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November 1998
Volume 18, Number 11
Feature Articles:
Monthly Sections:
Workers' compensation insurers, employers, and self-insurers are being advised on how to "hang on to reform gains in the face of what they are calling "reform backlash litigation". Michael Ducey of the Liberty Mutual Group recently said, "Insurers must be vigilant if they are to retain hard-fought workers' compensation reforms." Bruce Wood of the American Insurance Association said, "We can anticipate legislative threats, especially in the northeast. The wild card is the judiciary."
Insurers are for the first time admitting that as reforms brought losses down, there was a lag in the corresponding reduction in rates.
Of particular concern to insurers is the Sullivan v. Barrett case in which the U.S. Supreme Court will rule whether a claimant is entitled to a hearing before his/her benefits are terminated. If the case is upheld, several state workers' compensation statutes may be subject to constitutional attack.
For additional information see Best's Review, September 1998, page 95, and the article entitled "Laboring Through".
A recent insurance meeting featured a speaker who talked on the topic "Paying People Not to Work". The CEO of the Workers' Compensation Management Service advocated lowering indemnity costs because "55 percent of each workers' compensation dollar goes to pay them not to work." The CEO went on to say, "life becomes very easy if you're getting paid while you are home ... Lowering lost-time days means staying close to workers after an accident and getting them back to work quickly."
For additional information see the September 14, 1998, issue of Business Insurance, page 3, article entitled "Paying Employees Not to Work".
What happens in many companies after you file a workers' compensation claim? Many employees are fired, laid off, or otherwise forced out of their job.
If you think this is an overstatement, look at the latest survey by the Texas Research and Oversight Council on Workers' Compensation. Despite the fact that it is illegal to discriminate against a worker because he has filed a workers' compensation claim, 21 percent of employees report being fired or laid off and another 7 percent said they were threatened with being fired after being injured on the job. Are you still not convinced that these layoffs were in retaliation for filing a workers' compensation claim? In 13 percent of the cases the action took place the day the employee reported the injury.
For a copy of the full report entitled "An Analysis of Workers Who Were Fired or Laid Off After a Work Related Injury" call 512-469-7811.
The latest exception to the exclusivity bar to suits against employers is the suit for invasion of privacy. All workers' compensation attorneys should carefully review the Marino v. Arandell Corp. case, 1 F.Supp.2d 947 (E.D.Wisc. 1998). An abstract of the case is set forth on page 6 of this issue. The decision in the case mentions six different privacy concerns/bases for suits. WCM anticipates an explosion in these privacy cases in the upcoming years. Look for "reform" legislation to head off these suits.
A recent study by the General Accounting Office found that benefits under the FECA average more than 95 percent of the take-home pay of injured workers. In 29 percent of the cases studied, compensation benefits amounted to more than 100 percent of the take-home pay.
As you might expect, Congress is not pleased with this "overgenerous" compensation. The House Government Reform and Oversight Subcommittee on civil service is now looking into the matter.
A copy of the report GAO/GGD-98-174 is available at no charge by calling 202-512-6000.
In 1995, the state of West Virginia passed legislation making it more difficult for injured workers to get permanent and total disability benefits. At the time legislators were told that permanent and total awards would be cut by approximately 40 percent. What has in fact happened? The new legislation has reduced these awards by 96 percent. As a result, the state workers' compensation fund will have a $3.5 billion surplus by the year 2035. These figures are based on a study by Insurance Data Resources, Inc. of Boca Raton, Florida.
Employment Commissioner William Vieweg recently stated that the fund was "running at a profit". Organized labor will be attempting to get the legislature to modify the new permanent and total standards in 1999.
What will happen to those injured workers denied permanent and total benefits between 1995 and 1999?
The pressure is on for employers, insurers, and self-insurers to return injured workers back to work as soon as possible. The conventional wisdom is that getting the employee back working fast is good for everyone in the workers' compensation system, including the injured worker. What happens after the initial return to work?
In an interesting article entitled "Successful Return to Work: Using Worker-Specific Analysis", the authors point out that early return to work may not be the complete answer.
In an analysis of 10,500 workers with permanent partial impairments, researchers found that the effect of injuries on employment is more enduring than previously assumed. The rate of successful return-to-work employment, measured by the first return to work, was 85 percent. But 40 percent of those reporting an initial successful return ultimately reported being jobless because of their impairment. The true rate of success over a longer time period is only 50 percent. Moreover, researchers found that the variables that were statistically significant in explaining the first return-to-work percentage were not generally the same as the variables explaining the ultimate employment outcomes. Clearly, the effectiveness of any return-to-work protocol for those with serious injuries needs to follow workers beyond the initial return to work.
When you see return to work program statistics, consider the above and similar studies.
For additional information see the Journal of Workers' Compensation, Summer 1998, volume 7 number 4, or call 617-457-0600.
Insurers have already been successful in eliminating a private right of action for violations of the model privacy act. Where was the input from workers' compensation attorneys when this was going on?
Not yet satisfied with the watered down legislation, the Alliance of American Insurers is pushing for more changes. Here is their latest attempt to clear up the "ambiguities" in the act:
Although improved, the latest version of the act could introduce miles of red tape to the process of treating injured workers. It strays beyond the original goal of simply making sure that sensitive information related to an individual's health records is not publicized or otherwise disclosed in ways that are embarrassing or harmful to the subject of that information.
To fairly and efficiently pay claims involving, not just workers compensation but also tort claims against homeowners and claims against insured drivers, carriers must have the right to ascertain that injuries incurred in the alleged accident truly arose in a way that justifies coverage. Few of the examples cited in support of the model act involve actions by property/casualty insurers; however, this "cure" could harm workers, as well as thousands of small businesses, homeowners and drivers by seriously limiting insurers' ability to defend themselves against baseless claims.
The cause of action for violations of the model privacy act are being lost due to inaction by the attorneys representing injured workers.
James N. Ellenberger, the Assistant Director of the Department of Occupational Safety and Health for the AFL/CIO, recently wrote a compelling article entitled "Fraud - Another View". In the article, published in the October 1998 issue of On Workers' Compensation, Mr. Ellenberger points out that the claims made by the U.S. Chamber of Commerce of $5 billion in workers' compensation fraud each year are themselves very suspect. He states:
... The real fraud revealed in this piece from the Chamber is in the distortion, fabrication, and misrepresentation of who is ripping off whom.
For a copy of the complete story see the October 1998 issue of On Workers' Compensation or call 800-274-6774.
An estimated 600,000 needlestick injuries occur in the United States each year. While serious illness and possibly death can be a direct result of contracting a bloodborne disease, other effects can occur which less readily come to mind. In addition to the risk of disease transmission, workers may suffer from the side effects of drugs used to treat the diseases and from psychological stress because of the threat of infection after an exposure occurs.
OSHA is currently seeking ways to further reduce needlestick injuries. For additional information contact Frank Kane at 202-219-8151.
An interesting series of articles on traumatic brain injury is running in the California Workers' Compensation Enquirer. Dr. Claude S. Munday, in the August 1998 issue, discusses:
- Attention/concentration
- Memory
- Lack of awareness of deficits
- Increased irritability
- Increased sensitivity
- Test scores
- Contaminating co-morbid condition, and
- Convergence
For additional information contact Dr. Munday at 510-208-4700.
Was the attack on the injured worker you are representing reasonably foreseeable? Was it preventable? Is there a third party case for an intentional tort?
A recent study by the Department of Justice found that violent crimes on the job are a staggering 1.5 million per year in the United States. Homicide was in fact the second leading cause of death in the workplace. Many of these deaths were foreseeable and preventable!
For a free copy of the July 26, 1998, report "Workplace Violence, 1992-1996" call 800-732-3277.
The September 1998 issue of the Journal of Occupational and Environmental Medicine had several articles of interest for workers' compensation attorneys. These articles are:
- ACOEM Guidelines on Tuberculosis
- Vibration White Finger Revisited
- The NIOSH Review of Hand-Arm Vibration Syndrome
- Solvent-Induced Chronic Toxic Encephalopathy
- The Effects of Material Work Activity on Infant Malformations
For additional information contact the ACOEM at 847-228-1856.
OSHA is now planning to publish a proposed ergonomics standard in the Summer of 1999 if permitted by Congress. As you may recall, OSHA has been attempting to publish a standard since 1992!
Dan Butler, writing the Fall 1998 issue of the Iserhagen Work Report, states that the ergonomic standard is around the corner. Mr. Butler writes:
A Proposal
A federal OSHA ergonomics standard, which is in the proposal stage, would provide a comprehensive guide for industry and those serving as ergonomics consultants. Indications are the standard will address the following concepts:
- Based on sound scientific principles
- Emphasis on evaluating areas with greatest risk
- Maximizing worker protection
- Provide flexibility
- Look to effective practices
- Written in plain language
- Recognize unique properties of small businesses
For additional information see the Fall 1998 issue of the Iserhagen Work Report or call 218-728-6455.
