How One State Bucked Trend of Allowing Former Spouse to Access Post-Divorce Workers’ Comp Benefits

With the divorce rate for U.S. marriages hovering at almost 50 percent, courts and legislatures are called upon to weigh two conflicting rules related to workers’ compensation benefits when it comes to the appropriate division of marital property. One the one hand, the personal nature of the benefits generally results in their being nonassignable under the typical act and generally beyond the reach of creditors. On the other hand, an important rationale for the workers’ compensation bargain in the first place was the protection of some modest level of income flow for those dependent upon the employee for their health, education and welfare. Why should the divorcing employee be freed from that obligation? As discussed in the state survey chart below, the strong recent trend among jurisdictions is to characterize the spouse and dependent children as something other than mere “creditors” and, therefore, to allow workers’ compensation benefits to be reached, at least in some instances, for the benefit of persons, such as spouses, children, or even former spouses, to whom the injured employee has an obligation to support [see Larson’s Workers’ Compensation Law, § 89.08]. A recent Washington case, In re Marriage of Persinger, 2015 Wash. App. LEXIS 1382 (June 30, 2015), bucks the trend, however, finding a couple’s 50–50 split of the husband’s pending, yet unliquidated, workers’ compensation claim void.

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New Mexico Court Finds State’s “Farm and Ranch Laborer” Exclusion Unconstitutional

In Rodriguez v. Brand West Dairy, 2015 N.M. App. LEXIS 69 (June 22, 2015), a divided Court of Appeals of New Mexico recently held that the exclusion of coverage afforded to employers of farm and ranch laborers [N.M. Stat. Ann. § 52–1–6(A)], violates the affected workers’ rights to equal protection under the New Mexico Constitution.  Continue reading

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Florida Appellate Court Throws Out Judge Cueto’s “Padgett” Decision on Procedural Grounds

Earlier today (June 24th), Florida’s Third District Court of Appeal reversed and completely repudiated the decision of Judge Jorge E. Cueto, Circuit Court for Miami-Dade County, that had, on August 19, 2014, held the exclusive remedy provision of the state’s Workers’ Compensation Law [Fla. Stat. § 440.11] was unconstitutional [see State of Florida v. Florida Workers’ Advocates, et al., Case No. 3D14-2062, Lower Tribunal No. 11-13661, 2015 Fla. App. LEXIS 9531 (“Padgett”)]. Noting that the initial claims and parties in the case at its inception in 2011 were “transformed” by the present appellants and their counsel into a “completely different set of claims and parties” over the three years that followed, the Court said that in the process, the case lost:

  1. the essential elements of a justiciable “case or controversy,”
  2. an identifiable and properly-joined defendant, and
  3. a procedurally proper vehicle for the trial court’s assessment of the constitutionality of § 440.11.

That’s, of course, what happens when a trial judge insists that a case move forward against an empty chair.

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Maryland: Electronic Submission of Claim Does Not Toll Statute of Limitations

In Hranicka v. Chesapeake Surgical, Ltd., 2015 Md. LEXIS 413 (June 18, 2015), the Court of Appeals of Maryland held that an employee’s claim was time-barred under Md. Code Ann., Lab. & Empl. § 9–709(b)(3) where the claim was electronically submitted to the Commission before expiration of the two-year limitations period, but not filed on paper with the Commission until after expiration of the two-year period. Stated otherwise, the Court held that, under the relevant statutes and regulations, electronic submission of a claim does not constitute “filing” pursuant to Code of Maryland Regulations (“COMAR”) 14.09.02.02A, and the Commission erred in ruling that the filing date of a claim could, for purposes of the statute of limitations, be the date of the claim’s electronic submission. A claim that is submitted electronically is not considered filed until the signed claim form is received by the Commission.

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Colorado High Court Ok’s Firing of Worker For State-Authorized Use of Medical Marijuana

Earlier today, the Supreme Court of Colorado, affirming a split decision of the state’s Court of Appeals, held that under the plain language of Colo. Rev. Stat. § 24–34–402.5, Colorado’s “lawful activities statute,” the term “lawful” refers only to those activities that are lawful under both state and federal law [Coats v. Dish Network, 2015 CO 44 (June 15, 2015)]. Employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are accordingly not protected by the statute.

