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Workers’ Comp 101 Round-Up

05 Jun, 2023 Frank Ferreri

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Sarasota, FL ( -- You might have noticed in our legal- and compliance-oriented stories, we like to give you a little bit of nuts-and-bolts info that we call Workers' Comp 101. To help you keep up, we've put together this round-up of tips and insights on the state of workers' compensation rules, regs, and history across the country.

Story: N.H. College Veep’s Change of Condition Leads to Cut in Benefits (08/23/23)
State: N.H.
Workers' Comp 101: Do "gainful employment" and "earning capacity" mean the same thing in New Hampshire? Not according to In re Carnahan, 993 A.2d 224 (N.H. 2010), which clarified that “earning capacity” is “an objective measure of a worker's ability to earn wages” and deals with “whether the worker is now able to earn, in suitable work under normal employment conditions, as much as she earned at the time of injury.” On the other hand, "gainful employment,” or "work capacity" does not require a finding that the claimant is able to earn as much as she earned at the time of injury.

Story: Injection Treatment’s Allowing Minn. Worker to Hold Job, Cut Opioids Warrants Application of ‘Rare Case Exception’ (08/16/23)
State: Minn.
Workers' Comp 101: In Asit v. Northwest Airlines, 588 N.W. 2d 737 (Minn. 1999), the Land of 10,000 Lakes' top court held that a health club membership, which was outside the treatment parameters, was payable under the "rare case exception" because the membership was reasonably aiding the employee in maintaining his employment.

Story: Do You Know the Rule? Wis. Computation of Weekly Wage (08/15/23)
State: Wis.
Workers' Comp 101: In Wisconsin Department of Health & Social Services v. Labor & Industry Review Commission, 464 N.W. 2d 74 (Wis. Ct. App. 1990), a prisoner who was working as "lead man" in the maintenance department for $0.45 per hour was not considered to be in the prison industry. Why? "We cannot ... cut the bread thick enough to fit [the prisoner's] 'assigned work' within the compass of 'prison industries,'" since it was not an industry established by the state's Department of Health & Social Services with approval of the Prison Industries Board. Thus, the court found that the prisoner's "weekly earnings for performing the work assigned to him while he was in prison should have been 'taken' at 'the usual going earnings' paid for similar services—maintenance lead man—on a normal full-time basis."

Story: Glossary Check: Mo. ‘Occupational Disease’ (08/08/23)
State: Mo.
Workers' Comp 101: In Collins v. Neevel Luggage Manufacturing Company, 481 S.W. 2d 548 (Mo. Ct. App. 1972), a worker's bilateral carpal tunnel syndrome was an occupational disease and compensable. The work, which involved forcing rims onto luggage frames, required the worker to bend her fingers toward the palms of her hands and exert pressure downward and inward. Along the way, the court explained that whether a disease is occupational is not to be determined by whether the disease is literally peculiar to an occupation, but whether there is a recognizable link between the disease and some distinctive feature of the claimant's job that is common to all jobs of that sort.

Story: Case Lesson: Mo. Exclusive Remedy Rules Prevent Health Care Providers from Suing Insurers, Employers for Unpaid Medical Bills (07/25/23)
State: Mo.
Workers' Comp 101: In Missouri, "accident" is defined as “an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.” 

Story: Md. Top Court Holds that Questioning Claimant about Workers’ Comp Bore No Relevancy to Criminal Charges against Defendant (07/21/23)
State: Md.
Workers' Comp 101: In Edgewood Nursing Home v. Maxwell, 282 Md. 422 (Md. 1978), while working, an employee was shot and killed by her estranged paramour. The employee's child was entitled to workers' compensation benefits because, the injury was "work-related in the sense that even though it arose for personal reasons not attributable to the working environment, it occurred within the course of employment on the employer's premises at a time when the employee was obliged to be present and at work; in other words, the employee's presence at the nursing home when the peril struck was a necessary part of her employment and the injury was inflicted in the course of that employment," according to the court.

Story: What Do You Think: Was Worker with Flu-like Symptoms During Pandemic Entitled to FMLA? (07/18/23)
State: Federal
Workers' Comp 101: If an employee is (1) incapacitated for more than three days, (2) seen once by a doctor, and (3) prescribed a course of medication, such as an antibiotic, she has a “serious health condition” worthy of FMLA protection. See Brannon v. OshKosh B'Gosh, Inc., 897 F. Supp. 1028 (N.D. Tenn. 1995).