NIOSH has issued a revised occupational noise exposure criteria for a recommended standard. Below is the abstract of the 105-page document.
This criteria document reevaluates and reaffirms the recommended exposure limit (REL) for occupational noise exposure established by the National Institute for Occupational Safety and Health (NIOSH) in 1972. The REL is 85 decibels, A-weighted, as an eight-hour time-weighted average (85 dBA as an 8-hr TWA). Exposures at or above this level are hazardous.
By incorporating the 4000-Hz audiometric frequency into the definition of hearing impairment in the risk assessment, NIOSH has found an 8 percent excess risk of developing occupational noise-induced hearing loss (NIHL) during a 40-year lifetime exposure at the 85-dBA REL. NIOSH has also found that scientific evidence supports the use of a 3-dB exchange rate for the calculation of TWA exposures to noise.
The recommendations in this document go beyond attempts to conserve hearing by focusing on prevention of occupational NIHL. For workers whose noise exposures equal or exceed 85 dBA, NIOSH recommends a hearing loss prevention program (HLPP) that includes exposure assessment, engineering and administrative controls, proper use of hearing protectors, audiometric evaluation, education and motivation, recordkeeping, and program audits and evaluations.
Audiometric evaluation is an important component of an HLPP. To provide early identification of workers with increasing hearing loss, NIOSH has revised the criterion for significant threshold shift to an increase of 15 dB in the hearing threshold level (HTL) at 500, 1000, 2000, 3000, 4000, or 6000 Hz in either ear, as determined by two consecutive tests. To permit timely intervention and prevent further hearing losses in workers whose HTLs have increased because of occupational noise exposure, NIOSH no longer recommends age correction on individual audiograms.
If you are involved in hearing loss cases, WCM recommends you obtain the complete document (No. 98-126): Publications Dissemination, Education and Information Division, National Institute for Occupational Safety and Health, 4676 Columbia Parkway, Cincinnati, OH 45226-1998.
ACHILLES TENDON
Dozier v. Mid-Del School System, 959 P.2d 604 (Okla.Civ.App. Div. 3 1998)
ANKLE
Cornelius v. Nissequogue Fire Dist., 675 N.Y.S.2d 217 (A.D. 3 Dept. 1998)
Davis v. Sheraton Operating Corp., 713 So.2d 814 (La.App. 4 Cir. 1998)
Fotta v. W.C.A.B. (U.S. Steel/USX Corp.), 714 A.2d 479 (Pa.Cmwlth. 1998)
Nickens v. Patriot Home Systems, 713 So.2d 1179 (La.App. 1 Cir. 1998)
ARTHRITIS: SPINAL
Layman v. Newkirk Elec. Associates, Inc., 581 N.W.2d 244 (Mich. 1998)
ASBESTOSIS
Hurst v. Boland Machine & Mfg. Co., 713 So.2d 857 (La.App. 4 Cir. 1998)
BACK
Anderson v. Omaha Public School Dist., 581 N.W.2d 424 (Neb. 1998)
Anzalone v. Allstate Ins. Co., 714 So.2d 18 (La.App. 1 Cir. 1998)
Chaisson v. Oceanside Seafood, 713 So.2d 1286 (La.App. 1 Cir. 1998)
DeWall v. State, 960 P.2d 502 (Wyo. 1998)
DiBenedetto v. Second Injury Fund, 581 N.W.2d 766 (Mich.App. 1998)
Keller v. Metal Masters Foodserv. Equip., Del.Supr., 712 A.2d 1004
Knaub v. Realtime Business Systems Inc., 674 N.Y.S.2d 799 (A.D. 3 Dept. 1998)
Lumbermens Mut. Cas. Co. v. Manasco, 971 S.W.2d 60 (Tex. 1998)
Poisson v. Comtec Information Systems, 713 A.2d 230 (R.I. 1998)
Thompson v. Claw Island Foods, 713 A.2d 316 (Me. 1998)
Turbitt v. Blue Hen Lines, Inc., Del.Supr., 711 A.2d 1214 (1998)
BACK: DISC
Appeal of Murray, 714 A.2d 222 (N.H. 1998)
Benoit v. Frank's Casing Crew, 713 So.2d 762 (La.App. 3 Cir. 1998)
Warren v. Oberlin Color Press, 959 P.2d 609 (Okla.Civ.App. Div. 1 1998)
BACTERIAL ENDOCARDITIS
Spoerl v. Armstrong Pumps Inc., 674 N.Y.S.2d 833 (A.D. 3 Dept. 1998)
BROKEN NOSE
Hoy v. Gilbert, 714 So.2d 74 (La.App. 2 Cir. 1998)
CARPAL TUNNEL SYNDROME
Anderson v. Boeing Co., 960 P.2d 768 (Kan.App. 1998)
Gilliam v. Manhattan/Whitaker Const. Co., 714 So.2d 101 (La.App. 2 Cir. 1998)
Meester v. Runyon, 149 F.3d 855 (8th Cir. 1998)
Rogers v. Hewlett-Packard Co., 960 P.2d 871 (Or.App. 1998)
CHRONIC LOW BACK SYNDROME
Collins v. Howmet Corp., 970 S.W.2d 941 (Tenn. 1998)
FEMUR: FRACTURE
Brown v. Alabama Elec. Co., 970 S.W.2d 807 (Ark. 1998)
HAND
Cervantes v. Drayton Foods, L.L.C., 582 N.W.2d 2 (N.D. 1998)
HAND: PARTIAL AMPUTATION
SKF USA, Inc. v. W.C.A.B. (Smalls), 714 A.2d 496 (Pa.Cmwlth. 1998)
HAND: REPETITIVE MOTION INJURY
Clarion Mfg. Corp. of America v. Justice, Ky., 971 S.W.2d 288
HEAD
Kudlacz v. Lindberg Heat Treating Co., 712 A.2d 973 (Conn.App. 1998)
HEAD: CEREBROSPINAL FLUID LEAK
Ostrowski v. Wasa Elec. Services, Inc., 960 P.2d 162 (Hawaii App. 1998)
HEARING LOSS
Crucible, Inc. v. W.C.A.B. (Vinovich), 713 A.2d 749 (Pa.Cmwlth. 1998)
SAIF v. Paxton, 959 P.2d 634 (Or.App. 1998)
White v. Tougher Industries, 674 N.Y.S.2d 876 (A.D. 3 Dept. 1998)
HEART ATTACK
Gallagher v. City of Las Vegas, 959 P.2d 519 (Nev. 1998)
Marshall v. Metro. Water Rec. Dist. Ret., 697 N.E.2d 1222 (Ill.App. 1 Dist. 1998)
HEPATITIS C
Marino v. Arandell Corp., 1 F.Supp.2d 947 (E.D.Wis. 1998)
HODGKIN'S DISEASE
Ranney v. Parawax Co., Inc., 582 N.W.2d 152 (Iowa 1998)
KNEE
Appeal of Gilbert, 714 A.2d 216 (N.H. 1998)
Bethlehem Steel Corp. v. W.C.A.B., 714 A.2d 550 (Pa.Cmwlth. 1998)
Callihan v. Gulf Coast Marines, Inc., 714 So.2d 199 (La.App. 1 Cir. 1998)
City of Moorpark v. Superior Court, 959 P.2d 752 (Cal. 1998)
Dixon v. B.W. Farrell, Inc., 713 So.2d 1255 (La.App. 1 Cir. 1998)
Harris v. Bancroft Bag, Inc., 714 So.2d 44 (La.App. 2 Cir. 1998)
Lopez v. Agripac, Inc., 960 P.2d 885 (Or.App. 1998)
Sands v. School Dist. of City of Lincoln, 581 N.W.2d 894 (Neb.App. 1998)
LEG
Continental Cas. Co. v. Williamson, 971 S.W.2d 108 (Tex.App.-Tyler 1998)
MESOTHELIOMA
Frederick v. General Dynamics Corp., 712 A.2d 936 (Conn. 1998)
Green v. General Dynamics Corp., 712 A.2d 938 (Conn. 1998)
NECK
Bomely v. Mid-America Corp., 970 S.W.2d 929 (Tenn. 1998)
Lykins v. W.C.A.B. (New Castle Foundry), 713 A.2d 77 (Pa. 1998)
Sellers v. W.C.A.B., 713 A.2d 87 (Pa. 1998)
NECK: DISC AND FUSION
Reeves v. AT&T, 960 P.2d 856 (Okla.Civ.App. Div. 1 1998)
OCCUPATIONAL ASTHMA
Matter of Zielinske, 959 P.2d 706 (Wyo. 1998)
POST-TRAUMATIC STRESS DISORDER
City of Philadelphia v. Civil Service, 712 A.2d 350 (Pa.Cmwlth. 1998)
Traweek v. City of West Monroe, 713 So.2d 655 (La.App. 2 Cir. 1998)
PSYCHOLOGICAL
Ross v. Remediation Services of La., 714 So.2d 218 (La.App. 1 Cir. 1998)
PSYCHOLOGICAL: TRAUMATIC NEUROSIS
Boutwell v. Domino's Pizza, 959 P.2d 469 (Kan.App. 1998)
QUADRIPLEGIA
Zeringue v. Wireways, Inc., 714 So.2d 13 (La.App. 1 Cir. 1998)
SHOULDER
Bright v. Sheehan Pipeline, 960 P.2d 1009 (Wyo. 1998)
SUICIDE
Crawford v. Martin Marietta/Michoud, 713 So.2d 781 (La.App. 4 Cir. 1998)
TEETH
French v. Amax Coal West, 960 P.2d 1023 (Wyo. 1998)
TRAUMATIC BRAIN INJURY
Keenan v. Union Camp Corp., 714 A.2d 60 (Conn.App. 1998)
WRIST: REPETITIVE TRAUMA
Freeman United Coal Min. v. Indus. Com'n, 697 N.E.2d 934 (Ill.App. 4 Dist. 1998)
Selected Workers' Compensation Cases of Interest
Application to Reopen: 18 Years After Accident
CORNELIUS V. NISSEQUOGUE FIRE DIST.
