Five Recent Cases You Should Know About (1/21/2011)

Larson's Spotlight on Claimant Status, Horseplay, Average Weekly Wage, Medical Evidence, and Notice of Injury. 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.

OH: When is a "Claimant" Not A Claimant?  As It Was With the Clinton-Lewinski Case, It Depends Upon What the Meaning of "Is" Is

Channeling former President Clinton and his testimony before the Lewinski grand jury, an Ohio appellate court recently determined that the outcome of a subrogation claim depended upon what the meaning of the word "is" is. Holding that the state fund did not have a subrogation claim against either an injured worker or a third-party insurance company when the two parties settled a tort action arising from a work-related automobile accident in spite of their failure to notify the state fund and get its consent, the court indicated that under the facts of the case, the workers' compensation claimant was not a "claimant" at the time she settled the third-party action against the automobile insurance carrier. 

Dernier was involved in an auto accident near her home on August 7, 2006.  At the time, she worked for the Arthritis Foundation, which was in the process of closing its local office.  Because of that closure, Dernier worked from her home.  She was traveling to the local office to retrieve important materials when the accident occurred.  She initially thought her injuries were minor, but complications developed and she required two spinal surgeries and likely has some permanent disability.  She filed a workers' compensation claim on May 14, 2007, which was denied on June 1, 2007.  On June 6, 2007, she settled her tort claim against the driver of the other vehicle by accepting the full coverage amount of $100,000.  She gave no notice to the employer or to the state fund.  Two days later, she appealed the denial of her workers' compensation claim.  In October 2007, the denial of her claim was overturned.  By late March 2009, the state fund had paid $122,000 in wage and medical benefits.  In April 2009, the state fund sued Dernier and the third party auto carrier to recover what it contended was its subrogation interest. 

Affirming a summary judgment order favoring the defendants, the Ohio appellate court disagreed with the state fund's contention that Dernier became a "claimant" when she filed her application for workers' compensation benefits.  Carefully examining the language of Ohio Rev. Code Ann. § 4123.931, the court noted that a claimant was someone "eligible to receive compensation, medical benefits, or death benefits" under the workers' compensation statutes.  The court then said it needed to determine what the meaning of the word "is" is.  It held that Dernier was not qualified to receive benefits at the moment she filed her claim.  While the filing of the claim was a prerequisite, it did not, in and of itself, qualify her for any benefits.  This was particularly true in Dernier's situation since, at the time she settled the third party lawsuit, her workers' compensation claim had been denied. 

Because the first payment of workers' compensation benefits occurred after the settlement of the law suit, the state fund could not proceed against either the third party auto carrier or Dernier; any such claim was barred by the settlement documents of the law suit.   

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: 2011 Ohio App. LEXIS 122. 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, § 116.07, 117.01.

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VA: High Court Allows Horseplay Claim of Non-Participating Victim

In what it indicated was a case of first impression, the Supreme Court of Virginia recently reversed a decision of the state's Court of Appeals that, in turn, had affirmed a determination by the Virginia Workers' Compensation Commission that denied benefits to a restaurant employee who dislocated his shoulder when he raised his arm to protect himself from pieces of ice that were being thrown at him by co-workers. Applying the actual risk test, the court indicated that injuries to a non-participating innocent victim that result from workplace horseplay may be compensable where the playful or joking actions of the fellow employee are found to be an actual risk of the employment because horseplay is sometimes a natural incident of work. 

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: 2011 Va. LEXIS 17. 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, § 23.02.

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NY: Modification of Average Weekly Wage Was Appropriate Where Injured Worker Was Younger than 25 at Time of Injury and Worked Only Part-time

Construing N.Y. Worker' Comp. Law § 14(5), related to the average weekly wage of an employee who is younger than twenty-five when injured and who would reasonably expect his or her wages to increase, a New York appellate court has affirmed a decision by the state Workers' Compensation Board that increased the average weekly wage of an employee from $226.38 to $450, in spite of the fact that the Workers' Compensation Law Judge had increased the wage to $800 per week.  The employee was only 18 years old at the time of her injury and then was employed on a part-time basis by Wal-Mart.  She contended that her permanent partial disability prevented her from pursuing a career in professional dancing and/or choreography.  The law judge agreed and modified her wage rate to the $800 figure.  The Board indicated it was more appropriate to base her wages on those of a dancing teacher, particularly since at the time of the injury, the employee had not sought work as a professional dancer and had enrolled in a community college that had no dancing program.

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: 2011 N.Y. App. Div. LEXIS 165. 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, § 93.02.

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OR: Loading Coffee into Truck, Not a Sneeze, Caused Worker's Herniated Disc

An Oregon appellate court recently affirmed a decision by the state Workers' Compensation Board that a worker's herniated disc was caused by his efforts to lift coffee products into a delivery truck and not by a subsequent sneeze that he contended made his pain worse on the day of the injury.  Observing that the Board had found the worker to be credible and that the medical evidence, while in conflict, the Board could rely on the worker's experts who had opined that his injuries were work-related.

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: 2011 Ore. App. LEXIS 22. 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, § 130.05.

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NY: Delay in Giving Employer Notice of Injury Excused

Stressing that it was for the Board to weigh the evidence and judge the credibility of the witnesses, a New York appellate court recently affirmed an award of benefits to a housekeeper who claimed she sustained a back injury while lifting a pail of water. The delay in the onset of the housekeeper's symptoms was medically explained, as was her failure, initially, to attribute those symptoms to the work incident. The carrier's contentions that the injury occurred at home and was an aggravation to a preexisting back injury were speculative and not so inherently persuasive that the Board erred in rejecting them. The housekeeper's delay in giving written notice to the employer was also excused; she credibly testified that she told her supervisor of the injury within three days.

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: 2011 N.Y. App. Div. LEXIS 109. 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, § 126.03.

WHAT’S THE DIFFERENCE BETWEEN lexisONE AND LexisNexis? Compare the differences between lexisONE free case law and LexisNexis fully featured case law to see what you get with each service.

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