SC Workers’ Comp Insurance Policy Procured After Injury is Void

Where owners of a roofing business rushed to an insurance agent and procured a workers’ compensation insurance policy just after an employee was taken to a hospital for treatment of serious injuries sustained in a work-related incident, the policy was void ab initio; cancellation under S.C. Code Ann. § 38-75-730 (2015) was, therefore, not required [Bessinger v. R-N-M Builders & Assocs., LLC, 2017 S.C. App. LEXIS 83 (Oct. 25, 2017)]. Stressing that insurance, by its very nature, is meant to protect against the unknown or the possibility of a loss, the court noted that here the employer attempted to gain coverage for a known loss that had already occurred.

Continue reading

Posted in Case comment | Tagged , , , , , , , , , | Comments Off on SC Workers’ Comp Insurance Policy Procured After Injury is Void

Florida: Abnormal Pre-Employment BP Reading Does Not Mean Loss of Presumption of Compensability

“White Coat” Syndrome Could Explain Isolated Reading

As do a number of states, Florida provides a specialized presumption of compensability favoring certain law enforcement officers [see § 112.18(1), Fla. Stat.]. To take advantage of the presumption, a Florida claimant must show, among other things, that he or she successfully passed a pre-employment physical examination that “failed to reveal any evidence of such condition” [emphasis added]. A divided Florida appellate court recently held that an isolated elevated blood pressure reading at an officer’s pre-employment physical examination did not constitute evidence of the condition of hypertension [City of Tavares v. Harper, 2017 Fla. App. LEXIS 15183 (1st DCA, Oct. 24, 2017)]. The reading could have been explained by, among other things “white coat” syndrome—when elevated BP is observed only in a medical setting.

Continue reading

Posted in Case comment | Tagged , , , , , , | Comments Off on Florida: Abnormal Pre-Employment BP Reading Does Not Mean Loss of Presumption of Compensability

Ohio Claimant Has Burden of Showing Unexplained Fall Was Not Caused by Idiopathic Condition

Where an injured employee’s medical history and medications raised a fact issue about the possible role of risks personal to the employee in an otherwise unexplained fall, the employee was required to eliminate an idiopathic explanation for her fall, held an Ohio appellate court [White v. Buehrer, 2017-Ohio-8254 (Oct. 20, 2017)].

Continue reading

Posted in Case comment | Tagged , , , , , | Comments Off on Ohio Claimant Has Burden of Showing Unexplained Fall Was Not Caused by Idiopathic Condition

In Georgia, Co-Habitation Without Marriage = No Death Benefits

Within the context of a Georgia workers’ compensation claim, a meretricious relationship works to deny dependency benefits, even if actual dependency exists, held a state appellate court on Tuesday [see Sanchez v. Carter, 2017 Ga. App. LEXIS 465 (Oct. 17, 2017)]. Accordingly, where claimant lived continuously with the employee from 2002 until his death in 2015, was wholly dependent upon him because of her own disability, and yet claimant and the deceased employee had never ceremonially married (nor established a valid common law marriage), she could not recover death benefits under OCGA § 34-9-13 [see Larson’s Workers’ Compensation Law, §§ 96.02, 97.06, 98.04].

Continue reading

Posted in Case comment | Tagged , , , , | Comments Off on In Georgia, Co-Habitation Without Marriage = No Death Benefits

Employer and Co-Employees Not Liable in Tort Following Holiday Party Fatality

In a case with bizarre underlying facts, a New York appellate court held a trial court erred in denying an employer’s summary judgment motion in a tort action filed against it by the surviving spouse of an employee who died of alcohol intoxication and positional asphyxia following a holiday party [Gillern v. Mahoney, 2017 N.Y. App. Div. LEXIS 7069 (1st Dept., Oct. 5, 2017); see Larson’s Workers’ Compensation Law, § 22.04].

Continue reading

Posted in Case comment | Tagged , , , , | Comments Off on Employer and Co-Employees Not Liable in Tort Following Holiday Party Fatality

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].

Continue reading

Posted in Case comment | Tagged , , , | Comments Off on Kentucky Driver Who Keeps Tractor-Trailer Rig at Home is Traveling Employee

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)].

Continue reading

Posted in Case comment | Tagged , , , | Comments Off on NY Employer Does Not Always Take Employee as it Finds Him

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.

Continue reading

Posted in Case comment, Issue commentary | Tagged , , , , , , | Comments Off on Virginia Case Shows “On-the-Job” Injuries May Not be Compensable

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.

Continue reading

Posted in Case comment | Tagged , , , , , , , | Comments Off on Oregon: Traveling Employee’s Death While Returning From Shopping Trip Was Not Compensable

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.

Continue reading

Posted in Case comment | Tagged , , , , , | Comments Off on Vermont College’s “Tuition Benefit” Should Be Used in Average Weekly Wage Computation