Recent Kansas AMA Guides Decision: Would the Court Prefer a Fault-Based System?

Jettisoning the Bath Water—Does the Baby Remain?

As someone who has, for the past 32 years, earned the bulk of his living reading—I’ll admit, often only skimming—some 2,500 appellate decisions each year in our field of workers’ compensation law, and commenting (in some form and fashion) upon, say 700 of them, I appreciate it when a judge or justice takes the time to write an imaginative opinion. One such opinion was penned recently by Judge Patrick McAnany, of the Kansas Court of Appeals, in Johnson v. U.S. Food Serv., No. 117,725, 2018 Kan. App. LEXIS 44 (Aug. 3, 2018). McAnany’s carefully crafted opinion employs rich metaphor—“death by a thousand paper cuts” [Opinion ¶ 22]. It also references comedic cinema—Monty Python’s famous “Black Knight” scene. Judge McAnany’s nod to powerful stage drama—Arthur Miller’s Death of a Salesman, has me wondering, however, if the judge might prefer that we jettison the entire workers’ compensation scheme and just move back to the days in which standard tort law governed the world of work-related injuries. If we throw out the proverbial bath water, what happens to the baby? Let me explain.

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Kansas Court Strikes Down Use of AMA Guides 6th Ed.

Decision Reinstates 4th Edition for Workers’ Comp Disputes

In a decision that quotes, among other authority, Linda Loman, wife of Willy Loman, of Arthur Miller’s Death of a Salesman, the Court of Appeals of Kansas earlier today struck down as unconstitutional the use of the 6th Edition of the AMA Guides for measuring permanent impairment of injured workers under the state’s Workers’ Compensation Act (“the Act”) [Johnson v. U.S. Food Serv., No. 117,725, 2018 Kan. App. LEXIS 44 (Aug. 3, 2018)]. Continue reading

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Alabama Accountant’s Fatal Shooting by Disgruntled Former Client Found Compensable

In a case with a bizarre fact pattern, an Alabama appellate court affirmed an award of workers’ compensation death benefits to the surviving spouse of an accountant who was stalked and then shot to death because her assailant blamed the accountant for tax problems in his business [Lawler & Cole CPAs, LLC v. Cole, 2018 Ala. Civ. App. LEXIS 115 (July 13, 2018)]. Construing Ala. Code § 25-5-1(9) and relevant case law, the appellate court agreed that the murder, although an intentional act on the part of the murderer, amounted to an accidental injury (death) arising out of the employment.

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The Real Reason LeBron is Moving to the Lakers!

There are some who point out that LeBron is getting ready to pay the highest taxes in his life (with a $154 million contract, he can afford it), that he should have gone to one of the Florida or Texas teams to maximize his economic take, but I think I’ve unearthed the real reason LeBron is moving to the Lakers: He’s solidifying the jurisdictional issues regarding any potential workers compensation claim for repetitive motion injuries. As many of us know, California is a haven for professional athletes when it comes to comp claims — don’t think indemnity, remember lifetime medical benefits. Some athletes from teams outside of California, however, have been unsuccessful based on rulings that they have had insufficient contact within the Golden State. Playing a season or two in L.A. will make LeBron’s claim easy to file (let me know if you can’t feel me pulling on your leg).

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Oklahoma High Court OKs Use of “Current Edition” of AMA Guides

Conflict with PA’s Protz Decision is Only on the Surface

The sections of Oklahoma’s Administrative Workers’ Compensation Act (AWCA) that require use of the “current edition” of the AMA’s Guides to the Evaluation of Permanent Impairment to determine PPD do not violate the Constitution, held a divided Supreme Court of Oklahoma on Tuesday, in Hill v. American Medical Response, 2018 OK 57 (June 26, 2018). At first blush, the decision would appear to be in total conflict with that of the Pennsylvania Supreme Court last year in Protz v. Workers’ Comp. Appeal Bd. (Derry Area School Dist.), 161 A.3d 827 (Penn. 2017), which generally held that the use of similar language in the Keystone State’s Act constituted an unconstitutional delegation of legislative authority to the AMA. A close reading of the majority opinion shows, however, a considerable level of consistency in the reasoning applied by the majorities of the two state supreme courts. Continue reading

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Kansas Claimants’ Attorneys Face “Catch-22” in Appellate Work

No Provision for Court-Ordered Fees on Appeal

The Court of Appeals of Kansas recently reiterated that because of what amounts to a “Catch-22” in state law and appellate rules, an attorney representing a workers’ compensation claimant may not be awarded attorney’s fees for post-award work, even when prosecuting a successful appeal [see Pierson v. City of Topeka, 2018 Kan. App. LEXIS 33 (June 15, 2018)].

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Maine Employer Need Not Pay for Injured Worker’s Medical Marijuana

In a case of first impression within the state, the Supreme Judicial Court of Maine, in a 5-2 decision, Bourgoin v. Twin Rivers Paper Co., LLC, 28 ME 77 (June 14, 2018), held that an employer may not be required to pay for an injured worker’s medical marijuana use. Indicating that it was deciding the case on “narrow” grounds, the majority reasoned that there was a “positive conflict” between the federal Controlled Substances Act (CSA) and the Maine Medical Use of Marijuana Act (MMUMA) [Opinion, ¶ 1] and that, under such circumstances, the CSA preempted state law. Continue reading

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California: Use of Preprinted C & R Form Does Not Waive Claims Outside Workers’ Comp Context

A California appellate court found a state trial court committed error when it granted summary judgment to an employer in an employment discrimination case filed by a former employee based on its finding that the former employee had released the employer from liability for any and all potential claims, including claims falling outside the workers’ compensation system, when the employee signed a preprinted compromise and release (C&R) form to settle a workers’ compensation claim [see Camacho v. Target Corp., 2018 Cal. App. LEXIS 529 (June 8, 2018)].

The Court noted that neither the form nor an addendum contained any reference to non-workers’ compensation claims. The Court added that the context of the release language, which appeared in fine print and which was not underlined, bolded, or capitalized, referred to other workers’ compensation claims that were identified as being settled elsewhere, not to the employee’s potential discrimination claim.

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Texas Insurer Barred from Going After Third-Party Settlement Proceeds

Where a worker’s compensation insurance policy contained a clause in which the carrier waived its right to recover from any third party sued by the injured employee, that clause also prevents the carrier from recovering from the injured employee, once he or she has settled the third-party tort action, held a divided Supreme Court of Texas recently in Wausau Underwriters Ins. Co. v. Wedel, 2018 Tex. LEXIS 519 (June 8, 2018). The majority of the Court stressed that the carrier sought “the same money through the back door that it could not get through the front” [Opinion, p. 1].

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Kansas Worker Gets No Benefits For Early Morning Injuries While Walking to Hotel

A Kansas roofer, who sustained catastrophic injuries when he was struck by a drunk driver as the roofer walked from a bar to his hotel at 2:20 a.m., could not recover workers’ compensation benefits for his injuries.  The roofer’s injuries did not arise out of and in the course of the employment, held the Supreme Court of Kansas [Atkins v. Webcon, 2018 Kan. LEXIS 204 (June 8, 2018)].

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