Story: Firefighter Falls while Fishing in Florida, Nets $942 TTD Award (07/03/23)
State: Va.
Workers' Comp 101: In Morris v. Badger Powhatan/Figgie Int'l, Inc., 348 S.E. 2d 876 (Va. Ct. App. 1986), the Court of Appeals of Virginia summarized the compensable consequences doctrine thus: "When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant's own intentional conduct."

Story: What Do You Think: Can Professor Hit by Truck Outside University Sue for Negligence? (06/29/23)
State: Texas
Workers' Comp 101: In OCI Beaumont LLC v. Barajas, 520 S.W.3d 83 (Tex. Ct. App. 2017), the court provided a working definition of the "access doctrine" in a footnote, explaining, "The 'access doctrine' is used by courts in workers' compensation cases as a limited exception to the more general rule recognizing that compensation benefits do not extend to injuries incurred by employees going to and from work. Under the 'access doctrine,' employees injured while going to or from work, if on routes designated by their employers and at locations near where they work, may receive compensation benefits 'where such access route or area is so closely related to the employer's premises as to be fairly treated as a part of the premises.'"

Story: Laborer Fails to Connect Ballooning Testicle, Hernia, to Work Duties (06/27/23)
State: W.Va.
Workers' Comp 101: Another case where a testicle injury figured into a workers' compensation claim was Lively v. State Compensation Commissioner, 167 S.E. 583 (W.Va. 1933). In that case, a worker slipped on a wet concrete floor, and in so doing, struck his right testicle against a brace of some sort. The commissioner, in rejecting the workers' claim, took the position that medical authorities were of the opinion that orchitis, which is inflammation of the testis, was not of traumatic origin, but usually due to gonorrhea, syphilis, or tuberculosis. The state's top court disagreed. "The only place that the word 'orchitis' appears in the record is on [the] Physician's Preliminary Report," the court wrote. "As already noted, the physician gave a practical interpretation as to what was meant by the use of the word, when he testified that the condition of the testicle was the result of trauma."

Story: W. Va. Worker Doesn’t Meet 50% Threshold for PTD Award (06/23/23)
State: W. Va.
Workers' Comp 101: In Fitzgerald v. Fitzgerald, 639 S.E.2d 866 (W. Va. 2006), the state's top court found that a PTD award was considered to be wage replacement for the wages the injured employee would have earned but for his work-related injury and not an award for the injured employee's pain and suffering resulting from such work-related injury. Because of that determination, the court held that a workers' lump sum permanent total disability award of $106,402.62 was marital property subject to equitable distribution in his divorce proceedings. 

Story: Do You Know the Rule? Tenn. Bad Faith (06/20/23)
State: Tenn.
Workers' Comp 101: In Dunn-Lindsey v. Wal-Mart Stores, Inc., 2003 WL 22351027 (Tenn. 10/09/03, unpublished), the employer refused to pay the claimant's medical expenses because she chose to follow the advice of a qualified surgeon and accept immediate surgery rather than wait 16 days to see a surgeon chosen by the employer. The court found that the evidence supported a decision that the employer and its insurer were guilty of bad faith.

Story: Employee Might have had COVID, but N.J. Employer’s Terminating him didn’t Show Perception of Disability (06/15/23)
State: Federal
Workers' Comp 101: One employee who successfully showed that her employer's terminating her for having COVID was Lucious Brown, who was terminated for failing to report to work while she was in the 13th day of her 14-day isolation. At the time, she experienced severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes. The court found that she stated a disability discrimination claim "by alleging that she was discharged shortly after informing her employer that she was continuing to suffer from a severe, symptomatic case of COVID-19." See Brown v. Roanoke Rehabilitation & Healthcare Center, 64 NDLR 159 (M.D. Ala. 2022).

Story: Do You Know the Rule? S.C. ‘Travel Compensation’ Exception to ‘Coming and Going’ Rule (06/14/23)
State: S.C.
Workers' Comp 101: In Gray v. Club Group Ltd., 528 S.E. 2d 435 (S.C. Ct. App. 2000), a courier was killed on his way home to pick up items he needed for work. A witness reported seeing the courier swerving in and out of traffic going an estimated 85 miles per hour, and a police officer estimated that the courier was driving in excess of 120 miles per hour, based on skid marks and damage of the vehicles involved in the wreck. The court held that the courier's exceeding the speed limit in performance of his duties as a courier [was] not a substantial deviation, sufficient to remove the accident from the course and scope of employment, and so his widow was entitled to benefits.