675 N.Y.S.2d 217 (A.D. 3 Dept. 1998)
The New York Court dealt with the claimant, Cornelius, who injured his ankle while employed as a volunteer fireman on July 15, 1974, and last received workers' compensation on January 7, 1976. He filed to reopen his claim seeking an increase in his disability on June 22, 1992. The employer contested the claim as time barred. The court found that the claim was timely as it was filed within the statutory 18 years. The court held that the failure to file the medical report was not fatal.
The court stated:
Workers' Compensation Law Sec. 123 states that no claim for compensation can be made where the application to reopen is made more than 18 years from the date of the injury and eight years from the date of the last payment of benefits. In this case, eight years had expired from the date claimant received his last payment of benefits. The Board concluded that claimant's application was not complete until he submitted the medical report, which was not filed until July 29, 1992, and that his application was therefore untimely since it was also more than 18 years from the date of the injury.
Claimant's application was filed on June 22, 1992, within 18 years of his accident, and the fact that claimant submitted a medical report after 18 years had expired does not render his application untimely. Accordingly, the Board's decision is reversed.
Average Weekly Wage: Economic Model
APPEAL OF GILBERT
714 A.2d 216 (N.H. 1998)
The New Hampshire Supreme Court dealt with the claimant, Gilbert, who injured his knee at work on February 10, 1989. In 1995 the claimant sought an increase in his average weekly wage calculation and, accordingly, his benefits. After an unfavorable ruling by a department of labor (department) hearing officer, he appealed to the board, asserting that his gross wages during the 22 weeks immediately preceding his injury should include per diem payments, bonuses, and profit sharing distributions. This total, he argued, averaged over the 22-week period, less any weeks when the job site was closed, produced the most favorable average weekly wage - $674.33.
The court reversed the denial finding that the claimant could propose an economic model and average weekly wage that was most favorable to him.
The court stated:
Accordingly, the claimant should propose an economic model and submit evidence of wages for those weeks producing the most favorable weekly wage. If the fact-finder applies a different model, then, in a motion for rehearing, the claimant is entitled to recalculate the most favorable weekly wage and submit corroborating evidence. Here, the petitioner's motion for rehearing provided additional evidence that the board should have considered. Moreover, it would be inequitable to hold the petitioner to his proposed 22-week period when that proposal was premised on the board accepting his economic distribution.
Average Weekly Wage: Fringe Benefits
TRANSPORTATION INS. CO. V. POOL
714 So.2d 153 (La.App. 2 Cir. 1998)
The Louisiana Court dealt with the claimant, Pool, who was injured at work in 1983 and was later found to be permanently and totally disabled. The issue became to what extent fringe benefits should be included in the average weekly wage calculation.
The court found that the value of fringe benefits will be included in the calculation of weekly wages for the purposes of determining the compensation rate provided the giving of such benefits was fairly contemplated by the parties as they entered the contract of employment.
The court held:
The WCJ was not manifestly erroneous in including the value of the fringe benefits in calculating the average weekly wage. Because we amend the WCJ's decision concerning the actual wages including overtime and by including the value of fringe benefits, Pool's average weekly wage is adjusted as follows:
1. Actual wages $455.67
2. Medical insurance 41.38
3. Retirement 18.60
4. Compensated time off 46.69
Average Weekly Wage $562.34
Exclusivity: Disability Discrimination
CITY OF MOORPARK V. SUPERIOR COURT
959 P.2d 752 (Cal. 1998)
The California Supreme Court dealt with the plaintiff, Dillon, who was employed as an administrative secretary from May 1990 until February 28, 1994. After she recovered from knee surgery and her doctor released her to return to work, City Manager Steve Kueny terminated her employment, informing her that her residual disability prevented her from performing her essential job functions. Dillon told Assistant City Manager Richard Hare that she could perform her job and that she wanted to return to work, but Hare told her she could not have her job back. Dillon also objected in writing to Kueny, again to no avail. Dillon then filed a charge of disability discrimination with the California Department of Fair Employment and Housing and received notice of a right to sue under Government Code section 12965, subdivision (b). On February 22, 1995, Dillon sued the City of Moorpark, Kueny, and Hare, alleging causes of action for discrimination in violation of the FEHA, wrongful termination in violation of public policy (common law wrongful discharge), breach of contract, and intentional and/or negligent infliction of emotional distress.
The court held that the workers' compensation exclusivity provisions did not bar disability discrimination and wrongful discharge claims. The court stated:
If disabled employees can prove that they can perform the job duties as effectively as nondisabled employees, taking into consideration the possibility, if any, that their condition will change, as well as the employer's short and long-term needs, then we think discrimination based on disability, like sex and age discrimination, violates a "substantial and fundamental" public policy and can form the basis of a common law wrongful discharge claim.
We conclude that disability discrimination can form the basis of a common law wrongful discharge claim. Because section 132a does not provide the exclusive remedy for discrimination based on a work-related disability, the trial court was correct to overrule the demurrer to Dillon's common law wrongful discharge cause of action.
Exclusivity: Employer's Uninsured Motorist Carrier
WESTBROOK V. STATE FARM MUT. AUTO. INS. CO.
5 F.Supp.2d 415 (E.D.La. 1998)
The U.S. District Court (E.D. Louisiana) dealt with the plaintiff, Westbrook, who was injured in an auto accident in the course of his employment while working for a subsidiary of ADT. The plaintiff sought to recover from the uninsured motorist coverage of his employer. The employer interposed an exclusivity defense.
The court found that as the uninsured motorist carrier is a "third party legally liable to pay employee damages" the plaintiff could proceed against it. The court stated:
In this rehearing the plaintiff cites for the first time the Louisiana Supreme Court's decision in Travelers Ins. Co. v. Joseph, 656 So.2d 1000 (La.1995) which defines a UM carrier as a third person legally liable to pay damages resulting from a work-related automobile accident. National Union suggests the Travelers holding only allows the employer to seek reimbursement for compensation paid to the employee and has no impact on the employee's rights against the UM carrier. This argument rings hollow because the basis for the ruling in Travelers is the recognition of the UM carrier as a third person subject to tort liability. Accordingly, pursuant to the Louisiana Supreme Court's decision in Travelers, the plaintiff may proceed in tort against the employer's UM carrier in spite of the exclusive remedy provisions of the Louisiana workers' compensation statute.
Exclusivity: Intentional Infliction of Emotional Distress
KOVATCH V. CALIFORNIA CAS. MANAGEMENT CO.
77 Cal.Rptr.2d 217 (Cal.App. 4 Dist. 1998)
The California Court dealt with the plaintiff, Kovatch, who was constructively discharged from his employment due to the fact that he was gay. According to Kovatch, from the very beginning of his employment in San Diego he suffered a continuous pattern of harassment and discrimination based on his sexual orientation, largely, though not exclusively, from Aldinger. Kovatch claims this conduct culminated in a meeting with Aldinger at which Aldinger told him: "Let me make something loud and clear to you, Dan. I don't like you. You're a faggot, and there is no place for faggots in this company. And when Paul [Rapp] and I meet with you tomorrow, you're fired."
