February 1998 Articles

$4.39 Billion Workers' Compensation Gain!

Where is all the money going which is being saved from workers' compensation reform and reduced benefits paid to injured workers?  According to Best's Review.

.. workers' compensation remained one of the property casualty industry investment leaders, with a net investment gain of $4.39 billion ...

What is the cause of this $4.39 billion gain?

The improvement in recent workers' compensation underwriting results is attributed to the reduction of pure losses. Because of antifraud initiatives, stricter guidelines for benefits, the elimination of residual market pools, and an increase in deductibles, among other factors, the line's pure losses in 1996 were cut in half from five years prior, dropping to $13.97 billion from $28.26 billion.

For additional information see Best's Review, November 1997, pages 91-93.

 Workers' Compensation Attorneys in Survival Mode

The number of workers' compensation claims is steadily decreasing across the United States due to:  workers' compensation "reform", safer workplaces, and fewer traumatic injuries as a result of an increasingly "white collar" workforce.   What are workers' compensation attorneys doing to survive?

Workers' compensation law firms are decreasing staff, increasing their advertising budgets, and filing more claims for diseases and conditions not always thought of as occupationally related, i.e. stress, shift work problems, diabetes, multiple sclerosis, and other types of medical conditions on an aggravation theory.

What will the workers' compensation law firm of the year 2000 look like? A firm which talks to hundreds of injured workers each year and files workers' compensation, ADA claims, employment claims, and the resultant third party suits as well. Survival may require diversification.

"We Don't Take Workers' Compensation Cases Anymore"

The devastating aftershocks of workers' compensation reform are still being felt in the state of Texas.  The workers' compensation system is so bad inured workers are not able to even find an attorney to represent them.

A recent study found that 71 percent of injured workers who tried to hire an attorney to represent them were unsuccessful in obtaining counsel. The reason? Money, pure and simple. The workers' compensation system after reform has left 30 percent of attorneys stating they are not taking any new workers' compensation cases and 71 percent telling injured workers there was no "financial incentive" to take their case.

We are rapidly moving to an OWCP type system in many states in which injured workers will have a difficult if not impossible time to obtain counsel. Is this the bargain envisioned in 1911 when injured workers gave up their tort rights for workers' compensation?

For additional information on the Texas situation call 512-469-7811 and ask for the study "A Comparison of Injured Workers Who Used Attorneys or Ombudsmen in the Texas Dispute Resolution System".

 Third Party Cases

All workers' compensation attorneys must be vigilant in diagnosing and pursuing viable third party cases.  Failure to do so can result in harm to your client and legal malpractice.  To keep current on the latest engineering and safety developments, you should get on the mailing list of the Safety Brief published by Triodyne, Inc.   There is no charge for this monthly publication.  The October 1998 issue deals with truck rollovers.  The May 1995 issue has 12 excellent pages on "Safeguard Evaluation Protocol."  It presented a "decision tree for standardizing, optionalizing, prohibiting , ignoring, enhancing, or characterizing safeguards".

To get on the mailing list write or call: Safety Brief, 5950 West Touhy Avenue, Niles, IL 60714-4610, 847-677-4730.

NCCI Contract and Workers' Compensation Coverage

All workers' compensation attorneys shold be aware of this.  A recent decision in the state of Illinois may impact workers' compensation coverage in the 35 states that use the "standard" NCCI workers' compensation contract.  The decision dealt with part 5 of the contract which relates to workers' compensation premiums and how they are calculated.

Part 5 provides:

[A]nd all other remuneration paid or payable during the policy period for the services of:

(1) all your officers and employees engaged in work covered by this policy; and

(2) all other persons engaged in work that could make us liable under Part One (Workers' Compensation Insurance) of this policy. If you do not have payroll records for these persons, the contract price for their services and materials may be used as the premium basis. This paragraph 2 will not apply if you give us proof that the employers of these persons lawfully secured their workers' compensation obligations.

The court held that it would not look to the standard indicia of employment status but instead will be bound by the NCCI contract language. The court stated:

Consequently, contrary to Kim's position, the issue is not confined to whether Kim's outside haulers were independent contractors. Because the outside haulers could be found to be either employees or independent contractors, the insurance policy terms require Kim's to demonstrate that their workers' compensation obligations were secured in one form or another. Kim's could show this in one of three ways. Fist, Kim's could pay the premiums for the outside haulers. Second, Kim's could provide Wausau with certificates of insurance indicating the outside haulers obtained insurance coverage elsewhere. Or third, Kim's could provide Wausau with documentation that the outside haulers had affirmatively opted out of coverage pursuant to the Act.

The impact of this decision will probably result in truckers and other persons engaged in hazardous industries being increasingly covered by workers' compensation insurance. As employers realize that they are responsible for workers' compensation coverage for those "independent contractors", they will require a certificate of insurance.

For additional information see Wausau General Insurance Co. v. Kim's Trucking, Inc., 289 Illinois Appellate Court 3rd 201 (1997), or contact lead counsel Edward S. Margolis, Esq., at 312-922-3030 ext. 306.

Histoplasmosis and Workers' Compensation

Many workers are at risk for development of histoplasmosis as a result of an exposure at work.  Below is a partial list of occupations and hobbies with risk for exposure to H. capsulatum spores.  Appropriate exposure precautions should be taken by these people and others whenever contaminated soil, bat droppings, or bird manure are disturbed.

• Bridge inspector or painter
• Chimney cleaner
• Construction worker
• Demolition worker
• Farmer
• Gardner
• Heating and air-conditioning system installer or service person
• Microbiology laboratory worker
• Pest control worker
• Restorer of historic or abandoned buildings, and
• Roofer

Histoplasmosis is an infectious disease caused by inhaling spores of a fungus called Histoplasma capsulatum. Histoplasmosis is not contagious; it cannot be transmitted from an infected person or animal to someone else.

Histoplasmosis primarily affects a person's lungs, and its symptoms vary greatly. The vast majority of infected people are asymptomatic (have no apparent ill effects) or they experience symptoms so mild they do not seek medical attention. If symptoms do occur, they will usually start within 3 to 17 days after exposure, with an average of 10 days. Histoplasmosis can appear as a mild, flu-like respiratory illness and has a combination of symptoms, including general malaise (a general ill feeling), fever, chest pain, dry or nonproductive cough, headache, loss of appetite, shortness of breath, joint and muscle pains, chills, and hoarseness. A chest X-ray can reveal distinct markings on an infected person's lungs. Chronic lung disease due to histoplasmosis resembles tuberculosis and can worsen over months or years. The most severe and rare form of this disease is disseminated histoplasmosis, which involves spreading of the fungus to other organs outside the lungs.

For additional information and the 22-page monography on histoplasmosis contact NIOSH at National Institute for Occupational Safety and Health, Publications Dissemination, 4674 Columbia Parkway, Cincinnati, OH 45226-1998; fax number: 513-533-8573, or visit the NIOSH Home Page on the World Wide Web at http://www.cdc.gov/niosh/ homepage.html.

No More Workers' Compensation Litigation?

With the number of workers' compensation claims decreasing, and the is of mandatory conciliations, the number of cases to litigate is dwindling rapidly.  Now some states have added mediation to reduce the number of litigated workers' compensation cases even further. 

Here is what Kansas is telling its employers:

Mediation services are now available from the Division of Workers' Compensation. Trained mediators are available to resolve disputes in an informal and nonadversarial atmosphere. Parties to a dispute can use a mediator as a neutral third party to facilitate discussion. A workers' compensation mediator has no authority or interest in the outcome of the dispute, but rather allows parties to work through their dispute and create their own agreements.

If you are interested in using a mediator, the Division of Workers' Compensation offers this service at no cost. For information or to schedule a mediation conference, please call or write: Division of Workers' Compensation, Mediation Section, 800 SW Jackson, Suite 600, Topeka, KS 66612-1277, 785-296-0848

No More Body Belts

As of January 1, 1998, body belts will no longer be acceptable as part of a personal fall arrest system for construction workers, the Occupational Health and Safety Administration (OSHA) reminded employers and employees.

Also, effective the same date, locking snap hooks must be used in personal fall arrest systems. Both requirements are part of the final rule on safety standards for fall protection in the construction industry that was issued August 9, 1994. OSHA also has taken these positions on the use of body belts in certain situations:

- With respect to the use of body belts in aerial lifts, the policy is that if the system is rigged as part of a positioning device body belt system that limits free fall to two feet, belts may be used.

- With respect to the use of body belts by workers covered under OSHA's electric power generation, transmission, and distribution standard, linemen's body belt systems are not considered personal fall arrest systems, and they may continue to be used.

For additional information contact Frank Kane at 202-219-8151.

Mileage for Handicapped Vans

Workers' compensation attorneys should be aware of the fact that their clients with handicapped vans may be entitled to additional money for mileage over and above the mileage for cars. Here is an example of the rules in Kansas:

• $0.15 per mile for privately-owned motorcycles;
• $0.31 per mile for privately-owned automobiles;
• $0.43 per mile for privately-owned airplanes; and
• $0.43 per mile for privately-owned specially equipped vans for the physically handicapped.

For additional information call 785-296-0846.

Workers' Compensation for Sterility

A New Jersey Appeals Court has ordered a workers' compensation judge to award workers' compensation benefits to an employee for sterility even though the condition did not impede his ability to work. The court in the case of Akef v. BASF Corp. and Celotex Corp., A-3732-9571 (1997) found that the claimant Akef qualified for compensation for recovery of his impairment of his ability to carry on the ordinary pursuits of life.

For additional information contact Jon L. Gelman, Attorney at Law, 1455 Valley Road, Third Floor, P.O. Box 934, Wayne, NJ 07474-0934; voice: 973-696-7900; fax: 973-696-7988; e-mail: jon@gelmans.com; Web page: http//www.gelmans.com.

