Five Recent Cases You Should Know About (5/27/2011)

Larson's Spotlight on Contractor Liability, Removal from Labor Force, Negligent and Reckless Hiring, Average Weekly Wage, and Compensable Claim. 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.

MA: General Contractor Not Immune From Suit In Spite of Providing Workers' Comp Benefits to Workers of Uninsured Subcontractor

The Supreme Judicial Court of Massachusetts recently held that under the "plain language" of G. L. c. 152, § 23-the Massachusetts exclusive remedy provision-a general contractor who paid workers' compensation benefits in connection with the work-related death of an employee working for an uninsured subcontractor is not immune from tort liability in a subsequent wrongful death action filed by the administrator of the deceased worker's estate.  Acknowledging that prior to 1971, under the so-called "common employment" doctrine, a general contractor was immune from third-party suits filed by employees of subcontractors for personal injuries sustained on the job, the court pointed to statutory amendments to G. L. c. 152, § 15 that year and indicated that the intent of the amendments was to allow third-party actions by, or in behalf of, an injured employee against all but his immediate insured employer.

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 2011 Mass. LEXIS 350. 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, § 111.04.

NY: Worker May Not Have Voluntarily Removed Himself From Labor Force; Board's Record Incomplete

A New York appellate court recently reversed a finding by the state's Workers' Compensation Board that ruled a worker had voluntarily removed himself from the labor force by retiring following a work-related injury for which he lost no time.  The court observed that the Board had found that the worker had not been treated medically in the five years prior to the retirement whereas the clear record before the Board showed he had ongoing treatment, reports of which were in the court file.  Since the appellate court could not weigh the evidence, the matter was remanded for additional findings.

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 4084. 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, § 84.04.

OH: Employee Raped By Co-Worker May Not Sue Employer for Negligent and Reckless Hiring Where She Recovered Workers' Compensation Benefits for Injuries Related to the Assault

An Ohio employee who was raped by a co-employee and who subsequently sought and received an award of workers' compensation benefits for permanent total disability may not maintain a tort action against the employer for negligent and reckless hiring and supervision; the action was barred by the exclusive remedy provisions of the Ohio Workers' Compensation Act, said a state appellate court.  Acknowledging that a worker could maintain such a tort action had her injuries been purely psychological in nature-at the time of her injury, Ohio precluded workers' compensation benefits for psychological injuries unless they also involved a physical injury-the court observed that the employee could not neatly separate out her injuries, particularly since she had sought and recovered an award for permanent total disability benefits and had alleged, within her workers' compensation claim, significant physical injuries as a result of the sexual assault.

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 2098. 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, § 104.05.

PA: Deduction of Business Expenses on Worker's Tax Return May Be Considered in Computing Average Weekly Wage

The computation of an injured worker's average weekly wage could appropriately take into consideration information from the worker's tax return, which showed that he deducted various amounts for depreciation of a truck and for the expenses related to maintaining a home office, indicated a Pennsylvania appellate court recently.  The worker contended that the deductions were not true "out-of-pocket" expenses and should not have been considered as reducing his total wage.  Citing a prior ruling, the court indicated that it was appropriate to consider such matters as depreciation in the initial computation of claimant's total wages, from which the average weekly wage computation was drawn.  The burden was on the worker to show that the computations were erroneous and he had failed to meet that burden of proof.

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 Pa. Commw. LEXIS 237. 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.

VA: Worker Establishes Compensable Claim In Spite of Question As to Time of the Injury

A Virginia appellate court recently affirmed an award of benefits by the state's Workers' Compensation Commission to a grocery store employee who claimed she sustained a shoulder injury either when she assisted a supplier in moving a number of cases of beverages or when she shortly thereafter bent over to move a chair that was blocking an aisle.  The appellate court disagreed with the employer's contention that the employee could not point to "some reasonably definite time" at which the injury occurred.  Nor was it persuaded by the employer's contention that assisting the supplier was not part of her work and, therefore, her injury did not arise from her employment.  The employee's testimony that such activity was a part of her work supported the Commission's findings.

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. App. LEXIS 181. 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, § 50.01.

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

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Comments

Anonymous
Anonymous
  • 05-31-2011

Hi Its a very very important post & I found the post very informative.... Thanks