Those Holding Their Breath for Arkansas Opt Out Legislation Can Exhale

I should have noted this earlier, but anyone still holding his or her breath as to whether Arkansas might pass workers’ compensation opt out legislation during the Legislature’s 2017 session can now officially exhale. As I indicated here and here, the Arkansas workers’ compensation “opt out” bill was never more than an empty shell. The bill died in committee at the Legislature’s adjournment sine die. We’ll have to await a new legislative session for additional news.

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PA Employer Establishes Worker’s Loss of Earnings Claim by Creating Special Job That Paid Less

Where a workers’ compensation benefits claimant initially returned to work in a modified-duty position at no loss of wages and subsequently accepted a permanent light-duty position that the employer had specially created for her, which did result in lower wages, she suffered a loss of earnings and was entitled to partial disability benefits under § 306(b) of the Pennsylvania Workers’ Compensation Act, 77 Pa. Stat. Ann. § 512 [Holy Redeemer Health Sys. v. Workers’ Comp. Appeal Bd. (Lux), 2017 Pa. Commw. LEXIS 315 (June 6, 2017].

The Commonwealth Court distinguished the instant case from an earlier decision in which the Court had held a claimant’s loss of wages was not the result of claimant’s physical limitations from the work-related injury, but rather that earlier claimant’s voluntary decision to bid out of his pre-injury department where he had been working in a modified-duty position with no loss of earnings. Here, said the Commonwealth Court, the injured worker had not sought out and did not apply for the new permanent position. Rather, Employer specifically created the position and offered it to her. Continue reading

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Colorado Court Apportions Two-Thirds of Occupational Disease Claim to Overweight Mechanic

Has the State Established New Weight-Loss Program for Workers?

Emphasizing that within the Colorado workers’ compensation scheme, the employer does not necessarily take the employee as it finds him (or her)—at least when it comes to occupational disease and repetitive trauma claims—and that co-morbid factors such as obesity may require apportioning some percentage of permanent disability to the employee, a Colorado appellate court affirmed an order by the state’s Industrial Claim Appeals Office (“Panel”) that required the employer to pay no more than one-third of any medical benefits and other compensation due to the employee, since only one-third of the injured worker’s bilateral knee osteoarthritis was due to work-related factors [Hutchison v. Industrial Claim Appeals Office, 2017 COA 79, 2017 Colo. App. LEXIS 696 (June 1, 2017)]. That the job required the employee to spend half his work time over a 25-year period on his knees on concrete floors was not the controlling factor, indicated the Court. Multiple causal factors were at play, including perhaps, the employee’s genetic predisposition. With the decision, Colorado also joined California in allowing apportionment—at least in some cases—not only based upon comorbidity factors, but also on a worker’s genetic makeup.

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Death of Mississippi Worker Does Not Negate Settlement Agreement

In a split decision, a Mississippi appellate court reversed an order of the state’s Workers’ Compensation Commission that had granted an employer’s motion to reopen and vacate a prior order approving the settlement of a workers’ compensation claim where the injured employee died after signing the settlement agreement, but before it was actually approved by the Commission [Taylor v. Reliance Well Serv., 2017 Miss. App. LEXIS 296 (May 23, 2017)].

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The Whole is Greater than the Sum of its Parts: Not in New York Amputation Case

Award for Loss of Four Fingers and Thumb Exceeds That of Entire Hand

In a divided decision, a New York appellate court affirmed an amended decision of the state’s Workers’ Compensation Board that awarded an injured employee a 100 percent schedule loss of use of his right thumb in addition to his previously awarded 100 percent schedule loss of use of his right hand [Matter of Deck v. Dorr, 2017 N.Y. App. Div. LEXIS 4130 (May 25, 2017)]. The math-defying result is that the employee, who sustained an injury to his right hand when it was caught in a meat grinder, amputating all four of his fingers and his thumb on his right hand, will receive more workers’ compensation loss of use benefits than if his hand had been completely severed just above the wrist. Continue reading

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Arizona Social Worker Employed At Prison May Not Sue State for Slip and Fall Injuries

Where the State of Arizona, through its Department of Corrections, had an ongoing duty to insure that inmates received adequate health services and it contracted with an employment services provider to supply health care professionals to provide such services, retaining the right to control or supervise the work provided by an employment services provider, the Department of Corrections was the statutory employer of those health care professionals working in the state prisons. Accordingly, when a clinical social worker slipped and fell on an unmarked wet floor and sustained injuries, her exclusive remedy was to recover workers’ compensation benefits. She could not maintain a negligence action against the State of Arizona [Wagner v. State, 2017 Ariz. App. LEXIS 77 (Apr. 20, 2017)].