AMA Guides Threshold

Is the AMA Guides threshold set so high in your state that it effectively denies benefits to injured workers? AMA Guides thresholds vary from 15 percent to 50 percent in some states.

The State of Maine is considering lowering their 15 percent threshold to 12 percent effective January 1, 1998. Will other states follow their lead?

LTD and Workers' Compensation

Are you actively pursuing an LTD practice in addition to your workers' compensation cases? If not, you might want to reconsider LTD cases. Experts are now saying that LTD claims will outpace workers' compensation claims shortly. Richard Pimentel of Milt Wright and Associates, a Chatsworth, California, training company, recently stated:

... if employers continue to focus more on medical cost-cutting than on speed of recovery, five years from now your LTD costs will equal your workers' compensation expenses. And, ten years from now LTD will outpace workers' compensation expenses, especially when the costs of psychological-related disabilities are added in.

What kinds of cases are increasing rapidly? According to Unum, of Portland, Maine:

• Epstein-Barr Syndrome, for which claims are up 800 percent between 1990 and 1997
• Carpal tunnel syndrome, up 250 percent
• AIDS, up 169 percent
• Back disorders, up 120 percent, and
• Psychiatric disorders, up 85 percent.

No More Second Injury Funds?

Eric Oxfeld, the President of UWC Strategic Services on Unemployment and Workers' Compensation, is calling for the abolition of second injury funds. His reasons are as follows:

1) SIF costs are burdensome.

2) SIFs often fail to meet payment obligations in full.

3) SIF assessments are complicated.

4) SIFs shift costs from unsafe to safe employers.

5) SIFs adversely affect claims resolution.

6) SIFs mask the true costs of the workers' compensation program.

7) New accounting standards threaten the solvency of payors.

8) SIFs do not materially affect employment discrimination.

Mr. Oxfeld concludes that when SIFs are abolished there "should" be no diminution in protection of injured workers. For additional information contact Eric Oxfeld, UWC, 1201 New York Avenue, NW, Suite 750, Washington, DC 20005-6143.

Reform Drives Down Workers' Compensation Premiums

The impact of workers' compensation reform continues to drive down workers' compensation premiums. For example, in Connecticut, 1993 legislative reforms have resulted in a 40.3 percent decrease in workers' compensation premiums. In Maine, rate reductions of 41 percent have taken place since 1994 workers' compensation reform.

So long as workers' compensation premiums continue to fall, rollbacks of workers' compensation reform will be a tough sell by organized labor and workers' compensation attorneys.

Employees Are Not Even Filing for Workers' Compensation!

Have injured workers given up trying to get workers' compensation? A recent study in Michigan found that 23 percent of injured workers who were clearly entitled to benefits and 75 percent of injured workers who were entitled to medical benefits did not even file for workers' compensation.

These are the results of a study conducted under a grant by NIOSH. Researchers at Michigan State University called 1,609 individuals and conducted personal telephone interviews. The preliminary conclusions reached were:

1) Injured workers are not abusing the workers' compensation system but in fact are "toughing it out" after being injured.

2) Early intervention by employers may be reducing workers' compensation claims.

For additional information see On Workers' Compensation, December 1997, pages 1-3, or call 800-274-6774.

$2,371 Per Case

Are you being paid $2,371 per workers' compensation case? The defense attorneys representing self-insured employers in Oregon are receiving $2,371 per case. When attorneys argue that workers' compensation statutes that have been "reformed" are unfair and unconstitutional due to inadequate fee provisions for claimant's attorneys, they should be utilizing these kinds of data.

For additional information on "Defense Legal Costs" contact Russell Reed, Research and Analysis Section, Oregon Department of Consumer and Business Services, 350 Winter Street, NE, Room 300, Salem, OR 97310.

Many Injury Prevention Programs Do Not Work

Employers are wasting a lot of money on expensive and unproven injury prevention programs. Associate Professor Craig Zwerling of the University of Iowa says that employers use faulty measurement criteria.

In one such study, Zwerling found that an expensive back injury education program taught to 4,000 Boston postal workers actually had no concrete positive effect on the rate of back injuries.

Zwerling and his colleagues noted the injury and re-injury rates of these postal workers over five years of follow-up studies. The group found no significant difference in:

- The rate of low back injury;

- The median cost per injury;

- The lost time per injury; and

- Other related factors between the workers who went through the back injury program and those who didn't.

"These kinds of programs need to be evaluated to make sure they work. It's just like testing a new drug--you don't prescribe it unless it has been tested, and you're sure it works," Zwerling said. - Best's Review, December 1997, p. 105

Integrated Health, Disability, and Workers' Compensation

Will workers' compensation survive integrated disability management? CIGNA, through a subsidiary CIGNA Integrated Care, will offer an integrated policy with seamless administrative, claims, and the medical management process. A single 800 number, claims processing, and a nursing staff will be used nationwide.

 Employer Liable for Denial of Claim

If an employer wrongfully denies a workers' compensation claim, it may be liable in tort for fraudulent misrepresentation, according to a West Virginia federal court. Will this open a whole new area of potential litigation for injured workers? See the Persinger case on page 8 of this issue.

Workers' Compensation Benefits Drop Sharply!

Workers' compensation benefit payments and costs declined sharply between 1993 and 1995, according to new data released by the National Academy of Social Insurance.

Benefit payments--which include cash benefits that partially replace lost wages and medical care for workers with job-related injuries or illnesses--declined 4.0 percent, from $45.3 billion in 1993 to $43.5 billion in 1995. Employer costs--which include premiums they pay for insurance and the cost of administering benefits by self-insured employers--declined 6.3 percent, from $60.8 billion in 1993 to $57.0 billion in 1995. The sharpest decline occurred between 1994 and 1995.

The report, Workers' Compensation: Benefits, Coverage, and Costs 1994-95, New Estimates, represents the first figures since the final report issued by the Social Security Administration, which covered workers' compensation payments in 1992-93. The new report provides detailed estimates of workers' compensation payments for all 50 states and the District of Columbia. (Each state has its own workers' compensation program, and they differ in terms of benefits, financing, administration, and who is covered.)

The report was issued by the Academy's Workers' Compensation Steering Committee, chaired by John F. Burton, Jr., Dean of the School of Management and Labor Relations at Rutgers University. For a copy of the report call Daniel Mont, PhD at 202-452-8097.

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Workers' Compensation Injuries and Conditions

at a Glance

AGORAPHOBIA

Carlson v. Plant Farm, 952 S.W.2d 369 (Mo.App. W.D. 1997)

ALLERGIC RHINITIS

Grantham v. R.G. Barry Corp., 491 S.E.2d 678 (N.C.App. 1997)

ANOREXIA

Dorn v. Astra USA, 975 F.Supp. 388 (D.Mass. 1997)

ARM

Consolidated Stores Corp. v. Graham, 486 S.E.2d 576 (Va.App. 1997)

ASSAULT

Tekle v. Foot Traffic, Inc., 699 A.2d 410 (D.C.App. 1997)

BACK

Brown v. Department of Employment Services, 700 A.2d 787 (D.C.App. 1997)

Christie v. Coors Transp. Co., 933 P.2d 1330 (Colo. 1997)

Countryman v. Industrial Com'n, 686 N.E.2d 61 (Ill.App. 2 Dist. 1997)

Lende v. Workers' Compensation Bureau, 568 N.W.2d 755 (N.D. 1997)

Liberty Northwest Ins. Corp. v. Gordineer, 945 P.2d 107 (Or.App. 1997)

Louis Dreyfus Corp. v. Director, OWCP, 125 F.3d 884 (5th Cir. 1997)

Manor v. Brimmage, 952 S.W.2d 170 (Ark.App. 1997)

Pickett v. Okl. Dept. of Human Services, 932 P.2d 543 (Okl.Civ.App. Div. 1 1996)

Scapa Dryers Fabrics v. Murphy, 491 S.E.2d 146 (Ga.App. 1997)

Schriver v. W.C.A.B. (Dept. of Transp.), 699 A.2d 1341 (Pa.Cmwlth. 1997)

State Ex Rel. Cawthorn v. Indus. Comm., 676 N.E.2d 886 (Ohio 1997)

Stowe v. McHugh, 699 A.2d 279 (Conn.App. 1997)

Texas Workers' Comp. v. Hartford Co., 952 S.W.2d 949 (Tex.App.-Corpus Christi 1997)

BACK: ARTHRITIS

Appeal of Gelinas, 700 A.2d 870 (N.H. 1997)

BACK: DISC

Director, OWCP v. Ingalls Shipbuilding, Inc., 125 F.3d 303 (5th Cir. 1997)

Feist v. N.D. Workers Compensation Bureau, 569 N.W.2d 1 (N.D. 1997)

Rogers v. Spartanburg Regional Med. Ctr., 491 S.E.2d 708 (S.C.App. 1997)

Ruffner v. Siis, 944 P.2d 250 (Nev. 1997)

Russell v. State Ex Rel. Wyoming Worker's Comp. Div., 944 P.2d 1151 (Wyo. 1997)

Spann v. Wal-Mart Stores, Inc., 700 So.2d 308 (Miss. 1997)

Spurlin v. Brooks, Ky., 952 S.W.2d 687

BACK: SPONDYLOLISTHESIS

Smith v. General Parcel Service, Inc., 699 So.2d 741 (Fla.App. 1 Dist. 1997)

BACK: STRAIN

Qualls v. Stone Container Corp., 699 So.2d 1137 (La.App. 2 Cir. 1997)

State Ex Rel. Wilson v. Indus Comm., 685 N.E.2d 774 (Ohio 1997)

CARPAL TUNNEL SYNDROME

Copeland v. Johnson Group, Inc., 944 P.2d 178 (Kan.App. 1997)