Both sides agree that the intended meeting between Kovatch, Aldinger, and Rapp never occurred because Kovatch never returned to the office.
The court found that the claim for wrongful termination and intentional infliction of emotional distress were not barred by the exclusivity provisions of the Workers' Compensation Act.
The court stated:
A claim for wrongful termination in violation of public policy is one type of claim that is not barred by the exclusive remedy provisions of the Workers' Compensation Act. (Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 1416-1419, 4 Cal.Rptr.2d 203.) "[W]here an employer's conduct implicates considerations of substantial public policy, interests beyond those of the employer and employee are involved. These interests are not protected by workers' compensation law and therefore must be accommodated outside the compensation bargain."
Here, in pleading his claim for intentional infliction of emotional distress, Kovatch incorporated by reference all of the allegations of his previous causes of action. Thus, Kovatch's emotional distress claim is premised on the same conduct as his claim for wrongful termination in violation of public policy. It follows that, like his wrongful termination claim, Kovatch's emotional distress claim is not barred by the exclusive remedy provisions of the Workers' Compensation Act.
Exclusivity: Invasion of Privacy
MARINO V. ARANDELL CORP.
1 F.Supp.2d 947 (E.D.Wis. 1998)
The U.S. District Court (E.D. Wisconsin) dealt with the plaintiff, Marino, who alleged that due to his hepatitis C he was discriminated against at work. He alleged prohibited medical inquiries, denial of advancement, and intentionally failing to maintain confidentiality with respect to his medical record.
The court ruled that the invasion of privacy claim was not barred by the exclusivity provision of the Workers' Compensation Act.
The court stated:
Plaintiff Paul Marino has alleged that his employer intentionally read his private medical information, failed to maintain its confidence, and disclosed related information to co-workers. Whether these charges will withstand summary judgment or trial remains to be seen. But at this stage, they appear to present a facially valid claim for invasion of privacy and are not barred by WCA exclusivity based on the foregoing analysis.
Workplace privacy issues are the subject of increasing concern in this technological era. See, e.g., Laura B. Pincus & Clayton Trotter, The Disparity Between Public and Private Sector Employee Privacy Protections: A Call for Legitimate Privacy Rights for Private Sector Workers, 33 Am.Bus.L.J. 51 (1995). Just a few of the privacy conundrums facing employers and employees these days are: monitoring of electronic mail; mandatory drug and alcohol testing; polygraph testing; workplace video surveillance systems; HIV status and other required medical disclosures; and employer use of personal data, such as credit reports and criminal records.
The potential exists that Wisconsin's privacy statute could be used to negotiate many of these issues in the coming years. The clear legislative intention to protect the fundamental rights embodied in the privacy statute could easily be disregarded if the entire spectrum of workplace privacy issues is swept under the WCA rug by the exclusive remedy rationale. Workers' compensation, once a blessing for injured workers, was never meant to have this effect.
Forfeiture: Paying Witness
BENOIT V. FRANK'S CASING CREW
713 So.2d 762 (La.App. 3 Cir. 1998)
The Louisiana Court dealt with the claimant, Benoit, who at age 21 was employed as a pipe yard helper. Benoit was a passenger in a truck accident, ruptured a disc, and was put on workers' compensation benefits. He filed a third party intentional tort suit and attempted to get a co-worker to lie about the accident.
At trial of his workers' compensation claim, Benoit admitted that he pleaded guilty to one charge of false swearing. The guilty plea resulted in the dismissal of his intentional tort suit. That charge was based upon a taped conversation between Benoit and his co-employee, Short, in which Benoit offered to pay Short to give a statement about the condition of the truck at the time of the accident. Benoit denied that he asked Short to lie for him, claiming that he only offered to pay Short because "he [Short] kept asking me how much he would get for his statement, how much I would pay him."
The workers' compensation insurer defended the workers' compensation claim alleging forfeiture of benefits due to his false swearing conviction.
The court reversed the denial of benefits finding that as the statement was not made in an attempt to get more workers' compensation benefits there was no forfeiture.
The court stated:
Even if Benoit's guilty plea was evidence of a false statement willfully made, the statement must have been made for the purpose of obtaining workers' compensation benefits. When Benoit and Short had this conversation in January of 1995, Benoit was still receiving temporary total disability benefits. Apparently, Short had already given a statement about the accident for the workers' compensation claim. The statement that Benoit sought to procure through this conversation was for his intentional tort suit. He wanted Short to testify about the truck's condition at the time of the accident and Frank's knowledge thereof. However, whether or not Frank's conduct was negligent or intentional had no relevance to Benoit's continued receipt of workers' compensation benefits. We must, therefore, conclude that the workers' compensation judge erred in ordering forfeiture of benefits based upon Benoit's guilty plea or the taped conversation. Benoit's scheme, however unacceptable, was not concocted to obtain or defeat workers' compensation benefits, and, hence, it cannot support a judgment of forfeiture of benefits.
Going and Coming Rule: Volunteer Fire Fighter
ESTATE OF SOUPENE V. LIGNITZ
960 P.2d 205 (Kan. 1998)
The Kansas Supreme Court dealt with the decedent, Soupene, a volunteer fireman who while responding to a fire call in his vehicle collided with another volunteer fireman and was killed. His heirs sued the co-employee who defended arguing that as the going and coming rule did not apply the exclusivity of the Workers' Compensation Act would bar the suit.
The court affirmed the dismissal of the tort suit finding that as the fireman was responding to an emergency call the going and coming rule, which would normally exclude injuries sustained during traveling, did not apply.
The court stated:
Responding to emergency calls is an integral and necessary part of a volunteer firefighter's duties, which entails a special degree of inconvenience and urgency. When an emergency call is received, volunteer firefighters are expected to report either to the fire station or to the site of the fire. Volunteer firefighters have not set hours of employment, but rather are on call and assume the duties of their employment when they receive an emergency call and begin to respond.
Responding to an emergency call is an activity contemplated by and causally related to the employment of a volunteer firefighter. In addition, an accident which occurs while responding to such an emergency both arises out of and is in the course of the employment. Soupene's accident arose out of the nature, obligations, and incidents of his employment, as he was required to proceed to the fire station or the location of the fire after receiving an emergency call. There is a rational causal connection between the accident and the conditions under which he was required to perform his duties. Furthermore, the accident occurred in the course of Soupene's employment, as he had assumed the duties related to his employment when he began responding the emergency call.
In Course of Employment: Charity Basketball Game
DOZIER V. MID-DEL SCHOOL SYSTEM
959 P.2d 604 (Okla.Civ.App. Div. 3 1998)
The Oklahoma Court dealt with the claimant, Dozier, who was employed as a teacher/basketball coach/football coach. He was asked to play in a charity game at the school. The fund-raising event included a pre-game chili supper held in the school cafeteria and a basketball game pitting teachers, coachers, and former Carl Albert athletes against a team made up of employees of a radio station. The basketball team booster club organized and officially sponsored the game. Both events were promoted within the school by announcements over the intercom, flyers distributed at school, and posters hung throughout the school, and the radio station promoted the events to the general public. Employer provided the gym, the basketball equipment, uniforms, and lights. The principal supervised the activities, and two school employees kept score and announced the game. According to Claimant, he tore his Achilles tendon shortly after he began to play the game.
The court reversed the denial of benefits finding that as the school district derived a direct benefit he was in the course of employment when injured.
The court stated:
Employer's argument must fail for several reasons. First, it fails to consider Claimant's uncontroverted testimony that the coaching staff was told that "[t]he athletic programs were under funded and that the only way we're going to survive is to have fundraisers" and that he testified that he was asked to play by the basketball coach, without any indication that he did so on behalf of the booster club. (Emphasis added). Second, the record contains no evidence that the booster club received any benefit from the fund-raiser and in fact indicates they sponsored the game to raise money for Employer's own under funded basketball program. The only reasonable inference therefrom is that Employer received a direct benefit, not an indirect benefit. Third, it fails to consider that under the "employer-benefit" test, recreational and social activities are within the course of one's employment when the employer derives from the activity substantial direct benefit that extends beyond the intangible value of employees' health or moral improvement which is common to every kind of recreational and social event. The undisputed facts of this case clearly pass that test.
In Course of Employment: Deviation by Supervisor
HOY V. GILBERT
714 So.2d 74 (La.App. 2 Cir. 1998)
The Louisiana Court dealt with the claimant, Hoy, who was employed as an apprentice for his employer, Gilbert, and his bricklayer-supervisor, Brown. The employer, Gilbert, paid for the gasoline used by the supervisor, Brown, in Brown's truck to go to and from the Monticello job site.