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Iowa Court Affirms Rejection of “Uncontradicted” Expert Testimony

An commissioner’s award of permanent total disability benefits to an HVAC employee who claimed he suffered an electric shock while servicing a unit at a customer’s residence was supported by substantial evidence in spite of the fact that the employer presented what it contended was uncontroverted expert evidence that no such shock could have occurred, held an Iowa court recently [H.J. Heating & Cooling v. Dahlen, 2015 Iowa App. LEXIS 499 (June 10, 2015)]. The court agreed that the expert testimony had not been controverted by expert testimony provided by any of the employee’s witnesses, but the court indicated the commissioner had provided detailed reasons for rejecting the employer’s expert and, under the circumstances, the commissioner was free to accept or reject an expert’s opinion in whole or in part.

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Ohio Worker Injured Having “Kick Ass Time” May Not Sue Co-Worker

An Ohio restaurant employee may not pursue a negligence action against a co-worker for personal injuries sustained in a golf cart accident that occurred on an island resort where the women, along with other co-workers, attended their employer’s “Kitchen Managers University” [Sims v. Marren, 2015-Ohio–2232, 2015 Ohio App. LEXIS 2148 (June 5, 2015)]. The accident occurred as the plaintiff and others were riding in a golf cart driven by the defendant employee. Heading toward a bar to continue their revelry—most, if not all in the group had already consumed multiple drinks—the defendant apparently made a sudden swerve, causing the cart to turn over, pinning the plaintiff’s leg underneath. The plaintiff suffered a severe ankle break. The plaintiff sued the defendant, among others, claiming defendant’s negligent actions caused injury.

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Arkansas Truck Driver’s Fatal Injuries Sustained While Crossing Street After Break Are Compensable

An Arkansas tanker-truck driver sustained an injury arising out of and in the course of the employment when he was struck by a vehicle as the truck driver exited a convenience store and attempted to cross a five-lane road to return to his parked truck, held a state appellate court [Razorback Concrete v. Perkins, 2015 Ark. App. 368, 2015 Ark. App. LEXIS 449 (June 3, 2015)]. The court made the determination in spite of the state’s relatively restrictive court rulings that a compensable injury does not include one that is inflicted on an employee at a time when “employment services” are not being performed.

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South Dakota: Horseplay Injury During Lull In Workday Found Compensable

Applying the four Larson factors to determine whether an act of horseplay was or was not a substantial deviation from the employment [see Larson’s Workers’ Compensation Law, § 23.01], the Supreme Court of South Dakota recently reversed a decision of a circuit court that had affirmed a denial by the state’s Department of Labor of workers’ compensation benefits to a worker who sustained a broken leg when he attempted to jump over a trench while running through a construction site [Petrik v. JJ Concrete, Inc., 2015 S.D. 39 (June 3, 2015)]. Acknowledging that the facts of the case presented a close question on whether the employee’s horseplay was a substantial deviation, the Court emphasized that where, as in the instant case, there was an enforced lull in the work, there was in a real sense no work to abandon.

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Florida Court Says Judge Should Have Disqualified Himself For Bias

In Kline v. JRD Management Corp., 2015 Fla. App. LEXIS 8364 (1st DCA, June 2, 2015), a Florida appellate court recently held that a judge of compensation claims (“JCC”) erred in denying a claimant’s motion to disqualify himself because of statements and findings the judge had made in an unrelated case concerning the claimant’s attorney. In that earlier case, the JCC entered an order imposing sanctions against the claimant’s attorney for his conduct in pursuit of a claimant-paid attorney’s fee. In the JCC’s order, the judge found that the attorney had made “false and misleading written statements” and indicated the attorney had a “willful and conscious intent” to overcharge for legal services. The JCC also expressly stated that he believed the attorney had conducted himself similarly in other cases, though the claimant alleged no such case was actually before the JCC. Based on these findings, the JCC had referred claimant’s attorney to The Florida Bar for joinder in an existing ethics complaint and to the fraud division at DFS for further investigation for what was, in the JCC’s opinion, a violation of § 440.105(3)(c), Fla. Stat.—a misdemeanor of the first degree.  Continue reading

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