Depew v. NCR Engineering & Mfg., 932 P.2d 461 (Kan.App. 1997)

Quirk v. Dow Chem. Co., 684 N.E.2d 1258 (Ohio App. 3 Dist. 1996)

Wehr, Inc. v. Truex, 700 A.2d 1085 (R.I. 1997)

CHEMICAL EXPOSURE

Lucey v. W.C.A.B. (Vy-Cal Plastics), 701 A.2d 637 (Pa.Cmwlth. 1997)

COCCYX

King v. W.C.A.B. (K-Mart Corp.), 700 A.2d 431 (Pa. 1997)

COMA

Bridges v. Reliable Chevrolet, Inc., 940 S.W.2d 51 (Mo.App. S.D. 1997)

EPILEPSY

Matczak v. Frankford Candy and Chocolate Co., 950 F.Supp. 693 (E.D.Pa. 1997)

EPICONDYLITIS

Daquilante-Richards v. CIGNA Ins. Cos., 945 P.2d 91 (Or.App. 1997)

EYE

Com. v. W.C.A.B. (Snyder), 699 A.2d 1367 (Pa.Cmwlth. 1997)

Park v. Choi, 700 A.2d 73 (Conn.App. 1997)

FOOT

Famous Barr v. Labor and Indus. Rel. Com'n, 931 S.W.2d 892 (Mo.App. W.D. 1996)

Weinstein v. St. Mary's Medical Center, 68 Cal.Rptr.2d 461 (Cal.App. 1 Dist. 1997)

White v. Frolic Footwear, 952 S.W.2d 190 (Ark.App. 1997)

FOOT: FRACTURE

Ex Parte Sherer Timber Co., Inc., 684 So.2d 1289 (Ala. 1996)

GUILLAIN-BARRE SYNDROME

Manor v. Nestle Food Co., 932 P.2d 628 (Wash. 1997)

HAND

Riverboat Hotel Casino v. Harold's Club, 944 P.2d 819 (Nev. 1997)

HEAD

SCIF v. Workers' Compensation Appeals Bd., 61 Cal.Rptr.2d 794 (Cal.App. 6 Dist. 1997)

HEADACHE

Trevisan v. SAIF, 932 P.2d 1202 (Or.App. 1997)

HEART ATTACK

Ralphs Grocery Co. v. W.C.A.B., 68 Cal.Rptr.2d 161 (Cal.App. 2 Dist. 1997)

HEART ATTACK

Truss v. Georgia-Pacific Corp., 686 So.2d 328 (Ala.Civ.App. 1996)

HIP

Williams v. Indus. Claim Appeals Office, 932 P.2d 869 (Colo.App. 1997)

HIV EXPOSURE

Doe v. City of Stamford, 699 A.2d 52 (Conn. 1997)

IN UTERO INJURIES: CEREBRAL PALSY

Snyder v. Michael's Stores, Inc., 68 Cal.Rptr.2d 476 (Cal. 1997)

KNEE

Texas Workers' Comp. Ins. v. Rodriguez, 953 S.W.2d 765 (Tex.App.-Corpus Christi 1997)

KNEES: CHONDROCALCINOSIS

Bouse v. Fireman's Fund Ins. Co., 932 P.2d 222 (Alaska 1997)

KNEE: MENISCUS

Universal Maritime Corp. v. Moore, 126 F.3d 256 (4th Cir. 1997)

NECK

Cumberland Distribution Serv. v. Fuson, 492 S.E.2d 2 (Ga.App. 1997)

Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997)

PATELLA: FRACTURE

J.M. Huber Corp. v. Holliday, 491 S.E.2d 74 (Ga.App. 1997)

PNEUMOCONIOSIS

Stanek v. W.C.A.B., 701 A.2d 627 (Pa.Cmwlth. 1997)

PSYCHOLOGICAL

Vactor v. W.C.A.B. (Glenn's Dairy, Inc.), 699 A.2d 834 (Pa.Cmwlth. 1997)

PSYCHOLOGICAL: DEPRESSION

Linskey v. W.C.A.B. (City of Philadelphia), 699 A.2d 818 (Pa.Cmwlth. 1997)

PSYCHOLOGICAL: POSTTRAUMATIC STRESS DISORDER

Anderson v. Wales Industries, 688 So.2d 379 (Fla.App. 1 Dist. 1997)

Kolson v. Dept. of Employment Services, 699 A.2d 357 (D.C.App. 1997)

Sibley v. Unifirst Bank for Sav., 699 So.2d 1214 (Miss. 1997)

REFLEX SYMPATHETIC DYSTROPHY

Anderson & Padgett Sawmill v. Collins, 686 So.2d 795 (Fla.App. 1 Dist. 1997)

SCHIZOAFFECTIVE DISORDER

Zavasnik v. Lyons Transp. Lines, Inc., 685 N.E.2d 567 (Ohio App. 8 Dist. 1996)

SHOULDER

Durham v. Cessna Aircraft Co., 945 P.2d 8 (Kan.App. 1997)

SHOULDER: ROTATOR CUFF SYNDROME

Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755 (Mo.App. W.D. 1997)

THUMB: DISLOCATION

Berglund v. Potlatch Corp., 932 P.2d 875 (Idaho 1996)

TOXIC ENCEPHALOPATHY

Taylor v. Caldwell Systems, Inc., 491 S.E.2d 686 (N.C.App. 1997)

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Selected Workers' Compensation Cases of Interest

Attorney Fees: Extraordinary Circumstances

LIBERTY NORTHWEST INS. CORP. V. GORDINEER

945 P.2d 107 (Or.App. 1997)

The Oregon Court dealt with the claimant, Gordineer, who injured his eye and back at work on September 28, 1993. The insurer denied the claims. The claimant prevailed and then the battle for attorney fees began in earnest. The statute provided:

A reasonable attorney fee shall be awarded to the injured worker for the appearance and active and meaningful participation by an attorney in finally prevailing against a responsibility denial. Such a fee shall not exceed $1,000 absent a showing of extraordinary circumstances.

Counsel sought a fee of $10,822. He was awarded $8,000 by the Board. On appeal the insurer did not contest the fact of "extraordinary circumstances" but contested the amount of the fee. The court reduced the fee to $3,500 and stated:

If extraordinary circumstances exist, then the final award of attorney fees to a claimant who prevails against a responsibility denial is not limited to $1,000. The Board so found, and Nelson does not challenge that finding.

That leaves us with the final issue of the amount of the fee to which claimant is entitled under ORS 656.308(2)(d). The statute provides that, whether the $1,000 "cap" applies, in all cases, the award of attorney fees must be reasonable. Nelson contends that claimant's request of nearly $7,000 is unreasonable. According to Nelson, the petition for judicial review involved two substantial evidence issues that required no great amount of research or preparation.

Claimant replies with the assertion that his fee request is reasonable. We agree with Nelson, and conclude that an award of $3,500 is reasonable given the nature of the issues presented to this court.

Petition for an award of attorney fees allowed in the amount of $3,500.

Attorney Fees: Preserving Tort Recovery

MARTINEZ V. EIGHT NORTH. INDIAN PUEBLO

944 P.2d 906 (N.M.App. 1997)

The New Mexico Court dealt with the claimant, Martinez, who was injured in a work-related auto accident. He filed a workers' compensation claim but settled his third party suit for $50,000 before his workers' compensation claim was heard. The workers' compensation insurer then sought a lien on the $50,000. After the threat of a bad faith case, the workers' compensation insurer settled the workers' compensation case for $7,500 and waived its lien on the $50,000. The worker's attorney sought fees of over $13,000, which included time devoted to the reimbursement issue. The judge found that the full benefit to worker was $7,500 and that the $50,000 from the insurance company was subject to its own fee agreement. She awarded fees of $1,500 based on the finding that 20 percent of the amount obtained as workers' compensation benefits was fair and reasonable considering all the factors in the case.

The court reversed and found that counsel was entitled to a fee for preserving the tort award. The court stated:

Nor are we impressed with the judge's finding below, and employer's argument based on it, that worker's attorney already recovered his fee for the tort matter as part of the $50,000. It is true that the attorney received one-third of the $50,000 tort recovery as well as 20 percent of the $7,500 in compensation benefits as fees. However, his entitlement to the one-third was established once worker received the $50,000, and his entitlement to 20 percent of the $7,500 did not consider any effort the attorney expended in obtaining the additional benefit to worker of keeping the $7,500, the past benefits, and the $50,000 less the attorney fee. We therefore agree with worker that the fact that the tort recovery was the subject of its own fee agreement is irrelevant to this case as a legal matter, although nothing in this opinion would preclude the judge on remand from considering the fees recovered and the amount of effort expended in obtaining the tort recovery in setting a reasonable fee for obtaining the benefit of preserving the tort recovery.

Average Weekly Wage: Fringe Benefits

G.N.B., INC. V. JONES

699 So.2d 466 (La.App. 2 Cir. 1997)

The Louisiana Court dealt with the claimant, Jones, who was injured at work on February 9, 1988. He was paid $11.50 per hour in cash wages and substantial fringe benefits by his employer. The workers' compensation insurer brought an action to offset his workers' compensation benefits by his social security disability benefits. The issue then became one of average weekly wage.

Both sides contested the WCJ's calculation of Jones's weekly wage. At trial they stipulated his hourly cash wages were $11.59, or $463.60 for a 40-hour week. Jones also introduced a list of monthly benefits paid by GNB: $314.71 in group health insurance, $27.17 family dental insurance, $0.45 accidental death or dismemberment, $12.42 life insurance, $20.52 weekly indemnity, and $2.94 "Transition and Bridge". The monthly total of $378.21 yields a weekly total of $87.28. Jones also received four weeks' paid vacation and 12 paid holidays. The WCJ included the value of Jones's vacation and holiday pay as "wages", but declined to include the benefits.

