New York: Board—Not the Trial Court—Must Determine if Worker Was Independent Contractor

Reiterating the important rule in New York, that where the availability of workers’ compensation benefits hinges upon questions of fact or upon mixed questions of fact and law, the parties may not choose the courts as the forum for resolution of the questions, but must instead look to the Workers’ Compensation Board for such determinations, a state appellate court recently held that a trial court’s determination that a worker was an independent contractor, and not an employee, must be reversed [Findlater v Catering by Michael Schick, Inc., 2018 N.Y. App. Div. LEXIS 7728 (2d Dept., Nov. 14, 2018).

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The Quiet Before the Storm

Workers’ Compensation Emerging Issues Analysis, 2018 Edition

For the past six years, I have been pleased to be a primary editor and contributing author of an annual publication, Workers’ Compensation Emerging Issues Analysis, a “Larson Series” book published in late November/early December by LexisNexis. As with past editions, this year’s offering combines expert analysis, provocative commentary, interesting case summaries, and a discussion of important trends in key states. This year’s title is The Quiet Before the Storm. Here’s a link to my Foreword. I trust many of you will find this year’s edition informative.

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Ohio’s “Zone of Employment” Rule Protects Worker Who Clocked Out for Lunch

Injuries Sustained in Nearby Parking Lot Were Compensable

Where an Ohio data entry worker had clocked out for lunch, exited the building, and fell in a nearby parking lot, breaking her arm, her claim for workers’ compensation benefits was not barred by the going and coming rule, held an Ohio appellate court in White v. Bureau of Workers’ Comp., 2018-Ohio-4309, 2018 Ohio App. LEXIS 4632 (Oct. 24, 2018). Her injuries were compensable under Ohio’s zone-of-employment exception to the coming-and-going rule [see Ohio Rev. Code § 4123.01(C); Larson’s Workers’ Compensation Law, § 13.01, 13.04].

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Florida Court: No Coverage Where Policy Procured After Worker’s Injury Took Place

Agent Scurries to Get Coverage After Workplace Accident

Where, following a workplace accident causing injury to an employee, the uninsured employer called its insurance broker regarding the expected workers’ compensation claim and the broker scrambled to obtain a policy from an insurer dated that same day, without disclosing the existing of the workplace accident, there could be no coverage for the accident, held a Florida appellate court recently [see Normandy Ins. Co. v. Sorto, 2018 Fla. App. LEXIS 15382 (1st DCA, Oct. 31, 2018)]. Reversing a contrary decision by the Judge of Compensation Claims, the appellate court stressed that Florida’s insurance laws preclude coverage for losses that have already taken place.

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Virginia Court Affirms Commission’s Safety Violation Finding

Driver’s Failure to Chock Wheels Results in Loss of Comp Benefits

A Virginia appellate court recently affirmed a finding by the state’s Workers’ Compensation Commission that a truck driver willfully violated known safety rules when he failed to chock the wheel on the employer’s truck during a stop [Callahan v. Rappahannock Goodwill, 2018 Va. App. LEXIS 288 (Oct. 23, 2018)]. Accordingly, under Va. Code Ann. § 65.2-306(A), the employee could not recover workers’ compensation benefits for injuries sustained when the truck suddenly rolled forward, causing the employee to fall from the truck bed.

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Nebraska Physician Assistant May Not Sign Medical Report

While the term, “physician,” as defined by Neb. Workers’ Comp. R. 49(O) (2018), generally includes those practicing osteopathic medicine, chiropractic, podiatry, or dentistry, it does not include a physician assistant, held the Supreme Court of Nebraska in Bower v. Eaton Corp., 301 Neb. 311, 2018 Neb. LEXIS 170 (Oct. 12, 2018). Accordingly, it was not error for the state’s Workers’ Compensation Court to disregard a medical report indicating the injured worker suffered a 15 percent permanent impairment to the right upper extremity when the report was signed by an orthopedic surgeon’s physician assistant and not by the surgeon himself. Continue reading

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PA Governor Wolf Signs House Bill 1840 (i.e., “the Protz Fix”)

As was widely anticipated, on Wednesday (October 24, 2018), Pennsylvania Governor Tom Wolf signed House Bill 1840, known by some as “the Protz fix,” reestablishing that the AMA Guides, 6th Edition, are to be utilized in determining impairment levels of injured employees in the Keystone state.

For a more detailed discussion of HB 1840, see my earlier post.

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Trainee/Apprentice May Not Sue Independent Contractor/Truck Driver

Independent Contractor/Driver Was Joint Employer Under Iowa Law

Construing Iowa law, the Eighth Circuit Court of Appeals recently affirmed a federal district court’s decision granting summary judgment to an independent contractor/truck driver in a negligence action filed against him by a trainee/apprentice who sustained serious injuries in a vehicle crash [Quiles v. Johnson, 2018 U.S. App. LEXIS 28747 (8th Cir., Oct. 12, 2018)]. The 8th Circuit held that the defendant driver, who had agreed with a trucking company to serve as a “mentor” for one of its trainee/apprentices, was the latter’s joint employer. Accordingly, he was immune from suit under the exclusive remedy provisions of the Iowa Workers’ Compensation Act.

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Protz “Fix” Awaits PA Governor’s Signature

Last Thursday (October 18, 2018), the Pennsylvania legislature sent House Bill 1840, a/k/a “the Protz Fix,” to Governor Wolf’s desk for his signature. Passed by an easy 34-15 margin, the bill would largely undo the holding of a split Supreme Court of Pennsylvania in Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Penn. 2017), which held that § 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 AMA Guides, violated the state’s constitution [for a more complete treatment of Protz, click here].

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Vermont High Court Again Refuses to Utilize “Substantial Certainty” Exception for Intentional Injury Cases

Reiterating its decision in Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980) (per curiam), in which the Supreme Court of Vermont held that nothing short of a specific intent to injure falls outside the scope of the state’s Workers’ Compensation Act, the Court affirmed a trial court’s decision to grant an employer and co-employees summary judgment (on exclusive remedy grounds) in an intentional tort action filed against them by a roofing employee who sustained severe injuries when he fell from a roof [Martel v. Connor Contr., 2018 VT 107, 2018 VT 107 (Oct. 12, 2018)]. The Court flirted with, but specifically refused to adopt the “substantial certainty” exception to the rule adopted by the majority of American jurisdictions that “intent means intent” [see Larson’s Workers’ Compensation Law, § 103.03, hereinafter “Larson”].

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