Five Recent Workers’ Comp Cases You Should Know About (11/11/2011) – New York City Auditor Was Not Engaged in "Recovery" Activities Following 9/11 Attacks

Larson's Spotlight on 9/11 Claim, Average Weekly Wage, Pain and Permanent Total Disability, Intentional Tort Claim, and Bad Faith. 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.

NY: New York City Auditor Was Not Engaged in "Recovery" Activities Following 9/11 Attacks

A city auditor, who worked in an office that issued relief checks to various individuals who suffered damages as a result of the September 11, 2001 terrorist attacks, but who did not work outdoors or otherwise come into contact with soot or dust from the World Trade Center site was not a "participant in [the] World Trade Center rescue, recovery and clean-up operations" designated in N.Y. Workers' Comp. Law § 162.  Accordingly, she could not take advantage of special statutory provisions allowing additional time to file her claim for benefits, held a New York appellate court recently.  Earlier the Workers' Compensation Board determined that the claimant had not been involved in any rescue-related activities within the meaning of Workers' Compensation Law article 8-A, but that decision was reversed because the Board focused solely upon whether claimant had been involved in "rescue" activities.  The matter was remitted to the Board for a determination of whether claimant was involved in "recovery" operations.  Upon remittal, the Board rejected that notion and again concluded claimant's activity was not within the parameters of article 8-A.  Following appeal by the claimant, the appellate court affirmed, noting that "recovery" should be read within the context of "recovery of human remains" and clean up of the World Trade Center area, not the "economic recovery" efforts that followed.

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 N.Y. App. Div. LEXIS 7587. 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, § 7.02.

IL: Overtime and Production Bonuses Were Appropriately Included For Purposes Of Computing Injured Worker's Average Weekly Wage

An Illinois appellate court recently held that the state's Workers' Compensation Commission did not err by including 173 hours of scheduled overtime and $15,210.39 in production bonuses, earned in the 39 weeks prior to the claimant's accident, in calculating his average weekly wage. The hours of scheduled overtime were a part of the claimant's regular hours of employment and were hours he was required to work as a condition of his employment. He consistently worked scheduled overtime. Moreover, $15,210.39 in production bonuses were in consideration for work performed pursuant to a collective bargaining agreement and were appropriately included in the AWW computation.

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 Ill. App. LEXIS 1154. 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, § 93.01.

LA: Complaints of Pain Were Alone Insufficient to Support Award for PTD

A workers' compensation claimant who had back surgery and who remained on heavy pain medications and out of work for eight years afterward, refusing suggested alternative therapies, was not entitled to permanent total disability benefits; his complaints of pain rather than any underlying disorder kept him from working, held a Louisiana appellate court recently.  The court indicated that complaints of pain alone were insufficient to support permanent and total disability.

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 1284. 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, § 83.07.

OH: Trench Box Was Not an "Equipment Safety Guard;" Worker's "Substantially Certain" Tort Claim Fails 

A trench box was not an "equipment safety guard;" it was designed to protect workers from trench collapse, was not a piece of equipment, and was not designed to protect the operator of any piece of equipment, held an Ohio appellate court recently.  Accordingly, the employer's failure to use a trench box did not create a rebuttable presumption of an intent to injure under Ohio Rev. Code § R.C. 2745.01(C).  Moreover, the plaintiff, an injured worker, failed to prove his intentional tort claim against the employer; there was no showing the employer committed the tortious act with the intent to injure another or with the belief that the injury was "substantially certain" to occur under Ohio Rev. code § 2745.01(A).

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 Ohio App. LEXIS 4674. 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, § 103.04.

IA: Bad Faith Civil Action Against Carrier May Move Forward While Comp Case is Still Being Litigated

An Iowa appellate court recently affirmed a trial court's decision to allow discovery to proceed and a trial date to be set in spite of claims by a workers' compensation insurance carrier that the tort action should be stayed until the underlying workers' compensation claim is concluded.  The appellate court pointed out that the trial court had actually granted the carrier's request in part since it had indicated the tort case should not be tried until the underlying workers' compensation claim had been concluded.  Moreover, the trial court indicated that there might be some conflict regarding the discoverability of certain information given the pending workers' compensation case, but that any such conflicts could be adequately addressed by way of objections to discovery requests and hearings on those matters as they arose.  There was no abuse of discretion; the trial court's decision was affirmed.

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 Iowa App. LEXIS 1257. 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, § 104.05.

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

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