Workers' Compensation Injuries and Conditions

at a Glance

ALCOHOL-INDUCED HEPATITIS

Ozga v. Pathmark Stores Inc., 675 N.Y.S.2d 437 (A.D. 3 Dept. 1998)

ANKLE

Shively v. Mel Raeker Const. Co., 577 N.W.2d 727 (Minn. 1998)

ARM

Kemp v. City of Hornell, 672 N.Y.S.2d 537 (A.D. 3 Dept. 1998)

ARM: LACERATION

Ligonier Tavern v. W.C.A.B. (Walker), 714 A.2d 1008 (Pa. 1998)

ARM: REATTACHED

Douglas v. Kitchen Bros. Mfg., 715 So.2d 663 (La.App. 2 Cir. 1998)

ASTHMA

Bethlehem Steel Corp. v. W.C.A.B., 713 A.2d 1116 (Pa. 1998)

Joseph v. Elmwood Medical Center, 715 So.2d 703 (La.App. 5 Cir. 1998)

ATRIAL FLUTTER

Wisner v. Prof. Divers of New Orleans, 714 So.2d 787 (La.App. 4 Cir. 1998)

BACK

Bass v. Allen Cannery Co., Inc., 715 So.2d 142 (La.App. 2 Cir. 1998)

Baxter v. Montgomery Exterminating, 962 P.2d 666 (Okla.Civ.App. Div. 3 1998)

Bennett v. J.C. Robinson Seed Co., 583 N.W.2d 370 (Neb.App. 1998)

Bruno's Inc. v. Fowler, 710 So.2d 437 (Ala.Civ.App. 1997)

Grucza v. Waste Stream Technology, 676 N.Y.S.2d 336 (A.D. 3 Dept. 1998)

Kentucky Fried Chicken v. Tyler, 716 So.2d 295 (Fla.App. 1 Dist. 1998)

Lakeside Baptist Church v. Jones, 714 So.2d 1188 (Fla.App. 1 Dist. 1998)

Loftus v. Vincent, 713 A.2d 892 (Conn.App. 1998)

Reeves v. Structural Preservation Systems, 716 So.2d 58

(La.App. 3 Cir. 1998)

Riffenburg v. Kent County Mem. Hosp., 715 A.2d 1281 (R.I. 1998)

Silva v. Maplewood Care Center, 582 N.W.2d 566 (Minn. 1998)

Van Wie v. Kirk, 675 N.Y.S.2d 469 (A.D. 4 Dept. 1998)

BACK: BULGING DISC

Bergen v. Iowa Veterans Home, 577 N.W.2d 629 (Iowa 1998)

BACK: DISC

Howze v. W.C.A.B. (General Elec. Co.), 714 A.2d 1140 (Pa.Cmwlth. 1998)

McDonnell v. Nestle Beverage Co., 714 So.2d 757 (La.App. 4 Cir. 1998)

BACK: FUSION

State Ex Rel. Babcock v. Ensr Corp., 695 N.E.2d 250 (Ohio 1998)

BACK: RADICULOPATHY

Pritchett v. W.C.A.B. (Stout), 713 A.2d 1214 (Pa.Cmwlth. 1998)

BACK: SPONDYLOLYSIS

Labarcena v. Schwegmann's Supermarkets, 716 So.2d 478 (La.App. 5 Cir. 1998)

Nowlin v. Breck Const. Co., 715 So.2d 112 (La.App. 2 Cir. 1998)

Terry D. Hayes Logging Cont. v. Baxley, 715 So.2d 552 (La.App. 3 Cir. 1998)

BACK: STRAIN

US Airways v. W.C.A.B. (Johnson), 713 A.2d 1192 (Pa.Cmwlth. 1998)

BRAIN DAMAGE

Schneider, Inc. v. W.C.A.B. (Bey), 713 A.2d 1202 (Pa.Cmwlth. 1998)

CARPAL TUNNEL SYNDROME

Boutte v. Port Barre Mills, 715 So.2d 534 (La.App. 3 Cir. 1998)

Dichello v. Holgrath Corp., 715 A.2d 765 (Conn.App. 1998)

Gosda v. J.B. Hunt Transp., 962 P.2d 777 (Or.App. 1998)

CHRONIC MYOFASCIAL PAIN SYNDROME

Ali v. Workers Compensation Bureau, 583 N.W.2d 115 (N.D. 1998)

DEPRESSION

Conetta v. City of Stamford, 715 A.2d 756 (Conn. 1998)

DORSAL WRIST SYNDROME

Eagle v. Workers Compensation Bureau, 583 N.W.2d 97 (N.D. 1998)

ELECTROCUTION

Westbrooks v. Bowes, 503 S.E.2d 409 (N.C.App. 1998)

FACIAL SCARRING

Carlettini v. W.C.A.B. (City of Phila.), 714 A.2d 1113 (Pa.Cmwlth. 1998)

FOOT: PARTIAL AMPUTATION

Hawkins v. Kane, 582 N.W.2d 620 (Neb.App. 1998)

HANDS

Sharitt v. American Airlines, 962 P.2d 663 (Okla.Civ.App. Div. 3 1998)

HEAD: FRACTURE

State Ex Rel. Thompson v. Indus. Comm., 698 N.E.2d 996 (Ohio 1998)

HEART ATTACK

Becker v. Stryco Con. Co., 675 N.Y.S.2d 450 (A.D. 3 Dept. 1998)

HIGH BLOOD PRESSURE

Keser v. State Elmira Psychiatric Center, 699 N.E.2d 411 (N.Y. 1998)

HIP

Ashland Exploration, Inc. v. Tackett, Ky.App., 971 S.W.2d 832

INTERSTITIAL LUNG DISEASE

City of McKeesport v. W.C.A.B. (Miletti), 715 A.2d 532 (Pa.Cmwlth. 1998)

KNEE

City of Norman v. Steves, 962 P.2d 655 (Okla.Civ.App. Div. 1 1998)

DeLong v. Shop 'N Save, 972 S.W.2d 495 (Mo.App. E.D. 1998)

Dover Elevator v. Indus. Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998)

In Re CSX Transp., Inc., 151 F.3d 164 (4th Cir. 1998)

Joe Brennan General Contracting v. Adair, 971 S.W.2d 798 (Ark.App. 1998)

Old Republic Ins. Co. v. Rodriguez, 966 S.W.2d 208 (Tex.App.-El Paso 1998)

Special Indem. Fund v. Payton, 962 P.2d 676 (Okla.Civ.App. Div. 3 1998)

LEG

Wisely v. Sysco Foods, 972 S.W.2d 315 (Mo.App. E.D. 1998)

LUMBAR STRAIN

Frantz v. Southern Scrap Material Co., 714 So.2d 750 (La.App. 3 Cir. 1998)

MESOTHELIOMA

Callaway v. Anco Insulation, Inc., 714 So.2d 730 (La.App. 4 Cir. 1998)

NECK

Brown v. A-Dec, Inc., 961 P.2d 280 (Or.App. 1998)

