NY Claimant Establishes Aspergillosis Claim as an Accidental Injury

Court’s Ruling of No Occupational Disease Does Not Bar Claim (After Remittal) for Accidental Injury

Where a New York appellate court reversed the state Workers’ Compensation Board’s finding that a claimant suffered from an occupational disease (allergic bronchopulmonary aspergillosis) and remitted the matter to the Board for further proceedings, the Board was free to consider a new theory—accidental injury—for the claim and its determination that the claimant had indeed sustained an accidental injury arising out of and in the course of the employment was supported by substantial evidence [Matter of Connolly v. Covanta Energy Corp., 2019 N.Y. App. Div. LEXIS 4297 (May 30, 2019)].

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For Illinois “Borrowing Employer,” Exclusive Remedy Defense Not Tied to Payment of Insurance Premiums

A temporary staffing agency worker may not maintain a cause of action against a “borrowing employer” for personal injuries sustained in a work-related accident in spite of the fact that the borrowing employer neither paid any workers’ compensation insurance premiums related to the injured worker nor was it obliged to reimburse the temporary staff agency for that expense, held an Illinois appellate court [Holten v. Syncreon N. Am., Inc., 2019 IL App (2d) 180537, 2019 Ill. App. LEXIS 386 (May 31, 2019)]. Immunity from suit arose from the existence of a borrowed-employee relationship; it did not arise from the direct provision of insurance coverage.

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Injured Worker’s Failure to Mention Involvement in Side Business Did Not Result in Disqualification

A New York appellate court held the state’s Workers’ Compensation Board could reasonably conclude that a claimant had not made false statements or other misrepresentations for the purpose of obtaining workers’ compensation benefits where the claimant filed written forms indicating that he had ceased working for the employer—or any other employer—as of May 16, 2014, due to injuries the claimant had sustained one month earlier in a work-related vehicular accident, yet claimant’s own testimony at subsequent hearings showed that both before and after the May 2014 date, he had continued to engage in various business activities in connection with an online and retail flower business that he owned, along with his wife, and another partner [Matter of Permenter v. WRS Envtl. Servs. Inc., 2019 N.Y. App. Div. LEXIS 4295 (3d Dept., May 30, 2019)]. Claimant testified that he didn’t believe his effort with the flower business was work since it was not profitable.

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Amazon’s New “Last-Mile” Delivery Service: Who “Employs” that Driver-Deliverer at Your Door?

Commentary: Is the Workers’ Compensation World Ready for Amazon’s New Package Delivery Business Model? The Answer Might Surprise You!

As I drove to a meeting in downtown Durham a few days ago, I noticed a procession of 15—I actually counted them—nice, shiny, well-appointed Mercedes-Benz Sprinter vans proceeding toward me. All emblazoned with Amazon’s branding and blue Prime logo, they seemed to be heading in unison either toward or away from a specific location. To be sure, I had seen some of the vans—or vans just like them—in my Durham neighborhood over the past few months, but the sight of the “spit and polish” caravan really piqued my interest. Later that day, I called a young business colleague who knows “All Things Durham” and “Most Things New” and I inquired as to what was going on. Seeing a potential workers’ compensation issue within most any context, I asked him, “Does Amazon actually employ all those drivers?”

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What a Difference a Word Makes!

PA Criminal Defendant Who Can’t Make Bond is Not Disqualified From Benefits.

Stressing that a provision within the Pennsylvania Workers’ Compensation Act [77 Pa. Stat. § 511.1] that requires suspension of benefits for the period during which an injured worker is incarcerated “after a conviction” [emphasis added], a state appellate court held that the Workers’ Compensation Appeal Board committed error when it determined that a claimant, who spent 525 days in jail awaiting his trial, should be disqualified from receiving benefits for that time period [Sadler v. Workers’ Comp. Appeal Bd. (Phila. Coca-Cola), 2019 Pa. Commw. LEXIS 469 (May 22, 2019)]. The court acknowledged that upon the claimant’s criminal trial, he pled guilty, was convicted, and sentenced to 525 days of incarceration, but stressed the claimant had been released upon such conviction—the judge credited the claimant with “time served.” Thus, the claimant had not been incarcerated after the conviction. The forfeiture statute did not apply.