After stopping at a convenience store returning to Rocky Branch from Monticello and buying beer, Brown drove Hoy and Howard to Gilbert's shop in Rocky Branch. Hoy may have had his own beer in the truck. During the drive Hoy and Brown drank beer, according to Howard.
On the way to getting a tire repaired, Brown drove off the road causing an accident. He claimed "he swerved to avoid a dog." The court found that the employee was not chargeable with the supervisor's deviation even if the claimant was himself drunk at the time of the accident.
The court stated:
We hold that an employee, being transported home from work as a passenger in his supervisor's vehicle, the gasoline for which is being paid for by the employer is not chargeable with the supervisor's deviation from the direct route home if the deviation was not initiated by the employee-passenger, was not for the passenger's benefit, and the passenger had no control over the operation of the vehicle or the determination of the route to be taken. This was the principle pronounced specifically in Jagneaux, supra.
On this record, witnesses other than the claimant met claimant's burden of proof. On this record, defendant did not meet his burden of proving the affirmative defense. We have no suggestion of facts that support the conclusion that Brown's deviation from the employer's missions is legally imputable to Hoy. We have only the emphasis that on the facts that suggest that Hoy, a subordinate employee-passenger in his supervisor's truck, was probably drunk or under the influence of alcohol even when Brown left his employer's shop on the employer's missions.
In Course of Employment: Giving Child a Cookie
KNAUB V. REALTIME BUSINESS SYSTEMS INC.
674 N.Y.S.2d 799 (A.D. 3 Dept. 1998)
The New York Court dealt with the claimant, Knaub, who was employed as an office manager and was the company's sole employee. On December 23, 1992, she waited for a delivery of computer equipment that arrived around 5:15 p.m. The delivery man arrived in an unmarked van accompanied by his 18-month-old son. She offered to bring the child upstairs and give him a cookie while the equipment was unloaded, instead of leaving him alone in the van. The claimant injured her back while carrying the child up the stairs to the office.
The court affirmed the award of benefits finding that the claimant was in the course of her employment when she was injured helping the child.
The court stated:
Claimant's duties as office manager included receiving deliveries. Claimant testified that she offered the child a cookie in the office, rather than leaving him alone in the van after dark, so that she could remain in the office while the computer equipment was delivered. Under these circumstances, we conclude that the Board's finding that claimant's accident arose out of and in the course of her employment is supported by substantial evidence in the record and should not be disturbed.
In Course of Employment: Parking Lot
LA CROIX V. OMAHA PUBLIC SCHOOLS
582 N.W.2d 283 (Neb. 1998)
The Nebraska Supreme Court dealt with the claimant, La Croix, who was employed by OPS as a busdriver attendant. When La Croix interviewed with OPS, she was told that if the lot adjoining the building was full, she was to park in the Dill Field lot and use the shuttle service. The record contains a memorandum to OPS employees encouraging them to use the Dill Field lot and use the shuttle service. However, the record indicates that employees were not absolutely required to park in the Dill Field lot and utilize the shuttle.
On May 29, 1996, La Croix slipped and fell in the Dill Field lot while on her way to board the shuttle bus. The area in which La Croix fell consisted of mud, covered by loose grass clippings. As a result of the fall, La Croix was injured and unable to work for approximately 11 weeks.
The court reversed the denial of benefits finding that as there was a causal connection between the injury and work it was compensable despite the fact that it did not occur on the employer's premises.
The court stated:
Unlike Johnson, where the employer did not sponsor or provide parking, the employer in the instant case encouraged or instructed employees to park in the Dill Field lot, which was often the only parking area available. Most importantly, the employer specifically provided transportation to the workplace from the lot. By providing transportation, the employer created a condition under which its employees will necessarily encounter hazards while traveling to the premises where they work. Thus, there is a distinct, causal connection between the employer's sponsoring of the parking lot and occurrence of La Croix's injury. Accordingly, because such a causal connection was present in the instant case, the injury to La Croix arose out of and in the course of her employment.
Medical Exam: Progressive Nature of Condition
McGONIGAL V. W.C.A.B.
713 A.2d 692 (Pa.Cmwlth. 1998)
The Pennsylvania Court dealt with the claimant, McGonigal, who was a firefighter for 20 years and who on July 21, 1979 was treated at a hospital for nausea, dizziness, and lightheadedness after taking part in a physical exertion test. He was later found totally disabled. Some 15 years later on August 25, 1995, the employer scheduled a physical examination of the claimant but the claimant failed to attend the appointment. On September 26, 1995, the employer filed a petition for physical examination pursuant to Section 314 of the Act in order to compel a physical examination of the claimant. The claimant filed an answer to the petition asserting that the employer was not entitled to a physical examination because his occupational disease was progressive by nature making his condition unchanged and that he should not be required to undergo a physical examination.
The court found that the employer could require the claimant to attend the exam despite having an irreversible disease.
The court stated:
Just because a claimant has an irreversible disease does not mean that no alternative work is suitable. This is illustrated here because while we do not know what specific "occupational" disease disabled claimant, we do know that he was not totally disabled from all work as evidenced by his lightduty employment in 1980. The referee in the claim petition proceeding found that claimant was only partially disabled because of his occupational disease, but awarded total disability benefits only because employer had failed to secure suitable alternative employment for him within his physical limitations. For employer to secure suitable work, it needs to determine the extent of claimant's disease and to identify what jobs may be suitable, thereby making a physical examination of claimant a necessity.
Mental Injury: Spraying Claimant with Pepper Spray
TRAWEEK V. CITY OF WEST MONROE
713 So.2d 655 (La.App. 2 Cir. 1998)
The Louisiana Court dealt with the claimant, Traweek, who started working as a police officer in 1978. In 1995 he was put on sick leave after getting depressed. He returned to work and was informed that as part of continuing training he needed to be sprayed in the face with pepper spray.
On January 5, 1996, following the classroom instruction provided to the officers on the properties, effects, and use of the pepper spray, Traweek advised the captain in charge that he "did not want to be sprayed". The captain referred plaintiff to LaBorde but LaBorde declined to exempt Traweek from the exercise. LaBorde did offer to delay the spraying for a week to allow Traweek to be sprayed at the same time that LaBorde would be sprayed. The claimant declined this offer and was sprayed with the pepper spray on January 5, 1996. Following this incident, Traweek returned to work for a few days and worked until January 17, 1996.
He then developed a post-traumatic stress disorder and filed for workers' compensation benefits. The court affirmed the award finding the momentary discomfort was a sufficient physical injury.
The court stated:
In this case, it is undisputed that the administering of pepper spray into the face of the plaintiff caused a significant physical trauma, momentarily debilitating, by causing a burning sensation to the skin, irritation of mucosa of the eyes, throat and nose, and difficulty breathing. This physical trauma presents a clear objective finding of a physical injury. It matters not that the physical injury is short-lived with virtually no risk of lasting physical effects. the critical inquiry is whether conclusive psychiatric testimony can link this physical trauma as the cause of the mental illness of the employee.
In summary, the definitional language of the various statutory provisions upon which the City relies should not be technically construed to defeat the remedial nature of the act. We are satisfied that a specific work-related event produced objective findings of physical trauma to the plaintiff.
Misrepresentation: Lying About Education on Employment Application
CLARION MFG. CORP. OF AMERICA V. JUSTICE
Ky., 971 S.W.2d 288
The Kentucky Supreme Court dealt with the claimant, Justice, who had a tenth grade education but who stated in her 1982 employment application that she graduated from high school. She worked for seven years assembling circuit boards. The job required highly repetitive arm and hand motions. When she developed a repetitive motion injury and filed a workers' compensation claim, the employer defended alleging misrepresentation in the employment application. They argued that there was "no valid contract of employment" and thus she was not an employee.
The court rejected this novel defense finding no connection between the misrepresentation and the injury seven years later.
The court stated:
The three-prong test which was adopted in Divita provides:
The following factors must be present before a false statement in an employment application will bar benefits: (1) The employee must have knowingly and willfully made a false representation as to his physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury.
Since there is no allegation that claimant made a false statement in her employment application concerning her physical condition, the claim should not have been dismissed.
Offset: Disability Pension Benefits
BETHLEHEM STEEL CORP. V. W.C.A.B.
714 A.2d 550 (Pa.Cmwlth. 1998)
The Pennsylvania Court dealt with the claimant, Gounaris, who on December 20, 1989, injured his knee at work. On January 1, 1991, the claimant qualified for, and began receiving, a permanent incapacity (disability) pension from employer. On March 23, 1994, employer filed a modification petition alleging that it is entitled to a credit against the claimant's workers' compensation benefits for the disability pension payments paid to the claimant; the claimant filed an answer denying that employer is entitled to a credit.
The court affirmed the denial of the offset finding that the pension benefits were "in the nature of wages for work performed" and thus not subject to offset.
