Five Recent Cases You Should Know About (10/8/2010)

Five Recent Cases You Should Know About (10/8/2010)

Larson's Spotlight on Medicare Secondary Payer, Increased Risk, Recreational Social Activity, Neutral Risk, and Employment Contract. 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: Eleventh Circuit Says HHS's MSP Manual is Not Authoritative As to Allocations of Liability Payments to Non-Medical Losses

Although not a workers' compensation case, a recent decision from the Eleventh Circuit Court of Appeals dealing with Medicare offsets, may have broad implications.  Following the death of Burke in a Gainesville, Florida hospital as a result of multi-organ failure, secondary to sepsis and wound infection that occurred at a Florida nursing home, the personal representative of Burke presented a wrongful death claim in the form of a demand letter against the nursing home.  The insurer for the nursing home tendered $52,500, the extent of coverage, and the representative settled on behalf of the estate without ever filing suit.  The Secretary of the U.S. Department of HHS claimed the total amount of Medicare payments for services furnished to Burke for his three-month stay in the hospital--$38,875, less net procurement costs, for a net amount of $22,480.89.  The personal representative then filed an application with the probate court to adjudicate the rights of the estate.  The probate judge, applying equitable principles, ordered that the Medicare medical expense recovery was $787.50 and the independent survivors' claims recovery was $51,712.50. 

The Secretary refused to recognize the validity of the order, citing a MSP manual provision that "the only situation in which Medicare recognizes allocations of liability payments to non-medical losses is when payment is based on a court order on the merits of the case." MSP Manual, Ch. 7, § 50.4.4. The Secretary contended that the decision by the probate court's decision was merely advisory in nature or superseded by federal law. The estate paid Medicare under protest, perfected its administrative appeal, exhausted its administrative remedies, and proceeded on appeal to the district court, which upheld the Secretary's position, relying heavily upon the language contained in the MSP manual. In a case of first impression, the Eleventh Circuit observed that the Secretary cited no statutory, regulatory or case law authority in support of its position as articulated in the MSP manual and that the deference given by the Secretary to the language in the MSP manual was misplaced.  Forcing the estate to file a civil action against the nursing home would have resulted in additional and unnecessary costs, further reducing the small sum available for settlement. 

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: 2010 U.S. App. LEXIS 20091. 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, § 157.03.

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NV: Blackjack Dealer's Injuries While Descending Flight of Stairs Found Compensable

The Supreme Court of Nevada, utilizing the increased-risk standard recently affirmed an award of workers' compensation benefits to a casino blackjack dealer who sustained injuries while descending a staircase at her place of employment.  Her claim had been denied by her employer's claims administrator on the basis that her injuries did not arise out of her employment, that there was nothing in the employment that had caused her to turn her ankle as she descended the staircase.  Quoting Larson's Workers' Compensation Law, Ch. 3, § 3.03 and Ch. 4, § 4.01, the Court indicated the increased-risk option "strikes an adequate balance" between the employee's right to receive compensation for a work-related injury and the employer's right not to be held liable for every injury suffered by an employee in the workplace."  The court observed that the employee worked eight-hour shifts, during which she was required to take six periodic breaks. To access the employees' break room, she had to traverse two flights of stairs.  As pointed out in the employer's brief, which calculated that during the course of the employee's 17-year employment, she used the stairs close to 25,000 times.  The court said the frequency with which the employee was required to use the stairs subjected her to a significantly greater risk of injury than the risk faced by the general public.

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: 2010 Nev. LEXIS 38. 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, §§ 3.03, 4.01.

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IA: Injuries Sustained During Bowling Event Were Not Compensable

Finding that the intangible value of increased worker efficiency and morale that might flow from a non-mandatory, off-premises social event was insufficient to bring the event within the course and scope of the employment, the Court of Appeals of Iowa recently affirmed a district court decision that held that a worker's injuries sustained during a bowling event were not compensable.  Quoting Larson's Workers' Compensation Law, Ch. 22, § 22.05, the court concluded that the fact that some slight benefit accrued to the employer was not the controlling factor.

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: 2010 Iowa App. LEXIS 1142. 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, § 22.05.

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TN: Worker's Shooting Death Was a Neutral Risk Unassociated with Workplace; Death Benefits Were Not Appropriate

Refusing to apply the so-called "street risk" to the facts of the case, where the place of business was not open to the public and reiterating the conclusion that an employer is not responsible for every accidental injury that occurs within the workplace, a Tennessee appellate court recently affirmed the denial of death benefits in connection with an unwitnessed fatal shooting that took place on the employer's premises, just prior to the beginning of the work day.  Quoting Larson's Workers' Compensation Law, Ch. 8, § 8.03, the court indicated that while the shooting might have been associated with a robbery, the facts were far from clear and the lower court was free to conclude that a robbery had not occurred and that the death was the result of a neutral risk not associated with the employment.

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: 2010 Tenn. LEXIS 898. 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, § 8.03.

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CT: Phone Call Made From Worker's State of Residence Was Sufficient to Establish Employment Contract; Connecticut Had Sufficient Contact to Bring Claim Under its Jurisdiction

A Connecticut appellate court recently concluded that an employment contract was formed during a telephone call from Connecticut, where the worker lived, to New York, where the employer had its office. That the worker was not paid for his travel from Connecticut to New York and that his employment did not commence until he arrived at the employer's New York facility and completed employment paperwork was not controlling.  The worker expressed his words of acceptance during the telephone call; Connecticut's relationship to the employment contract, as it was both the place of plaintiff's residence and the place of the contract's formation, was sufficiently significant such that Connecticut law applied to plaintiff's claim for benefits.

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: 2010 Conn. App. LEXIS 435. 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, § 143.03.

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

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