Story: N.Y. Iron Worker’s Doctors Showed his Fall Exacerbated Existing Injury
State: N.Y.
Workers' Comp 101: In New York workers' compensation cases that address preexisting injuries, the dispositive issue is not whether the claimant's preexisting condition caused her pain but, rather, whether the claimant's employment acted upon her condition in such a manner as to cause a disability that did not previously exist. See, e.g., Clancy v. Parkline Asphalt Maintenance, 141 N.Y.S. 3d 534 (N.Y. App. Div. 2021).

Story: Do You Know the Rule? What ‘Imbecility’ Means for Lifetime Economic Benefits in Texas
State: Texas
Workers' Comp 101:  Old -- and often pejorative -- terminology has a tendency to persist until legislatures do something about it. That is the case in Texas with the term "imbecility." As the court explained in Chamul v. Amerisure, 486 S.W. 3d 116 (Tex. Ct. App. 2016), "Whatever meaning the Legislature attached to the term 'imbecility' when it included the standard in the lifetime-income-benefits provision in 1917, it is clear that the term has little medical significance today. The medical experts ... agree that the term 'imbecility' is no longer part of the language of medicine for diagnosing patients or developing treatment plans to address their afflictions. 

Story: Could Electrician Run Over by Drunk Colleague Collect Workers’ Compensation Benefits? (06/07/23)
State: N.Y.
Workers' Comp 101: Most of the time, booze and workers' compensation don't mix. For example, in Dawson v. S.P.F. Carting Co., 259 A.D. 2d 910 (N.Y. App. Div. 1999), a sanitation truck driver conceded that he had been drinking “wine and liquor” before reporting for work at 5 a.m. on the day of the accident, a co-worker testified that the driver had been driving so erratically prior to the accident that the co-worker attempted to take the truck's ignition key away from the driver, and a breathalyzer test showed the driver had a blood alcohol content of 0.298 percent. Thus, the driver could not collect benefits for the back injury he experienced related to the accident that occurred when, while traveling at a high rate of speed, the driver failed to negotiate a left turn and the truck tipped over. 

Story: Case Lesson: DOL Clarifies FMLA-Holiday Interplay (06/06/23)
State: Federal
Workers' Comp 101: In Murillo v. City of Granbury, 2022 WL 14198744 (N.D. Texas 10/24/22, a city employee took FMLA leave via the Families First Coronavirus Response Act due to the unavailability of childcare caused by the COVID-19 pandemic. While the employee was on leave, three citywide holidays occurred, so did those holidays extend her 12-week FMLA leave by three days? No. "Neither the FMLA nor the Families First Coronavirus Response Act mention anything about holidays being exempt from the FMLA leave calculation," the court wrote. "To the contrary, the Department of Labor issued [29 CFR 825.200(h)] stating that '[f]or purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave.'"

Story: N.J. Top Court Upholds $861K Award for Worker with Crushed, Amputated Foot (06/05/23)
State: N.J.
Workers' Comp 101:  In Galvao v. G.R. Robert Const. Co., 846 A.2d 1215 (N.J. 2004), the Supreme Court of New Jersey adopted a two-part test for determining whether a general employer may be held liable for the alleged negligence of its special employee loaned to a special employer. Under the "Galvao test," the first inquiry is whether the general employer controlled the special employee. The court described "control" as "the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done.” If the employer did not exercise this level of control, the second inquiry kicks in. Under part 2, the question is whether the special employee furthered the business of the general employer, which happens if the work being done by the special employee is within the general contemplation of the general employer.

Story: Attempt to Exempt Driver from WC Coverage Saddles Wash. Company with Attorney’s Fee Award (06/05/23)
State: Wash.
Workers' Comp 101: What does RCW 51.04.060 say? The statute, which is titled "No evasion of benefits or burdens," details that "no employer or worker shall exempt himself or herself from the burden or waive the benefits of [Washington workers' compensation law] by any contract, agreement, rule or regulation, and any such contract, agreement, rule or regulation shall be pro tanto void." What does "pro tanto" mean? Black's Law Dictionary points out that the Latin phrase means "to that extent; for so much; as far as it goes."