Bryant v. City of New York, 676 N.Y.S.2d 267 (A.D. 3 Dept. 1998)

Tagliavento v. Borg-Warner Auto, 676 N.Y.S.2d 282 (A.D. 3 Dept. 1998)

NON-HODGKIN'S LYMPHOMA

Beaver v. City of Salisbury, 502 S.E.2d 885 (N.C.App. 1998)

PSYCHOLOGICAL: MULTI-INFARCT DEMENTIA

Bugliari v. N.Y. State at Cornell, 676 N.Y.S.2d 698 (A.D. 3rd Dept. 1998)

ROTATOR CUFF

Pearson v. Reflector Hardware Corp., 710 So.2d 443 (Ala.Civ.App. 1997)

SCHIZOAFFECTIVE DISORDER

Taylor v. Mobile Pulley & Machine Works, 714 So.2d 300 (Ala.Civ.App. 1997)

SHOULDER

Taylor v. Soran Restaurant, Inc., 960 P.2d 1254 (Idaho 1998)

STROKE

Schuster v. Div. of Employment Sec., 972 S.W.2d 377 (Mo.App. E.D. 1998)

THORACIC OUTLET SYNDROME

Hiner v. Crawford Health & Rehabilitation, 961 P.2d 283 (Or.App. 1998)

WRIST

Alexander v. Pace Industries, Inc., 710 So.2d 450 (Ala.Civ.App. 1997)

Bishop v. Lakeland Medical Center, 715 So.2d 541 (La.App. 4 Cir. 1998)

Top

Selected Workers' Compensation Cases of Interest

Average Weekly Wage: Travel Expenses

SWEARINGEN V. INDUSTRIAL COM'N

699 N.E.2d 237 (Ill.App. 5 Dist. 1998)

The Illinois Court dealt with the claimant, Swearingen, who was a "second driver" on a two-person crew and was earning 11 cents per mile. She was paid approximately $400 per week. In addition, drivers who completed one year of employment during which they logged 140,000 miles were eligible for one week's vacation pay of $400. Swearingen was injured while lifting the bunk in the tractor of her truck in Salinas, California, on November 6, 1992.

Terry Burnett, Henderson's safety director, testified that Henderson treated 50 percent of all drivers' gross pay as reimbursement for travel expenses, rather than earned income. This money was to cover drivers' personal expenses. Drivers were not required to turn in any expense report or receipts. The travel expense allowance did not cover the cost of fuel, tolls, or repairs; lead-seat drivers were reimbursed separately for those expenses.

The court found that a portion of the money paid "for expenses" was in fact wages and should be included in the average weekly wage.

The court stated:

We also find significant that eligible drivers were entitled to a one-week paid vacation at $400. If one-half of the amount Henderson paid its drivers was reimbursement for expenses, then vacation pay would have been $200, because the drivers would not have been incurring any expenses while on vacation. That Henderson paid its drivers $400 per week while on vacation suggests that that portion of drivers' wages which Henderson designated as "reimbursement" was actually in the nature of wages constituting real economic gain to the drivers.

Constitutionality: Child Labor Laws

LIGONIER TAVERN V. W.C.A.B. (WALKER)

714 A.2d 1008 (Pa. 1998)

The Pennsylvania Supreme Court dealt with the claimant, Walker, who worked for the defendant tavern as a dishwasher. Her average weekly wage was $95.72. At the time she began working for appellant, the claimant was 17 years and almost 4 months old, her date of birth being August 29, 1974. On April 24, 1992, while she was still under the age of 18, claimant suffered a work-related laceration of her right arm when she came into contact with broken glass in a trash bag. As a result, she ceased working and subsequently underwent surgery. Appellant issued a notice of compensation payable and claimant began receiving the minimum weekly compensation at the rate of $151.67.

The claimant then filed for additional workers' compensation due to the violation of the child labor laws, i.e. failure to obtain a valid work permit. Under the state statute, her workers' compensation rate was raised 50 percent due to the violation. The employer challenged the constitutionality of the penalty provision.

The court upheld the constitutionality of the provision and stated:

We too now hold that the legislature's clear and unambiguous mandate that all illegally employed minors under the age of 18 be awarded 50 percent additional compensation does not violate the "reasonable compensation" provision of Article III, Sec. 18 of the Pennsylvania Constitution. Additionally, we hold that the Act's failure to establish specific classifications in accordance with the Child Labor Law does not violate the Equal Protection clause of the Federal Constitution and Article III, Sec. 32 of Pennsylvania's Constitution.

We hold an award of 50 percent additional compensation to be reasonable as to amount in order to enforce compliance with the mandates of the Child Labor Law.

Horseplay: Incident of Employment

WISELY V. SYSCO FOODS

972 S.W.2d 315 (Mo.App. E.D. 1998)

The Missouri Court dealt with the claimant, Wisely, who was employed as a forklift/pallet jack operator. When operating his picker he caused a co-employee's pallet to fall and injured his own leg in the process.

After the investigation, the employer concluded the injury was due to horseplay and that claimant had removed and dropped Denouden's pallet as a prank. The sound of the pallet hitting the ground had caused Denouden to stop suddenly, causing the accident. At the hearing Denouden testified that he believed claimant had pulled the pallet off the picker as a practical joke. He stated that this was a commonly known practical joke in his business. Denouden stated that he had personally pulled empty pallets off of pallet jacks as a practical joke and had seen others do it as well. He cited other types of horseplay at the warehouse, such as chasing co-workers with pallet jacks, kicking wood in front of moving vehicles, and stopping short to scare someone following. He said he had personally engaged in these acts of horseplay. He further testified that acts of horseplay were not an unusual occurrence and in fact were fairly common at employer's warehouse.

The employer interposed a "horseplay defense". This was rejected by the court as they found that horseplay was a "regular incident of employment". The court stated:

While not approved of by the management, sufficient competent evidence supports a finding that horseplay, including pulling the pallets off of forks, did occur as a regular incident of claimant's employment.

The award is affirmed.

In Course of Employment: Abandonment of Employment

BUCKEYE PIPE LINE CO. V. W.C.A.B. (ABT)

714 A.2d 1143 (Pa.Cmwlth. 1998)

The Pennsylvania Court dealt with the claimant who was employed as an electronic technician for employer traveling to various job sites. On June 24, 1993, the claimant was driving employer's van to his early morning assignment. The van entered the highway entrance ramp which was blocked with debris, including sharp objects. He pulled the van over to the side of the road, leaving it in park with the motor running. The claimant got out of the van to remove the debris. He then observed additional debris on the highway, causing an immediate traffic hazard. He waited for traffic to clear and ran to remove one of the boxes but was struck by a vehicle he had not seen, sustaining serious injuries.

The court affirmed the award of benefits to this "good samaritan" finding that he had not abandoned his employment when he went back to secure the road for future motorists.