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Georgia Employee May Not Sue Employer for Negligent Denial of Medical Care Following Injury

A Georgia employee’s negligence claim against his employer for allegedly denying him access to medical care and insurance coverage following an injury in a vehicular crash is barred by the exclusive remedy provisions of the Georgia Workers’ Compensation Act, held a state appellate court [Savannah Hospitality Servs. v. Ma-010 Scriven, 2019 Ga. App. LEXIS 272 (May 23, 2019)]. Acknowledging the disagreement between the employee and employer as to whether the employee’s injuries sustained in the vehicle accident had occurred in the course and scope of the employment, the appellate court stressed that the real issue centered on the employer’s alleged conduct after the accident. If the employment contributes to aggravation of a pre-existing injury, it is still an accident under Georgia’s workers’ compensation law, and is compensable, thus triggering the exclusive remedy defense [see OCGA § 34-9-11(a)].

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Oregon Supreme Court Clarifies Standard in Unexplained Fall Cases

Finding that both the Oregon Workers’ Compensation Board and the state’s Court of Appeals had erroneously utilized the appropriate legal standard in their attempts to determine whether a bank employee’s fall was “unexplained” and, therefore, compensable, the Supreme Court of Oregon held that in order to prove that a fall is unexplained, the claimant must prove that there is no nonspeculative explanation for the fall [Sheldon v. US Bank, 364 Or. 831 (2019)]. If facially nonspeculative idiopathic causes for explaining the fall existed, then the claimant was required to offer countering evidence sufficient to convince the board that the proposed idiopathic cause was, in fact, speculative.


Claimant fell on her way to work while walking through the lobby of an office building where her employer leased office space. As a result of the fall, claimant suffered a fractured shoulder. At the time of the incident, claimant told paramedics that her foot “got caught and she tripped and fell.” She told an ER nurse that “her foot rolled and she tripped and fell.” At a hearing on her workers’ compensation claim, claimant testified that she felt as if she had tripped over something, perhaps the “lip” of a floor tile. She further testified that there were no obvious hazards in the lobby that could have caused her to fall.

The employer contended claimant’s injuries were not compensable because her fall could have been caused by idiopathic factors, specifically, claimant’s diabetes and obesity. A medical expert hired by the employer opined that claimant’s call could have been caused by symptomatic manifestations of diabetes and obesity. Claimant countered that she had never been diagnosed with peripheral neuropathy. She admitted some “tingling” in her feet in the past, but denied that the tingling ever caused her to fall.

ALJ’s Decision

The ALJ found that claimant had eliminated idiopathic causes, but concluded that the claim was barred by the going and coming rule. She had been on her way to work and the employer did not maintain control over the lobby area where she fell.

Board’s Decision

The board affirmed the denial of compensability, but on a different ground. The board concluded that in order to establish that a fall was unexplained, the claimant must “persuasively eliminate” all idiopathic factors of causation. The board stressed that an injury could not be said to have arisen from the employment if it was “equally possible” that the fall resulted from an idiopathic cause or some other cause. Applying that standard, the board concluded that the claimant had failed to establish that her fall was unexplained.

Court of Appeals’ Decision

The Court of Appeals vacated the board’s decision, determining that it had applied the wrong legal standard for determining what it means to persuasively eliminate idiopathic factors.

Supreme Court’s Decision

The Supreme Court agreed with the Court of Appeals to the extent that it found the board’s methods erroneous. The high court said the Court of Appeals nevertheless also had it wrong. The difficulty was in the board’s and the lower court’s understanding of the Livesley decision [Livesley Co. v. Russ, 296 Ore. 25, 672 P.2d 337 (1983)].

