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July 1998
Volume 18, Number 7
Monthly Sections:
Just when you think you have heard it all, something new surfaces in workers' compensation.
American Airlines has instituted an "employee-counselor" program to "assist employees through the complicated workers' compensation process". These counselors "understand the company's needs" and will set up doctors' appointments, check to see if employees kept their appointments and "how they went", and will decide whether to assign a medical case manager. American Airlines has 21 "employee-counselors".
You are trying a workers' compensation case and the insurer is attempting to introduce evidence of the other benefits your client is collecting to prove or at least imply malingering. Can you keep the evidence out?
The recent Washington Supreme Court case of Johnson v. Weyerhauser Co., No. 65131 (April 2, 1998) held that the collateral source rule applied to the trial of workers' compensation cases.
The court stated:
The risk of misuse of the evidence is one of the foundations of the collateral source rule ... the risk is fundamentally the same in both personal injury and workers' compensation cases ... the same rationale we have applied for 85 years to bar evidence of collateral source payments in personal injury actions applies with equal force to workers' compensation proceedings.
The merger of occupational and nonoccupational is a reality and could spell the end of litigation for workers' compensation medical benefits. Pacific Bell in San Francisco has completed a pilot program for 4,000 employees.
In the program managed care plans treated workers' compensation claimants, and occupational and nonoccupational medical treatment was merged. Workers' compensation costs dropped 29 percent, temporary total disability costs were down 41 percent, and lost days, number of physician visits, medical costs, number of medical procedures, and duration of medical care were also reduced.
Nurse case managers were used to "micromanaged" medical care and return to work efforts.
For a copy of the report "Single Source Medical Care: Pacific Bell's Pilot Program Results" call 415-222-7280.
A policy analyst for the Competitive Enterprise Institute has recommended that other states, i.e. Massachusetts, follow the lead of Texas and provide fundamental workers' compensation reform, i.e. permitting employers to "opt out" of the workers' compensation system completely. The analyst points out that opting out has "worked in Texas" where 39 percent of employers do not participate in the workers' compensation system.
What about the "workers' compensation bargains" struck between employers and employees in the early part of the century?
The analyst points out that non-subscribers have a good deal more flexibility and freedom in how they handle the potential expense of employee injuries.
For additional information see The Standard, "Regulation Stifles Mass. Auto, Comp. Markets, Report Says", May 1, 1998, page 5.
At a recent insurance conference a risk manager explained the problem with workers' compensation claimants as a H.Y.M.N.S. problem, i.e., "Hey you owe me now syndrome". The risk manager explained how his company cut down on workers' compensation costs by "not settling workers' compensation claims at face value and dealing with fraud claims severely."
Ten occupations account for nearly one third of all workers' compensation injuries and illnesses requiring recuperation away from work. The list of occupations putting workers at risk are:
For additional information call 202-606-6170.
Burlington, Vermont attorney Keith J. Kasper was good enough to share with WCM a recent workers' compensation decision in which the claimant, a 44-year-old receptionist at a local high school, was denied benefits for multiple chemical sensitivity syndrome (MCSS) but awarded benefits for closed building syndrome
The court found that the fact that the claimant may be "hypersensitive to these conditions and that the conditions may meet or exceed governmental standards is legally irrelevant in a workers' compensation case, as the law does not distinguish between weak and strong employees."
On the medical conditions the court's analysis is instructive:
MCSS can generally be described as an ongoing sensitivity to exposure to certain chemicals or environmental conditions in the aftermath of some previous, usually more intense exposure to the same or different chemicals. The World Health Organization refers to MCSS as "idiopathic environmental intolerance".
There is great controversy in the scientific community whether MCSS exists. It is not recognized by the American Medical Association, the American College of Allergy and Immunology, or the American College of Environmental and Occupational Medicine. On the other hand, the Social Security Administration has recognized MCSS as a disability and the Department of Housing and Urban Development has apparently recognized MCSS as a factor in public housing decisions; the U.S. Environmental Protection Agency recognizes MCSS as an issue for school air quality while not specifically acknowledging it exists (Claimant's Exhibit 1). MCSS is recognized by the American Academy of Environmental Medicine (the so-called "clinical ecologists"), an organization to which Dr. Moore belonged until 1995.
There is no accepted theory for the causation of MCSS. Some believe it may be precipitated by smell; others disagree. Some believe there is a psychological component. To date there is no valid double blind study using control groups.
In contrast, there does appear to be some agreement in the scientific community that CBS exists as a definable illness. A recent article in the November 20, 1997 New England Journal of Medicine refers to CBS as "non-specific building related illness" and says it describes "a heterogeneous group of work-related symptoms - including irritation of the skin and mucous membranes of the eyes, nose, and throat, headache, fatigue, and difficulty concentrating. These are considered illnesses on the basis of the occurrence of symptoms, even though affected workers do not have objective clinical or laboratory abnormalities and causative agents cannot be found. The symptoms may be considered building related even if the only supportive evidence is workers' reports." The hallmark of CBS, according to Dr. Davis, is that it is transient - it goes away when the patient leaves the building.
The difference between CBS and MCSS is that while both illnesses may be caused by exposure to unspecified agents within in a closed building, CBS is alleviated or cured by the patient's removal from that environment whereas MCSS is ongoing, despite removal from the suspect environment, with a recurrence of symptoms triggered by exposure to various agents or circumstances too inconsequential in themselves to provoke illness in non-sensitized individuals.
According to the New England Journal article, supra, studies of CBS indicate greater susceptibility among women, workers with asthma, or those with previous building related symptoms.
For additional information see the Petit case, No. J-15842 (April 28, 1998).
Attorney Kasper, counsel for the employer, may be reached at 802-863-3494 or (fax) 802-865-9747.
The American Medical Association is taking the Fifth Edition on the road. In a July 21, 1998 seminar, the physician heading up the Fifth Edition discussed what changes are likely, what changes should be made, and what should be done about the use of the Guides to estimate permanent partial disability.
For additional information contact Linda Cocchiarella, MD at the American Medical Association.
Workers' compensation insurers and self-insurers are very concerned about proposals in nine states to increase benefits for injured workers. A recent article entitled "Workers' Compensation Rates Face Pressure from Regulators" point out that workers' compensation has been
`turning a profit' since 1991 ... with the industry realizing healthy profits there is a growing pressure to lower premiums and allow injured workers bigger payments for a longer period of time.
For additional information see Best's Review, May 1998, page 82, or call 908-439-2200.
Occupational Medicine: State of the Art Reviews has devoted an entire issue to workers' compensation.
The April/June issue contains articles of interest to workers' compensation practitioners on adjudicating claims, occupational lung disease, evidence-based medical dispute resolution, applying epidemiology to adjudication, disability evaluation, independent medical evaluations and impairment ratings, workers' compensation fraud, and the use of financial incentives to reduce occupational injuries.
For additional information contact the publisher at 215-546-4995 or (fax) 215-790-9330.
If you are representing injured workers in latex cases or are pursuing latex third party cases you should obtain the Latex Allergy News.
For a sample copy call 860-482-6869 or fax your request to 860-482-2294.
Workers' compensation insurers and self-insured employers are very concerned about the "cracks" developing in the exclusive remedy doctrine. Tim East in risk management at Walt Disney recommends that employers "lobby their state legislatures to maintain or restore the exclusive remedy precepts in workers' compensation". Of particular concern to employers are the dual capacity doctrine, intentional injuries, and employment and contractual relationships.
For additional information see BNA Workers' Compensation Report, May 11, 1998, "Exclusive Remedy", page 249, or call 800-372-1033.
The issue of privacy in workers' compensation, i.e. the disclosure of claimant's medical records, is heating up nationwide. The attorneys for claimants seek to protect the confidentiality of the records and have started to bring suit to enforce this right to privacy. The workers' compensation insurers and self-insured employers say they need the information to make informed decisions on workers' compensation cases and to contest claims which are not legitimate. Employers argue that privacy restrictions will also delay workers' compensation claims.
For example, in Montana a company was telling workers injured on the job that they had to sign a broad release to receive medical treatment and lost wages. The form covered unrelated psychiatric and psychological treatment as well. This is being contested by the AFL/CIO.
Look for state and federal legislation on workers' compensation privacy shortly. In addition, look for new causes of action for blatant violations.
Which parts of the body are most affected by workers' compensation injuries?
