Five Recent Workers’ Comp Cases You Should Know About (6/17/2011) – Electronic Filing of Objection to Claim After Midnight of Deadline Bars the Objection

Five Recent Workers’ Comp Cases You Should Know About (6/17/2011) – Electronic Filing of Objection to Claim After Midnight of Deadline Bars the Objection

Larson's Spotlight on Electronic Filing, Retaliatory Discharge, Computation of Benefits, Wage Earnings, and Loss of Sight. 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.

ME: Third-Party Administrator's Computer System Allows "Carriage to Turn into Pumpkin"-Post-Midnight Electronic Filing Costs Employer Thousands

The fact that a third-party administrator's computer system electronically submitted a notice of controversy (NOC) to the Maine Workers' Compensation Board after midnight-and, therefore, on the 15th day after the filing of claimant's petition for benefits-the NOC was late and in violation of the Board's 14-day rule, and the former employer was required to pay total incapacity benefits from the date of the original injury to the date claimant's petition was filed-a five-year period-held the Supreme Judicial Court of Maine in a split decision recently.  The court noted that an earlier decision by the court had already passed upon the validity of the rule and the Board's power to utilize it.  Moreover, the legislature had amended portion of the workers' compensation act dealing with prompt payment of claims [39-A M.R.S. § 205] on three occasions and had not indicated any displeasure with the Board's procedures.  A plain reading of the rule required payment by the former 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 Me. LEXIS 68. 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, § 126.13.

OH: Employee Fired One Hour After Injury May Nevertheless Maintain Suit for Retaliatory Discharge

The Supreme Court of Ohio recently reversed a decision by a lower level appellate court that had granted judgment on the pleadings to the employer/defendant regarding the plaintiff/former employee's common law tort action for wrongful discharge in violation of public policy where the firing of the employee occurred just one hour after he sustained a work-related injury.  The court of appeals had found that the employee could not maintain the action under Ohio Rev. Code § 4123.90 because he was fired before he filed his workers' compensation claim-there was no retaliation.  The Supreme Court indicated that the legislature intended to protect injured workers, not just injured workers who had already filed their claims.  The legislature did not intend for there to be a gap between the time of injury and the filing of the claim during which an injured worker would be subject to termination with impunity on the part of the 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 Ohio LEXIS 1418. 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, § 104.07.

NC: Maximum Comp Rate For Year of Diagnosis-Not Year Employee Last Worked for Employer-Should be Used for Computing Benefits

A North Carolina appellate court recently found that the state's Industrial Commission erred in figuring that a decedent had average weekly wages of $807 based on his 1987 wages and in concluding that the maximum compensation rate of $308 for 1987 applied (that was the last full year of employment with the employer).  Noting that the decedent's asbestosis and mesothelioma were diagnosed in 2006, and that the 2006 maximum compensation rate was $730, the court stated that although the proper year for determining the average weekly wages was 1987, N.C. Gen. Stat. § 97-29 required that the maximum compensation rate for 2006 be used, since that was the year of the diagnosis.

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.C. App. LEXIS 1047. 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, § 93.04.

MS: Injury May Have Impacted Worker's Wage-Earning Potential In Spite of Increased Earnings After Injury

The Supreme Court of Mississippi recently held that an employee had successfully rebutted the presumption of no lost wage-earning capacity in spite of the fact that the worker's regular wages increased post-injury, where it also appeared that his post-injury income would have been even higher but for a medical restriction-no climbing.  Saddled with the climbing restriction, the worker could no longer augment his regular wages with steady on-call compensation. Therefore, the Commission erred by finding that the injury had no impact on his wage-earning potential.

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 Miss. LEXIS 280. 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, § 81.01. 

OH: Employee Suffers No Compensable Loss of Sight in Spite of Replacement of Intraocular Lens

Surgical removal of a lens due to a work-related injury does not automatically entitle a claimant to an award for total loss of vision; the proper measure of any award must be based on the percentage of sight actually lost prior to any corrective treatment, held the Supreme Court of Ohio recently. Because the amount of vision lost was less than the minimum 25 percent required by R.C. 4123.57(B), the employee was not entitled to an award for loss of sight. Following the accident, the employee's vision in his injured right eye measured 20/25.  A doctor opined prior to the cataract surgery that the employee had suffered an eight percent visual impairment. After surgery, his vision returned to 20/25. Since, at no time following his injury did the employee's "loss of uncorrected vision" reach the statutory threshold of 25 percent, he was unable to establish a total loss of sight.

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 LEXIS 1416. 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.

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

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