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Larson's Spotlight on Election of Remedy, Exclusive Remedy, Withdrawal From Workforce, 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.
VA: Injured Worker Who Accepted Benefits From Uninsured Employer Could Not Also Proceed Against Employer in Tort
Where an injured worker proceeds against an uninsured employer and, in spite of the lack of coverage, the uninsured employer pays the total amount of workers' compensation benefits awarded to the worker, the worker may not also proceed against the employer in tort, held the Court of Appeals of Virginia recently. The court indicated that under Va. Code § 65.2-307(A), once an employer and employee accept the provisions of the Workers' Compensation Act, the injured worker is precluded from pursuing "all other rights and remedies." The court also indicated that where the employer is uninsured, the plain language of Va. Code § 65.2-805 gave the employee the option to seek compensation under the Act or in an action at law to recover damages for personal injury, but not both.
In the instant case, the employer, an attorney, maintained workers' compensation insurance for his law firm, but not for two separate sheep and wool business he operated. The injured worker sustained a severe injury to his arm when it became caught in one of the wool manufacturing machines.
BARRY WYATT REDIFER v. FRANCIS CHESTER, ET AL. 2012 Va. LEXIS 6.
Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 102.03.
TX: Civil Action Against Employer for "Gross Negligence" Not Barred By Prior Unsuccessful Workers' Compensation Claim
The Texas Workers' Compensation Act provides the exclusive remedy and means of recovery for a covered employee who is killed or injured while working for his employer, but it does not bar an action for exemplary damages based on the employer's intentional tort or gross negligence. Here a worker who suffered a congenital heart problem suffered a fatal heart attack while on light duty with the employer. A claim for death benefits was denied; the Department determined that work was not a substantial contributing factor to his cardiac arrest, but rather a natural progression of a preexisting heart condition. The worker's fiancé and mother of his child filed a wrongful death lawsuit, alleging that the employer was grossly negligent in its failures to install an appropriate ventilation system and to implement adequate procedures to protect employees from exposure to high temperatures. The employer contended the matter was barred by res judicata. The appellate court disagreed, holding that because the causation burden in a workers' compensation case involved different questions from those in a gross negligence suit, the causation issue was not fully and fairly litigated during the DWC compensability hearing. Res judicata did not apply.
TERRICA BARNES AS NEXT FRIEND OF KAINAN COOPER, Appellant v. UNITED PARCEL SERVICE, INC., Appellee 2012 N.Y. App. Div. LEXIS 105.
Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 127.07.
PA: Application for Social Security Disability Benefits Equates to Withdrawal From Workforce
Occasionally, a worker will suffer from an employment-related injury that only partially limits his or her ability to work but, because of other non-work-related medical conditions, the worker is unable to perform even light work duties. If the non-work-related conditions pre-date the employment injury, the employer is usually responsible for the entire disability indemnity [see Larson's Workers' Compensation Law, § 90.01, et seq.]. In a recent Pennsylvania case, the employer raised a separate issue, contending that since the claimant had sought and received Social Security Disability benefits, based on her inability to engage in substantial gainful employment, she had voluntarily withdrawn from the workforce and was due no workers' compensation disability benefits. Under the specific facts of the case, the appellate court agreed.
Susan Burks, Petitioner v. Workers' Compensation Appeal Board (City of Pittsburgh), Respondent 2012 Pa. Commw. LEXIS 25.
GA: Worker's Injuries Chasing Runaway Car Are Compensable
Generally, to support a compensable award, it is not enough that an injury arose within the time and space limits of the employment; there must be some actual connection to the employment. One must be careful with the rule, however, lest one have workers who move in and out of the zone of compensability at many points within a work day. When does the action or inaction by the worker constitute a deviation from the employment? In a recent case from Georgia, an appellate court held that a worker's effort to stop her runaway car was not such a deviation; her injuries arose out of and in the course of the employment. For a more detailed discussion of the case, see http://www.workcompwriter.com/georgia-appellate-court-effort-to-stop-runaway-car-is-not-a-deviation-from-the-employment/#more-98.
STOKES v. COWETA COUNTY BOARD OF EDUCATION 2012 Ga. App. LEXIS 6.
Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 20.01.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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