Deeply Divided Florida Court Says Risk of Tripping Did Not Arise Out of Employment
Emphasizing that eligibility for workers’ compensation benefits turns on whether the employment led to the risk of injury, i.e., whether there was a sufficient causal connection between the employment and the injury [see 440.02(36), Fla. Stat.], a deeply divided Florida appellate court reversed an award of benefits to a home-based worker who sustained injuries when she tripped over her dog as she reached for a coffee cup in her kitchen [Sedgwick CMS v. Valcourt-Williams, 2019 Fla. App. LEXIS 5350 (1st DCA, Apr. 5, 2019)]. Acknowledging that injuries sustained during breaks from work could be compensable under the personal comfort doctrine, the majority of the court stressed that in this case, the risk of injury did not arise out of the employment.
Is This a Different Tack to Allow Employers to “Opt-Out” of Compulsory Coverage?
Two days ago (April 2, 2019), Arkansas state senator Stanley Jason Rapert (Republican-35th District) introduced a bill in the state’s Legislature that—at least at first blush—may resurrect the contentious debate over an employer’s right to “opt-out” of mandatory state workers’ compensation coverage. If passed in its present form, the bill would enact the so-called “Universal Workers’ Compensation Act” (the “Universal Act”). As with the Oklahoma “experiment” that went down in flames in mid-September 2016 [see my earlier post on that subject], the proposed Arkansas act would lean heavily on employer-created benefit “plans” that would meet the requirements of the Employee Retirement Income Security Act of 1974 (“ERISA”).
The administrator of the estate of an Illinois employee killed in a work-related vehicular accident may not utilize the state’s “One Day Rest in Seven Act” (“ODRA”)[820 Ill. Comp. Stat. 140/1 et seq.] to recover damages in a civil action filed against the employer, held a U.S. Federal District Court in Webster v. Firstexpress, Inc., 2019 U.S. Dist. LEXIS 44575 (N.D. Ill., Mar. 19, 2019). Acknowledging that the exclusive remedy defense did not apply where the injury (1) was not accidental; (2) did not arise from his or her employment; (3) was not received during the course of employment; or (4) was not compensable under the Workers’ Compensation Act (“the Act”), the Court held none of the exceptions applied. Continue reading
Lip Service Given to “Liberally Construing” the “Arising Out of” Tests
In a split decision, the Court of Appeals of Virginia, tipping its hat to the notion that the workers’ compensation statutes should be liberally construed to effect a beneficent purpose, affirmed a finding by the state’s Workers’ Compensation Commission that denied benefits to an airport ramp worker who contended he suffered an electrocution injury while in close proximity to a large airplane that he and others had begun to unload in the pouring rain [O’Donoghue v. United Cont’l Holdings, 2019 Va. App. LEXIS 63 (Mar. 26, 2019)]. Employing the state’s “actual risk doctrine” and quoting Larson’s Workers’ Compensation Law, § 3.04, the majority held that the record supported the Commission’s finding that claimant failed to show that his alleged injuries arose out of his employment. In particular, the Court observed that the claimant’s proof was speculative. It failed to exclude lightning as a likely source of his electric shock, and it failed to show that his employment placed him at an increase risk of being shocked. Continue reading
Arizona’s one-year filing requirement [see Ariz. Rev. Stat. § 23-1061(A)] is an affirmative defense and the employer or carrier bears the burden of production of evidence to support that defense, held a state appellate court in Pitts v. Indus. Comm’n of Ariz., 2019 Ariz. App. LEXIS 275 (Mar. 21, 2019). Accordingly, where a city police officer was involved in a May 2013 active shootout in which the perpetrator sprayed the windshield of the officer’s patrol car with bullets and the officer did not pursue his workers’ compensation claim until October 2016, three and one-half years after the incident and some ten months after the officer’s initial diagnosis of post traumatic stress disorder (PTSD), it was error for the ALJ to find the filing of the claim untimely, absent an actual showing by the employer that for more than one year prior to filing his claim, the officer knew or had a reasonable basis to know that his symptoms of anxiety, sleeplessness, irritability, and social withdrawal were causally related to the incident.
No provision of Ohio law sanctions an employer for terminating an employee who sought workers’ compensation benefits while working for a prior employer, held a state appellate court in McGree v. Gateway Healthcare Ctr., 2019-Ohio-988 , 2019 Ohio App. LEXIS 1030 (Mar. 21, 2019). Citing a decision by the state’s Supreme Court and siding with precedents in other Ohio appellate districts, the Eighth Appellate District Court of Appeals said the plain wording of Ohio Rev. Code § 4123.90 provided a cause of action for retaliatory discharge only against the employer who employed the employee at the time of the injury or occupational disease.
Restrictive “Mental-Mental” Coverage in State’s Comp Act Opens Door to Potential Liability
In a case with a bizarre fact pattern, a King County (Washington) public defender, who contended that she suffered post-traumatic stress disorder (PTSD) after she was stalked and harassed by a criminal defendant she represented, may proceed against her employer in a civil action alleging a hostile work environment and negligence [LaRose v. King County, 2019 Wash. App. LEXIS 646 (Mar. 19, 2019)]. In pertinent part, the Court said her civil action was not barred by the exclusive remedy provisions of the state’s Industrial Insurance Act (IIA) since a genuine issue of fact existed regarding whether her PTSD and related injuries constituted a compensable “injury” under the IIA.
Post-Mortem Shows Marijuana, Fentanyl, and Alcohol in Deceased Employee’s System
In what appears to be the first case of its kind—an action filed against an employer for its allegedly inadequate measures in implementing the company’s substance abuse policy—an Ohio appellate court recently held that the exclusive remedy provision of the state’s Workers’ Compensation Act [see Ohio Rev. Code § 4123.74] barred a wrongful death action filed against Ford Motor Company following the death of one of its employees who had collapsed while on duty at work and who later was found to have marijuana and fentanyl in his system, as well as a blood alcohol level of .08 at the time of his death [Parker v. Ford Motor Co., 2019-Ohio-882, 2019 Ohio App. LEXIS 959 (Mar. 15, 2019)]. The employee’s widow had alleged, in relevant part, that Ford had a company policy prohibiting substance abuse, that Ford had failed to implement the policy in the workplace, and that Ford’s failure to implement the policy induced employees like her husband to possess and use drugs and alcohol in the workplace.
The Supreme Court of Kentucky, affirming a lower court’s decision denying workers’ compensation benefits to a bus driver who alleged that he sustained injuries in an altercation with a passenger, held that if a claimant’s aggressive or inflammatory behavior proximately causes violence, thus resulting in injury to the claimant, the claimant is not entitled to compensation under Kentucky’s workers’ compensation laws [Trevino v. Workers’ Compensation Bd. Transit Auth. of River City, 2019 Ky. LEXIS 122 (Mar. 14, 2019); see Larson’s Workers’ Compensation Law, § 8.01, et seq.].