The Pennsylvania Worker Injury and Illness Report is instructive:
Injuries to the trunk area (abdomen, back, chest, hips, shoulders) accounted for about 31.8 percent (28,096) of the total cases reported in 1997. Back injuries alone (17,834) represented 20 percent of the annual total. The upper extremities (arms, wrists, hands, fingers) were injured in over 25 percent of the cases (22,192) and the lower extremities (legs, ankles, feet, toes) in 19.7 percent (17,389) of the cases. Most of the trunk area injuries (22,600, 80 percent) were sprains and strains. Over 32 percent (7,235) of the upper extremity injuries were cuts, lacerations, punctures and over 47 percent (8,248) of the lower extremity injuries were sprains or strains.
For additional information see the Pennsylvania Work Injury and Illness Report, 1997. For a copy write to Statistician Terry L. Titus and staff of the Employer's Report Section, Bureau of Workers' Compensation, 1171 South Cameron Street, Room 113, Harrisburg, Pennsylvania 17104-2501.
How are the state workers' compensation systems working? In California alone state auditors issued 10,000 penalty assessments totalling $1.27 million against workers' compensation insurers and administrators.
The reasons for the penalties:
- high amounts of unpaid workers' compensation
- late payments of benefits
- failure to notify employees of their rights.
ANKLE
Dinger v. K-Mart Corp., 667 N.Y.S.2d 860 (A.D. 3 Dept. 1998)
ARM: AMPUTATION
Central GMC v. Lagana, 706 A.2d 639 (Md.App. 1998)
ASBESTOSIS
Bath Iron Works v. Director, O.W.C.P., 137 F.3d 673 (1st Cir. 1998)
Dir., Workers' Comp. v. Newport News Shipbuilding, 138 F.3d 134 (4th Cir. 1998)
BACK
Amoratis v. W.C.A.B. (Carolina Freight), 706 A.2d 368 (Pa.Cmwlth. 1998)
Calcara v. W.C.A.B. (St. Joseph Hosp.), 706 A.2d 1286 (Pa.Cmwlth. 1998)
Croman v. W.C.A.B. (Tp. of Marple), 706 A.2d 408 (Pa.Cmwlth. 1998)
Eljer Industries v. W.C.A.B. (Evans), 707 A.2d 564 (Pa.Cmwlth. 1998)
Flink v. North Dak. Workers Comp. Bureau, 574 N.W.2d 784 (N.D. 1998)
Fulton v. W.C.A.B. (School Dist.), 707 A.2d 579 (Pa.Cmwlth. 1998)
Harding v. W.C.A.B. (Arrowhead Indus.), 706 A.2d 896 (Pa.Cmwlth. 1998)
Haskell Corp. v. Filippi, 953 P.2d 396 (Or.App. 1998)
Hinton v. Labor Source, 953 P.2d 358 (Okla.Civ.App. Div. 1 1997)
Hughes v. Steuben County Self-Insurance, 669 N.Y.S.2d 716 (A.D. 3 Dept. 1998)
Hunter v. W.C.A.B. (Jack Greenberg Co.), 706 A.2d 403 (Pa.Cmwlth. 1998)
Johnson v. Weyerhaeuser Co., 953 P.2d 800 (Wash. 1998)
Jones v. Sterling Last Corp., 962 S.W.2d 469 (Tenn. 1998)
Kuntz v. Nationwide Mut. Fire Ins. Co., 952 P.2d 422 (Mont. 1998)
Loberg v. North Dakota Workers Comp., 575 N.W.2d 221 (N.D. 1998)
Mashuda Corp. v. W.C.A.B. (Ferrari), 706 A.2d 374 (Pa.Cmwlth. 1998)
Weaver v. Cost Cutters, 953 P.2d 851 (Wyo. 1998)
BACK: DISC
Albert Einstein Med. Center v. W.C.A.B., 707 A.2d 611 (Pa.Cmwlth. 1998)
Britton v. City of Natchitoches, 707 So.2d 142 (La.App. 3 Cir. 1998)
Case of Taylor, 691 N.E.2d 997 (Mass.App.Ct. 1998)
Cox v. North River Homes, 706 So.2d 743 (Ala.Civ.App. 1997)
Hutchinson v. Fred's Painting, 707 So.2d 150 (La.App. 4 Cir. 1998)
McJunkin v. Cellasto Plastic, 573 N.W.2d 72 (Mich.App. 1997)
Sargent v. Co-Ad, Inc., 953 P.2d 593 (Idaho 1998)
BACK: SPONDYLOLISTHESIS
State Ex Rel. Hartness v. Kroger Co., 692 N.E.2d 181 (Ohio 1998)
BRAIN INJURY
Cerka v. Salt Lake County, 988 F.Supp. 1420 (D.Utah 1997)
Landers v. Chrysler Corp., 963 S.W.2d 275 (Mo.App. E.D. 1997)
Sopko v. C & R Transfer Co., Inc., 575 N.W.2d 225 (S.D. 1998)
BURNS
Haber v. St. Paul Guardian Ins. Co., 137 F.3d 691 (2nd Cir. 1998)
Littlefield v. Mobil Exploration and Producing, 988 F.Supp. 1403 (D.Utah 1996)
Rison v. Air Filter Systems, Inc., 707 A.2d 675 (R.I. 1998)
CARPAL TUNNEL SYNDROME
Beckstead v. W.C.A.B., 71 Cal.Rptr.2d 254 (Cal.App. 2 Dist. 1997)
Bryant v. Ireco, Inc., 963 S.W.2d 346 (Mo.App. E.D. 1997)
CLOSED HEAD INJURY
Fray v. Spokane County, 952 P.2d 601 (Wash. 1998)
CONTACT DERMATITIS
Sanders v. Dunlop Tire Corp., 706 So.2d 716 (Ala.Civ.App. 1996)
ELBOW
Nabisco Brands, Inc. v. W.C.A.B. (Almara), 706 A.2d 877 (Pa.Cmwlth. 1998)
ELECTROCUTION
Kirkland v. Allcraft Steel Co., Inc., 496 S.E.2d 624 (S.C. 1998)
FINGER: AMPUTATION
Hudson v. Tomkins Industries, 691 N.E.2d 1146 (Ohio App. 2 Dist. 1997)
HAND
Allen v. Louisiana Wood Moulding Corp., 706 So.2d 636 (La.App. 2 Cir. 1998)
High Capacity Products v. Moore, 962 S.W.2d 831 (Ark.App. 1998)
Sahara Hotel & Casino v. Holden, 953 P.2d 268 (Nev. 1998)
HAND: PARTIAL AMPUTATION
Pedro v. Liberty Lines Exp., 667 N.Y.S.2d 859 (A.D. 3 Dept. 1998)
HEAD
Cook v. Kaldi's Coffee House, 706 So.2d 1052 (La.App. 4 Cir. 1998)
HIP
McClune v. W.C.A.B., 72 Cal.Rptr.2d 898 (Cal.App. 4 Dist. 1998)
HIP: BROKEN
Baggott v. Southern Music, Inc., 496 S.E.2d 852 (S.C. 1998)
KNEE
Dana Corp. v. W.C.A.B. (Hollywood), 706 A.2d 396 (Pa.Cmwlth. 1998)
Fleischmann v. Director, Office of Workers' Compensation, 137 F.3d 131 (2nd Cir. 1998)
Hust v. North Dakota Workers Comp. Bureau, 574 N.W.2d 808 (N.D. 1998)
Hammer v. City of Fairbanks, 953 P.2d 500 (Alaska 1998)
LUNGS
Gilman Paper Co. v. Davis, 496 S.E.2d 469 (Ga.App. 1998)
MESOTHELIOMA
Faulkner Const. v. Silicosis Fund, 574 N.W.2d 685 (Mich.App. 1997)
MYOCARDIAL INFARCTION
Creaturo v. W.C.A.B., 707 A.2d 245 (Pa.Cmwlth. 1998)
NECK
Fair Meadows v. Ward, 950 P.2d 885 (Okla.Civ.App. Div. 1 1997)
NECK: DISC
Atkinson v. Peterson/T & P Foundation, 962 S.W.2d 912 (Mo.App. S.D. 1998)
Ex Parte Dunlop Tire Corp., 706 So.2d 729 (Ala. 1997)
NOSE BLEEDS
Friedlander v. Health and Hosp. Corp., 667 N.Y.S.2d 847 (A.D. 3 Dept. 1998)
POSTTRAUMATIC STRESS DISORDER
Special Fund Div. v. Industrial Com'n, 953 P.2d 541 (Ariz. 1998)
PSYCHOLOGICAL
McKesson Drug Co. v. Williams, 706 So.2d 352 (Fla.App. 1 Dist. 1998)
Wyche v. W.C.A.B. (Pimco), 706 A.2d 1297 (Pa.Cmwlth. 1998)
PSYCHOLOGICAL PAIN DISORDER
Thomas v. Conrad, 692 N.E.2d 205 (Ohio 1998)
QUADRIPLEGIA
Tinch v. Video Indus. Services, Inc., 497 S.E.2d 295 (N.C.App. 1998)
SHOULDER
Avondale Industries, Inc. v. Pulliam, 137 F.3d 326 (5th Cir. 1998)
Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997)
USAir, Inc. v. W.C.A.B. (Keene), 706 A.2d 888 (Pa.Cmwlth. 1998)
SINUSITIS
Hammelman v. Dreesen Enterprises, Inc., 575 N.W.2d 176 (Neb.App. 1998)
TIBIA: FRACTURE
Trickel v. J.F. Judski Associates Inc., 669 N.Y.S.2d 411 (A.D. 3 Dept. 1998)
TRAUMATIC MYOSITIS
State Ex Rel. Motakentta v. Indus. Comm., 691 N.E.2d 1046 (Ohio 1998)
WRIST: BROKEN
Bostwick v. M.A.P.P. Industries, Inc., 707 So.2d 441 (La.App. 5 Cir. 1997)
WRIST: LIGAMENT TEAR
Demogola v. Shellhouse Sawmill, 574 N.W.2d 688 (Mich.App. 1997)
Constitutionality: Title of Act Not Descriptive
FRAY V. SPOKANE COUNTY
952 P.2d 601 (Wash. 1998)
The Washington Supreme Court dealt with the plaintiff, Fray, who was employed as a law enforcement officer. He sustained a closed head injury when he was sent into an armed altercation without backup. He sued his employer in tort for negligence.