The court stated:
Similarly, here, claimant's pension benefits are dependent upon his years of service. To be eligible for the permanent incapacity pension, one requirement was the claimant have at least fifteen years of service with employer. In addition, the amount of claimant's monthly pension benefit is calculated based upon his years of service. Moreover, we note that pension is defined as "deferred compensation for services rendered". Toborkey, 655 A.2d at 639 (quoting Black's Law Dictionary 1021 (5th ed.1979)). Also, as in Toborkey, claimant here would be entitled to the disability pension regardless of whether his disability was compensable; thus, claimant's pension payments cannot be payments made in lieu of compensation.
Prisoner: Employee of Private Business
BENAVIDEZ V. SIERRA BLANCA MOTORS
959 P.2d 569 (N.M.App. 1998)
The New Mexico Court dealt with the claimant, Benavidez, who was an inmate at Roswell Correctional Center (RCC) and was injured during an inmate release program at Sierra Motors. The employer defended the case alleging that the claimant was not an employee and if he was the work was "casual" in nature.
The court rejected both of the defenses finding that the claimant was in fact an employee of Sierra Motors and that the work was not casual.
The court stated:
Similarly, evidence that Sierra Blanca did not treat claimant as it did non-inmate employees, while indicating that Sierra Blanca considered claimant to be of a different status than its regular employees, is not dispositive because such evidence fails to demonstrate that claimant was not subject to Sierra Blanca's right of control. Although Sierra Blanca remitted claimant's wages to RCC rather than directly to claimant, it is undisputed that claimant was paid on an hourly basis and that the reason why the payment was handled through RCC was (1) to keep money out of the hands of prisoners and (2) to enable RCC to be reimbursed for costs of the program.
What is significant, however, is that undisputed facts establish that Sierra Blanca had the right of control over claimant that an employer typically might exercise over an employee. Thus, as a matter of law, claimant cannot be considered an independent contractor.
Retirement: Did Not Bar Claim for Weekly Death Benefits
GREEN V. GENERAL DYNAMICS CORP.
712 A.2d 938 (Conn. 1998)
The Connecticut Supreme Court dealt with the decedent, Green, who worked with asbestos and developed mesothelioma. He worked without symptoms until he retired in 1978. In 1989 he was diagnosed with cancer and filed a claim. He died in 1990. The insurer defended the case arguing that the "weekly benefits were nothing because the decedent had no wages at the time of his injury".
The court rejected this defense finding that the retirement would not impact the right to death benefits.
The court stated:
The claimant sought weekly death benefits based on the average weekly earnings of the employee under Sec. 31-306(b)(2). Since Sec. 31-310 provided the method of calculation of average weekly wages "[f]or the purposes of" the act, the provisions of Sec. 31-310c apply to the claimant's application for dependent's death benefits. We conclude that the employee's complete retirement under the circumstances, at the time of his incapacity, does not bar weekly death benefits for a permanent loss of earning capacity. This is in keeping with the purpose of our act.
Stress: Police Officer's One-on-One Standoff
CITY OF PHILADELPHIA V. CIVIL SERVICE
712 A.2d 350 (Pa.Cmwlth. 1998)
The Pennsylvania Court dealt with the claimant, Ryder, a 26-year-old veteran of the City of Philadelphia police force. He responded to a call "man with a gun" and rushed into a house alone when he heard a woman scream. Ryder heard the male suspect indicate that he had a gun and was quickly confronted by the suspect who was brandishing an AR-15 semi-automatic rifle, pointed at Ryder and the two women. Ryder then pointed his weapon at the suspect and ordered him to put down his weapon. The suspect refused and the standoff continued for approximately five to six minutes. The suspect fled back up the stairs of the home and Ryder was able to get the women to the kitchen and notify police dispatchers of the situation. When the suspect came back down the stairs, Ryder was able to subdue him, remove him from the house, and place the suspect into the back of his police cruiser. Back-up units then arrived approximately 12 minutes after the initial call.
When the claimant learned that the defendant was released and the charges were dropped, he developed a post-traumatic stress disorder.
The court affirmed the award finding an "extraordinary event".
The court stated:
Although we are aware that police work is inherently highly stressful, and while it may be considered not "abnormal" because it is not beyond the realm of possibility that it is going to occur, it is an extraordinary event for a police officer to confront an unstable suspect, armed with a semi-automatic rife pointed at his head for approximately six minutes without any backup. The Commission accepted Ryder's medical witness's testimony which pinpointed this event as the sole cause of Ryder's post-traumatic stress. Moreover, because the event was so extraordinary and involved imminent physical harm, it also satisfies the requirement that it is an objective reaction to that event. Because Ryder sustained his burden of proof of showing a psychological injury because the May 4, 1996 standoff was an actual extraordinary event that caused Ryder's post-traumatic stress injury, the well-reasoned decision and order of the Honorable Stephen E. Levin is affirmed.
Stress: Traumatic Neurosis
BOUTWELL V. DOMINO'S PIZZA
959 P.2d 469 (Kan.App. 1998)
The Kansas Court dealt with the claimant, Boutwell, who had a history of schizoaffective disorder. From 1979 to 1989, he held a variety of jobs, including salvage yard worker, hospital orderly, backhoe operator, and carpenter. Boutwell saw Dr. J. Luis Ibarra beginning in 1979 for his mental disorders. Dr. Ibarra treated him with psychotherapy and psychotropic medications. Boutwell had severe ongoing psychiatric problems, resulting in an involuntary commitment and other hospitalizations. Following Dr. Ibarra's retirement, Boutwell was treated by Dr. Poly Tan. Boutwell began working for Domino's Pizza in March 1989. While delivering pizza to an apartment complex, he was attacked in an attempted robbery and received nine knife stab wounds. The attack resulted in injuries to his knees, the loss of a kidney, and the removal of part of his colon.
The court affirmed the award of benefits finding that a traumatic neurosis is covered by the Workers' Compensation Act if it results from a covered physical injury.
The court stated:
Traumatic neurosis is covered under the Workers' Compensation Act if it results from a covered physical injury and meets the other requirements of the Act.
Traumatic neurosis caused by an emotional, nonphysical trauma on the job is not covered in Kansas by the Workers' Compensation Act.
As stated in Hayes, 188 Kan. at 184, 360 P.2d 889, under the Workers' Compensation Act, traumatic neurosis is to be treated like any other health problem. If a subsequent covered industrial accident aggravates, accelerates, or intensifies the disease or affliction, the worker is not to be denied compensation just because it is a preexisting condition.
Third Party Action: Client of Temporary Agency
CERVANTES V. DRAYTON FOODS, L.L.C.
582 N.W.2d 2 (N.D. 1998)
The North Dakota Supreme Court dealt with the plaintiff, Cervantes, who was employed with Preference Personnel, Inc. (Preference), a business engaged in providing laborers to other businesses on a temporary basis. Preference contracted with Drayton to provide Cervantes as a temporary employee. Drayton paid Preference an hourly rate for Cervantes's services, and Preference paid Cervantes's wages and the premium for Cervantes's worker compensation coverage.
Cervantes injured his hand while operating Drayton's roll processing machine on November 20, 1995. He subsequently applied for and received worker compensation benefits. He then filed this action against Drayton, seeking damages for Drayton's "negligent maintenance, operation and repair of the roll processing machine." Drayton moved for summary-judgment dismissal of the case, asserting Cervantes's exclusive remedy was the receipt of worker compensation benefits, and he was barred from suing Drayton for damages.
The court rejected the exclusivity defense finding that Drayton was not a contributing employer entitled to immunity.
The court stated:
It is undisputed Cervantes was a temporary employee who, at the time of injury, had worked less than three-fourths of a three-consecutive-month period for Drayton. Drayton has not provided a persuasive rationale for rejecting these administrative definitions of leased and temporary employees for purposes of applying the immunity shield under N.D.C.C. Sec. 65-01-08. Drayton did not pay worker compensation premiums for Cervantes and was not, therefore, a contributing employer statutorily immune from liability for negligently causing injury to Cervantes. We hold the trial court did not err in determining, as a matter of law, Cervantes was not statutorily barred from bringing an action for damages against Drayton.
ADR: Procedure Established by Employee's Union Was Binding
COSTA V. WORKERS' COMP. APPEALS BD.
77 Cal.Rptr.2d 289 (Cal.App. 4 Dist. 1998)
Aggravation: Acceptance of Claim as Nondisabling Aggravation Valid
ROGERS V. HEWLETT-PACKARD CO.
960 P.2d 871 (Or.App. 1998)
Agreement: Workers' Compensation Insurer Who Was Not Signatory to Voluntary Agreement Had No Standing to Raise Coverage Issue
STICKNEY V. SUNLIGHT CONST., INC.
