Five Recent Workers’ Comp Cases You Should Know About (11/4/2011) – Injured Worker's Tort Action Against Landlord Corporation Closely Related to Her Tenant Employer May Move Forward

Larson's Spotlight on Tort Action, Retaliatory Discharge, Black Lung, Disqualification From Benefits, and Loss of Wage Earning Capacity. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

NE: Injured Worker's Tort Action Against Corporation Closely Related to Her Employer May Move Forward

The Supreme Court of Nebraska, reversing a decision by a state trial court, recently held that an injured worker could maintain a tort action against a corporation that leased the work premises to her employer in spite of the fact that the two corporations had identical shareholders and a virtually identical corporate structure.  Observing that the trial court had become confused over the possible application of the "dual capacity" and "dual persona" doctrines which, in limited circumstances, allow an employer to be sued in tort where that employer is operating in some separate function other than as employer-e.g., sale of a product also available to the public or medical treatment of the employee by a health care "employer" in much the same way as it would treat the public-the court indicated those doctrines were not precisely applicable since in the instant case there were two distinct and separate corporations.  Quoting Larson's Workers' Compensation Law, § 113.01, the court indicated that the fact that the corporate makeup of the two firms was the same did not mean they were one and the same.  A suit against the real estate corporation was not a suit against the employer.  Nor was there any basis in the record to conclude that the plaintiff was employed by both corporations. Indeed, the evidence established that she was hired and controlled by the tenant, not the landlord.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Neb. LEXIS 121. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 113.01.

US: Divided Tenth Circuit Affirms $600,000 Judgment on Jury Verdict In Retaliatory Discharge Case, But $2 Million in Punitives is Excessive

The Tenth Circuit Court of Appeals, in a split decision, construing Kansas law, recently affirmed a jury award of more than $600,000 in actual damages related to a worker's retaliatory discharge claim, but held the jury's additional award of $2 million in punitive damages was excessive.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 U.S. App. LEXIS 21487. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 104.07.

US: Third Circuit Holds "Byrd Amendments" Related to Black Lung Act Contained in "ObamaCare" Legislation are Constitutional

The Third Circuit Court of Appeals recently held that the "Byrd amendments" in the Patient Protection and Affordable Care Act, which reverse a 1982 amendment to the Black Lung Benefits Act ("the Act) that required survivors of a deceased coal industry worker to show a causal connection between the death and the deceased's pneumoconiosis-even if the deceased was drawing disability benefits under the Act at the time of his death-are constitutional. From 1982 until the PPACA amendment was enacted on March 23, 2010, a survivor, usually the miner's spouse, had to prove that pneumoconiosis caused the miner's death to be entitled to benefits, even if the miner was receiving benefits when he died.  But the 3rd Circuit held that the PPACA amendment automatically continues benefits to a miner's eligible survivors if the miner was entitled to benefits prior to death. The court rejected the employer's contention that the amendment was unconstitutional under the due process and takings clauses of the Fifth Amendment.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 U.S. App. LEXIS 21631. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 54.02.

LA: Injured Worker's Misstatements About Prior Back Condition Does Not Disqualify Her From Benefits

A Louisiana appellate court has affirmed a decision by the Office of Workers' Compensation that had refused to disqualify an injured worker from receipt of additional benefits following her work-related injury.  Noting that the worker had not disclosed the fact that that she had previously received treatment for back pain, including steroid injections in the lumbar region due to back pain and that an MRI had earlier revealed a herniation at the L5-S1 level, the appellate court observed that the workers' compensation judge specifically found the worker to be a credible witness and that the lack of disclosure had not been made with an intent to recover benefits. The judge could have permissibly determined that the worker failed to appreciate the medical or technical aspects behind the questions as posed by counsel and/or her physicians.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 La. App. LEXIS 1294. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 39.03. 

MD: Loss of Ability to Work Overtime Equates With Loss of Wage Earning Capacity

A Maryland appellate court recently held that the term "wage earning capacity," for purposes of the state's Workers' Compensation Act [§ 9-615 of the Maryland Code, Labor and Employment Article ("L.E."), includes the capacity of an employee to earn overtime compensation. Thus, when an employee is unable to work the same amount of overtime while temporarily, partially disabled that he or she consistently worked before the disability, the employee's wage earning capacity is "less" for purposes of L.E. § 9-615.  The injured worker, a firefighter, worked and received pay for 96 hours per two-week period prior to his injury.  He was limited to a forty-hour week thereafter.  His employer, the county, raised his hourly wage and provided other benefits in order that his overall income not be diminished after the injury.  The court held that in spite of this, the worker had sustained a loss of wage earning capacity.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Md. LEXIS 664. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 80.05.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law

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