His employer attempted to interpose an exclusivity defense arguing that the act which extinguished the rights of police officers to sue their employers for negligence controlled.
The court found that the act was unconstitutional as it did not properly describe its contents.
The court stated:
A title is in compliance with the section if it provides notice that would "lead to an inquiry into the body of the act, or indicate to an inquiring mind the scope and purpose of the law." However, the "mere reference to a section in the title of an act does not state a subject."
The title of the 1992 amendments does not express the subject of the act. It merely states "AN ACT Relating to making technical corrections" without referring to the substance of those corrections. Readers of this title would not be led "to an inquiry into the body of the act" nor would they be apprised of the "scope and purpose of the law." Instead, readers would be misled into thinking the amendments propose mere "technical corrections", when in fact they made a substantive change in LEOFF by depriving Plan II members of the right to sue - a right they had since 1971. Accordingly, the bill is unconstitutional under article II, section 19 of the Washington Constitution, and the members of LEOFF Plan II retain their right to sue as provided in the 1971 amendments and reaffirmed through four successive amendments. Because we conclude the 1992 law is unconstitutional under article II, section 19, we need not reach the constitutionality of the amendment under article II, section 37.
Controversion: Letter to Physician
HAMMER V. CITY OF FAIRBANKS
953 P.2d 500 (Alaska 1998)
The Alaska Supreme Court dealt with the claimant, Hammer, who injured his knee at work in April 1993 and was given a 13 percent impairment rating under the AMA Guides, Third Edition Revised. The employer asked the doctor to redo the letter based on the Third Edition and then later mailed the claimant's check to an old address. On January 10, 1995, the claimant finally received his check. The employer attempted to argue that a penalty was not due as the letter to the physician was a "controversion" and thus the check was not late.
The court rejected the argument that the letter was a proper "controversion" and stated:
The superior court held that the City's letter to Dr. Tanner requesting clarification was a good faith controversion of the claim. Hammer argues that it was not a controversion under AS 23.30.155(d).
The City does not argue on appeal that its letter was a controversion. We agree that it was not. The City's letter did not comply with the statutory requirements for a controversion. AS 23.30.155(a). If the City had knowledge of Hammer's injury and was aware of the obligations imposed on it by AS 23.30.155(b) and (e) when it received Dr. Tanner's first letter, and the City's letter seeking clarification was not a controversion, then it follows that Hammer received his check 83 days after the City's obligation to pay was triggered. The Board's award of the penalty to Hammer was authorized by AS 23.30.155(e).
Double Compensation: Illegal Employment of 17 Year Old
DEMOGOLA V. SHELLHOUSE SAWMILL
574 N.W.2d 688 (Mich.App. 1997)
The Michigan Court dealt with the claimant, Demogola, who was a 17-year-old minor at the time that he worked for defendant. Defendant operates a sawmill and harvests and ships Christmas trees. Defendant did not obtain a work permit for plaintiff. Plaintiff assisted in the harvesting of Christmas trees. Although he did not cut down the trees, plaintiff would drag the trees to the road, where a chain would be attached to load the tree into a bundler. The bundled trees would then be loaded into a tractor-trailer, either to be stacked for storage or to be loaded into a dry van for transportation.
On November 25, 1991, plaintiff was helping to load bundled trees into a dry van. David Shellhouse, one of defendant's co-owners, threw down a six-foot tree to plaintiff, who was not ready to catch it. The tree struck plaintiff on the side of his left wrist. Plaintiff went to the emergency room for treatment and was ultimately diagnosed with a tear of his ligaments. He had to undergo wrist surgery.
The court reversed the denial of double compensation finding that it was not necessary to prove that a minor be employed in hazardous duty before he could obtain double compensation.
The court stated:
Because plaintiff's employment was violative of the YESA where he did not have a work permit, worked for more than six consecutive days, and worked more than 48 hours in some weeks, plaintiff's employment was illegal and he is entitled to double compensation under Sec. 161(1)(b) of the WDCA.
Employee Status: Ski Patrol Member
FITZPATRICK V. HOLIMONT INC.
669 N.Y.S.2d 88 (A.D. 3 Dept. 1998)
The New York Court dealt with the claimant, Fitzpatrick, who in March 1994 was performing her duties as a member of the ski patrol when she was injured in a collision with a snowmobile. She filed a workers' compensation claim, and the employer defended on the ground that she was not an employee as she was not "paid a salary".
The court affirmed the award of benefits finding that due to the right to control, furnishing of equipment, and nature of the work she was in fact an employee and entitled to workers' compensation.
The court stated:
Here, Holimont pays the cost of operating the ski patrol, provides workers' compensation coverage for the members of the ski patrol and vaccinates members of the ski patrol against Hepatitis-B at its own expense. Furthermore, according to the handbook approved by Holimont and supplied to the ski patrol, Holimont retains the right to discharge and discipline any member of the ski patrol. Holimont also designates the times that the ski patrol inspects and "sweeps" the slopes, during which time the ski patrol reports the condition of the slopes via a two-way radio supplied by Holimont; the report is then used to determine whether the slopes will be opened or closed.
Members of the ski patrol wear a parka bearing the name Holimont Ski Patrol. Holimont subsidized claimant's purchase of the parka and, upon turning the parka in, claimant was reimbursed $240 out of the $250 that she paid for it. In addition, testimony established that, although not paid a salary per se, ski patrol members are given free skiing privileges for the season and other benefits in exchange for their participation in patrolling the ski slopes. In view of the foregoing, we conclude that substantial evidence supports the decision that claimant was an employee of Holimont.
Employment Status: Workfare Employee
HUGHES V. STEUBEN COUNTY SELF-INSURANCE
669 N.Y.S.2d 716 (A.D. 3 Dept. 1998)
The New York Court dealt with the claimant, Hughes, who was a recipient of public assistance provided by the Steuben County Department of Social Services (the County), and sustained an injury to her back while participating in a workfare program sponsored by the County. The injury occurred while the claimant was working as a kitchen aide at East Corning Senior Center, a facility owned and/or under the control of the Steuben County Economic Opportunity Program (SCEOP). The claimant was found eligible to receive workers' compensation as a result of her injury. Subsequently, a dispute arose between the County and SCEOP and its carrier, the Sate Insurance Fund, as to who was responsible for paying the claimant's benefits. Ultimately, in a series of decisions, the Workers' Compensation Board ruled that the County was fully liable for the payment of these benefits. These appeals by the County followed.
The court rejected the argument that SCEOP was liable as a special employer. The court found that based on the control of the county, the county was the sole employer.
The court stated:
Here, the record confirms that although SCEOP did supervise claimant's day-to-day activities, the County nonetheless retained substantial overall control over important aspects of claimant's work. For example, claimant received no wages from SCEOP and instead received public assistance benefits, reimbursement for work-related expenses and a lunch allowance from the County. The number of hours claimant worked was dependent upon the size of her public assistance grant. The County required claimant to complete time sheets and submit other related paperwork. Only the County could determine whether a proffered excuse by claimant for a work absence was acceptable and the County retained the power to monitor and evaluate the worksite. In our view, this and other proof constituted substantial evidence supporting the Board's determination of the County's status as claimant's sole employer.
