Five Recent Workers’ Comp Cases You Should Know About (9/16/2011) – Sale of Assets to "New" Employer Does Not Mean It is Responsible for 100 Percent of Hearing Loss Claim

Larson's Spotlight on Hearing Loss, Occupational Disease, Dismissal of Claim, Loss of Sight, and RICO. 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.

PA: Sale of Assets to "New" Employer Does Not Mean It is Responsible for 100 Percent of Hearing Loss Claim

Where the "new" employer bought the assets of the injured worker's old employer in what amounted to an arms-length transaction-there was no claim of an intent to escape liability or that the sale was not for fair value-the Board properly determined that the new employer was not a successor-in-interest of the old employer and thus was not responsible for 100 percent of petitioner's hearing loss under § 306(c)(8)(iv) (77 Pa. Stat. Ann § 513(8)(vi)) of Pennsylvania's Workers' Compensation Act. The appellate court held that the "totality of the circumstances" supported the new employer's position that there had been no merger or consolidation between the employers.  The new employer was only responsible for hearing loss incurred while petitioner was in its employ and the board did not err in determining that the employer was only responsible for the percentage of petitioner's related medical expenses representing that portion of his hearing loss for which it was responsible.

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 464. 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, § 52.05.

MO: Court Nixes Exclusive Remedy Provisions for Occupational Disease Claims

Admitting that its decision was "a substantial departure from prior law," a Missouri appellate court recently held that a plaintiff's civil action against his former employer for damages allegedly sustained due to exposure to asbestos while working for the employer was not barred by the exclusive remedy provisions of the state's Workers' Compensation Act.  The plaintiff, who developed mesothelioma after he retired from his job with the employer, contended the employer was liable in tort for the alleged workplace exposure under premises liability and negligence theories. The appellate court agreed with the trial court that pursuant to the 2005 amendments to the Act, only claims arising out of an "accident" as defined in RSMo. § 287.020.2 were subject to the Act's exclusivity provisions; the plaintiff's claims did not involve an "accidental" 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 Mo. App. LEXIS 1161. 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, § 100.01.

NE: Dismissal of Claim for Failure to Cooperate Was Erroneous

Dismissal of an injured worker's claim for failure to keep medical appointments and otherwise cooperate with the employer and carrier may only occur where there is evidence to support a finding that the worker's disability would have been reduced had the worker cooperated with medical treatment or vocational rehabilitation; dismissal may not be used solely to punish or coerce an injured worker, held the Supreme Court of Nebraska recently.

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 Neb. LEXIS 91. 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.

OH: Employee Suffers No Compensable Loss of Sight in Connection with Corneal Transplant

Surgical removal and the replacement of an injured worker's cornea, following a work-related injury to her eye, did not entitle the worker to an award for total loss of vision, held the Supreme Court of Ohio recently.  Observing that the worker lost little vision as a result of the accident, with three doctors assessing her loss at 5 percent, the high court cited its decision from earlier in the summer, State ex rel. Baker v. Coast to Coast Manpower, L.L.C., 2011 Ohio 2721, 2011 Ohio LEXIS 1416 (June 9, 2011), and affirmed the decision of the court of appeals that had refused to award 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 LEXIS 2204. 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.

US: Fifth Circuit Sends Louisiana RICO Case Back to Federal District Court, Reverses Prior Remand to State Court

Based on its conclusion that the plaintiff, a class composed of various Louisiana hospitals, failed in its burden to establish that the conduct of the sole local defendant, LEMIC Insurance Company, formed a significant basis of the claims of the potential class, the Fifth Circuit Court of Appeals recently vacated an order of a federal district court that had sent the case back to the Louisiana state courts and instead, remanded the matter to the federal district court.  The hospital group had sued three defendants in Louisiana state court for violations of the Louisiana Racketeering Act, contending in relevant part that one of the defendants, FairPay, a Texas bill review company, reviewed the bills from the plaintiff class and calculated a recommended payment well below the rate required by the Louisiana Workers' Compensation Act, and that the other two defendants, Zurich and LEMIC, insurance companies based in Illinois and Louisiana respectively, applied FairPay's recommended payment when reimbursing the plaintiff hospitals.  The plaintiff contended the defendants' practices amounted to an enterprise to misappropriate funds using FairPay's under-calculation scheme and violated Louisiana's RICO law.  The defendants removed the case to federal court, asserting jurisdiction under the Class Action Fairness Act ("CAFA"). The district court granted plaintiff's motion to remand to state court, and the defendants appealed.  The Fifth Circuit noted that nothing in plaintiff's complaint distinguished the conduct of LEMIC from the conduct of the other defendants.

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 18520. 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, §§ 94.02, 100.03.

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

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