The court stated:

A number of courts have gone to considerable lengths in upholding awards for injuries occurring in the course of miscellaneous "good samaritan" activities by employees, on the theory that the employer ultimately profited as a result of the goodwill thus created. This conduct, thus, was found necessary and in furtherance of employer's business. The WCAB recognized that the removal of the rest of the highway debris that was causing an immediate traffic hazard was also not so foreign and removed as to constitute an abandonment of claimant's employment. The WCAB held that claimant's conduct was at most an innocent departure likening claimant's actions to those cases where employees have been injured while stopping for personal comfort.

In Course of Employment: Bowling

DOVER ELEVATOR V. INDUS. CLAIM APPEALS OFFICE

961 P.2d 1141 (Colo.App. 1998)

The Colorado Court dealt with the claimant, Dickerson, who injured her right knee while bowling during an off-premises company Christmas party arranged by employer. The Administrative Law Judge (ALJ) found that the testimony of the claimant and several witnesses, as well as an exhibit, established that attendance at the Christmas party was mandatory. The ALJ also found that, although the party was held away from the company's premises, it was at a bowling center chosen by a supervisor; that the activity occurred during normal working hours; and that the employer initiated, organized, sponsored, and paid for the party.

The court affirmed the award of benefits finding that as participation in the activity was mandatory the injury was sustained in the course of employment and was compensable.

The court stated:

Here, the ALJ's findings supporting compensability, particularly the finding that attendance at the party was not voluntary, are amply supported by the evidence, which includes corroboration of claimant's testimony by several witnesses. Thus, the direct evidence concerning the mandatory nature of the party was sufficient, without a consideration of evidence of sponsorship, promotion, organization, and payment, to support the ALJ's finding that claimant's attendance was not voluntary.

In Course of Employment: Paid Break

SHAW V. SMITH & JENNINGS, INC.

503 S.E.2d 113 (N.C.App. 1998)

The North Carolina Court dealt with the decedent, Shaw, who was found dead in his motor vehicle after it was involved in a one-vehicle accident. The decedent left the job site around 10:15 a.m. for one of his scheduled breaks. According to the defendant's break policy, each employee was allowed two ten-minute breaks a day "on the clock", during which the employee continued to be paid by defendant. Further, each employee was allowed a one-hour lunch each day "off the clock", during which the employee was not paid.

At approximately 11:00 a.m., State Trooper C.D. Cain responded to the scene of a one-vehicle accident.

The court affirmed the award of benefits finding that as this was a paid break and there was not food or refreshments on the premises the accident was sustained in the course of his employment.

The court stated:

Likewise, in this case the decedent was on a paid morning break and had travelled a short distance from the job site when the accident occurred; there were no facilities for food and drink on the premises, and the employer acquiesced in allowing its employees to go off the job site for the purpose of obtaining refreshments. Therefore, we conclude the Commission properly determined the decedent's fatal accident occurred in the course of his employment with the defendant.

In Course of Employment: Work at Home

ROGERS V. PACESETTER CORP.

972 S.W.2d 540 (Mo.App. E.D. 1998)

The Missouri Court dealt with the claimant, Rogers, who was employed as a manager and frequently took work home due to insufficient time in the office to complete all the work. On April 6, 1992, he was invited out to a bar after work by his supervisor. They discussed work, drank, and the claimant was told he would be promoted the next day. The claimant ran off the road on his way home. The claimant was to complete performance reviews at home that night.

The court reversed the denial of benefits finding that the work to be done at home was a regular and integral part of his employment and that the visit to the bar was not a "recreational activity".

The court stated:

Claimant regularly worked 12 hours, Monday through Friday, and 6 hours each Saturday. Claimant also regularly did work for his employer at home, including writing advertisements and conducting performance reviews. The night of the accident was a Monday and it was claimant's practice to do performance reviews of the week before on the telemarketers on Monday evenings in order that on Tuesday mornings he could discuss their performance with them. Claimant testified that it was necessary to conduct these performance reviews at home because, as the Commission found, "there was insufficient time to perform [his duties] during regular office hours." Moreover, the Commission found that the work performed at home by claimant "was an integral part of the conduct of his employer's business," and not only a convenience to claimant. Clearly a benefit accrued to employer by claimant conducting these performance reviews at home. We conclude that under the facts as found by the Commission, claimant demonstrated that the demands of his employment created the expectation that work needed to be done at home for the benefit of his employer.

Intentional Tort: OSHA Violation

REEVES V. STRUCTURAL PRESERVATION SYSTEMS

716 So.2d 58 (La.App. 3 Cir. 1998)

The Louisiana Court dealt with the plaintiff, Reeves, who was injured when a sandblasting pot he was moving fell on him. He sued his employer alleging an intentional tort and was awarded $125,000. The facts of the incident were as follows:

Reeves was working as a general laborer for SPS on the date of the accident. He was instructed by his foreman, Calvin Sylvester, to move a sandblasting pot. The pot was a metal container which weighed approximately 350 to 400 pounds empty. It was capable of holding up to 1,000 pounds of sand. This particular pot had warning stickers on it which read, "Do not move pot manually." These warning stickers were required by OSHA. The proper way to move the pot was to affix it to a pallet and move it with a forklift or heister. When the pot in question was first moved to the SPS job in Lakes Charles it remained on a pallet. However, shortly thereafter, "upper management" decided this particular job did not need a forklift or heister, so the pot was removed from the pallet so it could be moved manually.

The court affirmed the award finding that the intentional OSHA violation with injury likely to follow was in fact an intentional tort.

The court stated:

The record reflects SPS supervisory personnel knew that the sandblasting pot could not be moved safely without a tow motor and moving it manually violated OSHA safety regulations, yet they failed to provide the appropriate equipment. The jurisprudence amply supports finding an employer liable for an intentional tort where it directs an employee to perform work which the employer knows is so dangerous injury is likely to result or it knows or should have known that the physical injury was substantially certain to follow from the employee's act.

Longshore: Unloading Freight

IN RE CSX TRANSP., INC.

151 F.3d 164 (4th Cir. 1998)

The U.S. Court of Appeals (4th Cir.) dealt with the claimant, Shives, who was a railroad employee and who filed a FELA action after he was injured. His employer, Railroad, defended the case interposing a longshore defense arguing that as Shives was engaged in "maritime employment" his exclusive remedy was under the Longshore Act.

The court found that as 15 percent of the time the claimant was involved in loading and unloading maritime freight he was covered under the Longshore Act despite the fact that when he was injured he was actually unloading cargo onto trucks for inland destinations.

The court stated:

Undoubtedly, there is a level of longshore work assigned to an employee that may be so de minimis as to defeat coverage. We need not, in this case, determine that level because we conclude that Shives was clearly assigned to do some indisputably longshore work when he was assigned, as part of his job, to load and unload maritime freight at the Seagirt Marine Terminal.

In summary, we hold that because, at the time of injury, Shives was performing his assigned work as a carman at the Seagirt Marine Terminal and because some of his carman's duties were indisputably maritime, Shives was engaged in maritime employment as defined by the LHWCA. Because Shives met both the situs and the status tests of the LHWCA, he was covered by the Act.