Evidence: Expert Testimony on "Major Cause" of Disability
HIGH CAPACITY PRODUCTS V. MOORE
962 S.W.2d 831 (Ark.App. 1998)
The Arkansas Court dealt with the claimant, Moore, who worked for the employer for five years. She used an air gun to assemble blocks with a quota goal of one thousand units per day. She was required to assemble each block by using an air-powered appliance to attach two nuts to each block. She would hold the parts of the unit with her left hand and work the air gun with her right hand. She averaged using the air gun to attach a nut every fifteen seconds, according to the testimony of her supervisor. The majority of her time was consumed in this quota assembly. Her job required three maneuvers to be repeated in succession all day: assembling the separate parts, using the air-compressed equipment to attach the parts together with nuts, and throwing the units into a box.
The evidentiary issue was whether expert medical testimony was required to prove the injury was the "major cause" of the disability.
The court fund that expert medical testimony was not so required. The court stated:
"Major cause" means more than 50 percent of the cause of the disability or need for treatment and it is established by a preponderance of the evidence presented to the Commission. Ark.Code Ann. Sec. 11-9-102(14)(A) (Repl.1996). Appellant asserts that an expert, meaning a physician, must state what the major cause was. However, the legislature did not so limit the acceptable evidence that could be considered.
Evidence: Neuropsychologist on Brain Deficits
LANDERS V. CHRYSLER CORP.
963 S.W.2d 275 (Mo.App. E.D. 1997)
The Missouri Court dealt with the claimant, Landers, who was hit on the head by a skyhook while loading engines at the Chrysler plant. He had a cerebral concussion and post concussion syndrome. The claimant was also examined by Dr. Richard Wetzel, a clinical psychologist who practiced neuropsychology. Dr. Wetzel performed a battery of cognitive tests including intelligence tests, memory tests, tests for concentration and attention, tests for verbal skills, and tests for visual perceptual abilities. Based on the results of these tests and interviews with claimant and his wife, Dr. Wetzel concluded that claimant had sustained brain dysfunction and depression as a result of the blow to his head on September 13, 1989.
The court as matter of first impression found that the neuropsychologist was qualified to testify as to causation of organic brain damage. The court reviewed similar cases in other jurisdictions and stated:
The record supports the Commission's determination that Dr. Wetzel was qualified to testify as an expert as to the causation of claimant's injuries. Dr. Wetzel practices neuropsychology and is a full professor in neurology and in neurological surgery at Washington University School of Medicine. Dr. Wetzel has been published in medical journals and is a Fellow of the American Psycho-pathological Association. He teaches neurolo-gists, neurosurgeons, and psychiatrists in the area of his expertise. Dr. Wetzel explained that clinical neuropsychology is the assessment, testing, and evaluation of people with disorders that may be psychiatric or related to a dysfunction in the brain. When it comes to assessing the cause and existence of brain damage, neurologists and neurosurgeons at Washington University School of Medicine come to Dr. Wetzel for both advice and training. Further, neurosurgeons rely on Dr. Wetzel to identify the area of the brain where surgery should be performed. One would be hard-pressed to conclude that Dr. Wetzel lacks the medical knowledge, skill, experience, or training simply because he is a psychologist and not a doctor of medicine.
Exclusivity: Injury at Temporary Labor Bunkhouse
BOSTWICK V. M.A.P.P. INDUSTRIES, INC.
707 So.2d 441 (La.App. 5 Cir. 1997)
The Louisiana Court dealt with the plaintiff, Bostwick, who was employed by MAPP, a temporary labor service company. Because the plaintiff was without housing and short of funds, he moved into a bunkhouse, owned and operated by MAPP. The rent was $35 per week to reside there and meals were provided at an additional cost of about $13 per day. Only MAPP employees could reside at the bunkhouse. However, employees were not required to live there nor were they required to go on every job that was offered. It was to MAPP's advantage to have a ready work force on hand. But, living at the bunkhouse was optional, for the mutual convenience of both the employee and MAPP.
Three days after he started to live at the bunkhouse, the stairs gave way and he was seriously injured. He sued MAPP in tort and they interposed a workers' compensation exclusivity defense.
The court rejected the defense finding that he was not in the course of his employment when injured.
The court stated:
While he was not working, he was not being paid anything by his employer. Plaintiff was residing at the bunkhouse which was owned and operated by his employer. Only MAPP employees could reside at the bunkhouse. However, it was not a condition of his employment that he reside at the bunkhouse. He was free to reside anywhere and still receive calls for work. Also, he was not on 24-hour call for his employer. The residents of the bunkhouse were not required to go out on all jobs that were offered and could decline offered employment opportunities, if so inclined. Further, the bunkhouse residence and food was not provided by the employer as payment for employment. To the contrary, plaintiff paid $35 per week for his bed and privileges and about $13 per day for his food if he consumed three meals.
Therefore, upon reviewing the record, we do not find any evidence that the injury arose out of the employment.
In Course of Employment: Assault by Co-Employee in Bar
BAGGOTT V. SOUTHERN MUSIC, INC.
496 S.E.2d 852 (S.C. 1998)
The South Carolina Supreme Court dealt with the claimant, Baggott, who was the manager of SMI which leases coin-operated game machines. While at SMI on a Friday the claimant received a message late in the afternoon from Rudder; Rudder requested quarters and repair of a jukebox. Responding to the request, the claimant went to Tiny's Tub between 6:00 and 6:30 p.m., delivered the quarters, and repaired the jukebox and a pool table. When he completed his work, he began to play a game of pool with a friend and to drink a beer.
According to the claimant, Kenny McDowell, claimant's fellow employee, entered the bar, angrily cursing at the claimant about a work-related matter. McDowell stated to claimant, "you almost got my son killed. You turned on the alarm." The claimant testified McDowell "came at him". Although the claimant attempted to defend himself with a pool cue, McDowell assaulted claimant. The claimant suffered a broken hip.
The court reversed the denial of benefits finding that as the assault arose out of an employment dispute and the claimant was "working" when confronted he was injured in the course of his employment.
The court stated:
Claimant's injury also occurred "in the course of" his employment. It is uncontroverted claimant performed employment-related duties at Tiny's Tub. Immediately prior to the assault, claimant was not performing work-related duties. However, when McDowell entered Tiny's Tub and confronted claimant about a work-related matter, claimant was compelled to resume his work duties for SMI. McDowell then assaulted claimant. Under these circumstances, claimant was injured while in the course of his employment.
In Course of Employment: Mailing Personal Letter
KISH V. NURSING AND HOME CARE, INC.
706 A.2d 1372 (Conn.App. 1998)
The Connecticut Court dealt with the claimant, Kish, who was employed as a salaried registered nurse. She visited patients in their homes and oversaw their care. One of the plaintiff's patients was an elderly woman for whom she had reserved a commode at a New Canaan supply house because the commode the woman was using appeared unsafe. The plaintiff's supervisor told her not to deliver the commode herself, but to have the patient's caretaker pick it up. While visiting that patient on April 26, 1994, the plaintiff noted that her physical condition has worsened and thought that her makeshift commode was unsafe and needed to be replaced as soon as possible. The plaintiff, therefore, decided to drive to the supply house to pick up the commode. While driving to the supply house, the plaintiff saw a postal truck parked on the opposite side of the street. Recalling that she had a greeting card to mail to a friend, the plaintiff stopped and parked her car. The plaintiff exited her car, crossed the street, and handed the card to the mail carrier. While crossing back to her car, the plaintiff was struck by an automobile.
The court affirmed the award of workers' compensation finding that the deviation to mail a letter was not substantial and did not remove her from the scope of her employment.
The court stated:
Because the plaintiff was in the course of her employment while driving to pick up the commode for her patient, her slight deviation for the purpose of mailing a card did not substantially remove her from the scope of her employment. The plaintiff's actions, as found by the commissioner, were not an abandonment of her employment, but rather a deviation of inconsequential proportions. The plaintiff fully intended to bring herself back within the course and scope of her employment upon returning to her car. We conclude, therefore, that the board properly affirmed the commissioner's determination that the plaintiff's injuries arose out of and occurred in the course of her employment.
Notice: Failure to Give Employer Notice
BRYANT V. IRECO, INC.
