Five Recent Cases You Should Know About (2/4/2011)

Five Recent Cases You Should Know About (2/4/2011)

Larson's Spotlight on Mesothelioma, Independent Contractor, Disqualification for Benefits, Football Player’s Average Weekly Wage, Death Benefits and Dependency. 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: Texas Employee May Maintain Mesothelioma Tort Action Against Employer Since All Exposure Occurred Prior to Amendment of Work Comp Act Adding Disease as a Covered Injury

A United States District Court (E.D. Pa.), construing Texas law (the case was transferred to the Pennsylvania court under MDL 875), has held that under the specific facts of the case, a former employee and his wife may maintain a common law tort action against the former employer for damages associated with employment-related asbestos exposure that subsequently caused the former employee to contract mesothelioma.   Since it was undisputed that all the former employee's asbestos exposure occurred prior to 1971, when the Texas Workers' Compensation Act was amended to add mesothelioma as a covered injury, and since Texas law made it clear that the date of diagnosis is not the relevant date for determining "bodily injury," and since, with regard to asbestos exposure, Texas courts have defined "bodily injury" as the "subclinical tissue damage that occurs on inhalation of asbestos fibers, plaintiffs' claim against the employer arose before mesothelioma was a covered injury and, accordingly, the tort action was not barred by the exclusive remedy provisions of the Texas Act.

Free download Bearce v. General Dynamics Corp., ED PA Civil Action Number 2: 07-69238.

Lexis.com subscribers: See generally Larson's Workers' Compensation Law, § 52.01, 100.04.

AL: Retiree Injured While Driving Vehicle to Car Dealership Was Independent Contractor, Not Employee

A retiree who occasionally was hired by an auto dealership to travel, along with another driver, to various other dealerships to retrieve cars that were to be purchased by the first dealer's customers was an independent contractor and not the employee of a dealership, held an Alabama appellate court recently.  Noting that the retiree earned no more than $2,800 annually, was essentially free to chose which route to take, and was not otherwise supervised during the pick-up and delivery process, the court overturned a decision by the trial court that had found the retiree was the employee of the dealership and, therefore, entitled to workers' compensation benefits for his injuries.

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 Ala. Civ. App. LEXIS 25. 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, § 61.03.

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.

LA: Claimant Is Disqualified From Benefits and Ordered To Make Restitution Where He Tried to Get Physician to "Change His Story"

A Louisiana appellate court recently affirmed a decision by the Workers' Compensation Judge's finding that claimant had committed fraud under La. R.S. § 23:1208 when the WCJ found that the claimant went to his treating physician and asked him to "change his story," indicating to the physician that the latter had "messed up" his lawsuit.  It was within the discretion of the WCJ to believe the physician's version of the story and disbelieve the testimony offered by the claimant.  Restitution was an appropriate remedy for the claimant's fraud.

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 La. App. LEXIS 60. 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, § 39.03.

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.

LA: Pro Football Player's Average Weekly Wage Computed Based on Earnings at Time of Injury, Not Level of Benefits He Later Received Under Collective Bargaining Agreement

The average weekly wage, for purposes of computing workers' compensation benefits for a professional football player who sustained injuries during a preseason workout period, was appropriately based on the $440 he earned each week at the time he was injured, and not on the $175,000 he was later paid for the entire season because he was on "injured reserve," held a Louisiana appellate court.  Citing Farquhar v. New Orleans Saints, 16 So.3d 404 (La. Ct. App. 2009), the court indicated the law was clear on the issue.

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 La. App. LEXIS 78. 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, § 93.01.

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.

NY: Disabled Son—Cared for By Deceased Worker's Sister and Husband—Does Not Qualify for Death Benefits Where No Actual Showing of Dependency

A New York appellate court recently reversed a decision of the state's Workers' Compensation Board that had awarded a portion of the total death benefits to the disabled son of the deceased worker.  The appellate court found that some showing of actual dependence was required.  While it was undisputed that the disabled son was not self-supporting and that the decedent cared for him on some weekends and purchased some of his clothing, it also appeared that decedent's sister and her husband had become the legal guardians of the son and had been awarded custody of him when he was six years old.  The court said that the record was bereft of any evidence as to the extent of the decedent's financial contributions, the extent of the son's needs or the effect of the loss of decedent's contributions on him.  The Board's determination that the son was decedent's dependent and, therefore, eligible for death benefits pursuant to Workers' Compensation Law § 16 (2-a) was not supported by substantial evidence.

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 467. 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, § 96.01.

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