Medical Treatment: Functional Capacity Evaluation

ALI V. WORKERS COMPENSATION BUREAU

583 N.W.2d 115 (N.D. 1998)

The North Dakota Supreme Court dealt with the claimant, Ali, who developed a repetitive motion injury from assembling electronic wire harnesses. She was diagnosed with chronic myofascial pain syndrome but was denied treatment at a pain management program. She was ordered and participated in a second and third FCE but was found not to be using her maximum effort. Her workers' compensation benefits were then discontinued for "refusing to reasonably participate in the FCE."

The court reversed the denial finding that as the FCE was an "examination" and not "treatment" her benefits could not be discontinued.

The court stated:

On this record, we conclude that FCE was an "examination" directed by the Bureau, and was not part of Ali's "treatment". To support suspension of benefits under NDCC 65-05-28(4), then, the Bureau would have to demonstrate Ali refused to submit to or intentionally obstructed the FCE. The Bureau does not claim Ali failed to submit to the FCE, and the findings adopted by the Bureau specifically conclude Ali did not intentionally obstruct the FCE. Therefore, there is no basis for suspension of Ali's benefits under NDCC 65-05-28(4), and the Bureau's decision is not in accordance with the law.

Misrepresentation: Forfeiture of Benefits

TERRY D. HAYES LOGGING CONT. V. BAXLEY

715 So.2d 552 (La.App. 3 Cir. 1998)

The Louisiana Court dealt with the claimant, Baxley, who was a 51-year-old laborer with a sixth grade education, who could sign his name and provide his address and phone number. Baxley was hired to perform log cutting work for Terry Hayes Logging on November 6, 1994. Baxley's employment application was grossly incomplete, containing only his social security number, name, address, grammar school, and the name of a former employer. A two-page, preemployment medical history questionnaire was also completed by Baxley, on which he checked "no" in response to all injuries or prior illnesses listed. Baxley testified that he could not read most of what was listed but always answered "no" in response to these questions, believing them to be unimportant. The second page of the questionnaire contained a statutorily required warning printed in type larger than ten point and in all capital letters, regarding the risk of forfeiture of benefits for untruthful answers.

The claimant fell out of a tree and injured his back and filed for workers' compensation benefits. The insurer defended arguing forfeiture of benefits due to the claimant's failure to report a prior back problem in 1992.

The court affirmed the award finding the print on the form was too light and that the claimant was unable to read in any event.

The court stated:

The print on the entire page containing the warning is so faint and of such poor quality that it is virtually unreadable.

Moreover, we find that neither Hayes nor AIIC proved that Baxley could read and understand the forms he was asked to complete. It is, therefore, also reasonable to infer that he completed these forms without being aware of the potential forfeiture of benefits he could face upon submitting inaccurate information.

Penalties: Credit for Sickness and Accident Pay

BOEING HELICOPTERS V. W.C.A.B. (COBB)

713 A.2d 1181 (Pa.Cmwlth. 1998)

The Pennsylvania Court dealt with the claimant, Cobb, who on November 28, 1994, was awarded workers' compensation benefits "from June 13, 1991, to present and continuing". The employer unilaterally deducted $10,089 from the award to reimburse the sickness and accident insurer, Aetna. The claimant had previously signed an agreement with Aetna to reimburse it out of his workers' compensation benefits if and when workers' compensation benefits were awarded.

The court found that the unilateral action of the workers' compensation insurer violated the Workers' Compensation Act and subjected it to penalties.

The court found the subrogation rights of Aetna waived and stated:

Aetna's right to subrogation, although set forth in Section 319 of the Act, is a true equitable right. The Supreme Court firmly rejected a claim that the incorporation into the first paragraph of Section 319 of the employer's right to be subrogated to a claimant's recovery from a third-party tort-feasor rendered that right "statutory" rather than equitable in nature. The court observed that the legislature presumably used the term, which has little application outside the law, in its legal sense. Nevertheless, a right of subrogation is not self-executing, and a party asserting a right of subrogation must exercise reasonable diligence to protect his or her interest. Aetna in particular should be aware that it is possible for a party asserting a right to subrogation to waive that right. This Court held in Workmen's Compensation Appeal Board v. Olivetti Corp. of America, 26 Pa. Cmwlth. 464, 364 A.2d 735 (1976), that although there was testimony that Aetna had made sickness and accident payments to the claimant, Aetna's subrogation claim was waived where it was raised for the first time on appeal to this Court.

Penalty: Accounting Credit

KESER V. STATE ELMIRA PSYCHIATRIC CENTER

699 N.E.2d 411 (N.Y. 1998)

The New York Court dealt with the claimant, Keser, who suffered a subacute aortic dissection. He filed a workers' compensation claim which was contested. He used his sick time and when he won his workers' compensation case the workers' compensation carrier did not reimburse the employer for 42 days. The claimant sought and obtained a 20 percent penalty for late payment.

The court affirmed the penalty finding that the late penalty provisions apply even when the reimbursement is in the form of an accounting credit.

The court stated:

In the instant case, both the carrier and the employer are State agencies, and the reimbursement is in the form of an accounting credit, rather than an actual transfer of monies. This does not alter the need to uniformly enforce the penalty provisions. The focus of the penalty inquiry is on whether there has been timely compliance with the terms of the award, as opposed to the mechanics of payment. Thus, the Court in Dickman (supra) held that there is no requirement of an actual payment to have taken place in determining whether a claimant's attorney may attach a lien to a given award. The fact that the award was effected by a bookkeeping procedure (as between State agencies) did not alter the attorney's right to attach a lien on the award for his services.

Preexisting Condition: Latent

TAYLOR V. MOBILE PULLEY & MACHINE WORKS

714 So.2d 300 (Ala.Civ.App. 1997)

The Alabama Court dealt with the claimant, Taylor, who was employed by Mobile Pulley as a welder for 23 years. On January 23, 1993, Taylor fell from a scaffold and suffered a displaced fracture of his right hip. Taylor's doctors performed two operations on his hip as a result of that injury. As a result of the injury to his hip, Taylor's doctors assigned him a 4 percent permanent, partial physical disability rating.

However, the trial judge also found that the hip injury "accelerated or triggered" a latent schizoaffective disorder in Taylor. That schizoaffective disorder left Taylor permanently and totally disabled.

The trial court limited the permanent and total award to five years based upon the fact his schizoaffective disorder would have manifested itself anyway and disabled him.

The appellate court found that the permanent and total award was improperly limited and that having worked for 23 years for the employer the claimant had no "preexisting condition".

The court stated:

The trial court, while noting that Taylor had previously been hospitalized for a nervous breakdown, specifically found that Taylor "had performed his job [for Mobile Pulley] very satisfactorily" for 23 years. Thus, Taylor's latent schizoaffective disorder may not be considered in the determination of his workers' compensation benefits. Because Taylor's latent schizoaffective disorder had not affected the performance of his job duties before the injury, his latent condition, activated by the injury, was compensable. Thus, the trial court erred in limiting Taylor's recovery, after finding him permanently and totally disabled, on the basis that the latent condition would have manifested itself within a few years even if the injury had not occurred.

