|
Contact
SEAK
SEAK, Inc.
|
| SEAK Webstore Ι Seminar Schedule Ι Expert Witness Directory Ι IME Directory Ι Customized Training Ι Free Resources |
on the web
April 1998
Volume 18, Number 4
Monthly sections:
A startling article in On Workers' Compensation suggests that not only was the workers' compensation "crisis" that led to workers' compensation reform self-created, it may not have even existed at all!
In the article "Understanding Reserves", which is attributed to a Liberty
Mutual Insurance company employee, the startling admission is made that the workers'
compensation "crisis" may have in fact resulted from "overreserving".
As a matter of fact there are often some serious misjudgments. Looking back, we can see that in the late 1980s and early 1990s we overreserved. It turns out that injuries in those years did not cost as much as we thought they would. As a result, we may have raised premiums more than needed. In more recent years insurance companies have been reducing the reserves for those years. When the current year's income includes reductions of prior reserves, it makes the current year appear more profitable than it actually is. There are some people who think that the competitive market today is forcing estimates and premiums that are overly optimistic.
--On Workers' Compensation, February 1998 (517-332-5266)
The insurance industry is now attempting to argue that their current high profits are in fact the windfall from previous overreserving.
Too bad we didn't know this in the early 1990s when the "reform" debates were
raging!
Workers' compensation insurers with slow-paying claims habits are being targeted by the California Legislature.
A sample of California workers' compensation claims found that injured workers may have been wrongfully denied $84 million in workers' compensation benefits in 1996.
The state legislator leading the call for claim reform was quoted as saying, "On the 11th we are going to put the screws to the insurers ... insurers are avoiding their responsibility to pay benefits on time."
Due to cutbacks from the workers' compensation reform effort, claim audits have fallen
to less than 9 percent of potential auditing subjects.
The Texas Monitor, a quarterly report by the Research and Oversight Council on Workers'
Compensation, did an intensive study of workers' compensation fraud in their Winter 1997
issue (vol. 2 no. 4).
Some startling results:
- Of the 4,644 cases of suspected fraud in Texas investigated by insurance companies only 28 resulted in a criminal conviction.
- Health care provider fraud was almost ten times the amount of suspected injured worker fraud.
- Insurers spent an estimated $5,124,789 in investigating injured worker fraud and came up with $134,351 of detected fraud.
For a copy of the issue call 512-469-7811 or fax your request to 512-469-7481.
You are going to cross-examine an investigator who has prepared a video of your workers' compensation client. Why not use the "Surveillance Investigator's Code of Conduct"*.
1. Do not harass or torment the subject.
2. Do not rope (manipulate the claimant into activities).
3. Once filming has begun film all activity.
*4. If a claimant appears injured report it accurately.
5. Do not impersonate government officials, clergy, or representatives from any existing company.
6. Do not climb trees to film an area protected by a privacy fence or cut down hedges to peep in windows.
*This is an excerpt of the excellent article "Video Surveillance of Personal
Injury Claimants" by William Kizorek, February 1998, On Workers' Compensation.
For a copy of the article call Bill Kizorek at 800-822-8220 or fax him at 800-752-0720.
Even treatments of low back injuries are at risk due to workers' compensation reform. A growing number of states, currently 15, are now following strict conservative treatment guidelines for workers' compensation back injuries. Under these guidelines which follow the AHCPR Guidelines, imaging studies, pain killers, bed rest, and diagnostic procedures are discouraged as "nine out of ten people with back pain recover on their own within a month".
Currently California, Colorado, Connecticut, Florida, Kentucky, Maine, Massachusetts, Minnesota, Nevada, Oklahoma, Rhode Island, Texas, Utah, Washington, and West Virginia have already adopted low back pain guidelines.
For a free copy of the AHCPR Guidelines call 800-359-9295.
The free release of confidential medical information in workers' compensation cases is being pushed by workers' compensation insurers and self-insurers. Both federal (Senator Robert Bennett R-VT) and state legislation Maine (LD1243), Massachusetts (H.B. 1498), New Hampshire (H.B. 490), Vermont (S.B. 78), and Kansas (S.B. 463) have proposed strict limits on the release of their medical information.
The position of the American Insurance Association was stated in their January 1998
workers' compensation report:
Where an individual has placed his or her medical condition at issue in a workers' compensation claim, permitting a claimant to pick and choose which information to authorize be released would create insurmountable hurdles to an insurer's ability to ensure delivery of proper medical treatment, protect against fraud, evaluate ability to return to work and necessary job modification requirements, apportion liability, and enforce lien rights. Property and casualty insurers need to ensure that a single authorization ensures release for all downstream disclosures related to the claim. Workers' compensation insurers require additional protections because the claimant need not prove fault; and the carrier's obligation is to pay benefits within a brief period following injury. Therefore, workers' compensation insurers (including self-insured employers and related parties) need to be able to evaluate claims and adjust liability without an express authorization that an injured worker, who had placed his or her medical condition at issue, may not be amenable to providing.
Will employee suits for breaching of confidentiality be far behind
Competition in workers' compensation premiums may come back to haunt injured workers. Open rating has resulted in a "cutthroat workers' compensation market".
Many insurers may be leaving the workers' compensation market due to increased competition and falling premium dollars. For example, in California the workers' compensation market has gone from $12 billion to $6 billion in the past six years. Great State Insurance Company is leaving the California market, and Golden Eagle Insurance Company was seized by regulators due to financial instability. Interestingly, Great State was an early advocate of 24-hour care and integrated disability management.
What does this all mean for workers' compensation attorneys and their clients? Fewer
workers' compensation insurers, rising prices, and more pressure to cut benefits and
attorney fees.
"Give them just enough workers' compensation benefits so they can't sue in tort." There is an insidious and dangerous competition among states to reduce workers' compensation costs at any price and by any means. For example, a recent press release by James J. Campbell touts Massachusetts as the leader in the nation in reducing "employer payments for workers' compensation benefits". In fact, worker's compensation premiums have been cut by 50 percent in the past three years in Massachusetts. The press release states that in "one year alone Massachusetts saved business 15.9 percent of these workers' compensation costs."
What has all this meant for injured workers - less and less benefits for legitimate
injuries and increased difficulty in getting even the small amount of benefits that are
still available to them.
The medical care available for injured workers has been scaled back dramatically. Even
such essentials as occupational therapy are being denied. For example, in the state of
California, as a result of workers' compensation reform, the amount insurers spent on
occupational therapy dropped from $126.5 million in 1995 to $108.2 million in 1996. The
chair of the Occupational Therapy Association of California stated that "... quality
of care has been compromised and treatment has not been authorized in situations where it
should have been."
The calls for doing away with the issue of causation in workers' compensation cases is
being raised by many workers' compensation professionals. In the Insernhagen Work Report,
physical therapist Susan Insernhagen, writes:
In today's world it is true that accidents and injuries may be allocated toward the work-related or non work-related scorekeeping. This is a bookkeeping function. After that, however, prudent employers, unions, and medical providers will work together to see that the worker and employer both have their needs met in equal and similar methods regardless of the alleged causation factor.
- Those with underlying medical conditions will have less need to "file a claim" in order to get their needs met.
- Those that have non work-related problems should have the same rights to work as those with work-related active problems.
- Injured workers should be respected with the same level as those that have claimed their issues under a non work-related insurance plan.
We all must treat workers as functional human beings with the goal of as high functional health as possible. When attention can focus on functional restoration and job matching, rather than arguments over causation, the worker wins, the employer wins.
For a copy of the entire article entitled "Work-Related or Non Work-Related
Injuries - Should We Differentiate" call 218-728-6454 and ask for the Winter 1997
issue.
A new book entitled the "Workers' Compensation Answer Book" has been published by Panel Publishers, a division of Aspen Publishers.
The chapters include: The structure of workers' compensation systems; Employers; Covered and excluded employees; Administration of workers' compensation programs; Funding workers' compensation liabilities and programs; Covered events; Categories of disability and issues of treatment; Current trends and issues in workers' compensation; Claim prevention; False and fraudulent claims; Benefits; Claims resolution. The valuable appendix includes cases, U.S. Code, and state statutes.