Earlier Livesley Decision

The high court stressed that although Livesley did not answer the question presented in the instant case, Livesley did play a central role in framing the question presented. The Supreme Court admitted that parts of the Livesley decision were less than totally clear, yet most of that confusion had been resolved by subsequent decisions. The key difference between the issues in the instant case and those in Livesley was that here, the parties disagreed about threshold questions: namely, whether the claimant’s fall was unexplained and whether claimant had eliminated the idiopathic causes of her fall.

Eliminating All Theoretical Causes Cannot Be Required

Agreeing with the Court of Appeals, the Supreme Court said that a claimant need not eliminate all theoretically possible idiopathic causes, noting that in virtually very case, there might be some theoretically possible explanation that could not be disproven. The Court added that the very idea of proving that an event is unexplained is an awkward one, in as much as the usual reason that an event is unexplained is because there is an absence of evidence supporting any explanation.

Speculative Versus Nonspeculative Explanations for the Fall

The Court stressed that determining whether a fall is explained or unexplained is not a matter of determining which explanation is the best explanation or even which explanation is the likeliest explanation. Instead, determining whether a fall is explained or unexplained is a matter of determining whether there are any “nonspeculative explanations.” If there is a nonspeculative explanation, then that explanation prevents the claimant from establishing that the fall is unexplained. If there is no nonspeculative explanation available, then the fall is unexplained. If there are some facially nonspeculative idiopathic causes for explaining a fall, then the claimant must offer countering evidence sufficient to convince the board that the proposed idiopathic cause is, in fact, speculative.

The Court observed that this is exactly what had happened in Livesley. There the claimant suffered from vertigo. To the extent that the claimant’s vertigo established a facially nonspeculative idiopathic explanation for the fall, both the board and the Court of Appeals concluded that the claimant satisfactorily countered that evidence with his own testimony that he did not experience any symptoms of vertigo immediately before his fall and with his physician’s testimony discounting any pre-existing condition or weakness that could have caused the claimant to fall.

Remand Required

The Court concluded that in the instant case, in order to determine that the fall was unexplained, the board must find that there was no nonspeculative explanation for the fall. The board had not done so and the case had to be remanded, therefore, for such an examination and finding.

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Oklahoma’s Retaliatory Discharge Statute Withstands Constitutional Challenge

Lack of Jury Trial and Limited Damages Pass Constitutional Muster

Oklahoma’s retaliatory discharge statute [85A O.S.Supp. 2013 § 7], which restricts jurisdiction in relevant instances to the Workers’ Compensation Commission and, therefore, prevents claimants from having their causes heard by a jury, is constitutional, according to a recent ruling of the Supreme Court of Oklahoma [Southon v. Oklahoma Tire Recyclers, LLC, 2019 OK 37, 2019 Okla. LEXIS 37 (May 21, 2019)]. The high court held a wrongful discharge claim was not an action with a guaranteed right to trial by jury under the state constitution, nor did the statute violate claimants due process rights.

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Tornadoes and other “Acts of God”: When Are Weather-Related Injuries Compensable?

Yesterday, I had an interesting e-mail exchange with a blog subscriber who wanted my take on the compensability of injuries resulting from Acts of God, specifically, tornadoes and and lightning strikes. Her question had been prompted by the fact that a number of severe storms had passed through her area in recent days. Several tornados had destroyed property and caused serious injury. She specifically wondered about those whose jobs required them to be out and among the elements. How do the various jurisdictions treat these sorts of injuries?

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NC Worker May Proceed in Tort Against Employer and Plant Nurse for Negligent Treatment

A North Carolina worker, who alleged that he was negligently diagnosed and treated by his employer’s plant nurse after suffering a stroke at work, may proceed in tort against that employer and the nurse, held a state appellate court yesterday [Jackson v. Timken Co., 2019 N.C. App. LEXIS 477 (May 21, 2019)]. The court ruled that in as much as the state’s Industrial Commission had previously determined that the worker’s injury did not arise out of the employment, the state’s trial court had jurisdiction to hear the matter. The cause of action was not barred by the exclusive remedy provisions of the state’s Workers’ Compensation Act.

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