Five Recent Cases You Should Know About (11/26/2010)

Larson's Spotlight on Retaliatory Discharge, Uninsured Motorist, Average Weekly Wage, Permanent Partial Disability, and Violation of Absenteeism Policy. 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.

AL:  Worker's Retaliatory Discharge Claim Survives Worker's Death From Unrelated Causes

An Alabama appellate court has determined that a retaliatory discharge claim should be treated as any other claim with regard to whether the claim survives the death of the worker; it is not barred by the provisions of Code of Ala. § 25-5-1, which generally provides that when a worker dies from causes not related to his or her claim for benefits under the Workers' Compensation Act, his or her claim for benefits survives only if the degree of disability resulting from the injury has been determined by a court or agreed upon by the parties.

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 Ala. Civ. App. LEXIS 338. 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, § 89.02.

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KY:  Uninsured Motorist Claim Barred Where Other Driver is Co-Worker

The Supreme Court of Kentucky recently held that a worker (or the worker's personal representative) may not recover under the worker's personal policy of uninsured motorist protection and underinsured motorist protection for uncompensated injuries sustained in a work-related vehicle accident caused by the negligence of a co-worker.  The worker must be "legally entitled to recover" from the driver of the other vehicle in order to enjoy the uninsured or underinsured coverage.  Since the worker's action against the co-worker was barred by the exclusive remedy provisions of the workers' compensation law, there could be no recovery under the personal UM or UIM policy.

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 Ky. LEXIS 276. 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, § 110.05.

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LA:  Worker Bound by Stipulation As to Average Weekly Wage

A Louisiana appellate court recently held that a worker was bound by a joint stipulation regarding his average weekly wage; he could not subsequently seek to amend the judgment "to correct a calculation error" where he contended his average weekly wage was not the amount stipulated, $500, but $800.  The court indicated that any amendment that added to, subtracted from, or in any way affected the substance of the judgment was considered to be a substantive amendment to the judgment, not a correction of a calculation error. 

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 La. App. LEXIS 1589. 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, § 131.04.

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MD:  Permanent Partial Disability Benefits Are Capped Based on AWW on Day of Injury

The Court of Appeals of Maryland recently held that an injured employee's permanent partial disability benefits (PPD) are "capped" by the State average weekly wage (SAWW) in effect on the day when the injury occurred and not by the SAWW for the year in which the employee's PPD commenced. 

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 Md. LEXIS 697. 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, § 93.04.

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OH:  Employee's Violation of Absenteeism Policy Dooms His Retaliatory Discharge Claim

An Ohio appellate court has affirmed summary judgment in favor of a former employer that had been sued for retaliatory discharge by a worker who was terminated some two months after he sustained a work-related injury.  While the employee successfully established a prima facie case of retaliation, the employer set forth a legitimate, non-retaliatory reason-the employer's absenteeism policy that was neutrally applied.  The worker was absent for three consecutive days without notifying management.  He showed no evidence that the employer applied the policy in a pre-textual manner.

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 Ohio App. LEXIS 4774. 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, § 104.07.

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

   Offer good through December 2010.