To order the book call 800-901-9074.
Read this article before your next structured settlement. An important interesting "Special Report" was recently put out by the Halpern Group on structured settlement deception, lies, and weapons. Richard G. Halpern advises plaintiff counsel to be aware of: present value sleight of hand, the constructive receipt dodge, the imaginary payout, the money management shuffle, and risk is safety.
For a free copy of the special report call Halpern Group at 800-524-1637.
Would you like an opportunity to rate your workers' compensation judges on knowledge of workers' compensation law, appropriate judicial behavior, supportable decisions, and avoidance of bias? The Massachusetts Bar Association has such a confidential survey.
Recently, 200 workers' compensation attorneys rated their judges. Most judges scored well but there were one or two exceptions. One judge scored only 39 percent on her knowledge of workers' compensation law, 30 percent on her decisions being supported by adequate subsidiary findings, and 31 percent on her understanding and application of the rules of evidence at hearings. When asked if she will seek reappointment she replied, "It was never my intent to seek another term."
For additional information on the Massachusetts Bar Association's workers' compensation
judge survey call the Massachusetts Bar at 617-338-0530.
In a workers' compensation update in the February 1998 issue of Safety and Health magazine, the author of an article on cutting workers' compensation costs recommends that employers cut into workers' compensation fraud by reporting rumors of illegitimate injury by co-workers to insurance claims adjusters "right away".
For additional information and a copy of the complete article entitled "Employee
Support Helps Small Businesses Cut Injury Costs" contact Safety and Health, National
Safety Council, 1121 Spring Lake Drive, Itasca, IL 60143-3201; e-mail:
safethealth@nsc.org.
You can add Tennessee to the list of states that will be pushing for denials of
workers' compensation claims due to a new "drug-free workplace" program.
Workers' compensation insurers will be offered premium credits for implementing a
"drug-free workplace". For additional information contact M. Keith Lessner at
847-330-8607.
To Steven Babitsky, Esq.
Enclosed you will find a copy of the decision of Bath Iron Works v. Director handed on by the First Circuit on September 10, 1997.
The First Circuit held that the prior decision of the Maine Workers' Compensation Commission finding that the injury was not work related, was binding as a matter of res judicata as a matter of collateral estoppel on the administrative law judge and that there was not significance in the burden of proof to vary from this standard.
The court also notes by way of dicta that they do not believe that the filing of a claim for compensation under the State Compensation Act tolls the Longshoremen and Harbor Workers' Compensation claim.
In light of this, it would appear that it might very well be important to consider your timing of bringing actions.
Obviously, the First Circuit's decision may apply in reverse and that is a finding that there is liability under the Longshoremen and Harbor Workers' Compensation Act may prohibit commission from arising at an alternative conclusion.
It also points up the importance to file both claims contemporaneously to make sure that the statute is protected in both jurisdictions.
In addition, you also may be interested in knowing that the United States District Court for the District of New Jersey in the case of Kreschollek v. Southern Stevedoring, Civil #93-3903, entered into a decision on September 30, 1997 that a claimant whose workers' compensation benefits are terminated under the Longshoremen and Harbor Workers' Compensation Act may be entitled to a due process hearing prior to the termination of the benefits.
The court did not reach the final issue as to whether or not the procedure set forth in the Longshoremen's Act comport with due process. However, the court did deny the defendant's motion for summary judgment for failure to state a cause on which relief may be granted.
Judge Rodrigues, therefore, appears to suggest that it may be a denial of due process for the employer to deny benefits absent a due process hearing in those cases in which the claimant contests the denial of benefits.
Finally, the Second Circuit in the case of Burgo v. General Dynamics Corporation held that a claimant's attorney would not be entitled to attorney fees under section 28 of the act for an action to enforce the penalties for failure to pay in a timely fashion. See Birgo v. General Dynamics Corporation, 96-7832, decided August 27, 1997.
The court held that section 28 only provides attorney fees for the successful prosecution of a claim for compensation and not for collection of a penalty.
Sincerely yours,
Stephen C. Embry
860-449-0341
ANKLE
Amoco Foam Products Co. v. Johnson, 494 S.E.2d 169 (Va.App. 1997)
Uninsured Employer's Fund v. Clark, 494 S.E.2d 474 (Va.App. 1998)
AZOOSPERMIA
Akef v. BASF Corp., 702 A.2d 519 (N.J.Super.A.D. 1997)
BACK
Forkum v. Arvin Industries, Inc., 956 S.W.2d 359 (Mo.App. S.D. 1997)
Grove v. Alaska Const. and Erectors, 948 P.2d 454 (Alaska 1997)
Jones v. El Mesero Restaurant, 702 So.2d 1133 (La.App. 3 Cir. 1997)
McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159 (7th Cir. 1997)
Newport News Shipbuilding v. Director, OWCP, 131 F.3d 1079 (4th Cir. 1997)
Ray v. Carland Const., Inc., 703 A.2d 648 (Me. 1997)
Risner v. Bulk Equipment Mfg., Inc., 494 S.E.2d 304 (Ga.App. 1997)
Sacred Heart Hosp. v. W.C.A.B. (Mutis), 703 A.2d 577 (Pa.Cmwlth. 1997)
Slay Transp. Co., Inc. v. Miller, 702 So.2d 142 (Ala.Civ.App. 1997)
Springfield School v. Industrial Com'n, 687 N.E.2d 334 (Ill.App. 4 Dist. 1997)
BACK: DISC
Bruno v. BellSouth/The Berry Co., 701 So.2d 1056 (La.App. 5 Cir. 1997)
Cridland v. N.D. Workers Comp. Bur., 571 N.W.2d 351 (N.D. 1997)
Hewlett-Packard Co. v. Leonard, 948 P.2d 1256 (Or.App. 1997)
Linnton Plywood Ass'n v. Hansen, 949 P.2d 743 (Or.App. 1997)
Roberts v. J.C. Penney Co., 949 P.2d 613 (Kan. 1997)
State Farm Fire and Cas. Co. v. W.C.A.B., 947 P.2d 795 (Cal. 1997)
BACK: DISC BULGE
Holmes v. J.E. Merit Constructors, Inc., 702 So.2d 1126 (La.App. 3 Cir. 1997)
BACK: DISCITIS
Easterly v. Beaulieu of America, Inc., 703 So.2d 397 (Ala.Civ.App. 1997)
BACK: FUSION
Lemoine v. Harris Management Co., 702 So.2d 951 (La.App. 3 Cir. 1997)
BACK: STRAIN
Falls Church Const. Co. v. Laidler, 493 S.E.2d 521 (Va. 1997)
BROKEN NECK
Harrell v. Pineland Plantation, Ltd., 494 S.E.2d 123 (S.C.App. 1997)
CARPAL TUNNEL SYNDROME
Crippen v. Walker, 572 N.W.2d 97 (Neb.App. 1997)
Oregon Lox Co. v. Nichols, 949 P.2d 741 (Or.App. 1997)
CLOSED-HEAD INJURY
Salazar v. Ballesteros, 981 F.Supp. 960 (E.D.Va. 1997)
CONTACT DERMATITIS
Bourgeois v. Akzo Nobel Salt, Inc., 702 So.2d 762 (La.App. 3 Cir. 1997)
EYE
Anderson v. U.S. Fidelity and Guar. Co., 948 P.2d 1216 (Okla. 1997)
Gonzales v. Advanced Component Systems, 949 P.2d 569 (Colo. 1997)
FEET
Aaron v. New Fortis Homes, Inc., 493 S.E.2d 305 (N.C.App. 1997)
FRACTURED VERTEBRA
Olde South Custom Landscaping v. Mathis, 494 S.E.2d 14 (Ga.App. 1997)
HAND
Vance v. Trimble, 688 N.E.2d 1049 (Ohio App. 10 Dist. 1996)
HEART ATTACK
Kisco, Inc. v. Industrial Com'n of Ariz., 949 P.2d 49 (Ariz.App. Div. 2 1997)
