Five Recent Cases You Should Know About (5/20/2011)

Larson's Spotlight on Tort Action Against Partnership, Attorney's  Fee, Hotel Bathroom Injury, Slip and Fall, and Medicare Secondary Payer Act. 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.

NJ: Injured Worker May Maintain Tort Action Against Partnership Where Employer is One of Several Partners

An injured employee may maintain a third-party negligence action against a general partnership in spite of the fact that her employer was a general partner, held a New Jersey appellate court recently.  Generally citing Larson's Workers' Compensation Law, the court found unpersuasive the argument of the partnership that since the partnership shared liability for the actions of its agents, namely, the individual partners, it was entitled to share in the immunities provided to those partners.  The partnership was no mere aggregate of the partners and it was not due employer immunity.

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.J. Super. LEXIS 88. 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, §§ 111.02, 111.03.

ND: Attorney Fee Award Against Employer In Death Claim Case Appropriately Denied Where, In Spite of Unsuccessful Defense, Refusal to Pay Benefits Was Based on Medical Opinions

The Supreme Court of North Dakota recently affirmed a trial court's decision that found a widow was not entitled to an award of attorney fees under N.D.C.C. § 28-32-50 and agreed that the employer acted with "substantial justification" in refusing to pay death benefits after the widow's husband died of a heart attack allegedly caused by work-related stress.  Noting that two expert witnesses, a cardiologist and a family medicine doctor, had agreed that work-related stress was not the cause of the decedent's heart attack, the Supreme Court agreed that even though the employer did not prevail in its defense, a reasonable person could have concluded that its position was correct.

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.D. LEXIS 93. 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, §§ 133.02, 133.03.

OH: Long-Distance Driver's Injuries in Hotel Bathroom Not Compensable

An Ohio appellate court recently affirmed a decision denying benefits to a long-haul truck driver who sustained injuries when he slipped and fell in a hotel bathroom during a mandatory 10-hour rest period.  Noting that the driver was "off-the-clock" during the rest period and was free to go wherever he wanted and to do whatever he wanted to do, the court disagreed with the trial court and, citing Larson's Workers' Compensation Law, indicated the driver's injuries had indeed occurred "in the course of his employment."  The court held, however, that as to the other prong required for compensability-that the injury "arise out of the employment-the truck driver had failed to establish his claim.  Citing Lewis v. TNT Holland Motor Express, Inc., 129 Ohio App. 3d 131, 717 N.E.2d 378 (1998), on almost identical facts, the court concluded that the driver's bathroom injury was not a risk incident to the duties of a long distance truck driver.

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 2022. 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, § 25.04.

OH: Slip and Fall on Icy Patch in Employer's Parking Lot After Collecting Paycheck Not Barred by Going and Coming Rule

An Ohio appellate court recently reversed a decision by a county court of common pleas that had concluded a worker's injuries were not work-related where she slipped on a patch of ice in the employer's parking lot after she had collected her paycheck.  Observing that the worker performed household duties at five clients, that she was required to travel between the various locations and was paid for her travel time and further, that she had retrieved her paycheck during the middle of the work day, as she was required to do, the court held the going and coming rule did not apply and her injuries were sustained within the course and scope of her 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: 2011 Ohio App. LEXIS 2000. 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, §§ 13.01, 16.09, 26.03.

US: Federal District Court Rules DHHS May Not Require Prepayment of Medicare Secondary Payer Reimbursement Claims While Beneficiary Appeals or Seeks Waiver

A United States District Court (Arizona) has held that the Department of Health and Human Services may not require prepayment of an MSP reimbursement claim before the correct amount is administratively determined where the beneficiary either appeals or seeks a waiver of the MSP reimbursement claim, nor can the Department hold plaintiffs-attorneys financially responsible for MSP reimbursement if they do not hold or immediately turn over to Medicare their clients' injury compensation awards.  The court found the Department's requirement that the reimbursement claim be paid within 60 days of demand (or interest would begin to accrue) "neither rational nor consistent with the statutory scheme providing for waiver and appear rights." The court also certified the case as a class action, broadly defining the class as: "persons who are or will be subject to MSP recovery, and from whom defendant has demanded or will demand payment of MSP claims before there have been determinations of the correct amounts through the waiver or appeal process."

FREE VERSION: Access the case at the following URL:

http://www.lexisnexis.com/COMMUNITY/WORKERSCOMPENSATIONLAW/cfs-file.ashx/__key/CommunityServer.Components.SiteFiles/Documents.WCLC+Documents/Patricia-Haro-v-Kathleen-Sebelius-HHS-USDC-AZ-Order.pdf

LARSON'S: See generally Larson's Workers' Compensation Law, § 157.03.

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

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