Story: What Do You Think: Was Pilot who Racked up Flying time at Ill. Sky-diving Company ‘Employee?’ (06/02/23)
State: Ill.
Workers' Comp 101:  In Board of Ed. of City of Chicago v. Industrial Commission, 290 N.E. 2d 247 (Ill. 1972), a college student was required to perform 100 hours of volunteer work in public schools in Chicago as part of her academic training for a degree in elementary education. When she slipped on a piece of paper and fell down stairs in the school where she was volunteering, the student could not receive workers' compensation benefits. Why? "It [was] undisputed that [the student's] activities ... were strictly on a voluntary basis with no expectation of any monetary compensation," the court wrote. "There was no evidence that the giving of her time was in any manner a condition precedent to future employment."

Story: Navigating Recent Legal Decisions: Impacts on Adjusters in Idaho Workers’ Compensation Claims (06/02/23)
State: Idaho
Workers' Comp 101: In Idaho, once an employer has shown that a kind of suitable work exists, then the employer must introduce evidence that there is an actual job within a reasonable distance from the claimant's home that he is able to perform or for which he can be trained. See Rodriguez v. Consolidated Farms, LLC, 390 P.3d 856 (Idaho 2016).

Story: Court’s Focus on Injury, Rather than Surgery, Halts W. Va. Worker’s Claim (06/02/23)
State: W.Va.
Workers' Comp 101: In West Virginia, a workers' compensation claimant's disability will be presumed to have resulted from a compensable injury if: 1) before the injury, the claimant's preexisting disease or condition was asymptomatic; and 2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. This presumption is not conclusive; it may be rebutted by the employer. See Moore v. ICG Tygart Valley, LLC, 879 S.E. 2d 779 (W. Va. 2022).

Story: Bringing Gear Home Gives No Benefit to Employer, so Conn. Firefighter Loses Claim (05/31/23)
State: Conn.
Workers' Comp 101: The "personal privilege" doctrine goes way back in Connecticut. For example, in Smith v. Seamless Rubber Co., 150 A. 110 (Conn. 1930), the state's top court detailed, "If the act being performed is for the exclusive benefit of the employee so that it is a personal privilege, or is one which the employer permits the employee to undertake for the benefit of some other person or for some cause apart from his own interests, an injury arising out of it will not be compensable."

Story: What Do You Think: Was N.Y. Detective Trashed by Truck ‘In Course of Employment?’ (05/30/23)
State: N.Y.
Workers' Comp 101: A case where the exception applied to the "going and coming" rule, Dziedic v. Orchard Park Central School District, 283 A.D.2d 878 (N.Y. App. Div. 2001), involved a tragic set of circumstances. In the case, a kindergarten teacher was killed in an automobile accident while traveling to school after she had stopped at a store to buy supplies for the students in her class to use in a classroom project. The court explained that "neither the employer's lack of prior knowledge of the particular errand in which [the teacher] was engaged at the time of her death nor [the teacher’s] completion of her errand and return to her regular route to school prior to the accident preclude[d] application of the special errand exception."

Story: Cheat Sheet: Minn. Petitions Filed with Workers’ Compensation Division (05/25/23)
State: Minn.
Workers' Comp 101: What is a "prima facie case"? Black's Law Dictionary defines it as: 1) the establishment of a legally required rebuttable presumption; or 2) a party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor.

Story: What Do You Think: Was Physical Therapist’s ‘Stress Event’ Physical Injury? (05/25/23)
State: N.Y.
Workers' Comp 101: What is a myocardial infarction? It's the scientific name for a heart attack and, according to Stedman's Medical Dictionary, produces indicative electrocardiographic changes in the anterior chest leads and often in limb leads, I and aVL.

Story: Do You Know the Rule? ‘Family Members’ Entitled to Death Benefits in Ohio (05/24/23)
State: Ohio
Workers' Comp 101: Although Ohio's workers' compensation law does not explicitly define "family member," Black's Law Dictionary does. According to that source, a "family" is: 1) a group of persons connected by blood, by affinity, or by law, especially within two or three generations; 2) a group consisting of parents and their children; and 3) by extension, a group of people who live together and usually have a shared commitment to a domestic relationship.

