Five Recent Workers’ Comp Cases You Should Know About (7/29/2011) – New Hampshire Supreme Court Adopts Increased-Risk Test for Injuries Due to Neutral Risks

Five Recent Workers’ Comp Cases You Should Know About (7/29/2011) – New Hampshire Supreme Court Adopts Increased-Risk Test for Injuries Due to Neutral Risks

Larson's Spotlight on Increased Risk, Fraud, Retaliatory Discharge, Exhaustion of Appeals, and Notice of Injury. 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.

NH: Supreme Court Adopts Increased-Risk Test for Injuries Due to Neutral Risks

The Supreme Court of New Hampshire recently adopted the increased-risk test to determine the compensability of injuries caused by neutral risks—those that are neither distinctly employment-related nor personal in nature—such as an unexplained fall.  Quoting Larson's Workers' Compensation Law, § 4.01-4.03, the court stressed that under the increased-risk test, the worker may recover if his or her injury results from “a risk greater than that to which the general public is exposed."  Because the Appeals Board did not make specific findings as to whether the injury was caused by a neutral risk, the matter was remanded for further consideration.  If the cause was neutral, then the issue of whether the worker faced an increased risk should be determined.

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.H. LEXIS 98. 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, §§ 4.01, 4.02, 4.03.

FL: Claimant's "Posturing and Cog Wheeling" Were Not "Statements" For Purposes of Workers' Compensation Fraud Statute

A finding by a judge of compensation claims that claimant's "posturing and cog wheeling" and claimant's "persistent attempts to be placed on TTD status" were not "statements" within the meaning of § 440.105, Fla. Stat., and could not, therefore, be the basis for a finding of fraud and misrepresentation for the purposes of obtaining benefits, held a Florida appellate court recently.  Noting that Florida had previously determined that behaviors captured on surveillance were not the sort of statements that could be provably false or misleading [see Dieujuste v. J. Dodd Plumbing, Inc., 3 So. 3d 1275 (Fla. 1st DCA 2009), the court indicated that there was no evidence in the record that Claimant told anyone she could or could not perform a certain behavior that her actions belied, there was no basis for a finding of 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 Fla. App. LEXIS 11454. 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.

IL: Special, Shortened Statute of Limitations For Claims Against Government Entities Does Not Apply to Retaliatory Discharge Claims

The Illinois Local Governmental and Governmental Employees Tort Immunity Act [745 ILCS 10/8-101(a)], which generally requires tort actions against local government entities to be filed within one year, does not apply to civil actions filed by workers who contend they were fired for exercising workers' compensation rights, held a state appellate court recently. The appellate court agreed with the former employee that the specific exception to immunity of 745 ILCS 10/2-101(c) for cases based on the Workers' Compensation Act applied.  A five-year statute of limitations applied to the plaintiff's action.

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 Ill. App. LEXIS 758. 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: Payment of Award Not Required Until All Appeal Rights are Exhausted

Payment of an award ordered by the state's Industrial Commission does not become due until all appeals, including those from the deputy commissioner to the Commission itself, are exhausted or a party waives the right to appeal, held a North Carolina appellate court recently.  Here a deputy commissioner awarded benefits to the worker, the employer appealed to the full Commission, which affirmed the award.  Defendant did not appeal the Commission's finding.  The injured worker had argued that under Roberts v. Dixie News, Inc., 189 N.C. App. 495, 658 S.E.2d 684 (2008), an award of a deputy commissioner was not automatically stayed by an appeal from the award to the full Commission and that the employer's failure to pay within the statutory time period meant it should be assessed a penalty (the Commission agreed).  The appellate court disagreed, indicating that Roberts was inapposite, that while the employer or carrier was charged interest from the date of the initial hearing, under the provisions of N.C. Gen. Stat. § 97-18, no payment by the employer or carrier was required until the exhaustion of appeal rights.

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 1480. 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, § 130.08.

PA: "Collective" Communications, Including Voicemail Message to Employer, Constitute Notice of Injury

Stressing that the issue of adequate notice of injury to the employer is a fact-intensive inquiry that must take into consideration the totality of the circumstances, the Supreme Court of Pennsylvania recently agreed that a voicemail message and other communications by an injured worker were sufficient to give the employer notice of injury in spite of their general tenor.  Acknowledging that the voicemail message, which indicated the worker could not come in based upon "work-related problems" did not specifically indicate the nature and cause of the worker's injury, the court indicated that a precise description of the injury was not always required.  As the issue was fact-based, the court deferred to the WCJ'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 Pa. LEXIS 1621. 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, § 126.01.

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

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