Standard Fire Ins. Co. v. Stephenson, 955 S.W.2d 665 (Tex.App.-Beaumont 1997)
HEPATITIS C
Rogers v. Professional Erectors, 945 P.2d 1045 (Okl.Civ.App. Div. 1 1997)
HIP
Young v. Toledo Hosp., 688 N.E.2d 1128 (Ohio App. 6 Dist. 1996)
IN UTERO INJURIES
Snyder v. Michael's Stores, Inc., 945 P.2d 781 (Cal.App. 1997)
KNEE
Cahall v. Riddle Trucking, Inc., 956 S.W.2d 315 (Mo.App. E.D. 1997)
Ford Motor Co. v. Hunt, 494 S.E.2d 152 (Va.App. 1997)
Philip Electronics v. Wright, 703 A.2d 150 (Md. 1997)
Tri-Union Exp. v. W.C.A.B. (Hickle), 703 A.2d 558 (Pa.Cmwlth. 1997)
KNEE CAP FRACTURE
Gradney v. D.B.L. Drilling, 702 So.2d 872 (La.App. 3 Cir. 1997)
KNEE: MENISCUS
Lineback v. Wake County Board of Comm'rs, 486 S.E.2d 252 (N.C.App. 1997)
LUMBOSACRAL MYALGIA
Musso v. Earth Movers Inc., 659 N.Y.S.2d 105 (A.D. 3 Dept. 1997)
NECK
C.D.G., Inc. v. W.C.A.B. (McAllister), 702 A.2d 873 (Pa.Cmwlth. 1997)
Chamber Door Industries, Inc. v. Graham, 956 S.W.2d 196 (Ark.App. 1997)
Golden v. Employers Ins. of Wausau, 981 F.Supp. 467 (S.D.Tex. 1997)
Stutes v. Albertson's Inc., 702 So.2d 1096 (La.App. 3 Cir. 1997)
NECK: DISC
Feltrop v. Eskens Drywall and Insulation, 957 S.W.2d 408 (Mo.App. W.D. 1997)
NECK: STRAIN
Bally's Grand Hotel & Casino v. Reeves, 948 P.2d 1200 (Nev. 1997)
POSTTRAUMATIC STRESS DISORDER
Amlease, Inc. v. Kuligowski, 957 S.W.2d 715 (Ark.App. 1997)
PSYCHOLOGICAL: FUNCTIONAL OVERLAY
Metropolitan Ambulance, Inc. v. W.C.A.B., 702 A.2d 881 (Pa.Cmwlth. 1997)
SHOULDER
McGovern v. Resorts Intern. Hotel, 703 A.2d 364 (N.J.Super.A.D. 1997)
SHOULDER: DISTAL CLAVICLE EXCISION
Tickles v. PNC Bank, Del.Supr., 703 A.2d 633 (1997)
SHOULDER: IMPINGEMENT SYNDROME
WLF Foods, Inc. v. Cardosa, 494 S.E.2d 147 (Va.App. 1997)
SHOULDER: TENDINITIS
State Ex Rel. Mann v. Indus. Comm., 687 N.E.2d 773 (Ohio 1998)
SICK BUILDING SYNDROME
U S West Communications, Inc. v. Taborski, 572 N.W.2d 81 (Neb. 1998)
STABBING
Blake v. John Skidmore Truck Stop, Inc., 493 S.E.2d 887 (W.Va. 1997)
STROKE
Tomas v. Conco Food Distributors, 702 So.2d 944 (La.App. 3 Cir. 1997)
WRIST
Lazarus v. Industrial Com'n of Arizona, 947 P.2d 875 (Ariz.App. Div. 2 1997)
Average Weekly Wage: Medical Insurance Premium
LAZARUS V. INDUSTRIAL COM'N OF ARIZONA
947 P.2d 875 (Ariz.App. Div.2 1997)
The Arizona Court dealt with the claimant, Lazarus, who injured her wrist at work.
During Lazarus's employment with CPES, it had paid $81.34 per month for her medical
insurance under a group policy. That benefit was part of the consideration for Lazarus
taking that job. She would have had to pay $162.35 per month to convert to an individual
policy under the same plan. CPES would not have paid Lazarus more wages had she declined
medical insurance, and it did not continue paying medical insurance premiums for her after
she left that job or while she was off work for surgery in 1994.
Lazarus protested the Industrial Commission's average monthly wage calculation of
$1,066.99, contending that CPES's $81.34 medical insurance premium should be included in
the calculation.
The court affirmed the denial finding that the portion of the medical insurance premium
paid for by the employer is not a "fringe benefit" includable in the average
weekly wage computation.
The court stated:
In our view, however, employer-paid health insurance premiums are distinguishable from tips, board, lodging, and other forms of compensation which Arizona courts have previously found to come within the term "wages". "Fringe benefits or premiums made to secure them differ in character and purpose from direct payments made to employees to compensate them, directly or indirectly, for some aspect of work or to reimburse them for work related expenses." Although employees benefit from employer-paid medical coverage, which may influence an employee's decision whether to accept a particular job, the employer's premium payments do not constitute "real economic gain" in the same way that tips do.
For the foregoing reasons, we adopt the majority view and hold that, absent clear statutory authority, the cost of health insurance premiums paid by an employer should not be included in calculating average monthly wage. Therefore, we affirm the award.
Average Weekly Wage: Postinjury Earnings
SLAY TRANSP. CO., INC. V. MILLER
702 So.2d 142 (Ala.Civ.App. 1997)
The Alabama Court dealt with the claimant, Miller, who injured his back at work on June
15, 1993, and his wrist on September 15, 1994. The claimant was then unable to return to
work and the issue became the computation of the average weekly wage. The statute has
three different methods for the computation of average weekly wage which all revolve
around 52 weeks of prior employment.
The court found that the court properly used its discretion in computing the average
weekly wage by using the employee's postinjury earnings after his initial injury.
The court stated:
The fact that he returned to work for a substantial period of time makes the "date of injury" more uncertain for purposes of determining "pre-injury" earnings. Because of the unique circumstances presented in this case, and because of the lack of reliable evidence of Miller's average weekly earnings prior to his initial back injury, it appears that the trial court determined Miller's average weekly wage as best it could.
We decline to interpret previous caselaw in a way that would render meaningless that language that vests the trial court with discretion to compute wages in some way other than that legislatively prescribed. We believe that the beneficent purpose of the Workers' Compensation Act militates in favor of allowing the trial court to apply its discretion as it did in this case.
Death Benefit: 26 Years After Injury
KISCO, INC. V. INDUSTRIAL COM'N OF ARIZ.
949 P.2d 49 (Ariz.App. Div.2 1997)
The Arizona Court dealt with the decedent, Dunn, who suffered a heart attack at work on
January 6, 1970, which led to his death on August 12, 1996. The workers' compensation
insurer argued that the widow should receive burial expenses based on the 1970 statute,
i.e. $300. The widow sought $3,000 based upon the maximum at the date of death.
The court affirmed the award of $3,000 finding that equity and statutory construction lead
directly to this interpretation.
The court stated:
Since Stanke relied on Magma to determine that benefits would be fixed as of the same date as dependency status, and since Dunn overruled Magma, holding that dependency would be fixed as of the date of death, the ultimate injury, we believe the Stanke court's reasoning compels the decision we reached here. The date of death fixes both the beneficiaries and the benefit to be awarded. Any other result, particularly when the date of death occurs substantially later than the injury, would be nonsensical since the expenses of burial continue to escalate with time, as the legislature has apparently recognized and increased the benefits accordingly.
Disability: Despite the Fact That Claimant Kept Working
FELTROP V. ESKENS DRYWALL AND INSULATION
957 S.W.2d 408 (Mo.App. W.D. 1997)
The Missouri Court dealt with the claimant, Feltrop, who developed neck and wrist pain
due to the repetitive nature of his work. The ALJ found that the claimant had a 12 percent
permanent partial disability despite the fact that he missed no time from work. In fact,
the claimant continued in a light work capacity.