The court reversed the average weekly wage ruling and found the fringe benefits should have been included in the wage. The court stated:

From these authorities we conclude that Jones's benefits should have been included as part of his wages. The WCJ correctly included a prorated value of his vacation and holiday pay, $35.67 and $21.40 respectively. The WCJ should also have included the weekly value of his insurance and other benefits, $87.28. Adding these to the weekly cash wages of $463.60 yields a total of $607.95.

Note: After the average weekly wage adjustment no offset for social security disability was found.

Change of Condition: Law of Case Doctrine

GRANTHAM V. R.G. BARRY CORP.

491 S.E.2d 678 (N.C.App. 1997)

The North Carolina Court dealt with the claimant, Grantham, who worked for 20 years in a manufacturing plant and was exposed to dust, mold, and chemical substances, which resulted in allergic rhinitis, asthma, and chronic obstructive lung disease. She filed for permanent and total disability which was denied. She was awarded only one month of workers' compensation in 1991. In 1994 the claimant filed for additional benefits alleging a change of condition. The commissioner denied the claim but the full commission awarded her permanent and total disability for life.

The court found that due to the clear evidence of the worsening of her condition the "law of the case" doctrine did not preclude a finding of a change of condition. The court stated:

Dr. Yount's treatment of plaintiff's occupational disease began on 27 April 1989 and continued through the first hearing in 1991 and the second hearing in 1994. By deposition taken 7 November 1994, Dr. Yount testified that following the 1991 hearing, plaintiff's condition deteriorated significantly. Moreover, Dr. Yount stated plaintiff's pulmonary function tests "were abnormal and worse than previously". Plaintiff's symptoms also worsened, including increased coughing, wheezing, and, according to Dr. Yount, shortness of breath "to the point where she's uncomfortable with activities of daily living and that minor respiratory infections ... represent a severe threat to [plaintiff's] health and well-being." Dr. Yount further testified plaintiff was totally disabled from gainful employment and her condition would most likely get worse, resulting in a permanent disability.

There was ample substantial evidence to support the Commission's determination that the plaintiff suffered a change of condition.

Constitutionality: Delays in Systems

WARREN V. MISS. WORKERS' COMP. COM'N

700 So.2d 608 (Miss. 1997)

The Mississippi Supreme Court dealt with six workers' compensation claimants who filed a constitutional attack on the workers' compensation system. Their allegations were as follows:

(1) The workers' compensation scheme deprived the plaintiffs and others similarly situated of their unspecified liberty and property interests without due process of law; (2) the defendants' use of outmoded and obsolete means of administering the Act causes inordinately slow procedures for the plaintiffs and others similarly situated, violating their rights to justice without delay; (3) the Workers' Compensation Enabling Act is unconstitutional because it provides for commissioners who are prejudiced; (4) the Workers' Compensation Act is unconstitutional because it has delays built into the statute which provide for several rounds of appeal that take six to seven years to complete; (5) the Commission and its members exhibited negligence in their supervision and management of the workers' compensation cases that come before it by allowing the cases to drag on for an inordinate period of time, by not streamlining their procedures, and by allowing employers and carriers to impede the progress and resolution of the cases; and (6) the workers' compensation scheme is unconstitutional because it limits the claimant's attorney fees, but does not limit the employer and carrier attorney fees.

The court aggressively rejected the case finding that the delays were as a result of the claimant's attorneys, there was no bias and no proof of inability to retain counsel. The court stated:

Plaintiff Warren, perhaps the saddest of the cases, has suffered long delays prior to having an initial hearing. It appears that these delays are due to the fact that his attorney repeatedly requested continuances to conduct discovery and ascertain all of the relevant parties. His administrative law judge hearing occurred only five months before the trial in this case. There is no evidence in this record regarding the deposition of his claim, or any deprivation of his benefits pursuant to that disposition.

In addition to the lower court's conclusion that the plaintiffs failed to meet their high burden of demonstrating that this statutory scheme needs to be struck down, we find that the plaintiffs have adduced no proof whatsoever that claimants are suffering inordinate delays in the resolution of the deprivation of their benefits.

Dual Capacity: Fall on Hospital Premises

WEINSTEIN V. ST. MARY'S MEDICAL CENTER

68 Cal.Rptr.2d 461 (Cal.App. 1 Dist. 1997)

The California Court dealt with the plaintiff, Weinstein, who on October 14, 1994, sustained injuries to her left foot while acting in the course and scope of her duties as an employee of the hospital. Weinstein had to use crutches due to her injury. Although still employed, she stopped working at the hospital on November 7, 1994, and filed a workers' compensation claim. As a result of the injuries she sustained on October 14, Weinstein began drawing temporary disability and ongoing medical payments from the hospital's workers' compensation administrator.

On January 10, 1995, while still on crutches, Weinstein went to the hospital to receive medical treatment for her injury. After undergoing an MRI (magnetic resonance imaging) procedure on her foot, Weinstein was escorted from the MRI building to the radiology department by a medical technician employed by the hospital. As this was happening, Weinstein slipped and fell on a watery liquid substance in one of the hospital's hallways. The fall aggravated the previous injury to Weinstein's left foot, resulting in a condition of chronic intense pain.

The plaintiff sued the hospital and the hospital attempted to interpose a workers' compensation exclusivity defense. The court rejected the defense finding that when she fell she was in the hospital as a patient and thus under the dual capacity doctrine had the right to sue the hospital. The court stated:

In this case, on the other hand, the subject injury did not take place while Weinstein was performing work-related duties. It occurred after the initial industrial injury, when she had come to the hospital for the sole purpose of receiving medical treatment. Her relationship with the hospital at that point was that of patient and care-giver, and had no connection to any employment-related duties or obligations on the part of either herself or the hospital itself. Thus, the subject injury in this case was a second, entirely separate transaction from the initial industrial injury, and took place at a time when the controlling relationship between the hospital and Weinstein was that of landowner and invitee, not that of employer and employee.

Exclusivity: Affirmative Negligent Act

PAVIA V. CHILDS

951 S.W.2d 700 (Mo.App. S.D. 1997)

The Missouri Court dealt with the plaintiff, Pavia, who was employed as a grocery store bagger. He said that defendant was the store manager there. Plaintiff states that while he was acting under the supervision and direction of defendant, he was instructed by defendant to assist him in obtaining certain store items stacked in the store's warehouse area. Plaintiff asserts that he "was directed to stand upon a wooden pallet under which the defendant inserted the forks of a rubber tired Nissan forklift truck and plaintiff was thereafter elevated by the defendant to a height of approximately 15 feet above the level of the concrete floor."

Plaintiff states that thereafter he fell off the wooden pallet to the concrete floor, sustaining serious injuries. He alleges that defendant caused and increased the risk of plaintiff's injuries in certain particulars, including that the forklift was not designed for raising personnel and it was dangerous and likely to cause harm to plaintiff by doing so and that there were no safety precautions or devices used to prevent plaintiff from falling.

The court found that due to the affirmative negligent act of the manager which created a hazardous condition the exclusivity provision of the Workers' Compensation Act did not bar the instant tort suit. The court stated:

Charging the employee merely with the general failure to fulfill the employer's duty to provide a reasonably safe place to work is not sufficient to avoid the bar of the Workers' Compensation Law. However, "the creation of a hazardous condition is not merely a breach of an employer's duty to provide a safe place to work." Arranging a faulty hoist system for an elevator may constitute an affirmative negligent act outside the scope of the responsibility to provide a safe workplace. Such acts constitute a breach of personal duty owed to the plaintiff and may make an employer/supervisor liable for negligence notwithstanding the Workers' Compensation Act.

Exclusivity: In Utero Injuries

SNYDER V. MICHAEL'S STORES, INC.

68 Cal.Rptr.2d 476 (Cal. 1997)

The California Supreme Court dealt with the employee, Snyder, who was employed by Michael's Stores. Plaintiffs allege that on October 2, 1993, Michael's negligently allowed a janitorial contractor to operate a propane-powered floor-buffing machine in the store without adequate ventilation, resulting in hazardous levels of carbon monoxide. Several customers and employees fainted from the fumes. Some, including Naomi, were taken to the hospital with symptoms of nausea, headaches, and respiratory distress. Plaintiffs allege that both Naomi and Mikayla, then in utero, were exposed to toxic levels of carbon monoxide, which impairs the ability of red blood cells to transport oxygen. As a result, Mikayla suffered permanent damage to her brain and nervous system, causing her to be born with cerebral palsy and other disabling conditions.

When the child sued the employer, the employer interposed a workers' compensation exclusivity defense. The court rejected the exclusivity defense pointing out that the child was not an employer of Michael's Stores prior to her birth. The court stated:

Regardless of whether Bell's rule stands or falls, therefore, a retail store cannot operate without running the risk of civil liability if its negligence causes a fetal injury. In the same way, businesses in such diverse and populous categories as hospitals and clinics, common carriers, trucking companies, theaters, law firms, health clubs, and restaurants all must conduct significant portions of their activities with, or in the presence of, customers and other nonemployees, including pregnant women. None of these businesses can, by controlling who comes into the workplace, preclude the possibility they will negligently cause prenatal injuries to a nonemployee's child. All they can do is attempt to conduct their businesses safely and insure themselves against the remaining risks of accident. The Bell rule thus makes at most a quantitative, not a qualitative, difference to the exposure of businesses to tort liability for fetal injury. Neither a flood of new personal injury cases nor a greatly increased pressure to discriminate against women in employment would seem, as to these employers, a likely outcome of overruling Bell.

Fraud: Employer Filing False Statement

PERSINGER V. PEABODY COAL CO.