963 S.W.2d 346 (Mo.App. E.D. 1997)
The Missouri Court dealt with the claimant, Bryant, who was employed as a laborer and millwright for Ireco for 20 years. His work activities included overhauling pumps, changing the gauge on a catalytic converter, automotive repair, operation of a cherrypicker, overhauling compressors, and preventive maintenance. In March 1992, a supervisor told claimant to see a doctor regarding nose bleeds. He was also experiencing pain and numbness in his first two fingers and thumb of his right hand, his dominant hand. He informed his immediate supervisor, K.D. Warren, and two other supervisors of the condition. He "felt" that his right wrist problems were related to his work, but he did not share the feeling with his supervisors. He was informed by a supervisor that he had health insurance coverage. He filed a claim with the health insurance carrier provided by Ireco.
He finally filed his workers' compensation claim in February 1994 and then employer defended on lack of proper notice.
The court reversed the denial of benefits finding that lack of prior notice did not bar recovery as the claimant and employer shared the same level of knowledge.
The court stated:
As a question of fact, there is no evidence to support a finding the claim for compensation was barred by a failure to give notice to employer of facts known to claimant. Claimant timely informed employer of his conditions and medical treatment. As a question of law, claimant was not obligated by statute to give notice of feelings or suspicions based upon the matters equally known to claimant and employer.
Notice: Payment of Medical Bills
INFANTE V. MANSFIELD CONST. CO.
706 A.2d 984 (Conn.App. 1998)
The Connecticut Court dealt with the claimant, Infante, who was injured at work in an auto accident in November 1986. He was paid temporary total compensation and his medical bills were paid for 6 1/2 years. The insurer later defended the case on the grounds that the claimant never filed a notice of claim.
The court affirmed the award of workers' compensation finding that the payment of the medical bills constituted the "furnishing of medical treatment" which was an exception to the filing of notice requirement.
The court stated:
The Workers' Compensation Act is liberally construed in favor of the employee and is to be interpreted with sufficient liberality to carry into effect its beneficial purpose and to prevent the defeat of this purpose by narrow and technical definition. Zurich's payment of medical bills for an extended period, under the particular facts and circumstances of this case, constitutes the furnishing of medical treatment. We conclude, therefore, that the commission had jurisdiction over this claim pursuant to the medical treatment exception to Sec. 31-294c (c).
Penalties: Late Payment of Workers' Compensation
CROMAN V. W.C.A.B. (TP. OF MARPLE)
706 A.2d 408 (Pa.Cmwlth. 1998)
The Pennsylvania Court dealt with the claimant, Croman, who was employed by the Township of Marple as a custodian and sustained an injury to his lower back on November 16, 1989 when he moved a 50-pound bag of dry ice. On January 5, 1990, the employer issued a Notice of Compensation Denial, but, on February 19, 1990, issued a Notice of Compensation Payable, accepting liability for Croman's lower back injury. The employer commenced compensation payments at that time.
The workers' compensation judge found a late payment but under his discretion denied penalties.
The court reversed the denial of benefits finding that the workers' compensation judge's discretion was not unfettered and that penalties were due.
The court stated:
Here, the Board noted the approximate three-month delay between Croman's report of injury and the commencement of compensation, yet, citing the WCJ's discretion, declined to inquire into the decision not to impose penalties. While it may be a correct statement of the law to say that imposition of penalties is within the discretion of a WCJ, that discretion cannot be unfettered. Here, the Board, and we, are faced with only the conclusory statement of the WCJ that "[Croman] has not presented sufficient evidence to support his position of violation of the [Act] by the Defendant for failure to make timely compensation payments." (Finding of Fact No. 29, WCJ's decision, July 1, 1994). Given the WCJ's finding that Croman sustained an injury on November 16, 1989, his finding that the employer did not issue a notice of compensation denial until January 5, 1990, as well as his finding that the employer did not commence payments until the following February (albeit after having issued a notice of compensation denial in the interim), we conclude that the WCJ abused his discretion in refusing to assess penalties or otherwise say why penalties were unwarranted.
Recreational Injury: Softball
EDDY V. ROCHESTER-GENESEE REGIONAL TRANSP.
669 N.Y.S.2d 699 (A.D. 3 Dept. 1998)
The New York Court dealt with the claimants, Eddy and Hoyt, who were both employees of the Regional Transit Service, a subsidiary of the Rochester-Genesee Regional Transportation Authority (employer), and were injured in separate incidents occurring in July 1994 while playing on a softball team organized at their place of employment. The team's participation in the softball league was funded by the Regional Transit Service Sunshine Fund (the Sunshine Fund), which was established to promote goodwill and morale among the employees. The Sunshine Fund obtained its moneys from a percentage of the revenues generated by vending machines located at the workplace as a result of negotiations between the employer's executive director and general manager, John Garrity, and certain beverage distributors. Following claimants' injuries, both filed claims for workers' compensation benefits.
The employer defended the case arguing that the injuries were not incurred in the course of their employment.
The court affirmed the award of benefits finding that the employer exercised sufficient control and sponsorship over the team to make the injuries compensable.
The court stated:
Here, the team members were required to wear uniforms paid for by the Sunshine Fund. The hats supplied to the players bore the employer's logo. In addition, the uniforms remained the property of the employer and had to be returned within 30 days after a player resigned from the team. Furthermore, practice schedules and printed materials encouraging employees to "play RTS softball" were displayed on bulletin boards and in the lounge areas at the employer's premises.
Moreover, while the softball games were funded by the Sunshine Fund, the evidence indicates that this entity was formed at the employer's initiative to, in part, promote the employer's goals. The Sunshine Fund's committee consisted of representatives from management and labor, and all committee business took place during working hours on the employer's premises. Any deadlocks with respect to the Sunshine Fund's actions were to be decided by Garrity.
Reinstatement of Workers' Compensation: Elimination of Favored Work Position
McJUNKIN V. CELLASTO PLASTIC
573 N.W.2d 72 (Mich.App. 1997)
The Michigan Court dealt with the claimant, McJunkin, who ruptured a disc at work in January 1991 and underwent a hemilaminectomy in December 1991. He was offered light duty work but made only a brief one-time attempt to perform the job. His surgeon testified that he could do light work.
Shortly after the surgeon's deposition, which plaintiff attended, plaintiff phoned defendant and offered to return to work at the modified "net assembly" job. However, according to defense testimony at the trial of this case, the job had been phased out and was no longer being held for plaintiff. According to the defense witnesses, the job had been restructured and would no longer accommodate plaintiff's limitations because it was being performed by two workers instead of by three as when plaintiff attempted it in June 1992.
The court found that the claimant was entitled to reinstatement after he attempted to return to work despite the fact that the employer had held the position open for a reasonable time before eliminating it.
The court stated:
Here, after hearing his surgeon testify and before he had any knowledge that the offer of favored work was no longer available, plaintiff initiated contact with defendant in an attempt to return to work and attempt the light-duty, "net assembly" job. He was not informed until later that the job offer was withdrawn and that there was no other favored work available within his restrictions. Under those circumstances, it was no longer the unreasonable actions of the plaintiff that could justify withholding benefits, but rather the actions of the employer in withdrawing the offer previously made. As Derr holds, the Legislature did not intend a permanent forfeiture of benefits, and once an offer has been withdrawn, benefits must be reinstated as long as the employee is available for work. This is the exact situation presented here. Because defendant has offered no evidence that plaintiff is not available for work, benefits must be reinstated.
Settlement: Reopening Due to Unforeseen Consequences
SOPKO V. C & R TRANSFER CO., INC.
575 N.W.2d 225 (S.D. 1998)
The South Dakota Supreme Court dealt with the claimant, Sopko, who on August 25, 1974, while employed by C & R Transfer Company, Inc., was struck on the head by a bursting split-rim from a truck tire. The explosion perforated both his tympanic membranes and caused severe cranial injuries, requiring restorative treatment. He also experienced seizures. To control them, his doctors prescribed Dilantin, which he was to take "indefinitely". The insurer paid Sopko's medical expenses and temporary total disability benefits for six months while he was unemployed. The final medical bills for the original injury were paid on December 2, 1976.
He later developed spinal meningitis but settled his case including future medicals in 1981. In 1984, after his seizures increased, he filed to reopen his claim and the insurer pled the settlement and release.
The court held that the settlement agreement could not foreclose reopening in the event of a chance of condition resulting from an undiscovered injury.
The court stated:
When an injured worker seeks to reopen a settlement which includes a waiver of future rights, the focus is on whether the asserted change in condition derives from an injury unknown at the time of the settlement or from a known injury with its disabling character unknown. C & R contends imminent problems resulting from Sopko's seizure activity were "clearly contemplated, anticipated, and foreseeable at the time of the settlement agreement". The Department, however, concluded Sopko had not foreseen a permanent disability at the time of the settlement in August 1981: "the first time the employee discovered that the seizure activity ... might be related to the 1974 accident was when Dr. Gates rendered his opinion, following the right temporal lobectomy, that he believed the seizure activity was related to the scar tissue he had observed during the lobectomy.