Settlement: Oral Compromise

DAWSON V. CINTAS CORP.

715 So.2d 165 (La.App. 1 Cir. 1998)

The Louisiana Court dealt with the claimant, Dawson, who slipped and fell at work and was placed on workers' compensation. She returned to work briefly but stopped work due to the pain. She then filed a workers' compensation claim. Trial was set for March 7, 1997. Following a conference between Dawson, her attorney, and counsel for defendants, a settlement agreement was read into the record. The terms of the settlement provided for a lump sum payment of $5,000.00 and that Dawson would be responsible for any further medical expenses incurred as a result of the October 12, 1996 accident. There was also a provision that Dawson would voluntarily resign her employment with Cintas.

The settlement agreement was then reduced to writing; however, the plaintiff refused to sign the settlement document. The stipulated judgment was presented to the workers' compensation judge without any signatures of attorneys or litigants and was signed on May 19, 1997. The insurer then attempted to enforce this oral agreement.

The court found that the insurer had no right to specific performance of the agreement as it was not signed by the claimant.

The court stated:

Considering the law and the record before us, we find that there is no enforceable settlement to the workers' compensation claim because of the parties' failure to comply with LSA-R.S. 23:1272 as interpreted by our supreme court in Colbert v. Louisiana State University Dental School, supra. We hereby reverse the stipulated judgment signed by the workers' compensation judge on May 19, 1997, and remand the case for further proceedings.

Statute of Limitations: Advance Workers' Compensation Payments

BUGLIARI V. N.Y. STATE AT CORNELL

676 N.Y.S.2d 698 (A.D. 3rd Dept. 1998)

The New York Court dealt with the claimant, Bugliari, who in the mid-1980s, developed multi-infarct dementia as a result of stress-induced psychiatric problems related to his employment as a tenured business law professor at Cornell University. Thereafter, his employer provided him with a student assistant, installed couches in his office to permit him to rest, and granted him an extended paid leave of absence. The claimant ultimately retired and in January 1994 he filed a claim for workers' compensation benefits based upon his condition. The workers' compensation carrier and the employer contested the claim on the ground that it was time barred under the two-year limitations period set forth in Workers' Compensation Law Sec. 28.

The court rejected the statute of limitations defense finding that as the employer made "advance payments" to the claimant it waived its statute of limitations defense.

The court stated:

Claimant held two full-time teaching positions, served as the director of legal services and the chair of several academic committees, was elected to the position of dean of faculty for five years and served as secretary to the faculty for three years. Claimant's supervisor testified that he was aware that these work responsibilities had caused claimant to suffer debilitating physical and mental problems that interfered with his job performance. Moreover, claimant testified that he was offered the student assistant and the leave of absence after the employer's president and dean were advised that he was experiencing work-related health problems. We find substantial evidence in the record to support the Board's determination that the remuneration was made in acknowledgment of the work-related nature of claimant's condition.

Third Party Action: Loss of Consortium

DARR CONST. CO. V. W.C.A.B. (WALKER)

715 A.2d 1075 (Pa. 1998)

The Pennsylvania Supreme Court dealt with five consolidated workers' compensation cases in which the claimants raised the issue of whether the employer has a subrogation right over proceeds recovered by the spouses through the settlement of their claims for loss of consortium. All of the cases were settled and not tried to a conclusion.

The court found that the loss of consortium settlements were not subject to a subrogation claim by the employer.

The court recognized the potential for abuse and then stated:

We recognized that a potential for abuse exists in the structuring of loss of consortium settlements between a claimant and a third party tortfeasor due to the lack of participation by the employer in the proceeding. A claimant would have the opportunity to shield his recovery from the employer's subrogation interest by fraudulently attributing an unwarranted amount of the damages to the spouse's claim for loss of consortium. Fear of abuse, however, is an impermissible basis upon which to require the forfeiture of a spouse's valid recovery. In the event the settlement is unreasonably apportioned, an employer may always seek recourse in the court of common pleas. Our Court cannot create a mechanism whereby workers' compensation officials could reexamine third party settlements for purposes of determining the employer's subrogation interest. Such action can only be taken by the General Assembly.

Third Party Action: Subrogation for Wrongful Death

SALLACH V. UNITED AIRLINES, INC.

698 N.E.2d 1065 (Ohio App. 10 Dist. 1997)

The Ohio Court dealt with the decedent, Sallach, who on January 7, 1994, was a passenger on United Express Flight 6291 and was killed when the plane crashed in Franklin County. He had been traveling within the course and scope of his employment with Xerox Corporation, a self-insured employer under Ohio workers' compensation law. Xerox paid appellee Carol Ann Sallach, decedent's wife, $964 in workers' compensation benefits every two weeks, and Xerox is obligated to continue such payment until she remarries or dies. As of January 29, 1996, Xerox had paid her $52,056 in workers' compensation benefits.

The self-insurer then filed a subrogation claim in the widow's wrongful death action. The court rejected the subrogation claim finding that "employee" in the subrogation statute does not include either the worker's estate or survivors. The court found that survivor's rights under workers' compensation are separate and distinct from the rights of the employee. The court stated:

First, the statute limited subrogation to the rights of that employee against a third-party tortfeasor. Because a wrongful death claim is a claim belonging to the wrongful death statutory beneficiaries and not the decedent, the employer cannot be a subrogee as to a wrongful death claim. Second, the statute applies "only if the employee is a party to an action involving the third-party tortfeasor." Because a decedent cannot be a party to an action, the employer cannot be subrogee as to either a wrongful death or a survivorship claim. Although a survivorship claim is based on the rights of the decedent, the decedent is not a party to the action. We will not broadly interpret the word "employee" in former R.C. 4123.93(D) to include the decedent's estate. R.C. 4123.01(A) defines "employee" as used in R.C. Chapter 4123 as meaning the worker individually, not the worker's estate.

Total Disability: Return to Work at Same Rate of Pay

ASHLAND EXPLORATION, INC. V. TACKETT

Ky.App., 971 S.W.2d 832

The Kentucky Court dealt with the claimant, Tackett, who was injured on February 21, 1995, when a wellhead exploded, injuring his right hip and abdomen. He received temporary total disability (TTD) benefits until his return to work on March 10, 1995. He returned to the same or higher rate of pay and remained working for three months, until June 12, 1995, when he received further medical treatments for his work-related problems. He again received TTD benefits until his return to work on October 20, 1995, again at the same salary. Tackett was now suffering from low back strain radiating into the legs and abdominal discomfort. He finally retired in March 1996 because he could not continue to work in such pain.

The court affirmed the finding that in fact the claimant was not permanently partially disabled as "despite two gallant efforts he was really unable to remain in his job."

