Arkansas Opt-Out Bill: The Devil’s in the Details

Only There Aren’t any Details—at Least Not Yet

Lately, I’ve seen a number of news items indicating that the Arkansas Legislature is considering an opt-out arrangement for its workers’ compensation system. The implication is that Senate Bill 653, introduced March 6, by state senator David J. Sanders (R., Dist. 15), would create an “alternative” similar to that which the Oklahoma Supreme Court found unconstitutional for the Sooner State in 2016. As is often said about any piece of legislation, “the devil’s in the details.” The only thing about SB 653: there are no details. Indeed, so far the bill is a one-paragraph shell. A complete copy of the one-page bill can be found here. I learned, through a call to the senator’s office, that the practice of introducing a shell is quite common in Arkansas. I’ll keep watching for details.

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Employer-Provided Motel Room Insufficient to Transform Georgia Worker into Traveling Employee

Reiterating that Georgia Superior Courts are required to give appropriate deference to the factual findings of the Appellate Division of the Board of Workers’ Compensation, the Court of Appeals of Georgia, in a split decision, reversed a trial court’s finding that had reinstated an ALJ’s award of benefits to an employee who sustained injuries on a Sunday afternoon while running a personal errand to buy groceries [Avrett Plumbing Co. v. Castillo, 2017 Ga. App. LEXIS 119 (Mar. 10, 2017)]. The ALJ found that the injured worker was a “continuous employee” because, at the time of the injury, he was staying in a motel room provided by his employer. The Appellate Division found, however, that the worker was an 8:00 to 5:00, Monday–Friday employee, that he was staying in the motel room for his own convenience, and then only because the room had been rented by the employer on a 7-day basis. The employer’s gratuitous permission to use the room did not transform the worker into a traveling employee. Continue reading

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Worker’s Fall Was Not Idiopathic, in Spite of Opinion Offered by IME

In an unpublished decision, an Arizona appellate court found that the evidence in the record supported an ALJ’s award of workers’ compensation benefits to an office worker who sustained a compound fracture of her left forearm when, as she was preparing to leave for the day, the office worker fell to the floor near her desk at her employer’s premises [Hilton Worldwide v. Industrial Comm’n of Ariz., 2017 Ariz. App. Unpub. LEXIS 258 (Mar. 9, 2017)]. Noting that the ALJ was the sole judge of witness credibility, and that there was a deep conflict regarding the incident, the court held the evidence supported a finding that the worker had not suffered an idiopathic fall.

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Airport Luggage Transport Driver Recovers Under Personal Comfort Doctrine

A Pittsburgh International Airport airport employee, whose job consisted of driving a luggage transport “tug,” and who sustained serious injuries when she flipped her tug as she traveled to one of the airport terminals to meet her mother—who was delivering feminine hygiene products and other personal items—may recover workers’ compensation benefits under the personal comfort doctrine, held a state appellate court [Starr Aviation v. Workers’ Comp. Appeal Bd. (Colquitt), 2017 Pa. Commw. LEXIS 60 (Mar. 7, 2017). The court agreed with a workers’ compensation judge that the employee’s temporary departure from her duties did not remove her from the course of her employment.

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“Fore”: Country Club Locker Room Attendant Struck in Groin by Golf Club Shaft May Sue Co-Employee

A locker room attendant at a Queensbury country club, who had his left testicle surgically removed following a bizarre incident in which the attendant was struck in the groin by a golf club shaft wielded by the country club’s general manager, may proceed with his tort action filed against the manager, held a New York appellate court [Montgomery v. Hackenburg, 2017 N.Y. App. Div. LEXIS 1719 (Mar. 9, 2017)]. The fact that the attendant accepted workers’ compensation benefits for his injury did not preclude recovery since he had raised an issue of fact as to whether the manager’s actions were intentional.