The workers' compensation insurer argued that an occupational disease only becomes a
compensable injury when the employee becomes incapacitated from work. The court rejected
this argument finding that there was a loss of earning capacity despite the ability to
continue work.
The court stated:
Mr. Feltrop should not be punished for this diligence by denying him recovery for his clearly existing disability. Moreover, to use the date that an employee first misses time from work as the date that he becomes disabled would create practical problems in the workplace. Such a rule would create an incentive for employees to miss work, even though they are capable of some alternative work activities, in order to trigger any claim they may have to recover workers' compensation benefits. On the other hand, diligent employees who stay at work would be punished because a court might later determine that they suffered no disability and were not entitled to workers' compensation benefits. For these reasons, as well as for the additional reasons stated in Coloney, we apply the rule set out in Coloney that, whether or not the employee misses work, if the injury is shown to have harmed the employee's earning capacity, it is enough to constitute a disability under the workers' compensation statutes. We, therefore, affirm the ruling below that Mr. Feltrop may recover without proof that he lost time at work because of his injuries.
Employee: Homeowner's Son Working at House
STATE FARM FIRE AND CAS. CO. V. W.C.A.B.
947 P.2d 795 (Cal. 1997)
The California Supreme Court dealt with the claimant, Leonard, Jr., who was 35 and was
employed as a carpenter by Leonard, Sr. to perform repairs on a residential property in
preparation for its sale. He injured his back in the course of his employment, while
lifting machinery into his truck. In 1989 Leonard, Sr. had purchased a homeowner's policy
with an additional endorsement for workers' compensation benefits for "residence
employees".
The court found that under the statute and language of the policy Leonard, Jr. was a
"covered employee" and entitled to workers' compensation benefits.
The court stated:
Contrary to State Farm's assertion, the policy cannot reasonably be understood to state that there are two classes of "residence employees" - (a) those employed by a parent, spouse, or child, and (b) all others - and that only the latter are limited to workers' compensation remedies, while the former may sue in an action at law for damages. Of course, an insured is not required to consult the California codes to discover any statutory limitations on coverage, but is ordinarily entitled to trust the language of the policy.
Finally, State Farm urges that providing workers' compensation coverage for a person employed by a parent, spouse, or child would be against public policy. Not so.
The term "employee" as defined by the Labor Code (Lab.Code, Sec. 4150) - including any person falling under Labor Code section 3352, subdivision (a). Moreover, Insurance Code section 11590 mandates workers' compensation coverage under any policy providing comprehensive personal liability insurance for any person defined as an employee by Labor Code section 3351, subdivision (d) - not excepting any person employed by a parent, spouse, or child. These statutes are also fully consistent with the public policy enunciated by California Constitution article XIV, section 4, that injuries arising out of employment be compensated within the workers' compensation system.
Evidence: Medical Report of Physician without License
ROGERS V. PROFESSIONAL ERECTORS
945 P.2d 1045 (Okl.Civ.App. Div. 1 1997)
The Oklahoma Court dealt with the claimant, Rogers, who alleged that his on-the-job
injury accelerated and aggravated his chronic hepatitis C. Dr. "M" performed an
IME and concluded that there was no causation. Prior to the trial Dr. "M" lost
his license to practice medicine. Despite this loss of license, his report was offered and
accepted into evidence and a denial of workers' compensation was issued.
The court found that the report should not have been accepted into evidence and that its
receipt was prejudicial error requiring a remand.
The court stated:
Claimant contends the trial court erred in admitting Dr. M's report because Dr. M was not qualified as a physician at the time of trial. We agree. The medical report stands in the place of oral examination in open court of the physician as witness. It is not evidence until admitted by the trial court. We hold the trial court erred in admitting the medical report of a witness who was not a licensed physician at the time of trial.
The IME was appointed because there was a controversy as to causation of Claimant's liver condition. The trial court instructed him to answer specific questions to assist it in deciding the case. Although Employer offered Dr. M's report into evidence, the trial court admitted it as the court's own exhibit. For these reasons, Claimant's concern that the report may have been given more weight than other medical reports is well taken. We hold admission of the report was prejudicial and prevented Claimant from receiving a fair trial.
Exclusivity: In Utero Injuries
SNYDER V. MICHAEL'S STORES, INC.
945 P.2d 781 (Cal. 1997)
The California Supreme Court dealt with the plaintiff, Synder, a minor who alleges she
was injured in utero when her mother, Naomi Snyder, breathed carbon monoxide gas in
amounts toxic to both Naomi and Mikayla. The injury occurred at Naomi's workplace, a store
owned and operated by defendant Michael's Stores, Inc., during Naomi's employment. As a
result of the toxic exposure, the plaintiff suffered brain damage and was born with
cerebral palsy.
The court found that the exclusivity of the Workers' Compensation Act did not bar the
child's cause of action nor did it bar the parent's claim for consequential damages as the
child was not an employee of the employer prior to her birth.
The court stated:
Up to this time, the Legislature has made workers' compensation the exclusive remedy for work-related injuries to employees and for collateral losses deriving from those injuries, but not for legally independent claims by nonemployees for their own injuries. The decision whether to go beyond that point, to provide civil immunity - and perhaps a corresponding remedy in the workers' compensation system - for a particular class of such independent third party injuries, is not ours to make.
Exclusivity: Spoliation Claim Against Employer
CALLAHAN V. STANLEY WORKS
703 A.2d 1014 (N.J.Super.L. 1997)
The New Jersey Court dealt with the claimant, Callahan, who was employed by Home Depot
and was injured while moving a pallet of storm doors. He sued the company who packed and
shipped the doors and later added his employer for negligent spoliation of evidence, i.e.
the pallet. The employer attempted to interpose a workers' compensation exclusivity
defense.
The court rejected the exclusivity defense and stated:
Recognition of negligent spoliation as a separate cause of action would also benefit litigants by reducing litigation costs. Costs associated with evidence reconstruction and identification of categories of documents requiring preservation would be avoided, as would the costs of propounding discovery to ascertain the fate of spoliated evidence.
Adoption of negligent spoliation of evidence as a separate tort would also benefit society by promoting testimonial and discovery candor. If litigating parties are made responsible for preserving all relevant evidence, the number of cases in which decisions are made based on all relevant information would increase. An explicit prohibition against negligent spoliation would also tend to conserve judicial resources by reducing the number of motions to compel production of evidence and the corresponding costs of discovery.
The court did find that the amount payable by Home Depot will be reduced by the amount
of the workers' compensation lien.
Exclusivity: Uninsured Motorist Plan
TRAVELERS INDEMNITY CO. OF ILLINOIS V. DiBARTOLO
131 F.3d 343 (3rd Cir. 1997)
The U.S. Court of Appeals (3rd Cir.) dealt with the plaintiff, DiBartolo, who in May
1994 was injured while occupying an automobile owned by his employer, Knight-Ridder, Inc.
At the time of the accident, DiBartolo was acting in the course and scope of his
employment. Subsequently, DiBartolo recovered workers' compensation and medical benefits
from Knight-Ridder's insurer, Travelers Indemnity Co. of Illinois. Thereafter, he sought
uninsured motorist benefits under an automobile insurance policy issued by Travelers to
Knight-Ridder, which had voluntarily purchased the policy. Travelers responded by bringing
this action for declaratory judgment.
The court held that workers' compensation was not the exclusive remedy and that the
plaintiff could recover both workers' compensation and benefits from the uninsured
motorist plan funded by the employer.
The court stated:
Travelers does not offer any explanation why Pennsylvania would wish to bar employers from attempting to shield their employees from all of the types of on-the-job injuries the employees might suffer. Since DiBartolo's employer voluntarily purchased uninsured motorist coverage, we are satisfied that this fact would cause the Supreme Court to view the insurance policy as a fringe benefit. As a fringe benefit, the policy has "independent contractual vitality", and DiBartolo's recovery under the policy is not barred by the exclusivity provisions of the WCA.
