Five Recent Workers’ Comp Cases You Should Know About (10/21/2011) –Termination of Claimant for Failing to Provide Immediate Notice of Injury Upheld Over State’s 30-Day Time Period

Five Recent Workers’ Comp Cases You Should Know About (10/21/2011) –Termination of Claimant for Failing to Provide Immediate Notice of Injury Upheld Over State’s 30-Day Time Period

Larson's Spotlight on Workers' Comp Evidence in Social Security Disability Proceeding, Termination for Failure to Provide Notice of Injury, Workers' Comp Exclusion in UIM Policy, Employee Fraud, and Immigration Status and Suspension of Benefits. 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: Employer's Termination of Workers' Comp Claimant for Failing to Provide Immediate Notice of Injury OK In Spite of 30-Day Time Period for Notice in Statute

A divided Sixth Circuit Court of Appeals recently affirmed a federal district court's summary judgment finding in favor of an employer who had been sued for retaliatory discharge by a worker it had fired for not reporting her carpal tunnel syndrome injury within forty-eight hours of her understanding that her condition was work-related, in spite of a Tennessee statute (Tenn. Code Ann. § 50-6-101, et seq.) giving her thirty days in which to report her gradual-onset condition.  The employer's personnel policy specified that reports of injury must be given within 48 hours on onset.  The 6th circuit indicated the worker's reading of the statute was erroneous, that while an outside date was indicated within the statute, nothing in the statute prevented an employer from shortening that time frame, so long as the policy was applied equally to all employees. 

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 18794. 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: Social Security Judge's Findings Regarding Lack of Disability Approved In Spite of Contrary Opinions by Two "Workers' Comp" Physicians

The Tenth Circuit Court of Appeals recently affirmed a decision by a federal district court judge that in turn affirmed the Commissioner of Social Security's denial of a claimant's applications for Social Security disability insurance and supplemental security income benefits. Regarding her back injury, the claimant relied, among other things, on reports from two physicians who saw her solely in connection with her workers' compensation claim.  The court indicated that the law judge appropriately did not consider either physician a "treating physician;" their conclusions that the claimant suffered a permanent disability was not binding before the Social Security Commission.

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 20898. 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, § 130.05.

PA: Workers' Compensation Exclusion in UIM Policy Violates Public Policy and Is Void

Reversing a decision of the state's Commonwealth Court, the Supreme Court of Pennsylvania recently held that a workers' compensation exclusion in an employer-sponsored insurance policy violates public policy and is, therefore, unenforceable.  Plaintiffs, an injured police officer and his wife, sought underinsured motorist coverage benefits pursuant to a policy maintained by the employing Borough.  The carrier denied the officer's claim pursuant to a policy exclusion, which stated that UIM coverage did not apply to any claim by anyone eligible for workers' compensation benefits that were the statutory obligation of the employer.  The supreme court found that while the exclusionary provision did not violate the cost containment policy of the Motor Vehicle Financial Responsibility Law, its inclusion in an employer-sponsored policy operated to foreclose the majority of expected claims. The exclusion rendered the coverage illusory, therefore, and the insurer received a windfall by charging a premium for the coverage.  The court indicated that moreover, where a third-party tortfeasor caused a work-related injury, the ultimate burden for the payment of benefits must rest upon the tortfeasor or the UM/UIM carrier. The carrier's exclusion reversed this legislative priority by frustrating the right of subrogation, thereby ensuring that the burden for the payment of benefits remained on the employer and its workers' compensation carrier. Since the workers' compensation exclusion operated to render the instant UIM coverage illusory and ran counter to the intended compensatory scheme established by the General Assembly, it was void as against public policy.

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 Pa. LEXIS 2521. 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, § 110.05.

FL: Claimant's Non-verbal Conduct May Constitute "Statements Made" For Purposes of Employee Fraud Statute

A Florida appellate court recently affirmed a decision by a Judge of Compensation Claims that denied claimant benefits on the ground that she had violated § 440.105, Fla. Stat., by making false and misleading statements for the purpose of obtaining compensation benefits where it appeared that claimant verbally rated her pain as four to eight on a scale of one to ten, and in writing rated her pain as "5 out of 10," but then both exaggerated her symptoms and showed inconsistencies in her condition when examined by an independent medical examiner.  The appellate court indicated that although the basis of a misrepresentation defense must be a claimant's oral or written statement, an employer/carrier can prove that statement constitutes misrepresentation by presenting evidence of the claimant's nonverbal conduct inconsistent with that statement, and convincing a JCC of its veracity.

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 Fla. App. LEXIS 16265. 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.

PA: Refusal to Respond to Answer Question as to Immigration Status Is Insufficient to Support Suspension of Benefits

A Pennsylvania appellate court recently affirmed a decision of the state's Workers' Compensation Appeal Board that in turn had reversed a finding by a workers' compensation judge that suspended claimant's benefits because he was an undocumented alien ineligible to work within the United States.  The only evidence at the hearing related to claimant's immigration status was his refusal, on Fifth Amendment self-incrimination grounds, to answer a question proferred to him as to whether he was a naturalized citizen.  The appellate court agreed that the judge was justified in drawing an adverse inference from the claimant's refusal to answer, but the judge erred in relying solely on that adverse inference in finding that the claimant was an undocumented alien.

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 Pa. Commw. LEXIS 527. 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, § 66.03.

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

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