Larson’s Spotlight on Recent Cases: Factual Issues Related to Fatal Shooting of Employee Preclude Summary Judgment on Exclusivity Issue

Larson’s Spotlight on Recent Cases: Factual Issues Related to Fatal Shooting of Employee Preclude Summary Judgment on Exclusivity Issue

Larson's Spotlight on Exclusive Remedy, Unusual Risk, LHWCA & Average Weekly Wage, and Hearsay Rule. 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.

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GA: Factual Issues Related to Fatal Shooting of Asphalt Company Employee at Convenience Store Preclude Employer's Summary Judgment Motion on Exclusivity Issue

A Georgia appellate court recently affirmed a trial court's denial of an employer's motion for summary judgment in connection with a wrongful death action filed by survivors of an asphalt company employee against the deceased's employer following a fatal shooting at a convenience store.  The convenience store was closely associated with the asphalt operation, having some common ownership and serving as a fuel fill-up facility, among other things.  Following the death, the employer's workers' compensation insurance carrier paid funeral expenses and when the survivors filed their civil suit, the employer claimed the case was barred by exclusivity.  The appellate court agreed that a factual issue existed as to whether the deceased employee had left work for the day or was merely on a break when he went to the convenience store.  Moreover, there was a genuine issue of fact as to whether the deceased employee's trip to the store was a deviation from his employment and, therefore, a personal pursuit.  Summary judgment was not appropriate.

See Dixie Roadbuilders, Inc. v. Sallet, 2012 Ga. App. LEXIS 886 (Oct. 26, 2012).

See generally Larson's Workers' Compensation Law, § 17.01.

MO: Carrying Motorcycle Helmet While Walking Down Stairs Supplies "Unusual" Risk Factor Sufficient to Support Award of Benefits for Slip and Fall Injury

A Missouri appellate court recently affirmed a decision by the state's Labor and Industrial Relations Commission that had awarded workers' compensation benefits to an employee who sustained injuries when he fell down a small flight of stairs at his employer's premises.  Noting that there were no obstructions or other hazards on the steps themselves, the court nevertheless agreed that the employee was not equally exposed to the risk that caused his injury in his normal non-employment life.  The court pointed to the fact that at the time of the employee's injuries he had been wearing boots and carrying a motorcycle helmet-his duties required him to move motorcycles from one level of the employer's premises to another at the end of the day and state law required the use of the helmet.  Those factors differentiated his risk of injury from the normal activity of walking up and down stairs in his non-employment life [required under Mo. Rev. Stat. § 287.020.3(2)].

See Pope v. Gateway to the West Harley Davidson, 2012 Mo. App. LEXIS 1335 (Oct. 23, 2012).

See generally Larson's Workers' Compensation Law, § 3.03.

US: Applying Roberts v. Sea-Land Standard, 11th Circuit Says AWW at Time of Injury, Not Award, Controls for Purposes of LHWCA

The U.S. Court of Appeals for the 11th Circuit, in light of Roberts v. Sea-Land Services, Inc., 132 S. Ct. 1350, 182 L. Ed. 2d 341, 2012 U.S. LEXIS 2318 (2012), recently held that held that for purposes of the LHWCA, an employee is "newly awarded compensation" when he or she first becomes disabled and entitled to the disability benefits, regardless of when the compensation order itself was issued.  The average weekly wage at the time of the injury and not the time of the award should control, therefore.  Moreover, the "currently receiving compensation" clause within the LHWCA did not alter the court's holding.  While the court acknowledged that "to receive" usually means "to take in one's hand, or into one's possession," the court indicated that within the context of the Longshore Act, "currently receiving compensation" meant "currently entitled to compensation.  Because the compensation award was entered in 2008 (six years after the worker became disabled), he contended that the 2008 national average weekly wage should determine the size of his disability benefit payments for each year from 2002 to 2008.

See Boroski v. Dyncorp International, 2012 U.S. App. LEXIS 22380 (Oct. 30, 2012).

See generally Larson's Workers' Compensation Law, §§ 93.01, 93.04.

AL: "Bystander's Statements Exception" to Hearsay Rule Allows Dependents to Show Truck Driver's Death Was Causally Related to Employment and Not Merely a Heart Attack

Hearsay evidence, in the form of notes taken by an EMT at the scene of a horrible, fiery motor vehicle accident that recounted bystanders' statements that the driver of a tractor-trailer truck appeared to have survived the initial crash-and, therefore, may not have died a few seconds before the crash as a result of a heart attack-was admissible under the "bystander's statements exception" to the hearsay rule, held a divided Alabama appellate court recently. The exception acknowledges that statements made by an individual to emergency personnel with no motive to fabricate or lie, describing with particularity a specific situation, are inherently trustworthy.

See Hornady Transportation, LLC v. Fluellen, 2012 Ala. Civ. App. LEXIS 293 (Oct. 26, 2012).

See generally Larson's Workers' Compensation Law, § 127.02.

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

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