In Course of Employment: Driving to Store to Pick Up Supplies
ST. PAUL FIRE AND MARINE INS. V. CONFER
956 S.W.2d 825 (Tex.App.-San Antonio 1997)
The Texas Court dealt with the decedent, Confer, who on March 15, 1994, at
approximately 4:00 p.m., left his office in San Marcos. He left work early so that he
could travel to Altex Electronics, a computer supply store in San Antonio, to pick up
diskette cleaners that were needed at his office and still arrive home at his regular
time. Altex is located on Interstate 35, past the Loop 1604 exit. Therefore, in order to
travel to Altex, it would have been necessary for Dr. Confer to deviate from his normal
route home. At approximately 4:20 p.m., before Dr. Confer reached the Loop 1604 exit, his
car careened off the road and struck another car which was parked on the right shoulder of
the road. Dr. Confer's car then flipped over and traveled back into the highway where it
was hit by oncoming traffic. Dr. Confer died in the accident.
The court affirmed the award of workers' compensation finding that under the "dual
purpose" doctrine the decedent was in the course of his employment when killed.
The court found that an injury occurring between work and the business errand is
compensable.
The court stated:
In this case, Dr. Confer was going to Altex for his employer at the time the accident occurred. The evidence indicates that Dr. Confer did not normally leave work early, and that he did so on this occasion so that he could complete his business errand and still be home at his normal time. Accordingly, the evidence supports a finding that Dr. Confer would not have been on Interstate 35 at 4:20 p.m. if he had not been going to Altex. The fact that Altex happens to be along the same route as his route home should be of little consequence.
In Course of Employment: Fall in Parking Lot
TICKLES V. PNC BANK
Del.Supr., 703 A.2d 633 (1997)
The Delaware Supreme Court dealt with the claimant, Tickles, who was driven to work
early by a friend due to inclement weather and so she could take $10 out of an ATM for
lunch. While opening the car door, Tickles lost her balance on ice in the parking lot and
fell to the ground, injuring her back and left arm. Tickles's neighbor drove her to
Building 400. Tickles immediately told her supervisor about the accident.
The court found that the claimant was in the course of her employment when injured as she
was engaged in a "preparatory act", i.e. use of the ATM machine which was
reserved exclusively for employees.
The court stated:
In this case, the only ATM provided by PNC exclusively for its employees was in Building 103. That ATM could be accessed by PNC employees only using their employee identification cards. Tickles used the ATM on PNC's premises within a reasonable period prior to her scheduled starting time and in preparation for her workday. That conduct falls within the general rule that reasonably necessary acts of personal convenience or comfort that take place on the employer's premises, in preparation or anticipation of the workday, are incident to employment.
In Course of Employment: Stray Dog
SPRINGFIELD SCHOOL V. INDUSTRIAL COM'N
687 N.E.2d 334 (Ill.App. 4 Dist. 1997)
The Illinois Court dealt with the claimant, DeAngelo, who was employed as a security
guard. On April 8 at approximately 4:40 a.m., the claimant was in the process of making
his rounds when he encountered a dog near one of the mobile classrooms. The dog growled,
sniffed the claimant, and walked away. He continued walking around the classroom when the
dog came back, ran up to him, and grabbed him by the pant cuff. The dog then backed off
and repeated his attack. The claimant kicked the dog as hard as he could with his left
foot and immediately felt pain shooting up his left leg into his spine, neck, and head and
down his right arm. He noticed no bruising or swelling to his other leg as a result of the
dog attack but did experience some redness around the ankle, which later disappeared.
The court affirmed the award of workers' compensation benefits finding that as the
claimant was exposed to a risk greater than of the general public he was in the course of
his employment when injured.
The court stated:
Here the Commission concluded claimant was exposed to a risk greater than that of the general public and that a stray dog is a "natural" risk. While it is true the location to which claimant was assigned had not experienced problems with stray dogs before, other school grounds within the district had. More importantly, claimant was at a location when and where the general public would not and should not be located. The incident occurred at 4:40 in the morning on school grounds at a time when claimant was to protect the property against intruders. Claimant's confrontation with the dog occurred while he was in the performance of his watch duties, and his injuries accordingly resulted from protecting both the school grounds and himself. His injuries therefore are causally related to his employment, and, as a result, claimant is entitled to compensation for them.
In Course of Employment: Taking Co-Worker to Hospital
AARON V. NEW FORTIS HOMES, INC.
493 S.E.2d 305 (N.C.App. 1997)
The North Carolina Court dealt with the claimant, Aaron, who on April 30, 1994, was a
roofer and construction worker and was working on a home being built by
defendant-employer, New Fortis Homes, Inc. While stepping down from a ladder, his
supervisor, Thomas McDuff, stepped on a nail and injured himself, requiring medical
assistance. Accordingly, McDuff asked the claimant, Thomas Aaron, to take him to the
hospital. Aaron agreed and on the way to the hospital he became involved in an automobile
accident and sustained disabling feet, leg, and facial injuries. Aaron underwent medical
treatment and was unable to return to work due to his injuries.
The court found that as the claimant was on a "special errand" that directly
benefited his employer he was in the course of his employment when injured.
The court stated:
McDuff had been injured on the job and required medical attention and treatment was necessary before work could continue. Further, by protecting the health of McDuff and obtaining proper treatment for his injury, New Fortis Homes's exposure to a more serious workers' compensation claim by McDuff was reduced. Accordingly, we conclude there was competent evidence of record and adequate findings of fact to support the Commission's conclusion that the automobile accident occurred while plaintiff was on a "special errand" for defendant-employer.
Injury: Compensable Consequence
AMOCO FOAM PRODUCTS CO. V. JOHNSON
494 S.E.2d 169 (Va.App. 1997)
The Virginia Court dealt with the claimant, Johnson, who severely injured her ankle at
work on July 14, 1992. After surgery and lengthy course of treatment, her ankle gave way
and she injured her right knee. This was held to be compensable. On November 12, 1995, she
fell again injuring her right knee again.
The court affirmed the finding that the knee injury originally sustained on August 20,
1994, is treated as if it occurred in the course of and arising out of the claimant's
employment. Moreover, the doctrine of compensable consequences is applicable both to an
aggravation of a prior compensable injury and a new injury. Therefore, the claimant is
entitled to benefits for disability related to her compensable knee injury.
The court, citing cases in other jurisdictions, found that as the chain of causation was
direct and natural and there was no evidence of an intervening cause every natural
consequence of the original injury is treated as arising out of and in the course of
employment.
The court stated:
This reasoning underscores the causal connection between the primary and consequential injuries. An employer may be held responsible for a later injury resulting from a compensable consequence if the claimant establishes the requisite causal relationship between the two events.
Interest: Medical Expenses
McCORMACK V. STEWART ENTERPRISES, INC.
956 S.W.2d 310 (Mo.App. W.D. 1997)
The Missouri Court dealt with the claimant who was injured at work on August 29, 1992.
On July 7, 1994, an ALJ found in his favor and ordered the employer to pay him $359,443
for past medical expenses. The employer refused to pay interest on the amount due.
The court found that the claimant could be entitled to prejudgment interest on the
$359,443 if he met the three-prong interest test.
The court stated:
In the present case, McCormack is entitled to interest on his medical expenses until the date Employer paid the expenses if he satisfies the following three-part test. First, McCormack must prove that the expenses were "due" at the time of the demand. In accordance with Martin, McCormack must show one of three things: he actually paid the expenses; his providers were demanding interest of him; or, he suffered a loss by the delay in payment.
Second, McCormack must prove that the amount of the expenses was readily ascertainable by computation or by reference to a legal standard. In Stillwell, we found that burial expenses were readily ascertainable by reference to the invoice from the funeral home. Similarly, in this case, the Commission should refer to medical bills, receipts, or other evidence presented by McCormack to determine if the expenses were readily ascertainable.
