Five Recent Workers’ Comp Cases You Should Know About (6/10/2011) – Worker's Injuries Walking to Smoking Area Not Compensable

Five Recent Workers’ Comp Cases You Should Know About (6/10/2011) – Worker's Injuries Walking to Smoking Area Not Compensable

Larson's Spotlight on Knee Injury During Smoking Break, Homebased Worker Slip and Fall, Death Benefits for Fatal Heart Attack, Loss of Use of Foot, and Domestic Employee. 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.

AR: Worker's Injuries While Walking to Smoking Area Were Not Compensable

Applying Ark. Code Ann. § 11-9-102(4)(B)(iii), which generally provides that "compensable injury" does not include an injury "which was inflicted upon the employee at a time when employment services were not being performed," an Arkansas appellate court recently affirmed the denial of benefits to a worker who injured her knee as she walked toward a smoking area where she was going to take a break from her duties.  That she saw another worker and asked the other to accompany her so that the two could talk about a work-related matter did not change the outcome, held the appellate court.  She was not engaged in the conversation at the time she was injured; hers was not a "compensable injury."

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 Ark. App. LEXIS 436. 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, § 3.01.

OR: Home-Based Worker Who Tripped Over Her Dog Sustained Injury Arising Out of Employment

The Court of Appeals of Oregon recently reversed a decision by the state's Workers' Compensation Board that had denied a worker's claim in connection with injuries sustained when the home-based worker tripped over her small dog as she walked from her home to her nearby garage to retrieve some supplies.  The Board concluded that the worker's injury did not arise out of her employment because (a) she was not exposed to the risk by virtue of her employment, but encountered the same risk any time that she stepped outside the door of her home and (b) because the risk arose from her home environment, which was outside of the employer's control.  The appellate court disagreed.  Quoting Larson's Workers' Compensation Law, § 16.10, the court found the employer's lack of control over the conditions of the worker's premises not material. While the employer might not have had control over the worker's dog, it had control over whether the worker worked away from the employer's premises.  Once it was established that the home premises was also the work premises, it followed that the hazards of the home premises encountered in connection with the performance of the work were also hazards of the employment.  The case was remanded since there had been no determination as to whether the injuries arose in the course of the 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 Ore. App. LEXIS 715. 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, § 16.10.

NY: No Death Benefits For Husband's Fatal Heart Attack in Spite of Presumption of Compensability

A New York appellate court recently affirmed a decision of the state's Workers' Compensation Board, which ruled that a deceased worker did not sustain a causally related injury and denied the surviving spouse's claim for workers' compensation death benefits where the Workers' Compensation Law Judge found that the deceased worker had long-standing heart disease and the heart attack was unrelated to the work activity.  The surviving spouse had relied upon N.Y. Workers' Comp. Law § 21, which creates a presumption of compensability where, as was the case here, an unwitnessed or unexplained death occurred during the course of the employment.  The appellate court agreed that the employer had successfully rebutted the presumption with evidence a death certificate, an autopsy report, and the medical records of the deceased worker, all of which pointed to the cause of death as being the deceased worker's preexisting heart condition.

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 4338. 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, § 7.04.

OH: No Loss of Use of Foot Where Worker Was Able to Bear Weight on Foot and Walk With Difficulty

An Ohio appellate court recently held that an injured worker had not lost the use of his left foot where, in spite of having suffered a toe-amputation when a tow motor ran over his foot, he was able to bear weight on the foot and walk, albeit with some difficulty.  Stating the Ohio rule that the injured worker must show that the body part was amputated or that "the claimant suffered the permanent loss of use of the injured bodily member for all practical intents and purposes," the court agreed that under the circumstances, there was no total loss of use.

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 2220. 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, § 86.04.

TX: Truck Driver Is Not a "Domestic Employee"

An appellate court in Texas recently held that a truck driver was not a "domestic employee" for purposes of a motor vehicle liability insurance policy issued by a carrier to the driver's employer, that the term "domestic employee" referred instead to a person engaged in employment incidental to a personal residence.  The driver contended the term applied to all persons who worked within the United States.  Texas does not require employers to provide workers' compensation insurance coverage for their employees and the employer had no such policy.  It did, however, have a motor vehicle policy that excluded coverage for bodily injury to employees occurring during employment.  The exclusion did not apply to "domestic employees" not entitled to workers' compensation benefits.  The court held that the driver was not a domestic employee, even though his duties included cleaning the office, the vehicles, and the yard. There was no evidence that those activities took place incidental to a personal residence.

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 Tex. App. LEXIS 4273. 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, §§ 72.03, 102.01.

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

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