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Disagreement Does Not Equal Clear and Convincing Evidence That Tennessee MIR Physician’s Opinion was Wrong

Where the opinion offered by an employee’s medical expert merely disagreed with the medical impairment registry (MIR) physician’s findings, yet did not show how that the MIR physician had used an incorrect method in assigning her impairment rating or had offered an inappropriate interpretation of the AMA Guides, the employee failed to offer the sort of clear and convincing evidence needed to overcome the statutory presumption of accuracy afforded an MIR physician’s impairment rating, held a Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court, in Williams v. Ajax Turner Co., 2017 Tenn. LEXIS 204 (Apr. 12, 2017). The Panel stressed that the employee’s expert utilized the range of motion test—and assigned a 20 percent permanent anatomical impairment to his left leg—because he was dissatisfied with the result generated by the diagnosis-based method, which had been utilized by both the employer’s expert and the MIR phyisican. Applying that latter method, both the employer’s expert and the MIR physician assigned a five percent impairment. The Panel said that while the employee’s expert have have had a sincere disagreement with the AMA Guides, such a disgreement did not affirmatively show that the MIR physician had erred in utilizing the diagnosis-based method.

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New Jersey Has Jurisdiction to Hear Claim for Out-of-State Injury Where Employment Contract Completed Within the State

Where a New Jersey resident filed an online application for employment with a New York furniture company, received a phone call at his home to arrange an interview at the employer’s facility in New York and, following the interview, received a phone call at his home from a representative of the employer offering him a job as a warehouse worker, there was sufficient contact with New Jersey to support jurisdiction regarding the worker’s injury, in spite of the fact that the injury occurred in New York, held a New Jersey appellate court in Williams v. Raymours Furniture Co., 2017 N.J. Super. LEXIS 51 (Apr. 19, 2017), quoting Larson’s Workers’ Compensation Law, § 142.01.

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Florida Correctional Department Successfully Rebuts Heart-Lung Presumption

A Florida appellate court ruled that a state judge of compensation claims erred when the JCC awarded benefits to a correctional officer under the state’s Heart-Lung statute, which generally provides firefighters, law enforcement officers, correctional officers, and certain others with a rebuttable presumption that heart attacks and pulmonary conditions arise out of and in the course of their employment [Department of Corr. v. Junod, 2017 Fla. App. LEXIS 5231 (Apr. 13, 2017)]. The Court said the JCC had improperly relied upon testimony offered by an expert medical advisor (EMA) who had admitted that he had assumed that Claimant worked as a correctional officer for at least two years before the heart attack at issue, when in fact, the heart attack occurred after only three months on the job. The Court also indicated the EMA improperly bolstered his opinion by relying upon scholarly epidemiological articles written by another physician. Continue reading

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Arkansas Opt-Out Scenario—Still No Text in the Introduced Bill

As I indicated here in an earlier post (March 29, 2017), the Arkansas workers’ compensation “opt out” bill exists only as a shell, with literally no details contained in 2017 Senate Bill 653. As of today, that is still true. Whether we see a bill similar to the contentious Oklahoma law that was struck down on constitutional grounds by Oklahoma’s Supreme Court, some sort of Texas “opt-in” arrangement that allows all employers in the state to avoid workers’ compensation coverage altogether, or nothing at all, remains to be seen.

As most of you know, I’m not too plugged in with the various state legislatures. I do note that according to Statescape, a nationwide state legislative tracking service, the Arkansas legislature is currently in recess. Scheduled to reconvene on May 4, 2017, only to adjourn one day later, I wonder if passage of any opt out/opt in bill is even possible. Readers from the Razorback state, enlighten me (please). Am I missing some important political nuance?

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