Larson’s Spotlight on Recent Cases: High Threshold Exists to Stay Payment of Future Medical Benefits

Larson's Spotlight on Future Medical Benefits, Employee Status, Retaliatory Discharge, and Disfigurement. 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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AK: To Stay Payment of Future Medical Benefits, Appealing Employer Must Show Probability That Appeal Will Be Successful

In two consolidated cases, quoting Larson's Workers' Compensation Law, the Alaska Supreme Court recently held that in order to stay the payment of future medical benefits ordered by the state's Workers' Compensation Board, the employer must show the existence of the probability that the appeal will be decided adversely to the compensation recipient.  Construing AS 23.30.125(c), the court acknowledged that the "probability of success on the merits" was a high threshold and that the employer often could not recover overpaid benefits in all cases; nevertheless, there were good reasons to treat medical care, especially medical care sought in the first two years following an injury, as similar to "periodic disability payments on which an employee relies as a salary substitute."  The court reasoned that when an employee cannot get medical treatment, she can face a prolonged period of unemployment or underemployment, and her condition may worsen while she waits for the appeal. Delaying treatment can also delay the date of medical stability, which delays an assessment of any permanent impairment.  Moreover, when the Appeals Commission was considering a request to stay future medical benefits, it should always be noted that the Board had already conducted a hearing, evaluated the evidence, and determined compensability. "The employer has just lost on the merits in a competent forum."

See Municipality of Anchorage v. Novapro Risk Solutions, 2013 Alas. LEXIS 61 (May 3, 2013) [2013 Alas. LEXIS 61 (May 3, 2013)].

See generally Larson's Workers' Compensation Law, § 130.08 [130.08].

MO: Murdered Hairstylist Was Not Employee of Hair Salon

A Missouri appellate court recently held that the state's Labor and Industrial Relations Commission had properly denied workers' compensation benefits to the dependents of the decedent who was murdered by a robber while working as a hairstylist at a hair salon.  Acknowledging that the salon provided the stylists, including the decedent, with shampoo, hair spray, and hair-coloring products., but that the stylists received no training and had to provide his or her own equipment, including combs and brushes, clippers, hair dryers, and aprons, the court held that the hair salon was not the decedent's statutory employer under Mo. Rev. Stat. § 287.040(1) because the decedent was in business for himself as a hairstylist, he was not doing the salon's work, and the salon merely provided the decedent with the facilities he needed to conduct his own business operations in the manner he chose.

See Pacheco v. Tina's Health Salon, 2013 Mo. App. LEXIS 524 (Apr. 30, 2013) [2013 Mo. App. LEXIS 524 (Apr. 30, 2013)].

See generally Larson's Workers' Compensation Law, § 62.06 [62.06].

OH: Injured Worker Receiving Comp Benefits May Receive Back Pay and Reinstatement for Retaliatory Discharge, But No Common Law Civil Action Allowed

An Ohio appellate court recently held that a state trial court appropriately granted the defendant, former employer, summary judgment in a wrongful termination case filed by the former employee.  Citing an earlier decision by the state's Supreme Court, the court observed that while an employee could maintain a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffered retaliatory employment action after being injured on the job, but prior to filing, instituting, or pursuing a workers' compensation claim, an employee who was terminated from employment while receiving workers' compensation has no common-law cause of action for wrongful discharge; his or her exclusive remedy was limited to the statutory remedy of reinstatement with back pay under R.C. 4123.90.  That statute provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers' Compensation Act.

See McMillan v. Global Freight Management, Inc., 2013 Ohio 1725, 2013 Ohio App. LEXIS 1611 (Apr. 29, 2013) [2013 Ohio App. LEXIS 1611 (Apr. 29, 2013].

See generally Larson's Workers' Compensation Law, § 104.07 [104.07].

AZ:  Scar on Neck Qualifies for Facial/Head Disfigurement Award

An Arizona appellate court recently upheld a workers' compensation award in the form of facial disfigurement benefits where the injured worker, a truck driver, sustained a five-inch scar on his neck when he was sprayed with sulfuric acid that was being hauled in his truck. Construing the Arizona disfigurement statute which, in relevant part, allows awards for "permanent disfigurement about the head or face" [A.R.S. § 23-1044(B)(22)], the appellate court stated that the inclusion of the word "about" was crucial to the decision in the case. The court noted that the dictionary definition of "about" included "on all sides; in every direction; around" and "in the vicinity; near." Because the neck is "around," "near," and "in the vicinity of a person's head or face," a disfigurement of the neck was compensable under the statute.

See Bulk Transp. v. Industrial Comm'n (Freeman), 2013 Ariz. App. LEXIS 90 (May 7, 2013) [2013 Ariz. App. LEXIS 90 (May 7, 2013)].

See generally Larson's Workers' Compensation Law, § 88.02 [88.02].

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

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