Third, McCormack must have demanded that Employer pay the expenses. If the Commission finds that McCormack demanded the expenses prior to filing his claim with the Commission, McCormack is entitled to interest on the expenses from the date of his demand. If the Commission finds that McCormack did not demand the expenses prior to filing his claim, he is entitled to interest from the date he filed his claim. If McCormack satisfies the three requirements set forth here, he is entitled to prejudgment interest on his medical expenses, at the statutory rate of nine percent, in compliance with Sec. 408.020.
Misrepresentation: Employer Reliance
FALLS CHURCH CONST. CO. V. LAIDLER
493 S.E.2d 521 (Va. 1997)
The Virginia Supreme Court dealt with the claimant, Laidler, who in June 1992 was hired
and in May 1993 was rehired by Falls Church Construction Company. He answered
"no" to the question "have you ever been charged or convicted of a felony
or crime". In July 1993 he injured his back at work. The company defended the claim
based upon the fact that he was in fact convicted of breaking and entering in 1978 and
served two years' probation.
The court affirmed the award of benefits finding that as the employer failed to prove
reliance on the false representation it was not a defense to the claim.
The court stated:
In the present case, Laidler was not terminated from his employment after he was rehired in May 1993. The only issue before us is whether the company established the defense of false representation, barring Laidler's claim for further compensation benefits. We conclude that the company's failure to prove the element of reliance defeated its defense.
Offset: Uninsured Motorist Benefits
SHUTTER V. PHILIPS DISPLAY COMPONENTS
688 N.E.2d 235 (N.Y. 1997)
The New York Court dealt with the plaintiff, Shutter, who was injured in a taxi
accident on the way to the airport during a business trip. She recovered $124,697 from her
own insurer in uninsured motorist benefits as the taxi driver was uninsured. The workers'
compensation carrier then attempted to offset her future workers' compensation benefits
against the uninsured motorist benefits recovery.
The court held that there was no offset due as the statute did not specifically provide
for it.
The court strictly construed the subrogation statute and stated:
Here, the funds claimant recovered from her own insurance carrier under the uninsured
motorist benefits endorsement were not recovered from the third-party tortfeasor. Thus,
under a strict reading of the statute's terms, the carrier is not entitled to a credit
based on these proceeds.
Our conclusion that the carrier may not enjoy a credit from uninsurance payments is
buttressed by the fact that the statutory scheme requires vigilant preservation of the
carrier's subrogation rights in an "action" against a "third party"
(Workers' Compensation Law Sections 29[2], [5]), but does not contemplate intervention by
the carrier or mandate preservation of any similar subrogation right when the injured
employee proceeds with a claim under her own insurance policy. Indeed, Workers'
Compensation Law Section 30 provides, with exceptions not relevant here, that "[n]o
benefits, savings, or insurance of the injured employee, independent of the provisions of
this chapter, shall be considered in determining the compensation or benefits to be paid
under this chapter."
Sterility: Ordinary Pursuits of Life
AKEF V. BASF CORP.
702 A.2d 519 (N.J.Super.A.D. 1997)
The New Jersey Court dealt with the claimant, Akef, who had shown that he developed
azoospermia (sterility) as a result of his work. the workers' compensation judge ruled
that he was not entitled to permanent disability for this condition because "he
suffered no functional loss" in the workers' compensation sense of the word.
The court reversed this denial finding that the claimant's sterility was compensable
despite the fact that it did not diminish his earning capacity.
The court stated:
Besides consideration of the lessening of an employee's working ability, "[a]nother criterion that may be considered in developing whether the injury is significant enough to merit compensation is whether the injury substantially interferes with other nonwork-related aspects of petitioner's life." Perez provides that the amount of the compensation award is determined by the wages being earned at the time of injury, irrespective of whether or not they were subsequently diminished.
Therefore, we hold, consistent with Stepnowski and Perez, that petitioner's sterility is compensable even though by itself, it did not have any effect on his ability to continue working, and remand for calculation of an appropriate award based on the impairment of his nonwork-related but ordinary pursuits of life.
Temporary Total: Deducting Wages and Adjusting Benefits
BRUNO V. BELLSOUTH/THE BERRY CO.
701 So.2d 1056 (La.App. 5 Cir. 1997)
The Louisiana Court dealt with the claimant, Bruno, who on June 3, 1994, was injured
when she slipped and fell during working hours, at a company sponsored, on-site barbecue,
when two coworkers squirted her with a super soaker water gun. As a result of the injuries
sustained from this fall, Ms. Bruno was unable to work for approximately four months, from
June 6, 1994 through October 24, 1994. It is undisputed that during this time frame, she
was paid workers' compensation benefits. However, when she returned to work, money was
deducted from her paychecks in an apparent attempt by her employer, BellSouth/The Berry
Company, to recoup some of the money paid to her as workers' compensation benefits. Ms.
Bruno also claimed that upon her return to work, she was forced to use vacation days for
doctor's appointments and physical therapy relating to her employment related injury.
The court found that in fact the employee was forced to "pay back" her workers'
compensation benefits by deductions made to her paycheck.
The court ordered full reimbursement, attorneys fees, and penalties and stated:
We find no manifest error in the trial judge's determination that Ms. Bruno is entitled to reimbursement for any flex benefits, vacation benefits, sick leave benefits, and life insurance premiums which were deducted by her employer because of her workers' compensation injury. The employee clearly proved that her employer deducted money from her wages and adjusted other benefits as a result of her workers' compensation injury.
Voluntary Intoxication: Presumption Rebutted
GRADNEY V. D.B.L. DRILLING
702 So.2d 872 (La.App. 3 Cir. 1997)
The Louisiana Court dealt with the claimant, Gradney, who on April 16, 1996 rode to
work with his brother. The drive was very typical and George Gradney's behavior was
normal. At approximately 9:30 that morning, Mr. Gradney took a binder off a chain by using
a cheater pipe. As he pulled the cheater pipe backwards, he slipped in some mud causing
the binder to snap and hit him in the knee cap. Bill Baker, Mr. Gradney's immediate
supervisor, offered Mr. Gradney medical attention, but he refused. He remained at work
until the end of the day.
Mr. Gradney stayed at home for a few days and then sought treatment through his employer
from Dr. Ray Boyer on April 19, 1996. Dr. Boyer discovered a fracture in the right knee
cap and referred him to Dr. Leonard (Dr. Leonard's medical report was not provided in the
record). Dr. Boyer stated that Mr. Gradney should not work for an unspecified period of
time. After a routine drug test on April 24, 1996, Dr. Boyer discovered traces of
marijuana in Mr. Gradney's bloodstream.
The court found that the claimant's testimony, when combined with that of two witnesses
that he showed no signs of intoxication, rebutted the presumption which arose from his
refusal to take a drug test after the accident. The court stated:
In this case, the only facts which support a finding of intoxication at the time of the accident, as those in Austin, are those evolving around Mr. Gradney's refusal to consent to the drug test. The fact that marijuana was discovered in Mr. Gradney's system eight days after the accident occurred is not dispositive of the contents of Mr. Gradney's bloodstream on the day of the accident. Mr. Gradney provided testimony from his brother and his immediate supervisor who both stated that they did not notice anything unusual in Mr. Gradney's behavior which would suggest that he was intoxicated before or after the accident occurred. This evidence is sufficient to support a finding that Mr. Gradney overcame the presumption of intoxication at the time of the accident and is entitled to workers' compensation benefits.
AMA Guides: 5% Additional Impairment for Functional Disfigurement of Eye
GONZALES V. ADVANCED COMPONENT SYSTEMS
949 P.2d 569 (Colo. 1997)
Appeal: Employer Waived Argument by Failure to Raise Issue at Hearing
OREGON LOX CO. V. NICHOLS
949 P.2d 741 (Or.App. 1997)
Appeal: No Direct Appeal to Court of Appeals Based on Principally Located Employment
CABLE V. SCHNEIDER TRANSP., INC.
957 S.W.2d 802 (Mo.App. S.D. 1997)
Attorney Fees: $5,000 Awarded for Refusal to Authorize Payment of Physical Therapy
STUTES V. ALBERTSON'S INC.
