Should Have Considered Employment-Related Risks of Assault

Where an overnight attendant at a rest area was stabbed in the face by a former co-worker whose motive could not be determined—the assailant committed suicide later the same day—the attendant might still prevail on his workers’ compensation claim if he could show that the employment placed him at a greater risk of assault than the general public, held the state’s Court of Appeals [King v. DTH Contract Servs., 2019 Va. App. LEXIS 26 (Feb. 5, 2019)]. The Court acknowledged that the attendant had the burden of showing that his injuries arose out of and in the course of the employment, but noted the Commission had failed to consider the entire range of possibilities.

Continue reading

Posted in Case comment | Tagged , , , , | Leave a comment

Arizona High Court Says Nebraska Law Prevents Absolute Assignment of Injured Worker’s Third-Party Claim

Dueling Statutes: Which State’s Subrogation Law Should Apply?

Variables within America’s mobile economy often produce complex choice of law issues, particularly when it comes to employer/insurer subrogation interests. For example, some states (e.g., Arizona), provide for absolute assignment (to the employer/insurer) of the injured worker’s cause of action against negligent third parties if the worker fails to file suit within a specified time period [see Ariz. Rev. Stat. § 23-1023(B)/one year], while others do not [see Larson’s Workers’ Compensation Law, § 116.01, et seq.]. Illustrating the complexity of balancing the choice of law issues, the Supreme Court of Arizona recently held that in as much as workers’ compensation benefits had been paid pursuant to Nebraska law, that state’s subrogation rules—not those for Arizona—controlled whether a worker, who sustained injuries in a work-related Arizona vehicle crash, had an interest in a last-minute, third-party action filed—in an Arizona trial court—by the employee against an allegedly negligent driver [Jackson v. Eagle KMC L.L.C., 431 P.3d 1197 (Jan. 2, 2019)].

Continue reading

Posted in Case comment | Tagged , , , , , | 2 Comments

Tennessee: No Compensable Claim Where Employer Failed to Use On-Site Defibrillator

The Supreme Court of Tennessee, reversing a decision of a state trial court, held that an employer who failed to use an automated external defibrillator (AED) to assist an employee who suffered a non-work related medical emergency, cannot be liable for workers’ compensation benefits [Chaney v. Team Techs., 2019 Tenn. LEXIS 20 (Jan. 31, 2019)]. The Court acknowledged that under the state’s emergency doctrine, an employer could sometimes be liable for benefits if it failed to render reasonable medical aid to an employee who had become helpless at work, but found that the doctrine could not be extended to require an employer to utilize an AED, particularly since the employer here had summoned emergency medical responders.

Continue reading

Posted in Case comment | Tagged , , , , , | Leave a comment

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.”

Continue reading

Posted in Case comment | Tagged , , , | Comments Off on Husband/Wife Bakery Ends Up With Two Policies; Insurers Must Split Cost of Death Claim

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.

Continue reading

Posted in Case comment | Tagged , , , | Comments Off on Florida Comp Act’s Drug-Free Workplace Program Statute Provides no Private Right of Action

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.

Continue reading

Posted in Case comment | Tagged , , , , , | Comments Off on Kentucky Considers PTSD Benefits—but Only for First Responders

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

Posted in Uncategorized | Tagged , , , , , | Comments Off on The Top 10 Bizarre Workers’ Comp Cases for 2018