Larson's Spotlight on Third Party Tortfeasor, Intoxication - Marijuana, Average Weekly Wage, Jurisdiction. 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.
CA: Crane Company Uses "Wrong" Form--Loses Its Right to Seek Indemnity Against Worker's Employer
Noting that a crane operator was "hoist by its own petard," a California appellate court recently affirmed a trial court's decision that Pennsylvania law, not that of California, should apply in a crane company's cross-complaint seeking indemnity against a California employer for any damages the crane company might have to pay in an underlying negligence action filed against the crane company by an injured worker. The crane company utilized a form contract that stated Pennsylvania law should govern. As it turned out, under Pennsylvania law, a worker's employer has no liability to a third-party tortfeasor unless such liability is provided by a written contract entered into prior to the date of the worker's injury. In this case, the worker was injured the same day the contract was signed and the crane delivered. California law would have allowed the cross-complaint to proceed. The appellate court indicated that no California public policy was offended by the fact that the indemnity contract gave the crane company less protection, by virtue of its choice of Pennsylvania law and its choice to deliver the crane the same day the contract was signed. The crane company could have avoided its plight by including a provision making the indemnity agreement valid immediately, notwithstanding Pennsylvania law. Alternatively, the crane company could have insisted that the contract be signed the day before delivery. Denying the crane company recovery based on its contract and conduct did not implicate any fundamental California public policy.
See Maxim Crane Works, L.P. v. Tilbury Constructors, 2012 Cal. App. LEXIS 865 (Aug. 8, 2012).
See generally Larson's Workers' Compensation Law, § 121.04.
TX: Proof of Cannabinoids in the Worker's System Did Not Necessary Prove Actual Intoxication at Time of Injury
Employers and carriers sometimes need to be reminded that it is the intoxication itself that may operate to disqualify a worker from receiving workers' compensation benefits. No such disqualification comes from the fact that there might be traces of a controlled substance in the worker's system at or near the time of the injury. Thus, a Texas appellate court recently affirmed a determination by the state Workers' Compensation Commission that held, inter alia, that a claimant was not intoxicated at the time of his injury where the evidence tended to show that claimant had smoked marijuana at some point--he admitted smoking pot several days prior to the accident--but the blood test only showed the presence of cannabinoids; it was not proof that he was actually intoxicated. The court also stressed that in cases such as this, where the denial was at the administrative level, the insurer had the burden of proving by a preponderance of the evidence that the claimant was intoxicated at the time of the injury.
See Security National Ins. Co. v. Murrell, 2012 Tex. App. LEXIS 6370 (Aug. 2, 2012).
See generally Larson's Workers' Compensation Law, § 36.03.
NC: Employer Allowed No Credit for Concurrent Wages in Computation of PD Since Concurrent Wages Were Not Used to Compute AWW
A North Carolina appellate court recently held that a defendant-employer cannot deduct wages earned from a concurrent employer in calculating the defendant-employer's obligation to pay partial disability compensation pursuant to N.C. Gen. Stat. § 97-30 (2009). The court reasoned that North Carolina law did not allow aggregation of wages from concurrent employment in calculating a plaintiff's average weekly wages. By extension, an employer cannot deduct wages earned from a concurrent employer in calculating partial disability compensation.
See Tunnell v. Resource MFG/Prologistix, 2012 N.C. App. LEXIS 934 (August 7, 2012).
See generally Larson's Workers' Compensation Law, § 93.03.
US: Pro Football Player Fails to Show Sufficient Evidence of Injury Within California--Comp Claim is Barred by Provisions of CBA
The Ninth Circuit Court of Appeals recently affirmed a decision of a federal district court that refused to vacate an arbitration award prohibiting a former professional football player from pursuing workers' compensation benefits under California law. The player retired in 2002, after 19 seasons. He played for several teams during his career and played in 13 games within California during that time. He could point to no actual injury that he suffered in any of the 13 games, however, and the district court discounted his argument that the effect of playing those 13 games must have contributed to his overall health issues. The 9th Circuit Court held that the former player had not alleged sufficient contacts with California to show that his workers' compensation claim came within the scope of California's workers' compensation regime. He had, therefore, not met his burden of establishing that the arbitration award prohibiting him from pursuing California benefits violated an explicit, well-defined and dominant public policy of the state of California. Because the former player had not shown that the award deprived him of something to which he was entitled under state law, he likewise had not shown that it violated federal labor policy.
See Matthews v. National Football League Management Council, 2012 U.S. App. LEXIS 16295 (9th Cir., Aug. 6, 2012).
See generally Larson's Workers' Compensation Law, § 143.02.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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