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Larson's Spotlight on Presumption of Compensability, Social Security Offset, Exclusive Remedy and Co-Employee Immunity, and Retaliatory Discharge. 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.
NY: Evasive Answers by Employer's Medical Expert Fails to Overcome Statutory Presumption of Compensability
Under N.Y. Workers' Comp. Law § 21 (1), a presumption of compensability exists where an unwitnessed or unexplained injury occurs during the course of the affected worker's employment. Claimant, a court reporter, was found unconscious at her workplace and rushed to a local hospital, where she was diagnosed with a subarachnoid hemorrhage caused by a ruptured basilar artery aneurysm. Although claimant survived, she remained unable to communicate. A workers' compensation claim subsequently was filed on her behalf, and the employer and its workers' compensation carrier controverted the claim, asserting that the ruptured aneurysm was not related to claimant's employment. A Workers' Compensation Law Judge found that the employer had not overcome the § 21 (1) presumption of compensability and the Board affirmed.
Upon further appeal, the appellate court observed that the employer could overcome the presumption by presenting substantial evidence to the contrary. The court indicated that the record established that, prior to claimant's collapse, she was under considerable stress at work and her workplace was loud and overheated. While the employer's expert testified that claimant's ruptured aneurysm was unrelated to her employment, the Board agreed with the WCLJ that the expert's report and testimony were not credible, in large part because the WCLJ found the expert to be evasive when questioned as to whether work-induced stress could raise a person's blood pressure high enough to cause an aneurysm to rupture. While the expert acknowledged that high blood pressure could be a factor in the rupture of an aneurysm and conceded that he did not know what claimant's blood pressure was at the time the rupture occurred, he nevertheless opined that there was no work connection here. The appellate court indicated the Board was "the sole arbiter of witness credibility" and affirmed.
VANESSA RICHMAN v NYS UNIFIED COURT SYSTEM et al. 2012 N.Y. App. Div. LEXIS 85.
Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, §§ 7.04, 130.06.
PA: Provision Reducing Workers' Comp Benefits by Portion of "Old Age" Social Security Retirement Benefits Is Constitutional
Approximately one-half of the states and the District of Columbia apply some kind of deduction to compensation benefits for Social Security benefits. The constitutionality of these state offset provisions has, for the most part, been upheld. In a recent decision from Pennsylvania, an appellate court held that the offset provision in Section 204(a) of the Workers' Compensation Act (Act) that reduced a claimant's compensation disability by a portion of her "old age" Social Security retirement benefits did not violate the Equal Protection Clause of Article I, Section 1 of the Pennsylvania Constitution.
Judith Caputo, Petitioner v. Workers' Compensation Appeal Board (Commonwealth of Pennsylvania) 2012 Pa. Commw. LEXIS 9.
Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 157.03.
VI: Co-Employees Do Not Enjoy Immunity From Suit for Work-Related Injuries
All but six jurisdictions extend immunity, based upon the exclusive remedy clause within the jurisdiction's workers' compensation law, to co-employees, as long as the co-employee is acting within his or her employment. One of the exceptions is the U.S. Virgin Islands. The Supreme Court of the Virgin Islands recently held that the plain language of the Virgin Islands Workers' Compensation Act does not support extending an employer's immunity from suit to a co-employee, in spite of the holding of the United States Court of Appeal for the Third Circuit in Tavarez v. Klingensmith, 372 F.3d 188 (3d Cir. 2004), which held that at least in some circumstances, the co-employee was immune. The court noted that it was not required to follow Tavarez or other decisions of the U.S. District Court or the Third Circuit interpreting local Virgin Islands law.
TIMOTHY DEFOE, Appellant/Plaintiff v. LENROY PHILLIP, Appellee/Defendant 2012 V.I. Supreme LEXIS 4.
Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 111.02.
AL: Discharge Was Not Retaliatory When Employee Violated Attendance Rules
An employer may ordinarily defeat a claim that the worker was fired in retaliation of his or her filing a workers' compensation claim by proving a legitimate nonpretextual, nonretaliatory reason for the discharge. An Alabama appellate court recently held that a former employer was properly granted summary judgment dismissing a former employee's complaint alleging that he was discharged in retaliation for filing a workers' compensation claim in violation of Ala. Code § 25-5-11.1(1975) because there was no disputed factual issue that the employee was discharged for violating attendance and misconduct policies.
Quentin Lamar Hale v. Hyundai Motor Manufacturing Alabama, LLC 2012 Ala. Civ. App. LEXIS 6.
Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 104.07.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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