Illinois Court Says “Ordinary” Reaching Activity is Nevertheless Risk of Employment

Acknowledging that there are three categories of risk to which an employee may be exposed: (1) risks distinctly associated with her employment; (2) personal risks; and (3) neutral risks which have no particular employment or personal characteristics, an Illinois appellate court recently held that a parts inspector’s action of reaching into a long, narrow box to retrieve a small part was a risk associated with the employment and a shoulder injury that occurred as a result of the inspector’s action arose from the employment in spite of the fact that the same sort of activity was relatively common among the general public [ Young v. Illinois Workers’ Comp. Comm’n, 2014 IL App (4th) 130392WC, 2014 Ill. App. LEXIS 498 (July 7, 2014)]. Reversing a decision by the circuit court that had in turn affirmed a decision of the state’s Industrial Commission denying workers’ compensation benefits in the case, the court held an earlier finding that the inspector had only been exposed to a neutral risk was against the manifest weight of the evidence.

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New York Court Affirms PTSD Award to Physician’s Assistant Threatened by Surgeon During Surgical Procedure

A New York appellate court has affirmed a decision of the state’s Workers’ Compensation Board that awarded workers compensation benefits for a stress-related injury sustained by a cardiothoracic physician’s assistant (“PA”) who contended she was threatened with physical violence by a surgeon during an hours-long procedure in the operating room [Lucke v. Ellis Hosp., 2014 N.Y. App. Div. LEXIS 4924 (July 3, 2014)]. The PA sought psychiatric treatment shortly thereafter and filed a claim for PTSD and adjustment disorder. Following a hearing, the Workers’ Compensation Board concluded that claimant had sustained a compensable injury due to work-related stress.

The employer contended that the surgeon’s verbal threat could not have given rise to a compensable stress claim, noting mitigating factors such as the presence of others in the operating room and the PA’s familiarity with the surgeon’s “difficult” personality. Acknowledging that in New York, in order for a mental injury premised on work-related stress to be compensable, the stress must be greater than that which usually occurs in the normal work environment, the appellate court indicated the Board’s decision was supported by the evidence. The Board found that threats of physical violence made by the surgeon constituted greater stress than that which normally occurs in similar work environments. The court said it could not “reject the Board’s choice simply because a contrary determination would have been reasonable.”

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Ohio: Trouble-Maker Fails to Prove Discharge Was Because of Workers’ Compensation Claims

Acknowledging that two employees who had been embroiled in a shouting match during the work day had been treated different by the employer–the employee who apparently started the argument received a verbal warning which, under union rules, was not considered formal discipline, while the other employee, who was yelled at and spit upon, was fired, an Illinois appellate court recently held that while such disparate treatment implied that “something else” came into play to trigger the employee’s discharge, the discharged employee had failed to show that the reason was related to the number of workers’ compensation claims that the discharged employee had filed against the employer [Perri v. The Sutphen Corp., 2014-Ohio–2795; 2014 Ohio App. LEXIS 2736 (June 26, 2014)].  Continue reading

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Illinois: Tort Action Against Employer Not Barred Where Workers’ Comp Claim Was Time-Barred Before Employee Ever Learned of It

In a case of first impression, an Illinois appellate court, reversing a decision by a state trial court, has ruled that neither the exclusive remedy provisions of the Illinois Workers’ Compensation Act (“the Act”) nor those of the Workers’ Compensation Diseases Act (“the Diseases Act”) bar a former employee from maintaining a civil action against the former employer where the employee became aware he had contracted the occupational disease–here asbestosis–after the expiration of the statute of repose under those acts [Folta v. Ferro Eng’g, 2014 Ill. App. LEXIS 444 (June 27, 2014)]. The former employee, who was diagnosed with peritoneal mesothelioma 41 years after leaving the employ of Ferro Engineering, could not pursue an asbestos-related workers’ compensation claim because the claim was time-barred by the Act’s 25-year statute of repose for asbestos-related injuries and the three-year statute of repose for asbestos-related diseases under the Diseases Act.  Continue reading

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Oooops! In Ruling on Collateral Estoppel Issue, What Does a Court Do if Its Earlier Decision Was Actually Wrong?

In what is likely the last few days of the current term of the United States Supreme Court, an army of prognosticators are looking up from their tea leaves into television network cameras as they compete to relate their predictions for the few remaining cases. Speculation abounds. As accustomed as we are to the prophesies by television’s talking heads, we can forget that sometimes in a diversity action a federal court has to do much the same thing–predict how a state court would decide a heretofore unlitigated issue. Sometimes the federal court–like the so-called legal experts–gets it wrong. When the reporter misses the mark, no real harm is done. When the federal court misses its prediction, however, the consequences to one or both of the parties can be significant.

Consider, for example, a recent decision from a federal district court in Missouri, Ideker v. PPG Indus., Inc., 2014 U.S. Dist. LEXIS 165 (W.D., Mo. Jan. 2, 2014), which is currently on appeal before the Eighth Circuit Court of Appeals (defendant, Harley-Davidson Inc. filed its appellate brief a few days ago). In an early January 2014 order, the federal district court held that notwithstanding the fact that its dismissal of an earlier-filed, similar civil action by the same plaintiff had been based upon the court’s erroneous prediction as to how Missouri courts would decide a workers’ compensation exclusive remedy issue, the doctrine of collateral estoppel nevertheless bound the plaintiff to the results of the court’s previous incorrect decision. The result is that the plaintiff lost her right to seek negligence damages against her employer for alleged exposure to benzene.  Continue reading

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Florida Court Says PTSD Patient’s Ability to Communicate Directly With Psychologist is Not “Medical Necessity”

What if an injured worker was legally prevented from discussing his or her medical condition directly with the worker’s doctor, if the worker was required instead to listen to the doctor’s questions relayed to him or her by a third party, with whom the worker had little or no prior contact and then utter his or her response not to the ear of the doctor responsible for treatment, but instead to that of a third party, with only the hope that any nuance in the worker’s message would be understood by the medically untrained intermediary and then appropriately communicated to the doctor? What if the worker’s medical condition wasn’t some rather objective condition like a broken femur, a laceration of the foot, or a herniated disc, but rather a difficult to diagnose subjective mental condition like PTSD?