702 So.2d 1096 (La.App. 3 Cir. 1997)
Award: May Be Made When the Employee Is Discharged for Cause
RISNER V. BULK EQUIPMENT MFG., INC.
494 S.E.2d 304 (Ga.App. 1997)
Bad Faith: Employer Could Not Proceed with Bad Faith Against Fund as It Did Not File
Notice of Claim
STATE COMPENSATION FUND V. SUPERIOR COURT
948 P.2d 499 (Ariz.App. Div. 1 1997)
Bad Faith: For Discrimination for Filing Workers' Compensation Claim
WAL-MART STORES, INC. V. HOLLAND
956 S.W.2d 590 (Tex.App.-Tyler 1997)
Bad Faith: No Action for Unjustified Denial of Workers' Compensation Coverage or
Groundless Defense
ANDERSON V. U.S. FIDELITY AND GUAR. CO.
948 P.2d 1216 (Okla. 1997)
Bad Faith: Only Insurer and Not Servicing Company Can Be Liable for Breach of Good
Faith and Fair Dealing
GOLDEN V. EMPLOYERS INS. OF WAUSAU
981 F.Supp. 467 (S.D. Tex. 1997)
Bad Faith: Widow Could Recover Damages for Insurers Denying and Delaying Payment of
Claim
STANDARD FIRE INS. CO. V. STEPHENSON
955 S.W.2d 665 (Tex.App.-Beaumont 1997)
Benefits: Inflation Provisions Enacted in 1992 Applied Where Most Recent Injury
Occurred After Effective Date of Act
RAY V. CARLAND CONST., INC.
703 A.2d 648 (Me. 1997)
Causation: Every Natural Consequence for Workers' Compensation Injury Is Compensable
CAHALL V. RIDDLE TRUCKING, INC.
956 S.W.2d 315 (Mo.App. E.D. 1997)
Causation: Where Disability Has Two Causes, One Work-Related and One Non-Work-Related,
Disability Compensable
FORD MOTOR CO. V. HUNT
494 S.E.2d 152 (Va.App. 1997)
Claim Preclusion: Requires That Opportunity to Litigate Issue Be Present in Prior
Proceeding
HEWLETT-PACKARD CO. V. LEONARD
948 P.2d 1256 (Or.App. 1997)
Collateral Estoppel: Precluded Relitigation of Payment of Medical Bills
C.D.G., INC. V. W.C.A.B. (McALLISTER)
702 A.2d 873 (Pa.Cmwlth. 1997)
Constitutionality: Appointing Judges Formerly Allied with Employers/Insurers Not
Violative of Due Process
QUINN V. WEBB WHEEL PRODUCTS
957 S.W.2d 187 (Ark.App. 1997)
Constitutionality: Statute Creating Insurer to Pay Covered Claims After Insurer
Insolvent Constitutional
CAS. RECIPROCAL V. MO. EMP. MUT. INS.
956 S.W.2d 249 (Mo.banc 1997)
Constitutionality: Statute Creating Right of Subrogation on Part of Employer Not
Unconstitutional
IN RE ESTATE OF ROSS
688 N.E.2d 303 (Ohio App. 3 Dist. 1997)
Constitutionality: Statute Providing That Heart Attacks Only Compensable If
Physical Work Stress Extraordinary and Predominant Cause of Injury Constitutional
TOMAS V. CONCO FOOD DISTRIBUTORS
702 So.2d 944 (La.App. 3 Cir. 1997)
Constitutionality: Sua Sponte Modifications of Change in Condition Application Denied
Employer Due Process
WLR FOODS, INC. V. CARDOSA
494 S.E.2d 147 (Va.App. 1997)
Credit: Employer Entitled Only to Credit for Number of Weeks Paid Prior to Reduction of
Original Award
PHILIP ELECTRONICS V. WRIGHT
703 A.2d 150 (Md. 1997)
Decision: Inadequate As It Did Not Address Functional Overlay
METROPOLITAN AMBULANCE, INC. V. W.C.A.B.
702 A.2d 881 (Pa.Cmwlth. 1997)
Decision: Inadequate As It Did Not State Which Evidence Relied on
STATE EX REL. MANN V. INDUS. COMM.
687 N.E.2d 773 (Ohio 1998)
Employee: As Work Performed by Claimant of Subcontractor Was Part of Trade or Business
He Was Employee
UNINSURED EMPLOYER'S FUND V. CLARK
494 S.E.2d 474 (Va.App. 1998)
Employee: Claimant Injured During Pre-Employment Not Yet Employee and Not Covered by
Workers' Compensation
YOUNG V. TOLEDO HOSP.
688 N.E.2d 1128 (Ohio App. 6 Dist. 1996)
Employee: Uncompensated Worker Is Employee by Appointment If He Is in Service of
Employer
AMERICAN STATES INS. CO. V. BROECKELMAN
957 S.W.2d 461 (Mo.App. S.D. 1997)
Estoppel: Employer Could Not Deny Employee Status Where Agents Advised Him He Would Be
Covered by Workers' Compensation
TRI-UNION EXP. V. W.C.A.B. (HICKLE)
703 A.2d 558 (Pa.Cmwlth. 1997)
Evidence: Admission of Job Description Form Not Properly Provided to Claimant
Constituted Reversible Error
LEMOINE V. HARRIS MANAGEMENT CO.
702 So.2d 951 (La.App. 3 Cir. 1997)
Evidence: Claimant Was Not Required to Present Objective Medical Evidence for Soft
Tissue Injury
BALLY'S GRAND HOTEL & CASINO V. REEVES
948 P.2d 1200 (Nev. 1997)
Evidence: Error Not to Consider Testimony of Claimant's Orthopedic Surgeon
LINEBACK V. WAKE COUNTY BOARD OF COMM'RS
486 S.E.2d 252 (N.C.App. 1997)
Evidence: Vocational Rehabilitation Expert Could Not Base His Opinion on Medical
Reports Not in Evidence
ROBERTS V. J.C. PENNEY CO.
949 P.2d 613 (Kan. 1997)
Evidence: Workers' Compensation Claimant Not Required to Offer Objective Evidence That
Healing Period Continues
CHAMBER DOOR INDUSTRIES, INC. V. GRAHAM
956 S.W.2d 196 (Ark.App. 1997)
Evidence Substantial: Claimant Had Reached Preinjury Status and Not Entitled to Medical
Benefits
GROVE V. ALASKA CONST. AND ERECTORS
948 P.2d 454 (Alaska 1997)
Evidence Substantial: Claimant Sustained Back Injury at Work
MUSSO V. EARTH MOVERS INC.
659 N.Y.S.2d 105 (A.D. 3 Dept. 1997)
Evidence Substantial: Discogram Caused Discitis and Thus It Was Compensable
EASTERLY V. BEAULIEU OF AMERICA, INC.
703 So.2d 397 (Ala.Civ.App. 1997)
Evidence Substantial: 1988 Back Injury Did Not Result in 1993 Disability
SACRED HEART HOSP. V. W.C.A.B. (MUTIS)
703 A.2d 577 (Pa.Cmwlth. 1997)
Exclusivity: Barred Employee's Intentional and Negligent Infliction of Emotional
Distress Claim
ACCIAVATTI V. PROFESSIONAL SERVICES GROUP, INC.
982 F.Supp. 69 (D.Mass. 1997)
Exclusivity: Barred Negligent and Intentional Infliction of Emotional Distress
HINCHEY V. NYNEX CORP.
979 F.Supp. 40 (D.Mass. 1997)
Exclusivity: Did Not Bar Employee's Action Against Employer for Intentional Infliction
of Emotional Distress
McCREARY V. LIBBEY-OWENS-FORD CO.