976 F.Supp. 1038 (S.D.W.Va. 1997)

The U.S. District Court (S.D.W.V.) dealt with the plaintiff, Persinger, who in June of 1992, was injured when his slate truck hit a bump in the road. Plaintiff located his supervisor, Don Deskins, and reported the injury. Mr. Deskins then filled out an accident report. On June 18, 1992, plaintiff completed the employee's portion of the WC-123 form to initiate a workers' compensation claim regarding said injury. Peabody Coal Company's Employee Relations Representative, Steve Farley, filled out the employer's portion of the form. Mr. Farley stated that there was no known job-related injury occurring on June 17, 1992. Mr. Farley attached a document signed by Billy Pennington, a supervisor for Peabody, that supported this conclusion. Accordingly, plaintiff's initial claim was denied. Plaintiff appealed this denial and submitted evidence in support of his claim. Plaintiff was subsequently awarded workers' compensation benefits dating back to the date of the injury. The plaintiff then filed a civil action against the defendant, employer.

The court in a matter of first impression held that an employee can maintain a tort suit against the employer for filing false statements in denying a claim. The court stated:

In applying these elements sub judice, it is evident that plaintiff has identified germane facts that make a prima facie case of fraudulent misrepresentation on the part of defendant. Plaintiff specifically alleges that Peabody Coal Company maliciously and knowingly filed false and fraudulent information with the Workers' Compensation Fund. Plaintiff also maintains that as a result of defendant's actions, plaintiff was forced to expend his savings and borrow funds in order to support his family. As a consequence, plaintiff alleges that he has suffered serious physical and psychiatric injuries. Plaintiff has also proffered the notes of Mr. Farley, which show that there may not have been any basis for defendant's denial of plaintiff's workers' compensation claim. Plaintiff also proffers evidence that Mr. Pennington admitted to having nothing to do with the writing or production of the statement he signed which Mr. Farley relied upon in denying plaintiff's claim.

Though this is a matter of first impression, it is evident to the court that plaintiff adequately and effectively pled his claim and has identified the facts and circumstances that could constitute fraudulent misrepresentation under the Persinger test. Plaintiff has made a prima facie showing that the acts claimed to be fraudulent were committed by defendant, that defendant's actions were in fact false and that plaintiff was damaged as a result of defendant's actions.

In Course of Employment: Assault After 12 Hour Shift

KOLSON V. DEPT. OF EMPLOYMENT SERVICES

699 A.2d 357 (D.C.App. 1997)

The District of Columbia Court of Appeals dealt with the claimant, Kolson, who after finishing a 12-hour driving shift, pulled into the Greyhound bus terminal located in Washington, DC, around 4:00 a.m. He informed the dispatcher that he needed a hotel lodging slip called a "chit" because he was too tired to drive to his home in Columbia, Maryland, The dispatcher requested that Mr. Kolson first transport a bus to another nearby garage and then return to the terminal to pick up the hotel "chit" slip. At approximately 4:30 a.m., after running the errand as requested, Mr. Kolson left the Greyhound terminal with his "chit" slip and headed to the Harrington Hotel. While walking to the hotel, Mr. Kolson was struck from behind with a pipe by an unidentified assailant.

The court reversed the denial of benefits finding that as his walk to the hotel was "incidental to his employment" the assault was sustained in the course of his employment. The court stated:

We conclude that, notwithstanding our decision in Grayson, supra, when a traveling employee is injured while engaging in a reasonable and foreseeable activity that is reasonably related to or incidental to his or her employment, the injury arises in the course of employment. His injury also grew out of his employment because it resulted from a risk created by his employment--his arrival at odd hours in places away from his home and the necessity of using the public streets to seek lodging.

Thus, given the circumstances of Mr. Kolson's interstate employment, the time of his arrival in the District, the location of his home in Maryland, and his need for local lodging, his walk to the hotel was related to or incidental to his employment. Consequently, the injury he received while walking from the terminal to register at a nearby hotel at 4:30 a.m., with a "chit" provided by his employer, arose in the course of and out of his employment.

In Course of Employment: Exposure to HIV and TB

DOE V. CITY OF STAMFORD

699 A.2d 52 (Conn. 1997)

The Connecticut Supreme Court dealt with the claimant, Doe, who in two incidents was exposed to HIV and TB. In the first incident, which occurred in February 1993, the claimant, a police officer engaged in the performance of police duties, was exposed to the human immunodeficiency virus (HIV) when medical pads contaminated with body fluids of a criminal suspect came into contact with an open wound on the claimant's thumb. After the suspect revealed that he had tested positive for HIV, the claimant proceeded immediately to Stamford Hospital, where his wound was treated and he was released. In the second incident, which occurred on May 1993, the claimant, again while engaged in the performance of police duties, was exposed to tuberculosis when he came into repeated, close physical contact with another criminal suspect who, it was later learned, suffered from an active case of that disease.

The court held that a claimant who has sustained actual exposures to life threatening infectious diseases has sustained an injury in the course of employment and was entitled to medical monitoring. The court stated:

Accordingly, in light of the undisputed factual circumstances of record, we conclude that the claimant has established, as a matter of law, that his exposures to two potentially fatal infectious diseases are compensable "injuries" under the act. Accordingly, the commissioner and the review board improperly denied him the right to recover for reasonable expenses that he incurred for medically appropriate testing and treatment.

In Course of Employment: Injury in Break Room After Shift

NOBLE V. INDUSTRIAL COM'N OF ARIZONA

932 P.2d 804 (Ariz.App. Div. 1 1996)

The Arizona Court dealt with the claimant, Noble, who worked as a stock clerk between 12:00 a.m. and 8:00 a.m. On August 15, 1992, after finishing his shift and clocking out, the claimant bought coffee and doughnuts at ABCO and joined co-employees in the break room. Approximately 15 minutes later, a stack of cartons stored in the break room collapsed onto and injured the claimant.

The court found that as the claimant's use of the break room after his shift was reasonable the injury was sustained in the course of employment and was compensable. The court stated:

We are persuaded by Larson's analysis of after-hours injury cases. Notwithstanding a worker's unforced choice to stay on-premises after-hours, if that choice and the ensuing conduct were reasonable under the totality of circumstances, the worker remained in the course of employment.

Applying this analysis to the current case, we conclude that the totality of circumstances compels the conclusion that claimant acted reasonably. Understandably, he chose to remain at ABCO because he was tired and hungry after finishing his shift, a rest area and refreshments were conveniently available at ABCO, and ABCO allowed its employees to use the break room after-hours and even occasionally used this time to discuss work with them there. Claimant used the break room for its intended purpose. The 15-minute duration between the end of the night-shift and the time of injury was reasonable.

In Course of Employment: Tossing Football on Break

TEXAS WORKERS' COMP. INS. V. RODRIGUEZ

953 S.W.2d 765 (Tex.App.-Corpus Christi 1997)

The Texas Court dealt with the claimant, Rodriguez, who was employed grinding fiberglass by BPC. The morning break was at 10:00 a.m., and the afternoon break was at 3:00 p.m. Rodriguez had to punch the time clock when he arrived at work in the morning, punch out for lunch, punch in when he returned to work, and punch out when he left work in the evening. During these short ten-minute respites from work he did not have to punch in and out, but remained "on the clock". Rodriguez testified he would have to return to work if BPC called him back while he was on one of these ten-minute scheduled breaks.

Rodriguez testified that during the scheduled breaks, "it was routine to go outside and toss a football out there in the field". Tossing a football was routine for everyone; even BPC's vice-president participated. Tossing the football was not a required activity, and Rodriguez did not consider it as part of his job duties. However, it was done with permission from the supervisors. He considered tossing the football a social activity.

During an afternoon break in January 1993, Rodriguez was jogging to catch the football and stepped into a hole, twisting his knee.

The court rejected the recreational activity defense despite such a provision in the workers' compensation statute. The court found that the act of tossing the football was a reasonable expectancy of the claimant's employment and thus the injury was sustained in the course of employment.

The court stated:

In this case, the act of tossing the football occurred during one of BPC's company mandated breaks. BPC knew that Rodriguez and other employees tossed the football during the breaks; it gave its permission, and a company vice-president participated. Therefore, the act of tossing the football during breaks was a reasonable expectancy of his employment with BPC. Accordingly, we hold that the Fund is liable for compensation to Rodriguez.

Medical Care: Less Than 50% Chance of Success

SPANN V. WAL-MART STORES, INC.

700 So.2d 308 (Miss. 1997)

The Mississippi Supreme Court dealt with the claimant, Spann, who injured his back on September 7, 1990, while participating in an employee training program. Spann saw Dr. Patrick Barrett, an orthopedic surgeon, on a limited basis, upon the recommendation of his first attorney. Dr. Barrett diagnosed "probable internal disc derangement 4-5", but stated that "his opinion would be that it would be less than a 50-50 chance that this [Dr. Frenz's suggested discectomy] would improve Spann's situation enough to go back to heavy work". Both Drs. Frenz and Barrett found that Spann could no longer perform the heavy work he had been doing prior to the injury.

The court found that the claimant had not reached maximum medical recovery and thus was entitled to the surgery even if it was 50-50 as to whether it would work.

The court stated:

The record reflects that this case presents a worker who was injured during the course and scope of his employment doing heavy work for Wal-Mart, who had no pre-existing condition or previous injuries, and who now is in extreme pain, unable to perform even light duties well. The injury is admitted, Spann's inability to do the work, even light work, is undisputed by Wal-Mart and the carrier, and all medical evidence concludes that Spann has a bulging disc as a result of his work-related injury. Yet, the respondents conclude that Spann has reached maximum medical recovery, has no temporary or permanent partial disability, and refuse to pay for the surgery recommended by the primary treating physician. Wal-Mart's obligation to Spann is of statutory origin. It is obligated to "furnish such ... surgical ... treatment ... for such period as the nature of the injury or the process of recovery may require." Miss.Code Ann. Sec. 71-3-15 (1972)

Following the surgery, if still indicated, and the appropriate period of recovery, it should be determined whether or not maximum medical recovery has indeed been achieved, and if so, whether any temporary or permanent partial disability exists.

