Five Recent Workers’ Comp Cases You Should Know About (8/12/2011) – Technician’s Back Injury Claim Not Barred On Basis That Stooping and Bending to Retrieve Tools Were Normal Activities of Daily Life

Five Recent Workers’ Comp Cases You Should Know About (8/12/2011) – Technician’s Back Injury Claim Not Barred On Basis That Stooping and Bending to Retrieve Tools Were Normal Activities of Daily Life

Larson's Spotlight on Normal Activities of Daily Life, Misrepresentation of Medical Condition, Recusal of Hearing Officer, Obesity and Personal Risk, and Exclusive Remedy of Longshore 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.

KS: Stooping and Bending to Retrieve Tools Were Not "Normal Activities of Daily Life;" Court of Appeals Erred in Denying Compensability

A service technician for an HVAC company, who stooped to grab a tool out of his tool bag and when he twisted back to work, felt a "pop" or "snap" in his back, suffered a work-connected injury, held the Supreme Court of Kansas recently, reversing an unpublished decision by the state's Court of Appeals.  The Court of Appeals itself had reversed the ALJ and the Board, finding that the technician was precluded from compensation because his injuries were the result of the "normal activities of daily living." Quoting Larson's Workers' Compensation Law, Ch. 1, § 1.03[1], the supreme court stressed that the proper approach was to focus on whether the injury occurred as a consequence of the broad spectrum of life's ongoing daily activities, such as chewing or breathing or walking in ways that were not peculiar to the job, or as a consequence of an event or continuing events specific to the requirements of performing one's job. The test was not the relation of an individual's personal quality (fault) to an event, but the relationship of an event to an employment.  The supreme court agreed that twisting or bending are daily activities, for workers as well as non-workers. The same could be said for "lifting objects, cutting pieces of meat, typing on keyboards, and walking and standing for extended periods of time." The Court of Appeals' opinion improperly removed from the purview of workers compensation protection the many work-related ailments that follow from activities that may also be carried out away from the job.  The technician was not engaged in the normal activities of day-to-day living when he reached for his tool belt or when he bent down to carry out a welding task. The technician's was covered by the Kansas workers compensation statute.

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 Kan. LEXIS 247. 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, §§ 1.03, 9.02.

AL: Employee Disqualified From Receiving Benefits Because of Misrepresentation-No Employer Reliance Required

An Alabama appellate court recently affirmed summary judgment in favor of an employer who contended the injured worker had misrepresented his medical condition on an employment application.  The employee argued that the employer had not relied upon the misrepresentation, that it was fully aware of the employee's prior back condition because he had initially hurt his back during an earlier tenure of employment with the employer-he had injured his back in an auto accident as he returned home from a company Christmas party.  While the appellate court acknowledged that earlier Alabama decisions had adopted the Larson test, which requires reliance on the part of the employer, the court noted that the particular Alabama statute, § 25-5-51, contained no such requirement.  The worker's contention that the employer did not rely on his misrepresentations when it hired him could not, therefore, provide a basis on which to reverse the trial court's summary judgment.

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 Ala. Civ. App. LEXIS 204. 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, 66.04.

OH: Hearing Officer's Denial of Claimant's Similar Request for PTD Benefits Five Years Earlier Was Not Grounds for Recusal

The fact that a staff hearing officer heard and denied an application for PTD compensation submitted by the relator in 2004 was not cause for recusal from a somewhat similar, but subsequent, application filed by the relator five years later, held an Ohio appellate court recently. Ohio Admin. Code 4121-15-10(B) clearly enumerated specific instances in which a hearing officer should disqualify herself from hearing a case and there was no argument that any of those reasons existed. The employee did not present any evidence to demonstrate any actual bias on the part of the SHO. It was not an abuse of discretion for the SHO to hear the employee's second application for PTD compensation.

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 3200. 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, § 124.02.

IN: Risk of Obese Employee's Getting Stuck in Cafeteria Booth is not "Personal Risk;" Award Should Have Been Given For Cracked Femur

A morbidly obese long-term employee, who weighed some 360 pounds, suffered from diabetes, and walked with a cane because of issues with her knees, was not engaged in an "activity of daily living" when she suffered a cracked femur as she tried to remove herself from a booth in a university cafeteria where an employee appreciation dinner had been given.  The court held that the Full Board erred when it determined that the risk that resulted in the employee's injury was personal to her and that there was no increased risk created by the work or the work environment for the injury she sustained. The court observed that while the employee's pre-existing physical condition may have contributed to her injuries and undoubtedly hampered her recovery, her injuries were at least partially attributable to her exit from the booth. Accordingly, the Board's finding was not supported by substantial evidence.

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 Ind. App. LEXIS 1434. 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, § 9.02.

US: Employee of Labor Broker May Not Sue Borrowing Employer For Negligence as His Tort Action Was Barred by Exclusive Remedy Provision of Longshore Act

A worker employed by a labor broker and assigned to work as a day-laborer at a longshore facility may not sue the longshore company for negligence; his civil action is barred by the exclusive remedy provisions of the Longshore and Harbor Workers Compensation Act [§ 905(a)], held the 11th Circuit Court of Appeals recently.  Employing a three-part borrowed-employment standard pursuant, the court held that the worker's consent to the employment relationship could be implied because, in working for the labor broker, he knowingly agreed to new work situations on a regular basis. The control element also was conspicuously satisfied, in part because the labor broker expressly ceded authority to control the worker to the longshoring company for the purposes of the longshoring operations.

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 U.S. App. LEXIS 15658. 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, §§ 67.02, 100.01.

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

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