Pre-Shift Assault on NYC Train Conductor at Station Not Compensable

Claimant Fails to Establish Exception to Going and Coming Rule

Yesterday, a New York appellate court affirmed a decision of the state’s Workers’ Compensation Board that denied the claim of a Transit Authority conductor who sustained injuries when she was assaulted by commuter who was angered over the claimant’s refusal to open the station gate to let him in (without paying) on the basis that the claimant’s injuries did not arise out of and in the course of the employment [Matter of Rodriguez v New York City Tr. Auth., 2018 N.Y. App. Div. LEXIS 3842 (May 31, 2018)]. The Court agreed that the claim was barred by the going and coming rule, since, inter alia, the assault occurred approximately one hour prior to the beginning of the claimant’s shift and the employer did not require her to utilize public transit to get to her job.

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PA High Court Says No Subrogation Allowed Regarding Heart and Lung Benefits

Strong Subrogation Rights Exist Only as to Payments Made under WCA

Acknowledging that an employer/carrier’s outlay of workers’ compensation benefits entitles it to a subrogation lien on any recovery the injured worker enjoys against a third-party tortfeasor — including payments the injured worker receives pursuant to the state’s Motor Vehicle Financial Responsibility Act (“MVFRL”) — the Supreme Court of Pennsylvania recently held the employer/carrier had no such subrogation interest based on payments it made to a state trooper under Pennsylvania’s Heart and Lung Act (53 Pa. Stat. § 637) [Pennsylvania St. Police v. Workers’ Comp. Appeal Bd. (Bushta), 2018 Pa. LEXIS 2583 (May 29, 2018).

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NY Construction Worker’s Fatal Heart Attack Found Compensable

Death Benefits Awarded in Spite of Smoking Habit and High Cholesterol

A decision by New York’s Workers’ Compensation Board, which concluded that a construction worker’s death was causally-related to his employment, was recently affirmed by a state appellate court, in spite of preexisting risk factors such as decedent’s smoking habit and high, untreated cholesterol [see Matter of Pickerd v Paragon Envtl. Constr., Inc., 2018 N.Y. App. Div. LEXIS 3700 (3rd Dept., May 24, 2018)].

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Vermont “Volunteer” Driver for Transit Authority is not an Employee

Driver’s Mileage Reimbursement Did not Constitute “Wages”

Reimbursement for mileage driven at rates established by the Internal Revenue Service is not “wages” as defined by Vt. Stat. Ann. tit. 21, § 601(14), held the Supreme Court of Vermont recently in Perrault v. Chittenden County Transp. Auth., 2018 VT 58, 2018 Vt. LEXIS 57 (May 25, 2018) . Accordingly, a “volunteer” driver for a county transit authority, who sustained serious injuries in a vehicular accident while transporting a rider in the volunteer’s private vehicle, could not recovery workers’ compensation benefits; she was not a statutory employee for purposes of the state’s workers’ compensation laws. Quoting Larson’s Workers’ Compensation Law, the Court stressed that tests utilized to discern whether a claimant was an employee versus an independent contractor were not applicable to the circumstances in the instant case.

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Maryland High Court Says Bus Driver’s Accident Traveling to Training Session May Have Been “Special Mission”

Claim Not Barred, as a Matter of Law, by Going and Coming Rule

A county bus driver, who sustained injuries in an auto accident as she traveled to attend a mandatory training session held on a Saturday was not a traveling employee, held a divided Court of Appeals of Maryland in Calvo v. Montgomery County, 2018 Md. LEXIS 298 (May 21, 2018). She might nevertheless be entitled to workers’ compensation benefits under the special mission exception to the going and coming rule, since the mandatory training occurred on Saturday, her normal day off, and at another employer-owned facility, not the depot where she usually reported, indicated the majority of the Court. Summary judgment should not, therefore, have been entered by the state trial court.