Mental Injury: No Medical Testimony Needed

VACTOR V. W.C.A.B. (GLENN'S DAIRY, INC.)

699 A.2d 834 (Pa.Cmwlth. 1997)

The Pennsylvania Court dealt with the claimant, Vactor, who was working as a cashier in a convenience store when an armed and masked bandit entered and demanded that claimant give him money. Claimant tried to comply with the robber's demands and open the cash register, but afraid of being shot, he was excited and could not release the cash drawer. Although claimant was behind a plexiglas shield which enclosed the cashier's area, the robber, apparently frustrated by claimant's delay in emptying the cash register, reached through a small, rectangular opening in the shield and fired two rounds at claimant. One round grazed claimant and the other entered his left leg. Claimant managed to call 911 and was, subsequently, transported by ambulance to the hospital. He was discharged from the hospital the day after the shooting.

At the hearings, claimant testified as to the facts of the shooting described above and further testified that he was mentally unable to return to his employment. He explained that he was "too scared to go back" to his job. He filed a workers' compensation claim and was awarded a brief period of workers' compensation.

The court found that the claimant's failure to present medical evidence was not fatal due to the clear nexus and the fact that the injury immediately manifested itself after the shooting. The court stated:

The facts in this unique case, where a robber placed the claimant in fear of his life and used deadly force upon him, may be sufficient to show that claimant's fear of returning to work was either a direct and immediate result of the shooting or a natural and probable development from that attack. We believe that an untrained lay person would have no problem in finding a nexus between the violence inflicted on claimant and his fear of returning to the very employment where the attack occurred. Therefore, even in the absence of expert medical testimony explaining the causal connection between the shooting and claimant's fear, a WCJ could reasonably conclude that claimant sustained a mental injury was an immediate or natural and probable result of his gunshot wound.

Partial: Light-Duty Fewer Hours

CONSOLIDATED STORES CORP. V. GRAHAM

486 S.E.2d 576 (Va.App. 1997)

The Virginia Court dealt with the claimant, Graham, who injured her arm in a job-related accident. At the time of her injury, she was a part-time stocker, working four hours per day, six days per week. Her average weekly wage was $108. She received temporary total disability benefits from January 20, 1994, through January 9, 1996.

On October 16, 1995, Dr. Brian Torre, Ms. Graham's treating physician, authorized her to perform light duty work. Subsequently, Dr. Torre approved Ms. Graham for a light duty position as a part-time sales clerk. On December 27, 1995, Consolidated offered Ms. Graham a part-time sales clerk position at her previous hourly wage. Ms. Graham accepted the job and began work on January 10, 1996. Due to economic conditions, Consolidated assigned Ms. Graham a reduced number of hours, resulting in an average weekly wage of less than $108.

The court found that the employer was liable for partial workers' compensation as she was not released to return to her prior employment. The court stated:

During a period of partial incapacity, a claimant performing work remains entitled to compensation benefits, determined in part by calculating the difference between the claimant's average weekly wage before and after the injury. Code Sec. 65.2-502. Thus, by providing suitable alternative employment to a claimant, an employer may avoid paying compensation benefits. However, the employer's financial condition and the availability of alternative work do not affect the claimant's right to compensation due to an impaired capacity to perform his pre-injury duties.

Ms. Graham was not released to return to her duties as a stocker. She was not restored to her pre-injury capacity. Therefore, Consolidated remains liable to Ms. Graham, because its duty to compensate her has not been eliminated by the provision of alternative light duty work.

Partial: Postinjury Overtime Pay

WEHR, INC. V. TRUEX

700 A.2d 1085 (R.I. 1997)

The Rhode Island Supreme Court dealt with the claimant, Truex, who in September 1993 became disabled due to work-related bilateral carpal tunnel syndrome. She was put on partial workers' compensation benefits and after rehabilitation took a new job. A trial justice of the workers' compensation court heard the petition to review and found that Truex remained partially incapacitated and that Wehr had failed to demonstrate that she could return to her previous position at the company without risk to her health. He then calculated the benefits she was entitled to receive based upon her postinjury-earning capacity rather than on her actual postinjury earnings.

The court found that actual earnings including overtime earned should be used as the appropriate measure of postinjury wages in computing her workers' compensation benefits. The court stated:

We are also of the opinion that the Appellate Division was correct in crediting the employer for wages actually earned by the employee, including overtime pay. In enacting Sec. 28-33-18, the Legislature specifically excluded overtime pay from the calculation of preinjury earnings but not from the computation of postinjury earnings. The failure specifically to exclude overtime pay from postinjury wages in light of its earlier exclusion from preinjury earnings is significant and indicative of the Legislature's intent to include it in the computation of postinjury earnings.

Settlement: Prior Workers' Compensation Back Injury

COUNTRYMAN V. INDUSTRIAL COM'N

686 N.E.2d 61 (Ill.App. 2 Dist. 1997)

The Illinois Court dealt with the claimant, Countryman, who on December 15, 1992, settled three industrial accidents. The settlement agreement lists three distinct accident dates of May 2, 1998, March 26, 1991, and April 1, 1992. It refers to the location of the accidents as Rochelle, Illinois, and describes the periods in which claimant was temporarily totally disabled as being from June 1 to June 25, 1989, and March 26 to June 2, 1991. The agreement describes the nature of claimant's injury as bilateral carpal tunnel syndrome and elbow neuritis and states that claimant's hands, wrists, and elbows were affected by alleged repetitive motion.

The terms of settlement require employer to pay claimant $33,150 in full and final settlement of any and all workers' compensation claims "for all accidental injuries allegedly incurred as described herein and including any and all results or developments, fatal or non-fatal, allegedly resulting from such accidental injuries." The contract further provides that "settlement is based on [claimant's] present condition and specifically includes any other accident, injury, aggravation, or onset of symptoms to the date of this settlement."

The claimant then filed a workers' compensation claim for an August 15, 1991, back injury with the same employer. The employer attempted to interpose the December 15, 1992, settlement agreement. The court found that the specific provisions of the December 15, 1992, settlement override the general release language and the back claim was not settled. The court stated:

The settlement agreement consists of a two-page document that uses conflicting specific and general release language. The entire first page of the document refers specifically to the named incidents and so does the majority of the second page. Only one sentence of the release found near the bottom of the first paragraph of the second page contains general release language. The general provision does not state, however, that the release includes but is not limited to the injuries incurred on the specified dates. Nor does the agreement refer in any way to claimant's back injury, even though employer admittedly knew that claimant had injured his back prior to settlement. Further, the settlement amount represents 25 percent loss of each arm less TTD benefits, group insurance payments, and unpaid medical expenses for the incident referred to in the agreement. There is no mention of payment for claimant's alleged back injury. Under rules of construction, the more specific release provisions must prevail.

Stress: Abnormal Working Conditions

LINSKEY V. W.C.A.B. (CITY OF PHILADELPHIA)

699 A.2d 818 (Pa.Cmwlth. 1997)

The Pennsylvania Court dealt with the claimant, Linskey, who began working for the City of Philadelphia as a firefighter and rescue squad worker in 1981. After joining the City's Fire Department (Department), claimant spent three weeks undergoing rescue squad training. Claimant's first active duty assignment was with Engine 68. Rescue Squad 3 operated from the same facility. Claimant performed firefighting duties and approximately every five weeks would be scheduled for rescue squad duty with Rescue Squad 3. Rescue Squad 3 was ranked the fourth busiest in the city based on the number of runs.

Shortly after beginning work, claimant responded in his rescue worker capacity to a call and found a man who had committed suicide by hanging. Following this incident, claimant began seeing a psychologist while continuing to perform his job duties. However, in 1982, claimant became institutionalized for approximately 32 days. The claimant continued to work and was transferred to a less stressful position. On November 17, 1986, he was hospitalized again for suicidal tendencies and has not returned to work since.

The court affirmed the denial finding no "abnormal working conditions". The court stated:

Although claimant experienced a traumatic incident, the occurrence was not a sudden change or unusual event in the work place and was common place for rescue workers. Claimant, in fact, testified that his duties could include many different things: "resuscitation, babies being born, knifings [sic], gunshot wounds, hangings, suicides, anything under the sun." (N.T. of June 6, 1988 hearing at 5-6.) Thus, we agree with the WCAB that claimant demonstrated neither a sudden change of events nor that he was exposed to situations different than his co-workers.

Voluntary Intoxication: Pain Medication After Accident

MANOR V. BRIMMAGE

952 S.W.2d 170 (Ark.App. 1997)

The Arkansas Court dealt with the claimant, Manor, who injured her back at work on June 6, 1995. She immediately reported the incident to her supervisor who filled out an accident report and directed claimant to submit a urine specimen for a drug screen. Although claimant was not scheduled to work on June 7th and 8th, she went in on June 8th to pick up her paycheck, and was told that the urine sample she gave on June 6th had been collected in an "inappropriate" container. She was asked to submit another specimen, and she did. The second specimen claimant gave tested positive for opiates (morphine and codeine), and on that basis employer terminated claimant's employment and controverted her workers' compensation claim.

The claimant at the hearing explained that she was neither intoxicated nor had she taken drugs prior to her injury. She explained that the night before the second urine specimen was collected she was in pain and had taken a Tylenol #3 tablet given to her by her father, with whom she lived. Claimant said she had informed the nurse who collected the second sample that she had taken the Tylenol, which contains codeine. Claimant's father confirmed that he had given her the Tylenol #3 tablet for pain.