The court affirmed the award of total disability and stated:

We also believe that the statute assumes that the worker is less than totally disabled - otherwise he could not continue in his prior job or his new position at his pre-injury, or greater, wage. The ALJ found Tackett totally, not partially, disabled. We see nothing in the amended statute which prevents the ALJ from considering the cumulative effects of a work-related injury and an occupational disease such that they may combine to render a claimant totally disabled.

Willful Misconduct: Partial Disability

HOWZE V. W.C.A.B. (GENERAL ELEC. CO.)

714 A.2d 1140 (Pa.Cmwlth. 1998)

The Pennsylvania Court dealt with the claimant, Howze, who injured his back at work in March 1993 and then underwent surgery. He returned to light duty work and was fired after he threatened a nurse at the employer's dispensary/medical center. His workers' compensation benefits were terminated based upon his "Willful misconduct".

The court reversed the denial of his partial disability benefits finding that a suspension of benefits is only appropriate where the employee's earning power is no longer affected by the work-related injury.

The court stated:

Because claimant was receiving partial disability benefits at the time of his discharge, there is a presumption that his disability from work injury continues. Eljer Industries. Employer failed to produce any evidence to prove that claimant's partial disability was due to a factor unrelated to his work injury; instead, employer produced evidence to establish only that claimant's loss of salary which he had been earning upon his return to light duty work was due to his misconduct. Therefore, consistent with the purpose of the Act - to remedy a loss in earning power due to a work-related injury - claimant is entitled to continue to receive his partial disability benefits, calculated according to the wages he would have earned but for his misconduct.

Additional Workers' Compensation Cases

Aging: Condition Brought on by Aging Can Be Treated as Preexisting Condition

BROWN V. A-DEC, INC.

961 P.2d 280 (Or.App. 1998)

Aggravation: Of Intrinsic Asthma Entitled Claimant to Partial Disability Benefits

BETHLEHEM STEEL CORP. V. W.C.A.B.

713 A.2d 1116 (Pa. 1998)

Agreement: Commuting Total to Partial Not Set Aside

MORGAN V. W.C.A.B. (VOLKSWAGEN OF AMERICA)

714 A.2d 1155 (Pa.Cmwlth. 1998)

AMA Guides: Jury Permitted to Correct Clerical Error in Physician's Computation

OLD REPUBLIC INS. CO. V. RODRIGUEZ

966 S.W.2d 208 (Tex.App.-El Paso 1998)

Appeal: Dismissed as Untimely

NICHOLS V. INGRAM PLUMBING

710 So.2d 454 (Ala.Civ.App. 1998)

Appeal: Mailbox Rule Applied and Petition Deemed Filed When Deposited in U.S. Mail

NAT. LIABILITY & FIRE INS. CO. V. ALLEN

972 S.W.2d 215 (Tex.App.-Beaumont 1998)

Appeal: Remand Order Not Final Appealable Order

CONETTA V. CITY OF STAMFORD

715 A.2d 756 (Conn. 1998)

Attorney Fees: None After Prevailing on Appeal Against Second Injury Fund

SECOND INJURY FUND V. FURMAN

972 S.W.2d 255 (Ark.App. 1998)

Average Weekly Wage: Of Teacher Should Not Be Based on Work for Entire Year

TILL V. CHAUTAUQUA OPPORTUNITIES INC.

675 N.Y.S.2d 387 (A.D. 3 Dept. 1998)

Average Weekly Wage: 13 Week Period to Be Used Where Employee Worked Less Than 13 Weeks Concurrently

WAL-MART STORES V. CAMPBELL

714 So.2d 436 (Fla. 1998)

Bad Faith: No Claim for Insurer's Failure to Investigate Claim Before Paying It

INA V. GLEN HAVEN RESIDENTIAL HEALTH

676 N.Y.S.2d 176 (A.D. 1 Dept. 1998)

Certification of Non-Coverage: Did Not Bar Claim by Subcontractor

CLAYCO CONST. V. BESERRA

962 P.2d 671 (Okla.Civ.App. Div. 1 1998)

Claim: Filed on Established Date of Disability Not When Claim Form Filed

TAGLIAVENTO V. BORG-WARNER AUTO

676 N.Y.S.2d 282 (A.D. 3 Dept. 1998)

Claim: Late Filing Not Fatal as Employer Not Prejudiced

THOUSAND V. HUMAN RESOURCES ADMIN.

675 N.Y.S.2d 402 (A.D. 3 Dept. 1998)

Constitutionality: Did Not Bar Statutory Limits on Vocational Rehabilitation Benefits

EAGLE V. WORKERS COMPENSATION BUREAU

583 N.W.2d 97 (N.D. 1998)

Constitutionality: Lower Earning Employees Not Entitled to Same Workers' Compensation Benefits as Higher Earners

PHINNEY V. SHOSHONE MEDICAL CENTER

960 P.2d 1258 (Idaho 1998)

Coverage: Farm and Ranch Hands Not Covered by Nebraska Workers' Compensation Act

HAWKINS V. KANE

582 N.W.2d 620 (Neb.App. 1998)

Coverage: None for Farm Laborer Not Paid More Than $1,200 per Year

ASHLEY V. DURANT

676 N.Y.S.2d 326 (A.D. 3 Dept. 1998)

Coverage: Requirement That Insurer File Cancellation Notice with Division Ministerial Duty

SIMPSON V. DALE E. SAUNCHEGROW CONST.

965 S.W.2d 899 (Mo.App. S.D. 1998)

Coverage: Workers' Compensation Policy Applied to Sexual Harassment Claim

SCHMIDT V. SMITH

713 A.2d 1014 (N.J. 1998)

Death Benefits: Claimant Who Was Divorced from Decedent Not Surviving Spouse

GHEBREMICHALE V. DEPT. OF LABOR

962 P.2d 829 (Wash.App. Div. 1 1998)

Death Benefits: None Where Decedent Did Not Die Within 300 Weeks of Last Date of Employment

CITY OF McKEESPORT V. W.C.A.B. (MILETTI)

715 A.2d 532 (Pa.Cmwlth. 1998)

Decision: Failure to Make Specific Credibility Determination Not Fatal Error

PRITCHETT V. W.C.A.B. (STOUT)

713 A.2d 1214 (Pa.Cmwlth. 1998)

Election of Remedies: Did Not Bar Action by Plumbing Contractor's Employee Against Operator of Backhoe

OLSON V. LYREK

582 N.W.2d 582 (Minn.App. 1998)

Employee: Limousine Driver Was Employee of Company Which Provided Car

QAUI V. UTOG 2-WAY RADIO, INC.

675 N.Y.S.2d 672 (A.D. 3 Dept. 1998)

Estoppel: Claimant on SSD Could Not Claim She Was Ready, Willing and Able to Return to Work

ALEXANDER V. PACE INDUSTRIES, INC.