711 A.2d 1193 (Conn.App. 1998)
Appeal: Claimant Is Authorized to Petition the Bureau to Reconsider Final Order
BOGER V. WORKERS COMPENSATION BUREAU
581 N.W.2d 463 (N.D. 1998)
Appeal: Claimant Whose Request for Benefits Denied without Hearing Could Not Apply for Modification
SHAFFER V. STATE
960 P.2d 504 (Wyo. 1998)
Appeal: Failure to Appeal Impairment Rating Prohibits Attempt to Reopen on Same Issue
LUMBERMENS MUT. CAS. CO. V. MANASCO
971 S.W.2d 60 (Tex. 1998)
Appeal: Ordering Functional Capacity Evaluation Not Final and Appealable
DIXON V. B.W. FARRELL, INC.
713 So.2d 1255 (La.App. 1 Cir. 1998)
Appeal: Remand Interlocutory and Not Appealable
SENECA CO. V. W.C.A.B.
713 A.2d 709 (Pa.Cmwlth. 1998)
Appeal: Remand Order Interlocutory and Not Appealable
WASHINGTON HOSP. CENTER V. DC DOES
712 A.2d 1018 (D.C. 1998)
Appeal: Ten Day Appeal Period Runs from When Workers' Compensation Commission's Records Say Notice Sent
KUDLACZ V. LINDBERG HEAT TREATING CO.
712 A.2d 973 (Conn.App. 1998)
Appeal: When Untimely Appeal Board Does Not Have Jurisdiction to Reach Merits
SELLERS V. W.C.A.B.
713 A.2d 87 (Pa. 1998)
Attorney Fee: For Unreasonably Contesting Case Limited to Less Than 20% Contingency
NICHOLS V. W.C.A.B. (RAMSEY CONST.)
713 A.2d 706 (Pa.Cmwlth. 1998)
Attorney Fees: Motion to Allocate Filed Ten Days After Settlement Timely
YOCUM V. INDUSTRIAL COM'N
697 N.E.2d 766 (Ill.App. 4 Dist. 1998)
Attorney Fees: Precontroversion Fees Only Awarded Where OWCP Issued Initial Denial
CLINCHFIELD COAL CO. V. HARRIS
149 F.3d 307 (4th Cir. 1998)
Average Weekly Wage: Should Not Include Value of Services Exchanged Between Claimant and Employer
KASHUBA V. W.C.A.B. (HICKOX CONST.)
713 A.2d 169 (Pa.Cmwlth. 1998)
Bad Faith: Exclusivity Barred Claim for Delay in Paying Workers' Compensation Benefits
BRETON V. TRAVELERS INS. CO.
147 F.3d 58 (1st Cir. 1998)
Bad Faith: Precluded by Penalty Provision of Workers' Compensation Act
IHM V. CRAWFORD & COMPANY
580 N.W.2d 115 (Neb. 1998)
Civil Rights Case: Finding by Workers' Compensation Law Judge as to Injury Did Not Have Preclusive Effect
TOUT V. COUNTY OF ERIE
2 F.Supp.2d 320 (W.D.N.Y. 1998)
Claim: 90-Day Period to File Triggered When Condition Diagnosed
WHITE V. TOUGHER INDUSTRIES
674 N.Y.S.2d 876 (A.D. 3 Dept. 1998)
Collateral Estoppel: Denial of Permanent and Total in Workers' Compensation Hearing Did Not Bar Claim for Disability Pension
MARSHALL V. METRO. WATER REC. DIST. RET.
697 N.W.2d 1222 (Ill.App. 1 Dist. 1998)
Constitutionality: Permanent Treatment Parameters Not Violative of Due Process
JACKA V. COCA-COLA BOTTLING CO.
580 N.W.2d 27 (Minn. 1998)
Coverage: Insurance Broker Had No Standing to Bring Claim Against Administration of State Workers' Compensation Plan
CRETCHER-LYNCH V. NATIONAL COUNCIL ON COMPENSATION
149 F.3d 817 (8th Cir. 1998)
Date of Injury: Last Day Claimant Performs Services for Employer
ANDERSON V. BOEING CO.
960 P.2d 768 (Kan.App. 1998)
Death Benefits: Denied to Widow Who Entered into "Common Law Marriage" After Getting Pregnant
MATTER OF DEATH OF BOYD
959 P.2d 612 (Okla.Civ.App.Div. 1 1998)
Decision: Commission Exceeded Its Authority by Making Impermissible Findings of Fact
LAYMAN V. NEWKIRK ELEC. ASSOCIATES, INC.
581 N.W.2d 244 (Mich. 1998)
Evidence: Board Cannot Substitute Its Institutional Experience for Competent Medical Evidence
TURBITT V. BLUE HEN LINES, INC.
Del.Supr., 711 A.2d 1214 (1998)
Evidence: Claimant's Own Assessment of Physical Condition Is Competent Testimony on Vocational Disability Issue
COLLINS V. HOWMET CORP.
970 S.W.2d 941 (Tenn. 1998)
Evidence: Insufficient to Support Default Judgment Against Employer
NICKENS V. PATRIOT HOME SYSTEMS
713 So.2d 1179 (La.App. 1 Cir. 1998)
Evidence: Report of Physical Therapist Insufficient to Establish Preexisting Condition
LOPEZ V. AGRIPAC, INC.
960 P.2d 885 (Or.App. 1998)
Evidence Substantial: Carpal Tunnel Syndrome Compensable
GILLIAM V. MANHATTAN/WHITAKER CONST. CO.
714 So.2d 101 (La.App. 2 Cir. 1998)
Evidence Substantial: Drinking at New Years' Eve Party Not Incidental to Job
OSTROWSKI V. WASA ELEC. SERVICE, INC.
960 P.2d 162 (Hawaii App. 1998)
Evidence Substantial: Fall at Home Related to Prior Workers' Compensation Back Injury
KEENAN V. UNION CAMP CORP.
714 A.2d 60 (Conn.App. 1998)
Evidence Substantial: Lifting 15 lb. Binder Did Not Cause Neck Injury
REEVES V. AT&T
960 P.2d 856 (Okla.Civ.App. Div. 1 1998)
Evidence Substantial: No Substantial Evidence That Last Employer Liable for Hearing Loss
SAIF V. PAXTON
959 P.2d 634 (Or.App. 1998)
Evidence Substantial: Shoulder Injury Not Material Aggravation of a Preexisting Condition
BRIGHT V. SHEEHAN PIPELINE
960 P.2d 1009 (Wyo. 1998)
Evidence: Variance Between Claimants as to Cause and Aggravation and Proof Immaterial
SANDS V. SCHOOL DIST. OF CITY OF LINCOLN
581 N.W.2d 894 (Neb.App. 1998)
Exclusivity: Barred Claim for Intentional Infliction of Emotional Distress
FRENCH V. UNITED PARCEL SERVICE, INC.
2 F.Supp.2d 128 (D.Mass. 1998)
Exclusivity: Barred Negligence Action Against Employer
GRAAF V. NORTH SHORE UNIVERSITY HOSP.
1 F.Supp.2d 318 (S.D.N.Y. 1998)
Exclusivity: Barred Tort Suit for Shooting in Employer's Parking Lot
BROWN V. KNIGHT-RIDDER, INC.
1 F.Supp.2d 622 (S.D.Miss. 1997)
Exclusivity: Did Not Bar Claim for Intentional Infliction of Emotional Distress
KAHALE V. ADT AUTOMOTIVE SERVICES, INC.
2 F.Supp.2d 1295 (D.Hawaii 1998)
Exclusivity: Does Not Preclude Employee from Seeking Injunctive Relief to Enforce Provisions of Employment Contract
HICKS V. ALLEGHENY EAST CONFERENCE ASS'N
712 A.2d 1021 (D.C. 1998)
Exclusivity: Supremacy Clause Prevents State Workers' Compensation Act from Providing Exclusive Remedy for Emotional Distress for Civil Rights Violation
ROBERTS V. ROADWAY EXP., INC.