The court affirmed the finding that the claimant had rebutted the voluntary intoxication defense. The court stated:

The suggestion that codeine found in a urine sample collected two days after an injury proves that the injury was caused by the drug stretches credulity, especially when the claimant presents a credible explanation for the existence of the codeine in her urine. Under these circumstances, we do not think the presumption arises at all, but if it does, it has been effectively rebutted.

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 Additional Workers' Compensation Cases

Appeal: Claimant Was Not Required to Exhaust Administrative Remedies Before Filing for Reconsideration

LENDE V. WORKERS' COMPENSATION BUREAU

568 N.W.2d 755 (N.D. 1997)

Appeal: Frivolous

CUMBERLAND FARMS, INC. V. MANNING

685 So.2d 64 (Fla.App. 1 Dist. 1996)

Appeal: Mailbox Rule Did Not Apply to Enlarge Time for Filing Judicial Review

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952 S.W.2d 949 (Tex.App.-Corpus Christi 1997)

Appeal: Rejected as Filed After 20-Day Prescribed Period

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931 S.W.2d 892 (Mo.App. W.D. 1996)

Attorney Fees: Employee Entitled to Hearing Under Statute Prohibiting Discrimination in Connection with Workers' Compensation Claims

ENYART V. METRO. AREA COMMUNITY ACTION ORG.

685 N.E.2d 550 (Ohio App. 10 Dist. 1996)

Attorney Fees: Insurer Not Entitled to Reimbursement from Trust Fund for 75% of Attorney's Fee Paid Directly to Claimant's Attorney

CASE OF McCAFFERTY

676 N.E.2d 807 (Mass. 1997)

Attorney Fees: May Be Paid Only if Benefits Due Claimant Out of Which Lien May Be Satisfied

SCIF V. WORKERS' COMPENSATION APPEALS BD.

61 Cal.Rptr.2d 794 (Cal.App. 6 Dist. 1997)

Attorney Fees: Workers' Compensation Carrier Had to Contribute Pro-rata Share of Fees on Amount of Future Benefits It Would Have to Have Paid But for Third Party Recovery

SPANGLER, JENNINGS V. INDIANA INS. CO.

685 N.E.2d 705 (Ind.App. 1997)

Average Weekly Wage: Claimant's Increased Earnings Did Not Constitute Special Circumstances Warranting Increase in Average Weekly Wage

STATE EX REL. CAWTHORN V. INDUS. COMM.

676 N.E.2d 886 (Ohio 1997)

Bad Faith: Employer Failed to Establish Any Breach of Insurer's Duty for Improper Handling of Claims

BIG YANK CORP. V. LIBERTY MUT. FIRE INS. CO.

125 F.3d 308 (6th Cir. 1997)

Bad Faith: None for State Fund Paying Part of Settlement for Child Support Obligation

SAENZ V. STATE FUND WORKERS' COMP. INS.

943 P.2d 831 (Ariz.App. Div. 1 1997)

Black Lung: One Year State Statute of Limitations and Not 20 Year Longshore Statute Applied to Enforcement Action

KINDER V. COLEMAN & YATES COAL CO.

974 F.Supp. 868 (W.D.Va. 1997)

Change of Condition: In Second Attempt to Terminate Benefits Employer Need Only Prove That Disability Changed or Ceased

KING V. W.C.A.B. (K-MART CORP.)

700 A.2d 431 (Pa. 1997)

Change of Condition: Payment of Disability Plan Benefits Was Not Change of Condition Authorizing ALJ to Modify Workers' Compensation Award

WEBB V. CITY OF ATLANTA

491 S.E.2d 492 (Ga.App. 1997)

Claim: Payment of Temporary Total Did Not Constitute "Filing of Claim" for Statute of Limitations Period

ROGERS V. SPARTANBURG REGIONAL MED. CTR.

491 S.E.2d 708 (S.C.App. 1997)

Constitutionality: No Violation of Equal Protection in Finding Claimant Suffered Two Separate Injuries

DEPEW V. NCR ENGINEERING & MFG.

932 P.2d 461 (Kan.App. 1997)

Constitutionality: Statute Permitting Reopening of Permanent and Total Claims When Claimant Earns $4,000 Not Unconditional

CHRISTIE V. COORS TRANSP. CO.

933 P.2d 1330 (Colo. 1997)

Constitutionality: Statute That Parent and Subsidiary Be Considered as One Employer Not Unconstitutional

MANOR V. NESTLE FOOD CO.

932 P.2d 628 (Wash. 1997)

Coverage: New York State Fund Policy Limited to Coverage to Injuries in New York

PARK V. CHOI

700 A.2d 73 (Conn.App. 1997)

Coverage: Partners Who Managed Business Could Not Be Counted as Employees for Minimum Employees for Coverage

PHILLIPS V. POWERS DISCOUNT FURNITURE

686 So.2d 349 (Ala.Civ.App. 1996)

Date of Injury: Last Day Worked Prior to His Surgery

DURHAM V. CESSNA AIRCRAFT CO.

945 P.2d 8 (Kan.App. 1997)

Death Benefits: Former Wife Not Entitled to Benefits

GOODLOE V. LAROCHE INDUSTRIES, INC.

686 So.2d 335 (Ala.Civ.App. 1996)

Decision: Inadequate as It Did Not Decide If Accident Aggravated Arthritis and Degenerative Disc Disease

APPEAL OF GELINAS

700 A.2d 870 (N.H. 1997)

Decision: Remand Required for Determination of Whether Employer Offered Claimant Accommodated Position

COPELAND V. JOHNSON GROUP, INC.

944 P.2d 179 (Kan.App. 1997)

Decision: WCJ Needed to Make Specific Findings as to Whether Aggravation Injury Occurred

SCHRIVER V. W.C.A.B. (DEPT. OF TRANSP.)

699 A.2d 1341 (Pa.Cmwlth. 1997)

Dependents: Evidence Substantial Employee's Sisters Not Partial Dependents of Decedent

CAPOROZ V. LABOR COM'N

945 P.2d 141 (Utah App. 1997)

Directed Verdict: Improper as Claimant May Be Able to Prove Schizoaffective Disorder Work Related

ZAVASNIK V. LYONS TRANSP. LINES, INC.

685 N.E.2d 567 (Ohio App. 8 Dist. 1996)

Double Jeopardy: None for Requiring Forfeiture of Workers' Compensation and Felony for Fraudulently Obtaining Workers' Compensation Benefits

BERGLUND V. POTLATCH CORP.

932 P.2d 875 (Idaho 1996)

Due Process: Not Violated by Bureau's Failure to Promulgate Procedures for Review of Recommended Decisions

FEIST V. N.D. WORKERS' COMPENSATION BUREAU

569 N.W.2d 1 (N.D. 1997)

Evidence: Hearing Officer as Firsthand Observer Was Best Judge of Credibility

TAYLOR V. CALDWELL SYSTEMS, INC.

491 S.E.2d 686 (N.C.App. 1997)

Evidence Substantial: Back Injury Not Work Related

RUSSELL V. STATE EX REL. WYOMING WORKER'S COMP. DIV.

944 P.2d 1151 (Wyo. 1997)

Evidence Substantial: Claimant Did Not Prove That She Was Not Medically Stationary When Case Closed

DAQUILANTE-RICHARDS V. CIGNA INS. COS.

945 P.2d 91 (Or.App. 1997)

Evidence Substantial: Lifting at Work Did Not Aggravate Prior Back Condition

SCAPA DRYERS FABRICS V. MURPHY

491 S.E.2d 146 (Ga.App. 1997)

Evidence Substantial: Unwitnessed, Unreported Foot Injury Not Compensable

WHITE V. FROLIC FOOTWEAR

952 S.W.2d 190 (Ark.App. 1997)

Exclusivity: Barred Claim for Negligent Hiring and Supervision

SILVESTRE V. BELL ATLANTIC CORP.

973 F.Supp. 475 (D.N.J. 1997)

Exclusivity: Barred Claims for Intentional Torts Committed in Course of Employment

CHATMAN V. GENTLE DENTAL CENTER OF WALTHAM

973 F.Supp. 228 (D.Mass. 1997)

Exclusivity: Emotional Distress and Assault and Battery Barred by Workers' Compensation Act

DORN V. ASTRA USA

975 F.Supp. 388 (D.Mass. 1997)

Exclusivity: Workers' Compensation Act Barred Negligent and Intentional Emotional Distress Claim

MATCZAK V. FRANKFORD CANDY AND CHOCOLATE CO.

950 F.Supp. 693 (E.D.Pa. 1997)

FECA: Court Had No Jurisdiction to Hear Complaint on Who Was Responsible for Overpayment

WACKS V. REICH

950 F.Supp. 454 (D.Conn. 1996)

Heart Attack: No Need to Prove Unusual Strain or Exertion

TRUSS V. GEORGIA-PACIFIC CORP.

686 So.2d 328 (Ala.Civ.App. 1996)

Immunity: Power Company as Majority Owner of Power Plant Was Statutory Employer of Employee of Maintenance Subcontractor

HOLTON V. GEORGIA POWER CO.

491 S.E.2d 207 (Ga.App. 1997)

In Course of Employment: Claimant Struck by Company Car After "Mail Run" in Course of His Employment

ESPINOSA V. ALBUQUERQUE PUB CO.

943 P.2d 1058 (N.M.App. 1997)

In Course of Employment: Heart Attack at Home on Sunday Evening Not in Course of Employment

RALPHS GROCERY CO. V. W.C.A.B.

