No Recovery for Home-Based Workers’ Comp Adjuster Who Trips Over Her Dog

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.

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Here We Go Again: Arkansas Bill Would Establish ERISA-Based “Alternative” System for Workers’ Compensation

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”).

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Plaintiff May Not Use Illinois’ “One Day in Rest Act” to Subvert Exclusive Remedy of State’s Workers’ Compensation Act

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

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7th Circuit Certifies Important Exemption Question to Illinois Supreme Court

May Unpaid Healthcare Providers Reach Workers’ Compensation Claim Settlement?

The U.S. Court of Appeals for the Seventh Circuit recently certified to the Illinois Supreme Court an important question regarding the extent to which, following 2005 amendments to the state’s exemption laws, the proceeds of a workers’ compensation settlement remain beyond the reach of creditors—even a creditor that treated the injured worker for his or her injuries [In re Hernandez, 2019 U.S. App. LEXIS 7912 (7th Cir. Mar. 18, 2019)].


Elena Hernandez filed a Chapter 7 bankruptcy petition in December 2016, showing as her only significant asset a pending workers’ compensation claim, which she valued at $31,000. She further claimed the asset was exempt from creditors’ claims under section 21 of the Illinois Workers’ Compensation Act (“the Act”), 820 Ill. Comp. Stat. 305/21 (2011), applicable via 11 U.S.C.S. § 522(b). She settled her claim two days after filing for bankruptcy, apparently for $30,566.33, without consulting the Trustee.

At the time she filed her Chapter 7 petition, Hernandez owed significant sums to three healthcare providers who treated her work-related injuries. The providers objected to her claimed exemption, arguing that 2005 amendments to the Act enabled unpaid healthcare providers to reach workers’ compensation awards and settlements, at least in some instances. The bankruptcy court denied the exemption and Hernandez appealed. The district judge affirmed, concluding that using the workers’ compensation exemption to thwart this specific class of creditors would frustrate the Act’s purpose.

Illinois Has Long Protected Claims and Awards

The 7th Circuit acknowledged that Illinois law carves out exemptions for a broad range of personal property, but added that the state’s general exemption statute made no mention of workers’ compensation claims or awards. Hernandez relied, in relevant part, on the following language:

: No payment, claim, award or decision under this Act shall be assignable or subject to any lien, attachment or garnishment, or be held liable in any way for any lien, debt, penalty or damages [820 Ill. Comp. Stat. 305/21].

Noting that a version of section 21 had been in place since the early 20th century, the 7th Circuit pointed to a line of cases that had found workers’ compensation claims and awards to be beyond the reach of creditors [see, e.g., Lasley v. Tazewell Coal Co., 223 Ill. App. 462, 463 (Ill. App. Ct. 1921)].

Is Exemption Still Affective After 2005 Amendments?

The 7th Circuit said the crux of the dispute, however, was whether the exemption applied to the claims of healthcare providers after the 2005 amendments. In those amendments, the General Assembly created a detailed schedule limiting the fees providers may charge for their services to treat job-related injuries or illnesses.

The amendments also curtailed a billing practice known as “balance billing,” whereby providers attempted to collect from an employee the remaining balance on an undisputed bill paid only partially by an employer. Except as provided in subsections (e-5), (e-10), and (e-15), the Act now bars providers from holding an employee liable for costs related to a non-disputed procedure, treatment, or service rendered in connection with a compensable injury, or billing or otherwise attempting to recover from the employee the difference between the provider’s charge and the amount paid by the employeron a compensable injury [see § 8.2(e)].

Healthcare Providers’ Argument

The healthcare providers argues that the amendments carved out an exception to the exemption in section 21 for care providers who treat an employee’s work-related injuries or illnesses. Their argument focused squarely on statutory purpose. Leaving the exemption intact, they said, would “obviate the plain meaning” of section 8.2(e-20) by placing a workers’ compensation settlement outside the reach of a specific class of creditors that the Act had gone to extraordinary lengths to protect.

Indeed, the district court agreed, holding that section 21 continued to exempt workers’ compensation claims as against general creditors, but not as against medical providers after the debtor settles the claim with the employer.

Seventh Circuit in a Quandary

The Seventh Circuit panel saw plausible arguments on both sides. The amendments constructed a payment process designed to balance the interests of healthcare providers, employees, and employers. It stressed:

Hernandez’s interpretation incentivizes strategic behavior and unquestionably undermines healthcare providers. It places the only asset that employees necessarily possess after receiving a workers’ compensation award or settlement—the award or settlement itself—beyond the reach of providers. Moreover, ensuring that providers are paid helps guarantee that employees receive care in the first place—surely a goal of the workers’ compensation regime. Applying the exemption in section 21 to the claims of care providers creates tension with the rest of the Act. It’s at least possible that Hernandez’s interpretation generates the “absurdity, inconvenience, or injustice” that Illinois law seeks to avoid [quoting .” Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 756 N.E.2d 822, 827, 258 Ill. Dec. 548 (Ill. 2001)].

The Seventh Circuit panel added that without guidance from the Illinois Supreme Court, it declined to hold, as the district court had done, that section 21 no longer blocked this class of creditors. That was one reasonable interpretation of the amended Act, but was also possible that the General Assembly’s silence on the matter meant the workers’ compensation exemption remained intact.

Specific Question

Accordingly, the Court ask the Illinois Supreme Court, in its discretion, to answer the following certified question:

After the 2005 amendments to 820 Ill. Comp. Stat. 305/8 and the enactment of 305/8.2, does section 21 of the Illinois Workers’ Compensation Act exempt the proceeds of a workers’ compensation settlement from the claims of medical-care providers who treated the illness or injury associated with that settlement?

We all await the Supreme Court’s answer to this important question.

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Split Virginia Court Affirms Denial of Airport Worker’s Electrocution Claim

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

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Arizona Officer’s PTSD Not Barred By Three-Year Delay in Filing Claim

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.

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Ohio Employer May Fire Employee Who Sought Workers’ Compensation Benefits from Prior Employer

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.

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Washington Public Defender May Be Able to Recover in Tort for Work-Related PTSD

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.

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Ohio Widow’s Action Against Ford for Failure to Implement Substance Abuse Policy is Barred by Exclusivity Defense

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.

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Aggressive Kentucky Bus Driver Denied Benefits for Injuries Sustained in Fight with Passenger

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.].

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