149 F.3d 1098 (10th Cir. 1998)
Exclusivity: Workers' Compensation Commission Has Exclusive Original Jurisdiction to Determine the Facts
VanWAGONER V. BEVERLY ENTERPRISES
970 S.W.2d 810 (Ark. 1998)
Exclusivity: Workers' Compensation Sole Remedy for Employee Injured While Riding in Company Vehicle Driven by Coemployee
SCOTT V. SMITH
714 So.2d 7 (La.App. 2 Cir. 1998)
Exclusivity: Workers' Compensation Sole Remedy for Employee Injured Exiting Building Owned by President of Employer
PARRINELLO V. MANCUSO
674 N.Y.S.2d 484 (A.D. 3 Dept. 1998)
FECA: Barred Claim for Accommodation Under Rehabilitation Act
MEESTER V. RUNYON
149 F.3d 855 (8th Cir. 1998)
Fraud: Of Employer Must Be Litigated in Workers' Compensation Proceeding
LAVOIE V. GERVAIS
713 A.2d 335 (Me. 1998)
Job Offer: Remand to Determine If Claimant Refused Offer without Good Reason
THOMPSON V. CLAW ISLAND FOODS
713 A.2d 316 (Me. 1998)
Jurisdiction: Workers' Compensation Judge Lacked Jurisdiction to Modify Final Adjudication
ANZALONE V. ALLSTATE INS. CO.
714 So.2d 18 (La.App. 1 Cir. 1998)
Liability: Failure to Contest Compensability Did Not Create Compensable Claim Where There Was No Injury
CONTINENTAL CAS. CO. V. WILLIAMSON
971 S.W.2d 108 (Tex.App.-Tyler 1998)
Longshore: Act Requires Payment of Compensation within Ten Calendar Days Not Ten Business Days
PLEASANT-EL V. OIL RECOVERY CO., INC.
148 F.3d 1300 (11th Cir. 1998)
Longshore: Land-Based Maritime Worker Could Pursue State Workers' Compensation Claim
HURST V. BOLAND MACHINE & MFG. CO.
713 So.2d 857 (La.App. 4 Cir. 1998)
Longshore: Worker Injured While Unloading Vessel at Dock Was Borrowed Servant of Vessel Owner
ESPADRON V. BAKER-HUGHES, INC.
714 So.2d 60 (La.App. 4 Cir. 1998)
Medical Care: Appeal of Treatment Not Being Reasonable Must Be Filed Through Utilization Review Process
MERCY DOUGLAS CORP. V. W.C.A.B. (DAVIS)
713 A.2d 722 (Pa.Cmwlth. 1998)
Medical Care: Claimant Not Entitled to Be Reimbursed for Health Insurance Premiums
FOTTA V. W.C.A.B. (U.S. STEEL/USX CORP.)
714 A.2d 479 (Pa.Cmwlth. 1998)
Medical Care: Only Initial Visit Compensable Not Treatment from Pain Specialist
DAVIS V. SHERATON OPERATING CORP.
713 So.2d 814 (La.App. 4 Cir. 1998)
Medical Commission: Lacked Jurisdiction as Case Not Medically Contested
FRENCH V. AMAX COAL WEST
960 P.2d 1023 (Wyo. 1998)
Mental Condition: Not Caused by Receipt of Electrical Shock
ROSS V. REMEDIATION SERVICES OF LA.
714 So.2d 218 (La.App. 1 Cir. 1998)
Misrepresentation: Failure to Disclose Prior Condition Was Due to Misunderstanding
HARRIS V. BANCROFT BAG, INC.
714 So.2d 44 (La.App. 2 Cir. 1998)
Notice: Failure to Give Employer Notice of Request for Medical Expenses Precluded Award
SKINNER TANK CO. V. SKINNER
960 P.2d 858 (Okla.Civ.App. Div. 3 1998)
Occupational Disease: Surviving Spouse Entitled to Benefits Despite Fact That Employee Did Not Work 26 Weeks Preceding Date of Onset
FREDERICK V. GENERAL DYNAMICS CORP.
712 A.2d 936 (Conn. 1998)
Offset: Employer Entitled to 50% Offset from Social Security Disability Benefits
PREVOST V. JOBBERS OIL TRANSPORT CO.
713 So.2d 1208 (La.App. 1 Cir. 1998)
Penalties: Due for Delay in Paying Workers' Compensation Even After Initial Denial
FREEMAN UNITED COAL MIN. V. INDUS. COM'N
697 N.E.2d 934 (Ill.App. 4 Dist. 1998)
Penalties: For Failure to Pay Workers' Compensation within 30 Days of Affirmation of Award
CRUCIBLE, INC. V. W.C.A.B. (VINOVICH)
713 A.2d 749 (Pa.Cmwlth. 1998)
Penalties: Not Due as Rational Basis Existed for Refusal to Pay Workers' Compensation Benefits
CALLIHAN V. GULF COAST MARINES, INC.
714 So.2d 199 (La.App. 1 Cir. 1998)
Penalty: Inadvertent Delay in Payment Did Not Warrant 10% Increase in Award
STATE COMPENSATION INS. FUND V. W.C.A.B.
959 P.2d 1204 (Cal. 1998)
Penalty: Moot as Underlying Award Was Rescinded
SPOERL V. ARMSTRONG PUMPS INC.
674 N.Y.S.2d 833 (A.D. 3 Dept. 1998)
Penalty: Provision Does Not Apply to Disfigurement Benefits
BOTTINI V. SHAW'S SUPERMARKET
714 A.2d 595 (R.I. 1998)
Permanent and Total Disability: Excepted from 400 Week Limitation of Benefits
BOMELY V. MID-AMERICA CORP.
970 S.W.2d 929 (Tenn. 1998)
Presumption: Firefighter Entitled to Benefits for Heart Condition Under Conclusive Presumption of Heart-Lung Law
GALLAGHER V. CITY OF LAS VEGAS
959 P.2d 519 (Nev. 1998)
Presumption: Injury Caused by Illegal Drugs
BROWN V. ALABAMA ELEC. CO.
970 S.W.2d 807 (Ark. 1998)
Recreational Injury: Ski Instructor Injured Skiing on Own Time Not Covered by Workers' Compensation
DeWALL V. STATE
960 P.2d 502 (Wyo. 1998)
Release: Corporate General Release Valid for Subrogation Rights
SKF USA, INC. V. W.C.A.B. (SMALLS)
714 A.2d 496 (Pa.Cmwlth. 1998)
Report: Failure to Report in Timely Fashion After Learning of Likely Compensability Is Fatal
MATTER OF ZIELINSKE
959 P.2d 706 (Wyo. 1998)
Res Judicata: Barred Claim for Worsening of Condition
CHAISSON V. OCEANSIDE SEAFOOD
713 So.2d 1286 (La.App. 1 Cir. 1998)
State of Limitations: Not Tolled Unless Employer's Conduct Misled Claimant
ZAFRAN V. W.C.A.B.
713 A.2d 698 (Pa.Cmwlth. 1998)
State of Limitations: Ran from Date That Chemical Exposure Possibly Caused Disease
RANNEY V. PARAWAX CO., INC.
582 N.W.2d 152 (Iowa 1998)
Statutory Construction: Amendment for Credit of Unemployment Benefits Not Retroactive
LYKINS V. W.C.A.B. (NEW CASTLE FOUNDRY)
713 A.2d 77 (Pa. 1998)
Suicide: From Fear of Being Fired Not Compensable
CRAWFORD V. MARTIN MARIETTA/MICHOUD
713 So.2d 781 (La.App. 4 Cir. 1998)
Suitable Employment: Conviction for Indecent Exposure Misconduct
WILLIAMS V. PEE DEE ELEC. MEMBERSHIP
502 S.E.2d 645 (N.C.App. 1998)
Suitable Employment: Refusal Resulted in Forfeiture of Benefits
POISSON V. COMTEC INFORMATION SYSTEMS
713 A.2d 230 (R.I. 1998)
Temporary Total: Prior Permanent Partial Disability Award Suspended and Did Not Act as Credit Toward Temporary Total Disability
ANDERSON V. OMAHA PUBLIC SCHOOL DIST.
581 N.W.2d 424 (Neb. 1998)
Third Party Action: Trial Court Could Reduce Personal Injury Award to Cover Subrogation Lien
POWELL V. DANIELS CONST. & DEMOLITION
501 S.E.2d 578 (Ga.App. 1998)
Total Disability: For Claimant Earning More Than Preinjury Wage
DiBENEDETTO V. SECOND INJURY FUND
581 N.W.2d 766 (Mich.App. 1998)
Travel: From Puerto Rico to New Hampshire for Back Surgery Not Compensable
APPEAL OF MURRAY
714 A.2d 222 (N.H. 1998)
Vocational Rehabilitation: None as Claimant Could Return to Work in Same Field
WARREN V. OBERLIN COLOR PRESS
959 P.2d 609 (Okla.Civ.App. Div. 1 1998)
Voluntary Intoxication: Claimant Did Not Overcome Statutory Presumption
ZERINGUE V. WIREWAYS, INC.
714 So.2d 13 (La.App. 1 Cir. 1998)
Work Search: Evidence Substantial Claimant Failed to Conduct Reasonable Search
KEELER V. METAL MASTERS FOODSERV. EQUIP.
Del.Supr., 712 A.2d 1004 (1998)
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