As the Department correctly held, the settlement agreement cannot deprive it of jurisdiction otherwise conferred by statute in these circumstances. The Department found Sopko's physical condition substantially changed from the time the 1981 settlement was executed and C & R has failed to establish such findings of fact were clearly erroneous.
Suitable Employment: Good Cause to Reject Offer
USAIR, INC. V. W.C.A.B. (KEENE)
706 A.2d 888 (Pa.Cmwlth. 1998)
The Pennsylvania Court dealt with the claimant who was employed as a flight simulator engineer in Pittsburgh when he injured his shoulder at work. He was placed on workers' compensation benefits and relocated to New Orleans when his wife was offered a job with a pay increase of $27,000 if she would relocate to New Orleans.
In February and March 1993, physicians released claimant to perform a modified simulator engineer position that included lifting and carrying weight restrictions. Employer subsequently offered claimant a modified duty simulator engineer position at employer's Pittsburgh location. Claimant refused the position, but offered to accept one in his geographic area. Employer then filed its suspension petition, asserting that work was available to claimant at the Pittsburgh location.
The court affirmed the award of benefits finding that the job offer was not reasonable and thus the claimant had "good cause" to reject it.
The court stated:
In sum, we have no basis to conclude that the distant position offered here was actually available for purposes of the Act or that claimant should have accepted it. Claimant relocated in good faith and the job offered to him was simply too far from his residence to be considered within his reach. The authority cited above compels the conclusion reached by the WCJ under these circumstances that employer did not sustain its burden of proof on its suspension petition.
Third Party Action: Setoff for Specific Compensation
RISON V. AIR FILTER SYSTEMS, INC.
707 A.2d 675 (R.I. 1998)
The Rhode Island Supreme Court dealt with the claimant, Rison, who suffered devastating third-degree burns over 78 percent of his body in an industrial accident on March 3, 1987. He was placed on weekly workers' compensation and settled his third party case for over $2.5 million. The workers' compensation carrier was then ordered to pay $52,582 to the claimant in specific compensation. The issue was then how was this "specific award" to be handled.
The court held that "compensation" includes specific compensation and that when a claimant receives specific compensation after the third party action is settled the claimant is to be immediately credited with a setoff against the excess-settlement proceeds.
The court stated:
Accordingly an injured employee who receives a specific-compensation award after his or her recovery of a third-party settlement or judgment is to be immediately credited with a setoff against the excess-settlement proceeds recovered from the third party in the form of a reduction of the suspension period.
As applied to the facts in this case, this credit reduces the $2.5 million of excess settlement proceeds used to calculate the Sec. 28-35-58 suspension period by approximately $53,000 - the same result that would obtain in the case of a pre-settlement specific-compensation award. We also note that the immediate vesting of the specific-compensation award in the form of this setoff satisfied in our opinion Sec. 28-33-19's requirement that awards be credited in a one-time lump-sum amount and also heeds Sec. 28-33-24's mandate that "specific compensation ... payments shall be vested and are not to be divested by any subsequent happening or contingency.
Willful and Intentional Act: Mine Safety Citations
COATES V. GUTHRIE
707 So.2d 204 (Ala. 1997)
The Alabama Supreme Court dealt with the decedent, Guthrie, a coal miner who was killed in a mining accident when a portion of the roof in an underground mine collapsed. His widow then sued co-employees and the mine under an intentional and willful act theory. This was based on Mine Safety and Health Administration (MSHA's) safety citations issued to safety managers before the accident.
The court rejected the argument that the MSHA's notice took the place of the statutory notice required by the employee.
The court stated:
The undisputed evidence indicates that Mr. Guthrie did not provide the notice required by Sec. 25-5-11(c)(4). The plaintiff concedes this. We hold, therefore, that the defendants are entitled to a summary judgment on the plaintiff's Sec. 25-5-11(c)(4) claim. In so holding, we note the plaintiff's policy argument that, in the mining context, the MSHA's safety citations should provide sufficient notice to support a cause of action for damages against a co-employee. In this respect, this argument is similar to the one made in Mallisham v. Kiker, 630 So.2d 420 (Ala.1993), where the plaintiff in a co-employee action under Sec. 25-5-11(c)(2) argued that mining safety is not as concerned with machines as manufacturing safety is, and, therefore, that Sec. 25-5-11(c)(2) should be extended, in the mining context, to include devices pertaining to the safety of the mine itself. In rejecting the plaintiff's arguments in Mallisham, we stated:
"The legislature has retained a limited right of action against a co-employee under Sec. 25-5-11(c)(2) for the removal of a manufacturer's safety device from a machine, not the removal or omission of any safety device from any workplace environment. Such a change in the law must be left to the legislature."
Willful Misconduct: Disobedience of Safety Instruction
ALLEN V. LOUISIANA WOOD MOULDING CORP.
706 So.2d 636 (La.App. 2 Cir. 1998)
The Louisiana Court dealt with the claimant, Allen, who had been operating a "whirlwind saw" for about one hour when the saw began to spray sawdust. Allen testified that David Nutt, the LWMC plant supervisor, was at hand and instructed him to check to see if the suction vent line was clogged. Nutt denied this, maintaining that he merely told Allen to turn off the machine. Nevertheless, Nutt never claimed to have given Allen any other directive at that moment preceding the accident.
In order to check the suction system, Allen cut the power off and immediately opened the door to the encasement. Allen stated that he had similarly cleared the suction system on the industrial saw which became clogged with wood chips on a daily basis. Unlike the industrial saw and unbeknownst to Allen on this day, the whirlwind saw had no blade guard. When he opened the door and reached inside to the area of the suction system, his fingers of his left hand came into contact with the still-spinning, unshielded saw blade.
The insurer rejected the willful misconduct/ failure to follow a safety instruction defense.
The court reversed the denial of benefits and stated:
Likewise, we reject LWMC's argument regarding Allen's disobedience of safety instructions which prohibited him and other employees from performing maintenance on the machinery. Allen's actions, despite those instructions and however careless, were performed in good faith effort to continue his work task in the presence of his supervisor, who was also attempting to alleviate the sawdust problem on the other side of the table saw where the suction line exited the machine.
His heedless and careless act was common negligence within the protection of the workers' compensation bargain under the law.
Accident: Nose Bleeds from Air Conditioning Not Accidental Injury
FRIEDLANDER V. HEALTH AND HOSP. CORP.
667 N.Y.S.2d 847 (A.D. 3 Dept. 1998)
Appeal: Court Did Not Have Jurisdiction to Entertain Appeal of Interlocutory Order
GILMAN PAPER CO. V. DAVIS
496 S.E.2d 469 (Ga.App. 1998)
Appeal: Court Lacked Subject Matter Jurisdiction to Consider Appeal on Disability
HUDSON V. TOMKINS INDUSTRIES
691 N.E.2d 1146 (Ohio App. 2 Dist. 1997)
Appeal: Decision Involved Extent of Disability Thus Was Not Appealable
THOMAS V. CONRAD
692 N.E.2d 205 (Ohio 1998)
Appeal: Insurer Required to File Amended Petition After Order on Reconsideration
HASKELL CORP. V. FILIPPI
953 P.2d 396 (Or.App. 1998)
Appeal: Time Is Not Extended by Motion to Vacate
FAIR MEADOWS V. WARD
950 P.2d 885 (Okla.Civ.App. Div. 1 1997)
Attorney Fees: For Arbitrary Reduction of Claimant's Benefits
BRITTON V. CITY OF NATCHITOCHES
707 So.2d 142 (La.App. 3 Cir. 1998)
Attorney Fees: No Additional Fees as No Proof of Appeal Filed Solely for Delay
COOK V. KALDI'S COFFEE HOUSE
706 So.2d 1052 (La.App. 4 Cir. 1998)
Average Weekly Wage: No Reason to Utilize Fall-Back Provision for Calculating Average Weekly Wage
BOSSIE V. SCHOOL ADMIN. DIST. NO. 24
706 A.2d 578 (Me. 1997)
Benefit Cap: Vocational Rehabilitation Job Placement Services Were Subject to $60,000 Benefit Cap
GROGAN V. LUTHERAN MEDICAL CENTER, INC.
950 P.2d 690 (Colo.App. 1997)
Benefits: Board Exceeded Its Authority by Allowing Claimant to Elect Benefits Rate
CASE OF TAYLOR
691 N.E.2d 997 (Mass.App.Ct. 1998)
Borrowed Servants: Employees of Labor Services Company Were Borrowed Servants
RIDER V. POOL OFFSHORE CO.