A divided Florida appellate court, in Trejo-Perez v. Arry’s Roofing, 2014 Fla. App. LEXIS 8384 (1st DCA, June 3, 2014), recently said that if all the above happened to a Florida injured worker–no big deal–even if the uncontroverted medical evidence in the case indicated the worker would be much better served if he could directly communicate with the medical professional.  Continue reading

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NFL Free Agent Injured in Minicamp Tryout Has No Comp Claim

A National Football League “free agent,” who had been released from his contract by the Philadelphia Eagles and who agreed, along with 15 other free agents, to attend a three-day minicamp tryout with the Seattle Seahawks, was not an employee of the Seahawks when he sustained a knee injury during the tryouts and, therefore, could not recover benefits under Washington’s workers’ compensation law, held a state appellate court recently in Robinson v. Department of Labor and Indus., 2014 Wash. App. LEXIS 1316 (May 27, 2014).  Continue reading

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Wisconsin Lawyer’s Poker Playing and “Rainmaking” Insufficiently Connected to Employment to Support Serious Injury Claim from Motorcyle Accident

An attorney and shareholder of a law firm was appropriately denied workers’ compensation benefits in connection with a motorcycle accident that rendered him a quadriplegic, since his “rainmaking” activities was insufficiently connected to his employment to bring the accident within the course and scope of his employment, held a Wisconsin appellate court recently in Westerhof v. State Labor and Industry Review Comm’n, 2014 Wisc. App. LEXIS 410 (May 22, 2014). The attorney contended that he had joined a weekly poker group as part of his overall marketing strategy, that the group was made up of small business owners, including a real estate appraiser, and that at the time of the motorcycle accident, he had been accompanying the appraiser to a gathering of Harley-Davidson enthusiasts. Since the attorney’s pay at the firm was based on two components–“actual work performed” and “clients brought into the firm regardless of who perform[ed] the legal work,” the attorney contended his rainmaking activities were within the course and scope of the employment. The Commission disagreed and denied his claim.  Continue reading

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Wyoming Court Says Division’s Rule Setting Arbitrary Limitation on TTD Benefits Is Invalid

Wyo. Stat. Ann. § 27–14–404 limits awards of TTD benefits to twenty-four months, but gives the Wyoming Worker’s Safety and Compensation Division (the Division) discretionary authority to extend the time for those benefits in the event of “extraordinary circumstances.” The Division adopted a rule [Chapter 7, Section 2(b) of the Division rules] limiting any such extension of TTD benefits to a maximum of twelve months. After receiving the statutory maximum and the additional twelve months, the injured employee sought additional TTD benefits, which the Division denied. She filed a declaratory judgment action asking the district court to hold that the Division exceeded its authority when it limited the extension to twelve months. The district court concluded the Division indeed had exceeded its authority when it adopted a rule limiting TTD benefits to a total of thirty-six months under any circumstances and the Division appealed.

The appellate court, in State ex rel. Workforce Servs. v. Clements, 2014 WY 68, 2014 Wyo. LEXIS 72 (May 29, 2014) affirmed, indicating that the plain and ordinary meaning of the words used in the statute did not suggest that the legislature intended the Division to set a limit on TTD benefits, after which no TTD benefits could be awarded, no matter what the circumstances. The Division was wholly without power to modify, dilute or change in any way the statutory provisions from which it derived its authority.

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Virginia Court: “Firefighter’s Presumption” Requires Showing of Entitlement to Some Form of Economic Indemnity

Virginia, like a number of other states [see the discussion in Larson’s Workers’ Compensation Law, § 52.07], has a special presumption favoring firefighters (and police officers) as to death or disability from respiratory disease, hypertension or heart disease, and cancer :

Hypertension or heart disease causing the death of, or any health condition or impairment resulting in total or partial disability of (i) salaried or volunteer firefighters, … shall be presumed to be occupational diseases, suffered in the line of duty, that are covered by this title unless such presumption is overcome by a preponderance of competent evidence to the contrary.

Va. Code Ann. § 65.2–402.

The Court of Appeals of Virginia, in Lipscomb v. City of Lynchburg, 2014 Va. App. LEXIS 210 (May 27, 2014), held that while a retired firefighter-medic was not required to show an actual loss of earnings resulting from his claimed heart condition, he was nevertheless required to show entitlement to “some form of economic indemnity” in order to receive the benefit of the presumption. In its opinion, designated “not for publication,” the Court of Appeals indicated that absent a showing of actual lost wages, a claimant could prove such entitlement through evidence of the loss of earning capacity or opportunity. The court added that in the instant case while the retired firefighter provided evidence that he was physically incapacitated during three days of hospitalization, he had not demonstrated any entitlement to economic indemnity for his physical incapacitation.  Continue reading

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