Larson's Spotlight on Retaliatory Discharge, Credibility of Witnesses, Notice of Injury, and Project Owner Liability. 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.
US: In Retaliatory Discharge Claim, Issue Was Not Worker's Ability to Do Job, But Rather Honest Belief by Former Employer That Medical Condition Prevented Employee From Performing Duties
Proving that an employer's motives in firing an injured worker were retaliatory can be difficult. In most instances, retaliatory discharge must be shown by circumstantial evidence, since the employer is not apt to announce retaliation as its motive. Proximity in time between the claim and the firing is often the beginning point. Once the employee has made a prima facie case of retaliation, the burden devolves upon the employer of proving a legitimate, non-pretextual, non-retaliatory reason for the discharge. In a recent decision from the 10th Circuit Court of Appeals, the court affirmed a grant of summary judgment in favor of the defendant former employer and agreed that the plaintiff had failed to demonstrate a triable question of fact on his claim that the reason given for the firing was mere pretext. The plaintiff focused on evidence from his doctors that tended to show that he was able to perform the requirements of his job at the time of the termination, but as the district court pointed out, the question was not whether plaintiff could perform the job, but whether the defendant "honestly believed" he could not do so due to his medical condition.
See Degraw v. Exide Technologies, 2012 U.S. App. LEXIS 2748 (10th Cir., Feb. 10, 2012).
See generally Larson's Workers' Compensation Law, § 104.07.
PA: Workers' Compensation Judge Given Broad Discretion to Judge Credibility of Witnesses
Illustrating the rule that the Workers' Compensation Judge is given broad latitude in judging the credibility of witnesses, a Pennsylvania appellate court recently affirmed a denial of benefits based upon the WCJ's finding that the claimant's testimony was not credible. Noting earlier decisions by the state supreme court that observation of a witness's demeanor alone was sufficient to satisfy the reasoned decision requirement, the appellate court indicated the WCJ was within the provinces allowed the finder of the facts.
See Amandeo v. Workers' Comp. Appeal Bd., 2012 Pa. Commw. LEXIS 67 (Feb. 17, 2012).
See generally Larson's Workers' Compensation Law, § 130.03.
TN: Notice of Injury Given to Employer's Manager Held Sufficient for Purposes of Workers' Compensation Act
Acknowledging that there was conflicting evidence on the issue of notice of injury, but that the trial court found credible the testimony of the injured worker that he notified the employer's apartment manager immediately upon feeling a sharp pain while lifting a heavy refrigerator, the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court recently affirmed a finding that the worker's spinal infection and partial paralysis was work-related.
See Stewart v. Westfield Ins. Co., 2012 Tenn. LEXIS 66 (Feb. 16, 2012).
See generally Larson's Workers' Compensation Law, § 130.05.
AK: "Project Owner" Liability for Workers' Compensation Benefits Not Limited to Instances When a Business Contracts Out Its "Usual" Work
In 2004, the Alaska legislature amended the state's workers' compensation law, adding "project owners" to the entities potentially liable for workers' compensation benefits and extending the exclusive liability provision of the act to them. Under the amended statute, "project owner" means a person who, in the course of the person's business, engages the services of a contractor and who enjoys the beneficial use of the work [Alaska Stat. § 23.30.045(f)(2)]. Here, the court was called upon to consider whether the phrase "in the course of the person's business" in the statutory definition of "project owner" limited project owner liability to instances when a business contracts out its usual work to others. The trial court interpreted the statute as limited to those situations in which an employer contracted out its own usual work to another. The supreme court held that the trial court's holding was erroneous. The court said nothing in the legislative history of the project owner amendments showed that the legislature intended to limit its application to cases where the injured worker was performing the usual business of the project owner.
See Trudell v. Hibbert, 2012 Alas. LEXIS 34 (Feb. 17, 2012).
See generally Larson's Workers' Compensation Law, § 111.04.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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