710 So.2d 450 (Ala.Civ.App. 1997)

Evidence: Driver Should Have Been Permitted to Amend Answer with Exclusivity Affirmative Defense

SINGH V. SHAFI

675 N.Y.S.2d 614 (A.D. 2 Dept. 1998)

Evidence Substantial: Claimant Did Not Fall Down Stairs and Sustain Workers' Compensation Accident

GRUCZA V. WASTE STREAM TECHNOLOGY

676 N.Y.S.2d 336 (A.D. 3 Dept. 1998)

Evidence Substantial: Claimant Died Due to Alcohol-Induced Hepatitis

OZGA V. PATHMARK STORES INC.

675 N.Y.S.2d 437 (A.D. 3 Dept. 1998)

Evidence Substantial: Claimant Sustained 91% Loss of Ability to Earn

PEARSON V. REFLECTOR HARDWARE CORP.

710 So.2d 443 (Ala.Civ.App. 1997)

Evidence Substantial: Firefighter's Non-Hodgkin's Lymphoma Not Compensable Occupational Disease

BEAVER V. CITY OF SALISBURY

502 S.E.2d 885 (N.C.App. 1998)

Evidence Substantial: Heart Attack Not Compensable

BECKER V. STRYCO CON. CO.

675 N.Y.S.2d 450 (A.D. 3 Dept. 1998)

Evidence Substantial: No Link Between Back Injury and Stroke

LABARCENA V. SCHWEDMANN'S SUPERMARKETS

716 So.2d 478 (La.App. 5 Cir. 1998)

Evidence Substantial: No Occupational Disease from Using Word Processor

BRYANT V. CITY OF NEW YORK

676 N.Y.S.2d 267 (A.D. 3 Dept. 1998)

Evidence Substantial: Post-Injury Position Was Suitable Alternative Employment

RIFFENBURG V. KENT COUNTY MEM. HOSP.

715 A.2d 1281 (R.I. 1998)

Exclusivity: Barred Claim Against Sole Owner and Officer of Insured

ZENITH INS. CO. V. VNE

965 S.W.2d 805 (Ark.App. 1998)

Exclusivity: Barred Contractual Indemnification Claim Against Employer

LEE V. MALTAIS

672 N.Y.S.2d 943 (A.D. 3 Dept. 1998)

Exclusivity: Barred Negligent Infliction of Emotional Distress Even If Workers' Compensation Claim Not Viable

TUMBS V. WEMCO, INC.

714 So.2d 761 (La.App. 4 Cir. 1998)

Exclusivity: Barred Sexual Harassment Claims of Negligence

SCHIRALDI V. AMPCO SYSTEM PARKING

9 F.Supp.2d 213 (W.D.N.Y. 1998)

Exclusivity: Employee of Independent Contractor Cannot Sue Landowner in Tort

CALLAHAN V. ALUMAX FOILS, INC.

973 S.W.2d 488 (Mo.App. E.D. 1998)

Exclusivity: Homeowners Not Entitled to Exclusivity Provisions of Workers' Compensation Act

ALEJANDRO V. RIPORTELLA

672 N.Y.S.2d 412 (A.D.2 Dept. 1998)

Exclusivity: No Right to Sue Co-Employee in Tort for Accidental Injury

PAYNE V. TONTI REALTY CORP.

714 So.2d 1271 (La.App. 5 Cir. 1998)

Forfeiture: For Willful and Deliberate False Statements About Medical History

BASS V. ALLEN CANNERY CO., INC.

715 So.2d 142 (La.App. 2 Cir. 1998)

Fraud: Workers' Compensation Board Had No Jurisdiction Over Criminal Prosecutions

VAN WIE V. KIRK

675 N.Y.S.2d 469 (A.D. 4 Dept. 1998)

Hearing: Employer Should Have Been Permitted to Call Injured Worker as Witness

BAKERSFIELD V. WORKERS' COMP. APPEALS BD.

75 Cal.Rptr.2d 836 (Cal.App. 5 Cir. 1998)

Hearing: Medical Benefit Award Could Not Be Made Where Employer Not Given Notice of Issue

LAKESIDE BAPTIST CHURCH V. JONES

714 So.2d 1188 (Fla.App. 1 Dist. 1998)

In Course of Employment: Twisting Knee Coming Out of Break Room Compensable

DeLONG V. SHOP 'N SAVE

972 S.W.2d 495 (Mo.App. E.D. 1998)

Intentional Act: Requiring Use of Unsafe Ladder Not Exception to Exclusivity Provision

CALCATERRA V. MONTANA RESOURCES

962 P.2d 590 (Mont. 1998)

Intentional Act: None for Exposing Employee to Asbestos

CALLAWAY V. ANCO INSULATION, INC.

714 So.2d 730 (La.App. 4 Cir. 1998)

Interest: Runs from Date Employer Knows Scarring Is Permanent

CARLETTINI V. W.C.A.B. (CITY OF PHILA.)

714 A.2d 1113 (Pa.Cmwlth. 1998)

Jurisdiction: In Virginia Where Contract of Hire Took Place

HARVEY V. B E & K CONST.

716 So.2d 514 (La.App. 2 Cir. 1998)

Last Injurious Exposure Rule: Should Be Applied Even If Not Pleaded

GOSDA V. J.B. HUNT TRANSP.

962 P.2d 777 (Or.App. 1998)

Medical Care: Claimant Entitled to Nursing Services Provided by Wife

SCHUSTER V. DIV. OF EMPLOYMENT SEC.

972 S.W.2d 377 (Mo.App. E.D. 1998)

Medical Care: Claimant Failed to Provide Good Cause for Failing to Attend Medical Exam

ROMO V. DEPT. OF LABOR

962 P.2d 844 (Wash.App. Div. 3 1998)

Medical Care: Employer Had Responsibility to Provide Chiropractic Care

KENTUCKY FRIED CHICKEN V. TYLER

716 So.2d 295 (Fla.App. 1 Dist. 1998)

Medical Care: Facet Injections for Continuing Medical Maintenance Denied

BAXTER V. MONTGOMERY EXTERMINATING

962 P.2d 666 (Okla.Civ.App. Div. 3 1998)

Modification: Claimant Failed to Prove a Material and Substantial Change in Incapacity

BENNETT V. J.C. ROBINSON SEED CO.

583 N.W.2d 370 (Neb.App. 1998)

Modification: Of Permanent and Total Award Jurisdiction Is in Office of Workers' Compensation

GRAY V. HOSPITAL SERVICES OF LOUISIANA

715 So.2d 563 (La.App.3 Cir. 1998)

Non-Allowed Conditions: Claimant Cannot Base Claim Even Partially on Non-Allowed Conditions

STATE EX REL. BABCOCK V. ENSR CORP.

695 N.E.2d 250 (Ohio 1998)

Notice: Compensability of Late Notice Claim Depends on Whether Insurer Prejudicial

WESTBROOKS V. BOWES

503 S.E.2d 409 (N.C.App. 1998)

Notice: Employer Prejudiced by Claimant's Failure to Give Timely Notice

TAYLOR V. SORAN RESTAURANT, INC.