987 F.Supp. 943 (E.D.La. 1997)
Borrowed Servant: Issue of Fact as to Whether Store Employee Was Borrowed Servant of Cleaning Company
COLEMAN V. MINI-MAC MAINTENANCE SERVICE
706 So.2d 393 (Fla.App. 1 Dist. 1998)
Claim: No Need to Amend Claim to Allege Cumulative Trauma Injury
BECKSTEAD V. W.C.A.B.
71 Cal.Rptr.2d 254 (Cal.App. 2 Dist. 1997)
Common Activity: Masonry Contractor Not Engaged in Common Activity with Excavation Subcontractor
CARSTENS V. MAYERS, INC.
574 N.W.2d 733 (Minn.App. 1998)
Constitutionality: Ex Parte Communication Between Counsel and Judge Violated Claimant's Due Process Rights
LAPIA V. TOWN OF STRATFORD
706 A.2d 11 (Conn.App. 1997)
Constitutionality: Failure to Advise Claimant of Rehabilitation Options Constitutional Failure to Give Required Notice of Intent to Discontinue Workers' Compensation
FLINK V. NORTH DAK. WORKERS COMP. BUREAU
574 N.W.2d 784 (N.D. 1998)
Constitutionality: Termination of Benefits After Conviction for Fraud Conviction Constitutional
SLUGOCKI V. U.S. BY AND THROUGH DEPT. OF LABOR
988 F.Supp. 1443 (S.D.Fla. 1997)
Coverage: Carrier and Employer Estopped from Denying Coverage
CH WELL SERVICING, INC. V. STATE INS. FUND
953 P.2d 762 (Okla.Civ.App. Div. 1 1997)
Coverage: Workers' Compensation Statute Applied to Construction Employer That Employed Claimant and One Other Employee
ATKINSON V. PETERSON/T & P FOUNDATION
962 S.W.2d 912 (Mo.App. S.D. 1998)
Credit: For Unemployment Compensation
FERRERO V. W.C.A.B.
706 A.2d 1278 (Pa.Cmwlth. 1998)
Decision: Inadequate as It Ignored and Failed to Explain Evidence Favorable to the Claimant
LOBERG V. NORTH DAKOTA WORKERS COMP.
575 N.W.2d 221 (N.D. 1998)
Decision: Valid Even Though Member Resigned Before Date of Decision
NELSON V. LAKE VIEW BIBLE CHAPEL
953 P.2d 596 (Idaho 1998)
Dependents: Workers' Compensation Statutes Do Not Authorize Payment of Workers' Compensation Benefits to Non-Dependent Children
SAHARA HOTEL & CASINO V. HOLDEN
953 P.2d 268 (Nev. 1998)
Due Process: Failure to Grant Reconsideration Violated Claimant's Due Process Rights
McCLUNE V. W.C.A.B.
72 Cal.Rptr.2d 898 (Cal.App. 4 Dist. 1998)
Earning Capacity: Evidence Substantial That Worker Suffered 26% Decrease Due to Contact Dermatitis
SANDERS V. DUNLOP TIRE CORP.
706 So.2d 716 (Ala.Civ.App. 1996)
Election of Remedies: Settlement of Suit Before Filing Workers' Compensation Claim Was Binding Election of Remedies
CENTRAL GMC V. LAGANA
706 A.2d 639 (Md.App. 1998)
Employee: Housekeeper Worked Less Than 40 Hours a Week Was Not Residence Employee
HABER V. ST. PAUL GUARDIAN INS. CO.
137 F.3d 691 (2nd Cir. 1998)
Employer: Security Company Which Provided Services to Saudi Arabian Royal Family Was Not Employer Liable for Workers' Compensation
VANCE INTERN. V. INDUSTRIAL COM'N
952 P.2d 336 (Ariz.App. Div. 1 1998)
Employment Status: Driver Independent Contractor and Not Employee of Cab Company
WALTERS V. AMERICAB, INC.
692 N.E.2d 234 (Ohio App. 8 Dist. 1997)
Evidence: Collateral Source Rule Bars Evidence of Collateral Benefits in Workers' Compensation Case
JOHNSON V. WEYERHAEUSER CO.
953 P.2d 800 (Wash. 1998)
Evidence: Competent Substantial Evidence Standard Applied to Psychiatric Illnesses
McKESSON DRUG CO. V. WILLIAMS
706 So.2d 352 (Fla.App. 1 Dist. 1998)
Evidence: Medical Report Not Disclosed Until Day Before Trial Not Admissible
JOHNSON V. FORD NEW HOLLAND, INC.
575 N.W.2d 392 (Neb. 1998)
Evidence: Not Necessary in Termination Case for Employee to Present Medical Evidence of Causation
DANA CORP. V. W.C.A.B. (HOLLYWOOD)
706 A.2d 396 (Pa.Cmwlth. 1998)
Evidence: Unequivocal Medical Testimony Required to Prove Causal Connection
CALCARA V. W.C.A.B. (ST. JOSEPH HOSP.)
706 A.2d 1286 (Pa.Cmwlth. 1998)
Evidence Substantial: Back Surgery Not Causally Related to Twisting Incident Three Years Previously
SARGENT V. CO-AD, INC.
953 P.2d 593 (Idaho 1998)
Evidence Substantial: Claimant Failed to Prove Fall at Work Resulted in Back Injury
WEAVER V. COST CUTTERS
953 P.2d 851 (Wyo. 1998)
Evidence Substantial: Firefighter's Death Compensable Despite Very High Level of Cocaine in Blood
CITY OF PHILADELPHIA V. W.C.A.B. (CRONIN)
706 A.2d 377 (Pa.Cmwlth. 1998)
Evidence Substantial: No Permanent Partial Due for Back Injury
KUNTZ V. NATIONWIDE MUT. FIRE INS. CO.
952 P.2d 422 (Mont. 1998)
Evidence Substantial: No Relationship Between 1988 Leg Injury and 1991 Back Injury
TRICKEL V. J.F. JUDSKI ASSOCIATES, INC.
669 N.Y.S.2d 411 (A.D. 3 Dept. 1998)
Evidence Substantial: Sinusitis Causally Related to Broken Nose at Work
HAMMELMAN V. DREESEN ENTERPRISES, INC.
575 N.W.2d 176 (Neb.App. 1998)
Evidence Substantial: Smoking Not Asbestos Exposure Caused Cancer
BATH IRON WORKS V. DIRECTOR, O.W.C.P.
137 F.3d 673 (1st Cir. 1998)
Exclusivity: Barred Claim by Maintenance Man Against Manager of Property Who Was Special Employer
GUBITOSI V. NATIONAL REALTY CO.
669 N.Y.S.2d 321 (A.D. 2 Dept. 1998)
Exclusivity: Barred Claim for Indemnity and Contribution Against Employer and Co-Employee
STATE V. SUPERIOR COURT (GLOVSKY)
71 Cal.Rptr.2d 256 (Cal.App. 2 Dist. 1997)
Exclusivity: No Evidence That Use of Extendable Line Curtain Was Safety Guard or Device
PITTS V. BEASLEY
706 So.2d 711 (Ala. 1997)
Exclusivity: Sexual Harassment Inflicted on Employee by Supervisor Was Accident Under Workers' Compensation Act
HIBBEN V. NARDONE
137 F.3d 480 (7th Cir. 1998)
Hearing: Claimant Entitled to Expert Fees for Physician and Vocational Evaluation
HUTCHINSON V. FRED'S PAINTING
707 So.2d 150 (La.App. 4 Cir. 1998)
Intentional Tort: Failure to Instruct Not Intentional Misconduct in Winch
TINCH V. VIDEO INDUS. SERVICES, INC.
497 S.E.2d 295 (N.C.App. 1998)
Intentional Tort: Knowingly Requiring Employee to Work with Contaminated Ventilation System Not Intentional Tort
CERKA V. SALT LAKE COUNTY
988 F.Supp. 1420 (D.Utah 1997)
Jurisdiction: Employee Was Resident and Where Contract Was Entered Controlled
JANZEN V. W.C.A.B.
71 Cal.Rptr.2d 260 (Cal.App. 3 Dist. 1997)
Jurisdiction: Mississippi Court Did Not Have Jurisdiction to Hear Permanent and Total Claim from Wyoming Workers' Compensation Act
ROUTH V. STATE EX REL. WORKERS' COMP. DIV.
