Kentucky Driver Who Keeps Tractor-Trailer Rig at Home is Traveling Employee

Where a long-haul truck driver kept one of his employer’s tractor-trailer units at his home because he lived near an interstate highway and the employer’s facility was one hour away and off the driver’s usual route from Frankfurt, Kentucky, to Ada, Oklahoma, the driver was a “traveling employee,” for purposes of workers’ compensation law, and his action in keeping the rig at his home was a “service to the employer.” Accordingly, where the driver sustained serious physical injuries in an accident as he drove home, rather than complete his driving assignment—he had become ill—his claim was not barred by the ordinary going and coming rule [First Class Servs. v. Hensley, 2017 Ky. App. LEXIS 621 (Oct. 13, 2017); see Larson’s Workers’ Compensation Law, § 14.01].

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NY Employer Does Not Always Take Employee as it Finds Him

Apportionment Allowed for Prior Nonwork-Related Knee Injury

A New York appellate court affirmed a finding by the state’s Workers’ Compensation Board that apportioned a claimant’s 30 percent right leg schedule loss of use (“SLU”) between claimant’s February 2007 work-related injury and his 2005 nonword-related injury, showing, that at least in limited circumstances, an employer does not necessarily take an employee as it finds him or her [Matter of the Claim of Sanchez v. STS Steel, 2017 N.Y. App. Div. LEXIS 7001 (3rd Dept., Oct. 5, 2017)].

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Virginia Case Shows “On-the-Job” Injuries May Not be Compensable

The phrase is used quite often, even by attorneys: “He [or she] was hurt ‘on-the-job.’” The typical implication is that a worker who sustains an “on-the-job” injury deserves workers’ compensation benefits. Such use of imprecise language leads many claimants to assume their injuries are covered when, indeed, they may not be. For example, in Nelson v. Town of Christiansburg, 2017 Va. App. LEXIS 248 (Oct. 3, 2017), a Virginia appellate court affirmed the denial of benefits to a utility supervisor who sustained a back and lower extremity injury when, while performing his typical duties (i.e., “on-the-job”), he stood from a squatted position, twisted to his right, and felt a pop in his back, which sent him to the ground.

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Oregon: Traveling Employee’s Death While Returning From Shopping Trip Was Not Compensable

A person in the status of a traveling employee is continuously within the course and scope of the employment while traveling, except when the person is engaged in a distinct departure on a personal errand, held the Court of Appeals of Oregon. Accordingly, where a Coos Bay resident was temporarily working some distance away in Newport, and was killed in an automobile accident as he and a co-employee returned to their Newport hotel following a Christmas shopping excursion to a nearby town, the employee’s surviving spouse was not entitled to workers’ compensation death benefits [Beaudry v. SAIF Corp., 2017 Ore. App. LEXIS 1179 (Oct. 4, 2017)]. Quoting Larson’s Workers’ Compensation Law, current § 25.01, et seq., extensively, the Court stressed that here the employee’s activities were unrelated to the employee’s work-related travels.

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Vermont College’s “Tuition Benefit” Should Be Used in Average Weekly Wage Computation

In Haller v. Champlain College, 2017 VT 86, 2017 Vt. LEXIS 107 (Sept. 29, 2017), a divided Supreme Court of Vermont affirmed a determination by the Commissioner of the state’s Department of Labor that concluded tuition benefits provided by employer—and used by claimant—was an “other advantage” that constituted part of claimant’s wages [see 21 V.S.A. § 601(13)], and should, therefore, be used in calculating the injured employee’s average weekly wage. Quoting Larson’s Workers’ Compensation Law, § 93.01(2)(a), the majority held the tuition benefits received by the injured employee constituted real economic gain.

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Another One Bites the Dust: Oklahoma Supreme Court Kills Provision of State’s Workers’ Comp Act

Yesterday (Oct. 3, 2017), in a divided decision, the Supreme Court of Oklahoma struck down Okla. Stat. tit. 85A, § 57 of the Administrative Workers’ Compensation Act (AWCA), which disqualifies an injured employee from continued benefits if he or she misses two or more scheduled appointments for treatment [Gibby v. Hobby Lobby Stores, Inc., 2017 OK 78]. Continue reading

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PA Legislative Bill Would Require Use of 6th Edition of AMA Guides

Yesterday (October 2, 2017), a cadre of 29 Pennsylvania legislators introduced a bill—House Bill 1840—that would require physicians to apply the methodology set forth in “the sixth edition” of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), when determining the degree of medical impairment sustained by an employee who has sustained an injury compensable under the state’s Workers’ Compensation Act [“the Act”]. If passed in its present form, the bill would essentially reinstate former Section 306(a.2) of the state’s Workers’ Compensation Act [77 P.S. § 511.2(1)], which had been declared unconstitutional by a divided Supreme Court of Pennsylvania, in Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Pa. 2017). Continue reading

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Oklahoma High Court Finesses Constitutional Issue as to Retaliatory Discharge Statute

In Young v. Station 27, Inc., 2017 OK 68, 2017 Okla. LEXIS 69 (Sept. 12, 2017), the Supreme Court of Oklahoma finessed the constitutionality of the state’s current retaliatory discharge statute, 85A O.S. § 7, holding that the trial court had favorably passed upon the constitutionality of the wrong statute. The Court stressed that because plaintiff’s work-related injury occurred on January 29, 2013, prior to the February 1, 2014 effective date of the new statute, the former version of the retaliatory discharge statute, 85 O.S. 2011 § 341, applied to plaintiff’s claim. The Court did hold that plaintiff’s claim was not a Burk tort [see Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24], since an adequate statutory remedy had been provided by the Legislature to protect the public policy at issue.