Story: What Do You Think: Did Miss. Worker Show Bad-Faith Refusal to Pay Workers’ Compensation Benefits? (05/18/23)
State: Miss.
Workers' Comp 101: An employee may be employed by more than one employer while doing the same work. The fact that only one of the employers pays the employee does not alter the fact that the employee was in the service of the non-paying employer and thus an employer-employee relationship would exist based on the element of control. See J.A. Biggart v. Texas Eastern Transmission Corp., 235 So. 2d 443 (Miss. 1970) (holding that because employee, paid by pipeline contractor, was also an employee of pipeline owner and company in charge of engineering and construction as agent for owner exclusive remedy for his heirs and dependents was under the Workmen's Compensation Act).

Story: Personal Nature of Argument Over Kids Makes Workers’ Ensuing Injury Non-compensable (05/17/23)
State: Ohio
Workers' Comp 101:  In Ohio, an injury arises out of employment “when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work was required to be performed and the resulting injury.” See Fox v. Industrial Commission, 125 N.E. 2d 1 (Ohio 1955).

Story: Case Management Focus: The Life-Long Impact of a Catastrophic Injury on the Worker (05/17/23)
State: Ohio
Workers' Comp 101: What is maximum medical improvement, or MMI? It is a condition that has become permanent, i.e., one that will, with reasonable probability, continue for an indefinite period of time without any present indication of recovery therefrom. See State ex rel. American Standard, Inc. v. Boehler, 788 N.E.2d 1053 (Ohio 2003).

Story: Glossary Check: Ariz. Elevators (05/16/23)
State: Ariz.
Workers' Comp 101: The case of City of Phoenix. v. Industrial Commission, 444 P.2d 750 (Ariz. Ct. App. 1968) saw a worker experience an injury in an elevator. In that case, the worker, who was using crutches, rode down the elevator from the 7th floor to the basement in the building where he was working. As he was leaving the elevator, something occurred in the closing of the doors to knock him off balance, and he fell backward into the elevator and broke his leg. The elevator was then "called" to the 5th floor, where another employee found him. The court found that the worker was not injured by an accident arising out of and in the course of his employment, as use of the elevator was a hazard to which the worker was subjected as a member of general public and was not a special risk of employment.

Story: Wife Can’t Link Husband’s COVID Death to Workplace (05/16/23)
State: N.Y.
Workers' Comp 101: In New York, workers can demonstrate the significantly elevated risk for COVID-19 exposure in their workplace by demonstrating the nature and extent of their work in an environment where exposure to COVID-19 was prevalent.

Story: N.J. Worker’s Case Offers no Basis for Federal Jurisdiction (05/12/23)
State: N.J.
Workers' Comp 101: What is "subject matter jurisdiction"? Black's Law Dictionary describes it as "Jurisdiction over the nature of the case and the type of relief sought; the extent to which a court can rule on the conduct of persons or the status of things." That's different from "personal jurisdiction," which is defined as "A court's power to bring a person into its adjudicative process; jurisdiction over a defendant's personal rights, rather than merely over property interests."

Story: IME Status Renders N.Y. Doctor’s Testimony, Reports Inadmissible (05/10/23)
State: N.Y.
Workers' Comp 101: What is an independent medical examination, usually called an "IME"? It's a medical exam made by an impartial healthcare professional that's not presented on behalf of either party. Judges in workers' compensation cases tend to rely heavily on IME reports in reaching their decisions.

Story: Animosity Behind N.C. Factory Worker’s Shooting Shows WCA Doesn’t Apply (05/09/23)
State: N.C.
Workers' Comp 101: What does "exclusive remedy" mean? Generally, the North Carolina Workers' Compensation Act provides the exclusive remedy available to employees seeking relief for work-related injuries resulting from the acts or omissions of their employers. In other words, employees cannot bring tort claims against their employers for work-related injuries -- instead, they must seek workers' compensation benefits as their only remedy.

Story: Statute of Limitation Washes Out Ohio Worker’s Claim for Allowance (05/09/23)
State: Ohio
Workers' Comp 101: What is a "savings statute"? Ohio Revised Code 2305.19 provides that if a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff may commence a new action within one year after the date of the reversal of the judgment or the plaintiff's failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later. 

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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law.

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