960 P.2d 1254 (Idaho 1998)

Offset: Employer Can Offset SSD Even If Claimant Not Permanently and Totally Disabled

McDONNELL V. NESTLE BEVERAGE CO.

714 So.2d 757 (La.App. 4 Cir. 1998)

Penalties: For Employer Who Failed to Properly Investigate Asthma Claim Before Denying It

JOSEPH V. ELMWOOD MEDICAL CENTER

715 So.2d 703 (La.App. 5 Cir. 1998)

Penalties: For Failure to Approve Surgery

NOWLIN V. BRECK CONST. CO.

715 So.2d 112 (La.App. 2 Cir. 1998)

Penalties: None for Initial Miscalculation of Benefits

BOUTTE V. PORT BARRE MILLS

715 So.2d 534 (La.App. 3 Cir. 1998)

Penalties: None for Underpayment of $13.08 Per Week

FRANTZ V. SOUTHERN SCRAP MATERIAL CO.

714 So.2d 750 (La.App. 3 Cir. 1998)

Penalty: For Delaying Paying Permanent Impairment Award

DOUGLAS V. KITCHEN BROS. MFG.

715 So.2d 663 (La.App. 2 Cir. 1998)

Permanent and Total Disability: Award Premature for Claimant Who Has Not Reached Maximum Medical Improvement

INTERIM PERSONNEL V. HOLLIS

715 So.2d 355 (Fla.App. 1 Dist. 1998)

Permanent Partial: Number of Weeks of Workers' Compensation Due Calculated from Both Disabilities to Hands

SHARITT V. AMERICAN AIRLINES

962 P.2d 663 (Okla.Civ.App. Div. 3 1998)

Physically Impaired Person: Claimant Impaired Due to an Obvious and Apparent Prior Disability

SPECIAL INDEM. FUND V. PAYTON

962 P.2d 676 (Okla.Civ.App. Div. 1998)

Premiums: Staff Leasing Act Supersedes Right-of-Control Test

DEL INDUS., INC. V. TEXAS WORKERS' COMP.

973 S.W.2d 743 (Tex.App.-Austin 1998)

Rehabilitation Award: Premature Where Claimant Recovering from Surgery

CORNEJO V. RELEASE COATINGS OF MINNEAPOLIS

582 N.W.2d 549 (Minn. 1998)

Request for Reconsideration: Could Be Filed by Claimant After Prior Request by Insurer

FRANZEN V. LIBERTY MUT. FIRE INS. CO.

962 P.2d 729 (Or.App. 1998)

Retaliatory Discharge: In Award Allowance Must Be Made for Payments Made Previously by Employer

LOFTUS V. VINCENT

713 A.2d 892 (Conn.App. 1998)

Safety Violation: Award for Unsafe Scaffold Affirmed

STATE EX REL. THOMPSON V. INDUS. COMM.

698 N.E.2d 996 (Ohio 1998)

Seaman: Commercial Diver Not Seaman

WISNER V. PROF. DIVERS OF NEW ORLEANS

714 So.2d 787 (La.App. 4 Cir. 1998)

Special Fund: Application for Registration of Physical Impairment Must Identify Claimant and Employer

SHIVELY V. MEL RAEKER CONST. CO.

577 N.W.2d 727 (Minn. 1998)

Statute of Limitations: Barred Aggravation Claim Not Filed within Five-Year Period

HINER V. CRAWFORD HEALTH & REHABILITATION

961 P.2d 283 (Or.App. 1998)

Statute of Limitations: Barred Claim Filed 16 Years After Date of Injury

JOE BRENNAN GENERAL CONTRACTING V. ADAIR

971 S.W.2d 798 (Ark.App. 1998)

Statute of Limitations: Not Extended by Discovery Rule as Statute of Limitations Runs from Last Payment of Workers' Compensation

BERGEN V. IOWA VETERANS HOME

577 N.W.2d 629 (Iowa 1998)

Statutory Construction: Change in Penalty Provision Not Retroactive

DILLARD'S DEPT. STORE V. COCHENNIC

716 So.2d 468 (La.App. 5 Cir. 1998)

Statutory Construction: Equitable Apportionment Provision Did Not Apply to Petition Mailed Before Statute Enacted

SILVA V. MAPLEWOOD CARE CENTER

582 N.W.2d 566 (Minn. 1998)

Statutory Construction: Reform Act Applies Only to Actions Filed After Act's Effective Date

CAPONI V. GREAT ATLANTIC & PACIFIC TEA

675 N.Y.S.2d 822 (Sup. 1998)

Statutory Employee: Truck Driver Statutory Employee of Retail Store He Was Making Delivery to

ABBOTT V. THE LIMITED, INC.

503 S.E.2d 494 (S.C.App. 1998)

Statutory Employer: Mechanical Contractor Statutory Employer of Employee Sheet Metal Subcontractor

ANDERS V. A.D. JACOBSON, INC.

972 S.W.2d 612 (Mo.App. W.D. 1998)

Subrogation: None for Money Properly Allocated to Loss of Consortium Claim

GAPUSAN V. JAY

78 Cal.Rptr.2d 250 (Cal.App. 4 Dist. 1998)

Suspension: Employer Failed to Prove Job Availability Within Claimant's Physical Limitations

SCHNEIDER, INC. V. W.C.A.B. (BEY)

713 A.2d 1202 (Pa.Cmwlth. 1998)

Temporary Total: Due During Period of Vocational Rehabilitation

CITY OF NORMAN V. STEVES

962 P.2d 655 (Okla.Civ.App. Div. 1 1998)

Temporary Total: Should Have Been Deducted from Permanent Partial Disability Benefits Awarded

BRUNO'S INC. V. FOWLER

710 So.2d 437 (Ala.Civ.App. 1997)

Termination: Employer Failed to Prove Claimant Had Fully Recovered from Work Injury

US AIRWAYS V. W.C.A.B. (JOHNSTON)

713 A.2d 1192 (Pa.Cmwlth. 1998)

Third Party Action: Municipality Has Lien on Third Party Suit for Workers' Compensation Paid to Police Officer

SCANNELL V. KARLIN

675 N.Y.S.2d 646 (A.D. 2 Dept. 1998)

Total Disability: None for Claimant Caught on Videotape Pursuing Activities

DICHELLO V. HOLGRATH CORP.

715 A.2d 765 (Conn.App. 1998)

Voluntary Intoxication: Claimant within .021% Blood Alcohol Content Not Intoxicated

CONTINENTAL EXPRESS V. HARRIS

965 S.W.2d 811 (Ark.App. 1998)

Willful Misrepresentation: Lying During Hearing About Work Done and Applied for Resulted in Forfeiture of Workers' Compensation

BISHOP V. LAKELAND MEDICAL CENTER

715 So.2d 541 (La.App. 4 Cir. 1998)

Workfare: County and City Equally Liable for Workers' Compensation Benefits

KEMP V. CITY OF HORNELL

672 N.Y.S.2d 537 (A.D. 3 Dept. 1998)