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2017’s Top 10 Workers’ Compensation Cases

During September of each of the past five years, my colleague, Robin Kobayashi, and I have pulled together a volume entitled, Workers’ Compensation Emerging Issues Analysis. Annually published by LexisNexis®, it is a compendium of expert analysis and commentary highlighting current state trends, legislation, and court decisions in the field of workers’ compensation law. Part II of the work includes short summaries of important recent workers’ compensation decisions from around the nation. I take this occasion to highlight what I think are the 10 most important comp decisions so far in 2017. Bearing in mind that one’s assessment of “importance”—like one’s appreciation for beauty—is in the eye of the beholder, I recognize that your own list may differ from mine. Let me know if I’ve missed a crucial decision from your state.

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Seventh Circuit Sustains Illinois Governor’s Action in Refusing to Reappoint Arbitrators

In a case that highlights some of the bitter infighting going on in Illinois regarding the state’s workers’ compensation system, the Seventh Circuit Court of Appeals affirmed a decision of the district court—although on different grounds—that dismissed a civil action filed by two former workers’ compensation arbitrators against the Illinois governor and two of his advisors, alleging that they had been terminated for exercising their First Amendment rights [Hagan v. Quinn, 2017 U.S. App. LEXIS 15069 (7th Cir., Aug. 14, 2017)]. Finding the former arbitrators were “policymakers,” as enunciated by the U.S. Supreme Court in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980), the Seventh Circuit ruled that elected officials could replace high-level and confidential employees not only when those employees belonged to the “wrong” political party or faction, but also when they engaged in speech or other First Amendment activity that could undermine the policy or political goals of the officials accused of the retaliation.

Background

In 2011, plaintiffs and another arbitrator filed a due process action challenging the implementation of House Bill 1698, which terminated their six-year appointments under prior law. The district court granted summary judgment for defendants, and the Seventh Circuit affirmed, concluding that plaintiffs failed to demonstrate a clearly established right that had been violated by the legislation [see Dibble v. Quinn, 793 F.3d 803, 814 (7th Cir. 2015) (the “Due Process Suit”)].

In October 2011, while the Due Process Suit was pending, the Illinois governor declined to reappoint plaintiffs, which ended their employment. Two years later, plaintiffs filed the instant action against the governor and two of his advisors in their individual and official capacities. Plaintiffs alleged that the defendants had retaliated against them for filing the prior suit and that the retaliation violated the First Amendment to the United States Constitution and Illinois state law.

District Court Dismissed Claims

The district court dismissed plaintiffs’ First Amendment claims, holding that the Due Process Suit was not protected speech under the Connick-Pickering line of cases [see Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)].

Seventh Circuit Affirms on Different Grounds

On appeal, the Seventh Circuit indicated it need not and did not decide whether the Due Process Suit was speech on a matter of public concern as is required for a government employee to show retaliation in violation of the First Amendment. It said plaintiffs’ claims failed for a more fundamental reason. Plaintiffs were policymakers who could be terminated—or, more precisely, not reappointed—for engaging in “speech on a matter of public concern in a manner that is critical of superiors or their stated policies” [Kiddy-Brown v. Blagojevich, 408 F.3d 346, 358 (7th Cir. 2005)].

First Amendment Rights

The Seventh Circuit stressed that employees do not give up all First Amendment rights when they accept government employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen about matters of public concern.

To establish a First Amendment retaliation claim, a public employee must show that (1) she engaged in constitutionally protected speech; (2) she suffered a deprivation because of her employer’s action; and (3) her protected speech was a but-for cause of the employer’s action. Initially, to establish a prima facie case of retaliation, the plaintiff must produce evidence that his or her speech was at least a motivating factor of the employer’s decision to take retaliatory action against the employee. Then, the burden shifts to the employer to rebut the causal inference raised by the plaintiff’s evidence. If the employer fails to counter the plaintiff’s evidence, then the plaintiff has established the but-for causation needed to succeed on his claim.

Policymakers Exception

In Elrod v. Burns and Branti v. Finkel (cited above), the U.S. Supreme Court prohibited government employers from dismissing most public employees on the basis of partisan affiliation, holding that the age-old practice of patronage firings violated the First Amendment. At the same time, however, the Court recognized an exception for employees who occupy policymaking or confidential positions. The Court said that elected officials may require political loyalty from such employees so that representative government is not undercut by tactics obstructing the implementation of policies presumably sanctioned by the electorate. If an employee’s private political beliefs would interfere with the discharge of his public duties, his or her First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.

The court concluded that, as gubernatorial appointees, Illinois workers’ compensation arbitrators “are the face of the administration in the workers’ compensation arena.” Accordingly, the governor was entitled to appoint point and retain only those arbitrators in whom he had confidence.

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