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NC Employee’s Injuries From Fainting After Toking on E-Cigarette Did Not Arise From the Employment

The North Carolina Court of Appeals affirmed the denial of workers’ compensation benefits to a city employee who sustained serious injuries to his right hip, back, and head when he passed out and fell to the ground after getting choked on an e-cigarette [Brooks v. City of Winston-Salem, 2018 N.C. App. LEXIS 504, COA17-1208 (May 15, 2018)]. Noting that at the time of the injury the employee suffered from extremely elevated blood pressure and blood sugar levels and experienced a vasovagal response triggered by uncontrolled coughing, the court drew a sharp distinction between an unexplained fall, which generally is said to arise out of and in the course of the employment, and an idiopathic fall, which does not.

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Alaska’s High Court Upholds Total Bar of Recovery for Non-Dependent Parents of Deceased Employees

Parent Faces “Catch-22”: Wrongful Death Claim Barred by Exclusivity, Yet No Workers’ Comp Benefits Available

The Supreme Court of Alaska, in Burke v. Raven Elec., 2018 Alas. LEXIS 64 (May 11, 2018), affirmed the constitutionality of the state’s broad exclusive remedy provision [Alaska Stat., § 23.30.055] that bars a parent from pursuing any tort recovery against an employer whose negligence causes the death of his or her employed child even in those instances in which the parent fails to qualify for workers’ compensation benefits because he or she was not dependent upon that child for support at the time of the injury or death. The holding, while consistent with other similar cases around the nation, seems to go against the basic rule that exclusivity applies only where some right to benefits is afforded under the state Act.

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Divided OK Supreme Court Reverses Denial of Claim Involving Travel to Work Site

In a divided decision, the Supreme Court of Oklahoma reversed a lower court’s finding and held that a pipeline installation worker’s injuries sustained in a vehicular accident while traveling to the work site occurred within the course and scope of the employment in spite of the employer’s contention that the worker’s workday did not begin until he arrived on the site, attended a daily safety meeting, and signed a log acknowledging such attendance [Pina v. American Piping Inspection, Inc., 2018 OK 40, 2018 Okla. LEXIS 40 (May 8, 2018)].

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Montana: Both Parties to Employee Leasing Arrangement Enjoy Exclusive Remedy of State’s Workers’ Compensation Act

Constitutional Provision Protecting Only “Immediate” Employers Does Not Limit Immunity

In a decision that has important implications for Montana firms that utilize professional employer organizations (“PEOs”) for their labor forces, the state’s Supreme Court, in Ramsbacher v. Jim Palmer Trucking, 2018 MT 118, 2018 Mont. LEXIS 143 (May 8, 2018), held that both parties — the employee leasing firm and its client — are immune from tort liability for injuries sustained by a leased employee in spite of language within the Montana Constitution that provides such immunity only to a worker’s fellow employees and his or her “immediate” employer [see Article II, § 16]. The plaintiff, an injured truck driver hired under Montana’s Professional Employer Organization law, could not, therefore, maintain a tort suit against a trucking firm that utilized his services after signing a PEO contract with an employee leasing company.

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California High Court Narrows Rule For Classification of Workers as Independent Contractors

CA Employers: Stock Up on Your W-2s; Recycle Your 1099s

In a decision that continues California’s trend toward allowing the designation of a worker as an independent contractor only under rare circumstances, the state’s Supreme Court on Monday held that in determining whether to classify workers as employees or as independent contractors for purposes of California’s wage orders, the state’s “suffer or permit to work” standard requires a hiring entity asserting independent contractor status to establish each of the three factors of the ABC test: i.e., to show that a worker is free from its control, performing work outside the usual course of its business, and customarily engaged in independent work [Dynamex Operations West, Inc. v. Los Angeles County Superior Court, 2018 Cal. LEXIS 3152 (Apr. 30, 2018)]. While the decision has no direct impact in workers’ compensation cases, only a myopic employer can fail to see the writing on the wall. One cannot imagine many circumstances in which a worker that is categorized as an employee under California’s wage order rules would nevertheless be an independent contractor for purposes of workers’ compensation law.

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