Larson’s Spotlight on Recent Cases: North Dakota Refuses to Adopt Positional Risk Doctrine

Larson's Spotlight on Positional Risk Doctrine, Medical Evidence, Total Permanent Disability, and Deviation From Employment. 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.

ND: Divided State Supreme Court Refuses to Adopt Positional Risk Doctrine

Construing a 1977 amendment to the state's Workers' Compensation Act [N.D.C.C. § 65-01-02(10)] that added an "arising out of" element to the already existing "course of employment" language required in order for a claimant to show legal causation, a divided Supreme Court of North Dakota recently refused to employ the positional risk doctrine regarding a claim where an employee sustained injuries in an unexplained fall that occurred as she was walking on a level, unobstructed floor at the employer's premises.  The majority of the court, citing Larson's Workers' Compensation Law, held that the legislative history related to the 1977 amendment clearly indicated that by adding the "arising out of" language, the Legislature intended for claimants to prove more than that they merely suffered an injury on work premises and during work hours to receive compensation for the injury.  The dissent, also citing Larson, indicated that since the risk of falling here was neutral, that is to say that there was nothing either directly personal to the employee, nor was there anything to connected the employment to the injury, it made sense to place the burden of the injury on the employer, who could spread the loss across its entire business than to place it on the injured employee. For additional discussion, see http://www.workcompwriter.com/north-dakota-supreme-court-refuses-to-adopt-positional-risk-doctrine-in-unexplained-fall-cases/.

See Fetzer v. North Dakota Workforce Safety and Ins., 2012 ND 73, 2012 N.D. LEXIS 70 (Apr. 10, 2012).

See generally Larson's Workers' Compensation Law, §§ 4.03, 7.04.

VA: Sanitation Worker's Claim Fails Where Medical Evidence Inconclusive in Tying Backwards Step From Truck to Knee Injury

The Court of Appeals of Virginia recently affirmed the denial of benefits to a sanitation worker who sustained a knee injury when he stepped down backwards off a trash truck, while holding on to the truck's hand rail. The court held that the Commission did not err in concluding that the claimant's injury did not arise out of his employment. The medical evidence did not establish anything more than a speculative link between the injury and the height of the step. Since the medical evidence was inconclusive, the employee had failed to meet his burden of proof.  For additional discussion, see http://www.workcompwriter.com/virginia-court-affirms-denial-of-benefits-related-to-unexplained-fall-in-spite-of-evidence-that-claimants-step-from-truck-was-larger-than-normal-staircase-distance/.

See May v. Town of Bridgewater, 2012 Va. App. LEXIS 106 (Apr. 10, 2012).

See generally Larson's Workers' Compensation Law, §§ 4.03, 7.04.

KY: Claimant Awarded TPD Benefits In Spite of Fact That No Medical Opinion Stated He Was Totally Disabled

A Kentucky appellate court recently affirmed an award of permanent and total disability benefits to an employee in spite of the fact that there was no medical opinion that the worker was totally disabled.  The court indicated that the administrative law judge had considered the medical opinion that was before the Workers' Compensation Board, as well as the restrictions imposed on the employee's physical activities.  Those restrictions, coupled with the employee's age, education, and work experience was sufficient to support the finding of total and permanent disability.

See Dallas Nat'l Ins. Co. v. Board, 2012 Ky. App. LEXIS 64 (Apr. 13, 2012).

See generally Larson's Workers' Compensation Law, § 83.01.

NE: Employee's Injuries in Auto Accident While Retrieving ID Badge He'd Left at Home Are Compensable

A Nebraska appellate court recently affirmed an award of workers' compensation benefits to an employee who, after clocking in for his work shift, realized he had left his identification badge and access card at home and, after traveling back home to retrieve the items, was involved in an auto accident as he drove back to the employer's facilities.  While the employee's actions were a deviation from his employment, the departure was not so serious as to take him out of the course and scope of the employment.

See Parks v. Marsden Bldg Maint., LLC, 19 Neb. App. 762, 2012 Neb. App. LEXIS 87 (Apr. 17, 2012).

See generally Larson's Workers' Compensation Law, §§ 13.01, 29.01.

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

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