952 P.2d 1108 (Wyo. 1998)
Longshore: Averaging Wages of Jobs Found by Employer for Claimant Is Reasonable Method of Determining Earning Capacity
AVONDALE INDUSTRIES, INC. V. PULLIAM
137 F.3d 326 (5th Cir. 1998)
Longshore: Bulkhead Was Pier within Act and Met Situs Test
FLEISCHMANN V. DIRECTOR, OFFICE OF WORKERS' COMP.
137 F.3d 131 (2nd Cir. 1998)
Longshore: Claimant's Disability Not Materially Greater Than Without Preexisting Condition
DIR., WORKERS' COMP. V. NEWPORT NEWS SHIPBUILDING
138 F.3d 134 (4th Cir. 1998)
Loss of Use: 50% for Loss of 2/3 of Thumb Was Proper
PEDRO V. LIBERTY LINES EXP.
667 N.Y.S.2d 859 (A.D. 3 Dept. 1998)
Medical Bills: Employer Should Not Have Been Ordered to Pay Bills Incurred After Date Disability Ceases
MASHUDA CORP. V. W.C.A.B. (FERRARI)
706 A.2d 374 (Pa.Cmwlth. 1998)
Medical Condition: Determination Is a Question of Fact
DINGER V. K-MART CORP.
667 N.Y.S.2d 860 (A.D. 3 Dept. 1998)
Medical Expenses: Employer Not Responsible for Unreasonable and Unnecessary Medical Expenses
ALBERT EINSTEIN MED. CENTER V. W.C.A.B.
707 A.2d 611 (Pa.Cmwlth. 1998)
Mistake of Fact: Failure to Recognize That Claimant Reached Maximum Medical Improvement When Extending Temporary Total Not Mistake of Fact
STATE EX REL. SCHIRTZINGER V. MIHM
692 N.E.2d 193 (Ohio 1998)
Misrepresentation: No Forfeiture of Workers' Compensation Benefits for Immaterial False Representation on Mileage
CHENAULT V. STOREHOUSE FURNITURE
706 So.2d 1060 (La.App. 4 Cir. 1998)
Notice: Bureau of Workers' Compensation Assignments Documents Mailed to Employer Sufficient Notice of Work Injury
HUNTER V. W.C.A.B. (JACK GREENBERG CO.)
706 A.2d 403 (Pa.Cmwlth. 1998)
Notice: Failure to Give Notice of Decision to Counsel Required Nunc Pro Tunc Appeal
PHILADELPHIA V. W.C.A.B. (OPERACZ)
706 A.2d 1292 (Pa.Cmwlth. 1998)
Notice: Termination of Employment Does Not Relieve Employee from Obligation to Give Notice Under Workers' Compensation Statute
JONES V. STERLING LAST CORP.
962 S.W.2d 469 (Tenn. 1998)
Partial Disability: 66 2/3% of Difference Between Initial Average Weekly Wage and Present Earning Power
ELJER INDUSTRIES V. W.C.A.B. (EVANS)
707 A.2d 564 (Pa.Cmwlth. 1998)
Penalty: $5,000 Penalty Not Due for Employer's Failure to File Occupational Injury Report
WYCHE V. W.C.A.B. (PIMCO)
706 A.2d 1297 (Pa.Cmwlth. 1998)
Penalty: For Failure to Pay Medical Bill Within Statutory Time
DAVIS V. CITY OF NEW ORLEANS
706 So.2d 669 (La.App. 4 Cir. 1998)
Permanent and Total: 39-Year-Old Former Laborer with Bad Back Entitled to Permanent and Total Disability
STATE EX REL. HARTNESS V. KROGER CO.
692 N.E.2d 181 (Ohio 1998)
Premiums: Insurer Did Not Have Duty to Disclose Pricing Information Upon Which Dividends Would Be Calculated
CSSARA V. AMERICAN HOME ASSUR. CO.
73 Cal.Rptr.2d 182 (Cal.App. 1 Dist. 1998)
Presumption: Firefighter Presumption Rebutted by Evidence That Heart Attack Not Caused by Exertion
CREATURO V. W.C.A.B.
707 A.2d 245 (Pa.Cmwlth. 1998)
Reinstatement: Judge Permitted to Reject Testimony of Medical Witness Who Did Not Review Prior Medical Records
HARDING V. W.C.A.B. (ARROWHEAD INDUS.)
706 A.2d 896 (Pa.Cmwlth. 1998)
Reopening: None Where Claimant Did Not Show Change of Condition or Circumstances
BROWN V. ROUSE CO.
706 So.2d 547 (La.App. 4 Cir. 1998)
Safety Violation: Claimant Had to Reach into Danger Zone Despite Robotic Use and Thus Removal of Safety Guard Was Safety Violation
STATE EX REL. SCOTT FETZER V. INDUS. COMM.
692 N.E.2d 195 (Ohio 1998)
Second Injury Fund: Employer's Failure to Notify Commission of Intent to Seek Reimbursement Did Not Bar Recovery
SECOND INJURY FUND V. AM. YARD PRODS.
496 S.E.2d 862 (S.C. 1998)
Second Injury Fund: Written Records and Oral Testimony Satisfied Written Record Requirements
SPECIAL FUND DIV. V. INDUSTRIAL COM'N
953 P.2d 541 (Ariz. 1998)
Set Off: For Disability Pension Paid in Lieu of Wages
EX PARTE DUNLOP TIRE CORP.
706 So.2d 729 (Ala. 1997)
Settlement: Claimant Not Disabled at Time of Settlement and Thus Not Set Aside
FULTON V. W.C.A.B. (SCHOOL DIST.)
707 A.2d 579 (Pa.Cmwlth. 1998)
Silicosis Dust Fund: Not Liable as Peritoneal Mesothelioma Not Common and Widespread
FAULKNER CONST. V. SILICOSIS FUND
574 N.W.2d 685 (Mich.App. 1997)
Statutory Construction: Amendment on Failure to Appeal Applied Retroactively
WOLFF V. SAIF
952 P.2d 1036 (Or.App. 1998)
Statutory Employee: Employee of Oil Well Servicing Contractor Statutory Employee
LITTLEFIELD V. MOBIL EXPLORATION AND PRODUCING
988 F.Supp. 1403 (D.Utah 1996)
Statutory Maximum: Calculation Included Workers' Compensation Paid in Error
STATE EX REL. MOTAKENTTA V. INDUS. COMM.
691 N.E.2d 1046 (Ohio 1998)
Stipulation: Third Party's Stipulation That It Was Responsible for Satisfaction of Lien by Insurer Was Binding
KIRKLAND V. ALLCRAFT STEEL CO., INC.
496 S.E.2d 624 (S.C. 1998)
Subrogation: Insurer's Lien Not Defeated by Fact That Claimant Not Made Whole by Third Party Settlement
LIBERTY MUT. INS. CO. V. GARRY
574 N.W.2d 895 (S.D. 1998)
Suitable Employment: Claimant Who Refused Full Time Light Duty Within Restrictions Did Not Make Good Faith Effort to Pursue Work
AMORATIS V. W.C.A.B. (CAROLINA FREIGHT)
706 A.2d 368 (Pa.Cmwlth. 1998)
Temporary Total: Award Need Not Be Supported by Opinion of Treating Physician
LYMBURN V. SYMBIOS LOGIC
952 P.2d 831 (Colo.App. 1997)
Temporary Total: Employer Required to Inform Claimant of Availability of Light Duty Work
HINTON V. LABOR SOURCE
953 P.2d 358 (Okla.Civ.App. Div. 1 1997)
Third Party Action: Participation in Settlement Did Not Waive Insurer's Right to Claim Offset Against Future Workers' Compensation
ANDREWS V. ICAO
952 P.2d 853 (Colo.App. 1997)
Third Party Action: Workers' Compensation Carrier Subrogated Without Limitation of Benefits That Were Reasonable and Necessary
TEXAS WORKERS' COMP. INS. FUND V. SERRANO
962 S.W.2d 536 (Tex. 1998)
Total Disability: Absent Evidence That Job Available Within Restrictions Claimant Entitled to Temporary Total
NABISCO BRANDS, INC. V. W.C.A.B. (ALMARA)
706 A.2d 877 (Pa.Cmwlth. 1998)
Voluntary Intoxication: Benefits Denied Due to Impairment by Claimant from Alcohol Consumption
HUST V. NORTH DAKOTA WORKERS COMP. BUREAU
574 N.W.2d 808 (N.D. 1998)
Willful Misrepresentation: Unreasonable for Court to Rely on Claimant's Previous Illness to Prove Misrepresentation
COX V. NORTH RIVER HOMES
706 So.2d 743 (Ala.Civ.App. 1997)
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