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S.C. Supreme Court Says Return to Work Insufficient to Rebut Presumption of PTD Where Impairment to Back is Greater Than 50 Percent

Yesterday, in a divided decision, the Supreme Court of South Carolina, overruling an earlier decision of the state’s Court of Appeals, held that evidence of subsequent employment is insufficient by itself to rebut the presumption of permanent and total disability where the injured employee has sustained greater than 50 percent loss of use to his back [Clemmons v. Lowe’s Home Ctrs., 2017 S.C. LEXIS 55 (Mar. 8, 2017); see S.C. Code Ann. § 42–9–30(21)]. Accordingly, where all the expert medical evidence indicated the employee had suffered at least 70 percent impairment to his back, he should have been awarded PTD benefits under the S.C. Workers’ Compensation Act’s schedule of benefits. He should not be penalized for returning to work. Continue reading

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Virginia Employer Proves Employee Was Intoxicated, But Still Loses Case

The Court of Appeals of Virginia recently reiterated that in order to defeat a claim for workers’ compensation benefits, it is not enough to show that an employee was intoxicated at the time of his or her injury; the employer also bears the burden of proving that the intoxication caused the accident resulting in injury [see Andersen Interior Contr. v. Nimmo, 2017 Va. App. LEXIS 49 (Feb. 21, 2017)]. Accordingly, where expert testimony established that blood tests taken some six hours after the employee’s fall from a ladder indicated the employee likely had a blood alcohol content (BAC) between 0.09 and 0.17 at the time of the fall, there arose a rebuttable presumption under Va. Code Ann. § 65.2–306(B) that the employee was intoxicated. There was nevertheless sufficient evidence in the record to support the Board’s finding that the employer failed to meet the burden of showing that the actual fall was caused by the employee’s intoxication. The employee had performed his job on the ladder successfully for some period of time before his fall. No other employee or supervisor witnessed the fall and the Commission found that the claimant’s fall was caused by the inherent dangers posed by working on ladders. Lifetime medical benefits were appropriately awarded, held the Court.

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$841,200 Fine Against Small Colorado Employer Was Unconstitutionally Excessive

While upholding the facial constitutionality of Colo. Rev. Stat. § 8–43–409, which provides for the imposition of fines against certain employers that fail to maintain workers’ compensation insurance, a Colorado appellate court nevertheless found that the imposition of a fine of $841,200 against a small employer was excessive because the Director of the Division of Workers’ Compensation failed to apply the excessive fine factors adopted under the Eighth Amendment to the U.S. Constitution (and a similarly-worded provision of the Colorado constitution) [see Dami Hospitality, LLC v. Indus. Claim Appeals Office, 2017 COA 21, 2017 Colo. App. LEXIS 207].

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Georgia Supreme Court Clarifies “Willful Misconduct” Doctrine

Reversing a decision of the state’s Court of Appeals, the Supreme Court of Georgia, in Telecom v. Burdette, 2017 Ga. LEXIS 103 (Feb. 27, 2017), held that while the mere violation of instructions or the mere doing of a hazardous act in which the danger is obvious cannot, standing alone, constitute willful misconduct, if the intentional act was done either with the knowledge that it was likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences, the injured worker could be disqualified from an award of workers’ compensation benefits. Indicating the state’s Board of Workers’ Compensation had not made factual findings regarding the conduct of a cell-phone tower employee who sustained serious injuries when—contrary to express orders from his supervisor—he attempted a “controlled descent” from a tower, rather than merely climb down like his co-workers, the high court remanded the case so that those issues could be considered.

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Wyoming Worker Fails to Connect the Dots Between Original Surgery and Subsequent Procedure to Alleviate Continued Pain

The Supreme Court of Wyoming affirmed a finding by a state district court that an injured worker failed to establish a causal connection between her 2013 need for shoulder surgery and either her original 2004 shoulder injury or the 2005 right shoulder arthroscopy to treat the original injury, in spite of some medical evidence that during the 2013 procedure, her surgeon spotted and repaired what may have been a defect in the earlier surgery [see In re Claim of Price v. State ex rel. Dep’t of Workforce Servs., 2017 Wyo. LEXIS 16 (Feb. 16, 2017)(emphasis added)]. The Court also indicated the worker had failed to show that the soft tissue calcification in her shoulders, which may have been at least part of her pain problem, was causally related to the original injury.

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