68 Cal.Rptr.2d 161 (Cal.App. 2 Dist. 1997)

Interest: Due on Medical Bills from Dates Presented for Payment

LUCEY V. W.C.A.B. (VY-CAL PLASTICS)

701 A.2d 637 (Pa.Cmwlth. 1997)

Last Injurious Exposure Rule: Applied as Employer Last Exposed Claimant to Disease Producing Conditions

COLONEY V. ACCURATE SUPERIOR SCALE CO.

952 S.W.2d 755 (Mo.App. W.D. 1997)

Last Injurious Exposure Rule: Did Not Apply to Concurrent Employers

RIVERBOAT HOTEL CASINO V. HAROLD'S CLUB

944 P.2d 819 (Nev. 1997)

Longshore: Disability Not Materially and Substantially Greater Due to Prior Toe Injury

DIRECTOR, OWCP V. INGALLS SHIPBUILDING, INC.

125 F.3d 303 (5th Cir. 1997)

Longshore: Employer Failed to Show Cumulative Disability Materially and Substantially Greater Due to Preexisting Disability

LOUIS DREYFUS CORP. V. DIRECTOR, OWCP

125 F.3d 884 (5th Cir. 1997)

Longshore: Employer Offered Substantial Evidence to Rebut Presumption of Compensability of Back Claim

UNIVERSAL MARITIME CORP. V. MOORE

126 F.3d 256 (4th Cir. 1997)

Longshore: Reduction of Attorney Fee to $100 Per Hour Affirmed

MOYER V. DIRECTOR, OWCP

124 F.3d 1378 (10th Cir. 1997)

Lost Earning Capacity: No 20% Loss Where Claimant Earned More After Injury

EX PARTE SHERER TIMBER CO., INC.

684 So.2d 1289 (Ala. 1996)

Material Issues of Fact: Existed as to Whether Carpal Tunnel Syndrome Work Related

QUIRK V. DOW CHEM. CO.

684 N.E.2d 1258 (Ohio App. 3 Dist. 1996)

Medical Care: Pain Psychologist Authorized Provider for Referral Statute

SMITH V. GENERAL PARCEL SERVICE, INC.

699 So.2d 741 (Fla.App. 1 Dist. 1997)

Medical Care: Peer Review Procedures Did Not Apply to Reimbursement for Pain Medications

BEISEL V. THE BOEING CO.

932 P.2d 1050 (Kan.App. 1997)

Minor: Entitled to Same Permanent Partial Disability Benefits as Adult

WILLIAMS V. INDUS. CLAIM APPEALS OFFICE

932 P.2d 869 (Colo.App. 1997)

Newly Discovered Evidence: Adverse Ruling on Suspension of Workers' Compensation Did Not Invalidate Notice to Controvert Based on Newly Discovered Evidence

CUMBERLAND DISTRIBUTION SERV. V. FUSON

492 S.E.2d 2 (Ga.App. 1997)

Offset: Attorney Fees Excluded from Social Security Disability Offset

NATIONAL LINEN SERVICE V. TOLLIVER

686 So.2d 797 (Fla.App. 1 Dist. 1997)

Offset: Entire Amount of Workers' Compensation Settlement Including Attorney Fees to Be Deducted from Pension Benefits

COLLINS V. AMERICAN CAST IRON PIPE CO.

105 F.3d 1368 (11th Cir. 1997)

Partial: Benefits Not Reinstated as He Failed to Prove Worsened Physical Condition Led to Increase in Loss of Earning Capacity

STANEK V. W.C.A.B.

701 A.2d 627 (Pa.Cmwlth. 1997)

Partial: Payments Must Be Made Within Seven Days of Benefits Coming Due

WILLETTE V. AIR PRODUCTS

700 So.2d 397 (Fla.App. 1 Dist. 1997)

Permanent and Total Disability: Denied for Claimant with Back Injury and Agoraphobia

CARLSON V. PLANT FARM

952 S.W.2d 369 (Mo.App. W.D. 1997)

Permanent and Total Disability: Inconsistent with Award for Remedial Treatment

ANDERSON & PADGETT SAWMILL V. COLLINS

686 So.2d 795 (Fla.App. 1 Dist. 1997)

Permanent and Total Disability: None for Claimant with Back Strain Who Did Not Participate in Return to Work Efforts

STATE EX REL. WILSON V. INDUS. COMM.

685 N.E.2d 774 (Ohio 1997)

Permanent and Total Disability: None for Claimant Who Was Employed Parttime

SCHOOL DIST. OF ESCAMBIA COUNTY V. COOPER

686 So.2d 613 (Fla.App. 1 Dist. 1996)

Presumption: Claimant Made Showing to Create Presumption That Back Injury Due to Bus Accident

BROWN V. DEPARTMENT OF EMPLOYMENT SERVICES

700 A.2d 787 (D.C.App. 1997)

Presumption: Claimant Not Entitled to Presumption That Forklift Collision Caused Back Injury

QUALLS V. STONE CONTAINER CORP.

699 So.2d 1137 (La.App. 2 Cir. 1997)

Presumption: Substantial Evidence Supported the Conclusion That Second Insurer Rebutted Presumption of Compensability

BOUSE V. FIREMAN'S FUND INS. CO.

932 P.2d 222 (Alaska 1997)

Psychological Injury: Due to Being Hit by Forklift Not Stress

ANDERSON V. WALES INDUSTRIES

688 So.2d 379 (Fla.App. 1 Dist. 1997)

Record: Due to Lack of Evidence That Claimant Missed No Time from Valid Work Claim

JACKSON V. TUSKEGEE UNIVERSITY

684 So.2d 1330 (Ala.Civ.App. 1996)

Reopening: Back Surgery Which Took Place Eight Months After Request to Reopen Irrelevant to Reopening Issue

RUFFNER V. SIIS

944 P.2d 250 (Nev. 1997)

Second Injury Fund: Does Not Permit Collection of Both Total Disability and Full Wages

COM. V. W.C.A.B. (SNYDER)

699 A.2d 1367 (Pa.Cmwlth. 1997)

Second Injury Fund: Failure to Carry Workers' Compensation Coverage Precluded Use of Second Injury Fund

STOWE V. McHUGH

699 A.2d 279 (Conn.App. 1997)

Settlement: Did Not Bar Later Bringing Additional Claim for Headache Condition

TREVISAN V. SAIF

932 P.2d 1202 (Or.App. 1997)

Statute of Limitations: Continued Medical Treatment Did Not Toll Statute of Limitations for Reopening Claim

PICKETT V. OKL. DEPT. OF HUMAN SERVICES

932 P.2d 543 (Okl.Civ.App. Div. 1 1996)

Statutory Construction: Attending Physician Includes Only Those Physicians Authorized to Provide Treatment

POPKE V. INDUSTRIAL CLAIM APPEALS OFFICE

944 P.2d 677 (Colo.App. 1997)

Statutory Construction: Choice of Law Provisions in Employment Agreement Unenforceable

CAWYER V. CONTINENTAL EXP. TRUCKING

932 P.2d 509 (N.M.App. 1996)

Statutory Construction: Protection from Third Party Suits Did Not Apply Retroactively

FRYCEK V. CORNING INC.

654 N.Y.S.2d 264 (Sup. 1997)

Statutory Construction: Reemployment Assessment Provision Can Be Applied Retroactively

LOCKHEED SPACE OPERATIONS V. LANGWORTHY

686 So.2d 665 (Fla.App. 1 Dist. 1996)

Stay: Until Claimant Had Opportunity to Present Claims to Department of Employment Services

TEKLE V. FOOT TRAFFIC, INC.

699 A.2d 410 (D.C.App. 1997)

Stress Claim: Misperception of Events by Claimant Not Fatal to Claim

ZGNILEC V. GENERAL MOTORS CORP.

568 N.W.2d 690 (Mich.App. 1997)

Stress: No Permanent Mental Disability from Witnessing Robbery and Kidnapping

SIBLEY V. UNIFIRST BANK FOR SAV.

699 So.2d 1214 (Miss. 1997)

Subrogation: Florida's Four-Year Statute of Limitation Applied

PIERCE V. INSURANCE CO. OF NORTH AMERICA

699 So.2d 827 (Fla.App. 4 Dist. 1997)

Superadded Injury: None for Claimant Who Broke His Leg Walking in the Woods and Who Had Prior Compensable Knee Injury

J.M. HUBER CORP. V. HOLLIDAY

491 S.E.2d 74 (Ga.App. 1997)

Third Party Action: As Acts Caused by Intervening Criminal Acts of Third Party No Liability

TISE V. YATES CONST. CO., INC.

480 S.E.2d 677 (N.C. 1997)

Third Party Action: Employer's Failure to Intervene within 30 Days Barred Action

NICHOLS V. LIGHTHOUSE RESTAURANT, INC.

700 A.2d 114 (Conn.App. 1997)

Third Party Action: Employer's Failure to Plead Existence of Workers' Compensation as a Defense Did Not Waive Defense

CARNLEY V. AID TO HOSPITALS, INC.

975 F.Supp. 252 (W.D.N.Y. 1997)

Third Party Action: Gross Method Not Net Method Appropriate for Subrogation Computation

P & R WELDING & FABRICATING V. W.C.A.B.

701 A.2d 560 (Pa. 1997)

Third Party Action: Reasonable Basis Existed for Employer's Liability Carrier to Offer $300,000 to Settle Claim

STOREBRAND INS. CO. V. EMPLOYERS INS. OF WAUSAU

974 F.Supp. 1005 (S.D.Tex. 1997)

Total Disability: Claimant Not Entitled to Lifetime Benefits for Both Initial and Subsequent Injuries

SPURLIN V. BROOKS

Ky., 952 S.W.2d 687

Voluntary Intoxication: 0.186% Blood Alcohol Content Not Sufficient to Prove Voluntary Intoxication

BRIDGES V. RELIABLE CHEVROLET, INC.

940 S.W.2d 51 (Mo.App. S.D. 1997)