132 F.3d 1159 (7th Cir. 1997)
Exclusivity: Discharge After False Accusation of Stealing Drugs Covered Exclusively by
Workers' Compensation Act
KIRTON V. SUMMIT MEDICAL CENTER
982 F.Supp. 1381 (N.D.Cal. 1997)
Exclusivity: FECA Barred Employee's Tort Action Against Co-Employee
SALAZAR V. BALLESTEROS
981 F.Supp. 960 (E.D.Va. 1997)
Exclusivity: Flight Attendant Barred from Bringing Any Negligence Action Against His
Employer
IN RE AIR CRASH DISASTER AT CHARLOTTE, N.C.
982 F.Supp. 1101 (D.S.C. 1997)
Exclusivity: Insurance Company and Agent Who Acted as Safety Consultant Not Immune from
Tort Liability
WILSON V. REBSAMEN INS., INC.
957 S.W.2d 678 (Ark. 1997)
Exclusivity: Owner of Building in Which Nursing Home Located Not Liable in Tort for
Employee Killed in Elevator
VANERSTROM V. STRASSER
659 N.Y.S.2d 77 (A.D. 2 Dept. 1997)
Fee Dispute: Third Party Workers' Compensation Administrator Had No Jurisdiction to
Resolve Fee Dispute Between Claimant and Representative
FALK V. WACHS
689 N.E.2d 71 (Ohio App. 9 Dist. 1996)
Heart Attack: Resulted from Extraordinary and Unusual Physical Work Load
McCLENDON V. KEITH HUTCHINSON LOGGING
702 So.2d 1164 (La.App. 1 Cir. 1997)
In Course of Employment: Assault by Fellow Employee at Restaurant After Hours Not
Compensable
STIVISON V. GOODYEAR TIRE & RUBBER CO.
687 N.E.2d 458 (Ohio 1997)
In Course of Employment: Claimant Who Left Job for Federally Sponsored Job Retraining
in the Work Force When Injured
LINNTON PLYWOOD ASS'N V. HANSEN
949 P.2d 743 (Or.App. 1997)
In Course of Employment: Injury While Helping Stranded Motorist Not Compensable
OLDE SOUTH CUSTOM LANDSCAPING V. MATHIS
494 S.E.2d 14 (Ga.App. 1997)
Intentional Tort: For Failure to Provide Adequate Security at a Package Store
BLACK V. JOHN SKIDMORE TRUCK STOP, INC.
493 S.E.2d 887 (W.Va. 1997)
Intentional Tort: None for Inadequate Security While Moving Money
McGOVERN V. RESORTS INTERN. HOTEL
703 A.2d 364 (N.J.Super.A.D. 1997)
Joint and Several Liability: Among Solvent Insurers for Cumulative Injury
INDUSTRIAL INDEM. CO. V. W.C.A.B.
70 Cal.Rptr.2d 295 (Cal.App. 4 Dist. 1997)
Judicial Review: Available for Denial of Inmate's Claim Under Accident Compensation Act
JOHNSTONE V. U.S.
980 F.Supp. 148 (E.D.Pa. 1997)
Jurisdiction: Court of Appeal Lacked Jurisdiction to Review Temporary or Partial Award
FORKUM V. ARVIN INDUSTRIES, INC.
956 S.W.2d 359 (Mo.App. S.D. 1997)
Jurisdiction: Court of Common Pleas Lacked Jurisdiction to Consider Employer's
Challenge to Validity of Claim
WEIN V. SEAMAN CORP.
687 N.E.2d 477 (Ohio App. 9 Dist. 1996)
Longshore: 8F Relief Where Employer Sufficiently Quantified Degree by Which Preexisting
Disability Worsened Partial Disability
NEWPORT NEWS SHIPBUILDING V. DIRECTOR, OWCP
131 F.3d 1079 (4th Cir. 1997)
Notice: Failure to Give Employer Notice Within 30 Days Not Fatal as Employer Not
Prejudiced
HOLMES V. J.E. MERIT CONSTRUCTORS, INC.
702 So.2d 1126 (La.App. 3 Cir. 1997)
Posttraumatic Stress Disorder: Not Compensable as Not Caused by Physical Injuries
AMLEASE, INC. V. KULIGOWSKI
957 S.W.2d 715 (Ark.App. 1997)
Premiums: President of Corporation Not Personally Liable for Company's Failure to Pay
Premiums
RABOIN V. N.D. WORKERS COMP. BUREAU
571 N.W.2d 833 (N.D. 1997)
Public Policy: Barred Claim by Employer Against Third Party to Recover Lost Premium
Discounts
VOGEL V. LIBERTY MUT. INS. CO.
571 N.W.2d 704 (Wis.App. 1997)
Res Judicata: Application Not Precluded by Statute Authorizing Workers' Compensation
Bureau to End, Diminish or Increase Workers' Compensation Previously Awarded
CRIDLAND V. N.D. WORKERS COMP. BUR.
571 N.W.2d 351 (N.D. 1997)
Retraining Incentive Benefit: Available for Workers Who Voluntarily Choose to Leave
Mining Industry
HARLAN KENTUCKY VIRGINIA COAL V. BAKER
Ky.App., 957 S.W.2d 728
Sanctions: Permitted for Filing Improper Notice of Appeal
SOMMERS V. STATE COMPENSATION INS. FUND
494 S.E.2d 82 (Ga.App. 1997)
SEB: Award for Employee Earning 90% of Prior Wage Due to Working Increased Hours
BOURGEOIS V. AKZO NOBEL SALT, INC.
702 So.2d 762 (La.App. 3 Cir. 1997)
Second Injury Fund: Denial as Claimant Not Previously Impaired Person
MIVILLE V. SPECIAL INDEM. FUND
949 P.2d 687 (Okla.Civ.App. Div. 1 1997)
Second Injury Fund: Separate and Distinct Injuries Can Be Combined for Purposes of
Liability
CRIPPEN V. WALKER
572 N.W.2d 97 (Neb.App. 1997)
Statutory Employer: Corporation Not Statutory Employer of Inspector
RAMSBURG V. TARGET STORES, INC.
982 F.Supp. 1194 (W.D.Va. 1997)
Statutory Employer: Partnership Which Hired Management Firm to Oversee Management Not
Statutory Employer
HARRELL V. PINELAND PLANTATION, LTD.
494 S.E.2d 123 (S.C.App. 1997)
Stipulation: As to Compensable Injury Did Not Relieve Claimants of Proving Disability
U S WEST COMMUNICATIONS, INC. V. TABORSKI
572 N.W.2d 81 (Neb. 1998)
Subrogation: Award of More Than Economic Damages Sought Did Not Prove She Had Been
Fully Compensated
BARTOW COUNTY BD. OF EDUC. V. RAY
494 S.E.2d 29 (Ga.App. 1997)
Subrogation: Exclusion of Uninsured Motorist Benefits for Injuries Covered by Workers'
Compensation Invalid
EMPLOYERS CAS. CO. V. DYESS
957 S.W.2d 884 (Tex.App.-Amarillo 1997)
Subrogation: Insurance Carrier Permitted to Assign Right of Reimbursement to Third
Party
WICHMAN V. BENNER
948 P.2d 484 (Alaska 1997)
Suicide: By Taking Overdose of Pain Medication Was "Self-Inflicted" and Not
Compensable
VANCE V. TRIMBLE
688 N.E.2d 1049 (Ohio App. 10 Dist. 1996)
Temporary Total Disability: Award Abuse of Discretion as No Medical Evidence Tied
Disability to Injury
STATE EX REL. V. INDUS. COMM.
689 N.E.2d 30 (Ohio 1998)
Temporary Total Disability: None for Working in Pain
JONES V. EL MESERO RESTAURANT
702 So.2d 1133 (La.App. 3 Cir. 1997)
Third Party Action: Insurer Waived to Object to Settlement by Failing to Appear at Hearing
HERLACHE V. BLACKHAWK COLLISION REPAIR
572 N.W.2d 121 (Wis.App. 1997)
Third Party Action: Workers' Compensation Carrier Not Entitled to Apportionment Where
Settlement Stated It Did Not Include Carrier's Subrogation
AIK SELECTIVE SELF INS. FUND V. MAY
Ky.App., 957 S.W.2d 257