Five Recent Workers’ Comp Cases You Should Know About (12/2/2011) – Employee Assaulted by Company CFO at Office Party May Not Recover Tort Damages From Employer

Larson's Spotlight on Assault, Franchisor as Contractor, Average Weekly Wage, Death Benefits, and Insurance Coverage. 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: Employee Assaulted by Company CFO at Office Party May Not Recover Tort Damages From Employer

A New York appellate court recently affirmed the dismissal of a significant portion of a tort claim filed against an employer by an employee who claimed he sustained personal injuries through the negligence and "intentional and/or wanton conduct" of the employer when the employee was struck by a coworker at an office party.  The court observed that there was no allegation or indication that plaintiff's coworker, the company CFO, acted within the scope of his employment when he allegedly attacked plaintiff or that the alleged assault was precipitated by a work-related issue.  Nor was there any allegation that the defendant employer condoned, instigated or authorized the alleged assault.  At most, the complaint alleged that a "culture" of alcohol use at off-premises, after-hours company events, contributed to the company CFO becoming intoxicated at the party.  Since the plaintiff could not recover under any negligence or wanton conduct theory, the court did not reach the issue of workers' compensation exclusivity.

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.Y. App. Div. LEXIS 8455. 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, § 100.03.

KY: Franchisor May, Under Appropriate Circumstances, Be Considered "Contractor" and Liable for Workers' Compensation Claims Filed by Employees of Uninsured Franchisees

Nothing in Kentucky's "contractor-under" statute [see KRS 342.610(2)(b)] prohibits a franchisor from being considered a general contractor and, therefore, liable for workers compensation liability to the employees of uninsured contractors under it, held the Supreme Court of Kentucky recently.  Reversing a decision by the state's Court of Appeals, which had earlier indicated that because the relevant statute did not mention franchisors they could not be deemed to be contractors, the high court held that under the facts of the case, as correctly found by an administrative law judge, the franchisor was not a contractor.  Quoting Larson's Workers' Compensation Law, § 70.06, the court reasoned that the franchisor-which franchised "Subway" sandwich shops-did not control the day-to-day activities of the franchisee, nor had it contracted out a "regular or recurrent part of its business" to the franchisee in an attempt to avoid the expense of workers' compensation benefits.  The court noted that the ALJ (and the Board) found that the franchisor was in the business of franchising, not selling sandwiches.

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 Ky. LEXIS 166. 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, § 70.06.

NY: Wages From Concurrent Employment Were Required to be Added For Purposes of Computing Worker's Average Weekly Wage

A New York appellate court recently affirmed a decision by the state's Workers' Compensation Board that had computed an injured worker's average weekly wage by combining the weekly wage of the employer at the time of the injury with the weekly wages earned from a concurrent employer [see N.Y. Workers' Comp. Law § 14 (6)].  The worker had sustained her injury while working part-time as an election poll inspector.  Because of the nature of the elections work, her average weekly wage from her employment with the Board of Elections was only $3.56; she earned an average of $77.13 each week from her job at a retail clothing store. The appellate court acknowledged that the state had ceased to allow reimbursement to employers in such concurrent employment cases from the Special Disability Fund, but indicated that made no difference as to the employer's underlying liability for benefits.  Nothing in the legislative history indicated that the legislature intended to reduce an injured worker's benefits merely because it had closed out the Special Fund to employers.

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.Y. App. Div. LEXIS 8361. 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, § 93.03.

OH: Where Worker Had No Dependents, Estate Could Recover Death Benefits, But Not For Schedule Loss of Use Award for Quadriplegia Where Death Occurred Approximately One Minute After Worker Was Crushed By Heavy Steel Beam

An Ohio appellate court recently affirmed summary judgment in favor of an employer and refused to allow the personal representative of a deceased employee to amend a workers' compensation death benefits claim so as to allow additional recovery for quadriplegia and a scheduled loss of use award for upper and lower extremities where the deceased worker sustained fatal injuries when he was crushed by a heavy piece of steel at the work site.  Medical evidence tended to show that the decedent did not suffer immediate death, that he likely lived as much as a minute after being crushed, and that he, therefore, not only experienced great pain, but lost the use of his upper and lower extremities in the fatal incident.  The appellate court reasoned that since the claim had not been filed by the decedent at the time of his death, the second scenario envisioned in Ohio Rev. Code § 4123.60 was applicable.  Under that provision, upon the decedent's death, only his dependents were eligible to apply to receive an award that he may have received had he made the application for an award during his lifetime.  The deceased worker did not have any dependents for workers' compensation purposes; his estate could not seek compensation under § 4123.60.

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 4982. 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, 89.05.

WV: BrickStreet Mutual Is Not Required to Make Express, Commercially Reasonable Offer of Coverage for Deliberate Intent Actions; Merely Required to Make Coverage Available if Requested

The Supreme Court of Appeals of West Virginia recently held that In its enactment of W. Va. Code § 23-4C-6 (2005) (Repl. Vol. 2010), the state legislature did not impose upon the West Virginia Employers' Mutual Insurance Company, d/b/a BrickStreet Mutual Insurance Company, the duty to make to its insureds an express, commercially reasonable offer of coverage for deliberate intent actions, as set out in W. Va. Code § 23-4C-1 et seq., or to obtain a voluntary waiver of such coverage. Instead, the Legislature merely required that such coverage be made available to insureds upon their voluntary request.

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 W. Va. LEXIS 321. 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, §§ 103.04, 152.02.

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

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