Mississippi Officer’s High Speed Driving, Without Seatbelt, Did Not Amount to Willful Intent To Injure Himself

Although crash data indicated not only that a Mississippi patrol officer increased his speed steadlily from 53 mph to more than 90 mph in the twelve seconds prior to an accident, but that the officer was not wearing his seatbelt at the time of the accident—he sustained serious injuries when he was ejected from his vehicle—there was no credible evidence that the officer willfully acted with the intent to injure himself, held a Mississippi appellate court in City of Jackson v. Brown, 2017 Miss. App. LEXIS 382 (June 27, 2017). Accordingly, Miss. Code Ann. § 71–3–7(4) (Supp. 2016) did not bar his recovery of workers’ compensation benefits.

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Louisiana High Court Says Employer—Not Injured Employee—Has Right to Choose Pharmacy

Last Thursday, in a split decision, the Supreme Court of Louisiana held that the choice of pharmacy in a workers’ compensation case belongs to the employer, and not the employee [Burgess v. Sewerage & Water Bd. of New Orleans, 2017 La. LEXIS 1387 (June 29, 2017)]. Resolving a split in the state’s circuit courts of appeal, the Court acknowledged that La. Rev. Stat. § 23:1203 obligates an employer “to furnish all necessary drugs” to the injured employee. The statute did not, however, directly address who had the right to choose the pharmacy to dispense the drugs. The Court added that nowhere in the statute did the legislature provide the employee with the right to choose a pharmaceutical provider from which to obtain the necessary prescription drugs. By contrast, the legislature had specifically delegated to the employee the choice of physician [see La. Rev. Stat. § 23:1121(B)(1)]. The Court reasoned that had the legislature intended the employee to have the choice of pharmaceutical provider in § 23:1203(A), it could easily have done so.

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Rock and a Hard Place: Placing Injured Undocumented Worker on Unpaid Leave May Be Retaliatory Discharge

In a divided decision, the Supreme Court of Minnesota held that an injured undocumented worker had raised a genuine issue of material fact as to whether an employer had discharged him—and whether that discharge was motivated by the worker’s action of seeking workers’ compensation benefits—where the employer placed the worker on unpaid leave until the worker could show that his return to employment would not violate federal immigration law [Sanchez v. Dahlke Trailer Sales, 2017 Minn. LEXIS 372 (June 28, 2017)]. The Court also specifically found that federal immigration law does not preempt an undocumented worker’s claim for retaliatory discharge under Minn. Stat. § 176.82, subd. 1 (2016). Continue reading

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California: Apportionment Inappropriate Where PTD Results From Medical Treatment, Not the Underlying Condition

Where a California worker developed a number of conditions during her 26-year career with her employer, including carpal tunnel syndrome (CTS), which medical experts attributed 90 percent to industrial factors and 10 percent to nonindustrial factors, it was error for the state’s Workers’ Compensation Appeals Board to apportion the worker’s permanent total disability between the industrial and nonindustrial causes prior to issuing its award where the worker’s PTD was caused—not by her CTS—but by chronic regional pain syndrome (CRPS), resulting from a failed surgical intervention to treat the CTS [Hikida v. Workers’ Comp. Appeals Bd. (Costco Wholesale Corp.), 2017 Cal. App. LEXIS 572 (June 22, 2017)]. Continue reading

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California In-Home Caretaker Awarded Benefits for Injuries Sustained in Bicycle Accident

Observing that California’s “required vehicle” exception to the going and coming rule arises where the employee’s use of his or her own vehicle gives some incidental benefit to the employer, a state appellate court held that an in-home caretaker sustained injuries arising out of and in the course of her employment when she was struck and injured by a car as she rode her bicycle from one private home where she worked to another home where she was scheduled to work [Zhu v. Workers’ Comp. Appeals Bd. & Dep’t of Soc. Servs., 2017 Cal. App. LEXIS 564 (June 20, 2017)].

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Pennsylvania High Court Strikes Down Use of “Most Recent” AMA Guides

In a highly anticipated decision, Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 2017 Pa. LEXIS 1401 (June 20, 2017), a split Supreme Court of Pennsylvania yesterday held that the provision, found in Section 306(a.2) of the state’s Workers’ Compensation Act [77 P.S. § 511.2(1)], requiring physicians to apply the methodology set forth in “the most recent edition” of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), violates the state’s constitutional requirement that all legislative power “be vested in a General Assembly” [Pa. Const. art. II, § 1]. The majority added that in spite of the severability clause found within the Pennsylvania Workers’ Compensation Act (“the Act”) [77 P.S. § 1022], Section 306(a.2) was “a paradigmatic example of a law containing valid provisions that are inseparable from void provisions” [2017 Pa. LEXIS 1401]. Accordingly, the majority struck Section 306(a.2), in its entirety, from the Act.

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Kentucky IME May Use Clinical Skill and Judgment in Construing AMA Guides

Where an independent medical evaluator concluded that the active range of motion (ROM) measurements she obtained from an injured worker were implausible, indicative of poor effort, and insufficient to verify that an impairment of a certain magnitude existed, the physician could utilize passive ROM measurements as a part of her overall assessment of the impairment to the worker’s right shoulder [Cunningham v. Quad/Graphics, Inc., 2017 Ky. App. LEXIS 268 (June 16, 2017)].

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Ouch!: Live-in New York Domestic Worker’s Cut Finger Results in $86,000 Penalty To Employing Husband and Wife

In Matter of Castillo v Brown, 2017 N.Y. App. Div. LEXIS 4839 (June 15, 2017), a New York appellate court affirmed the imposition of an $86,000 penalty against a husband and wife who employed a live-in domestic to perform housekeeping and child care duties, but failed to maintain workers’ compensation insurance. The worker cut her hand on a broken piece of glass while washing dishes. Following hearings before a WCLJ, the worker’s case was established and she was awarded benefits. In addition, the WCLJ assessed a penalty of $86,000, pursuant to N.Y. Work. Comp. Law § 26-a(2)(b). Continue reading

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New York Church Volunteer’s Personal Injury Action Barred by Exclusive Remedy Rule

A church volunteer, who contended that she suffered injuries when she tripped and fell over an exposed power cord near or on the altar as she went to help distribute Communion, may not sue the church in tort as her civil action for negligence was barred by the exclusive remedy provisions of the New York Workers’ Compensation Law, held a state appellate court [Aprile-Sci v St. Raymond of Penyafort R.C. Church, 2017 N.Y. App. Div. LEXIS 4332 (2nd Dept., June 7, 2017)]. The court reiterated that in New York, primary jurisdiction for the determination of the applicability of the state’s Workers’ Compensation Law is vested in the Workers’ Compensation Board—and not the trial courts and that the employer, as well as the employee, may bring an injury to the Board’s attention. Once it does so, it is for the Board to determine the injured party’s eligibility for benefits.

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West Virginia Statute Barring Comp Benefits for Many—But Not All—Work Release Inmates is Constitutional

A provision in the West Virginia Workers’ Compensation Act [W. Va. Code § 23–4–1e(b)] that prohibits an inmate housed at a state work release center from receiving workers’ compensation benefits for injuries sustained while performing work for the state’s Division of Highways (DOH) does not violate the inmate’s equal protection rights in spite of the fact that such benefits are allowed if a similarly-housed inmate sustained injuries while working for a private employer, held the Supreme Court of Appeals of West Virginia, in Crawford v. West Va. Dep’t of Corr. Work Release, 2017 W. Va. LEXIS 433 (June 8, 2017).

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