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Workers' Compensation

Larson’s Spotlight on Recent Cases: Firefighter’s Rule Did Not Bar Tort Action Against Homeowner

Larson's Spotlight on Firefighter's Rule, UIM Coverage, Denial of Medical Treatment, and Presumption of Compensability. 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.

NH: State High Court Refuses to Extend "Firefighter's Rule" to Bar Tort Action Against Homeowner by Firefighter Injured at Fire Scene

The "firefighter's rule," an important exception to the usual third-party liability rules has arisen over time in a minority of jurisdictions. In those jurisdictions, a firefighter (or other first responder) may not recover in tort from a landowner or occupier who has been negligent in starting or failing to curtail a fire. Absent such a limiting doctrine, the firefighter would ordinarily be able to recover under the "rescue doctrine," initially formulated by Judge Benjamin Cardozo. While acknowledging that the State of New Hampshire followed the minority, fighter's rule, the state high court recently refused to extend the principle to bar a common law negligence action filed by a voluntary firefighter against homeowners for injuries sustained when the firefighter slipped and fell on an icy driveway as he attempted to retrieve a fire extinguisher at the direction of the lieutenant in charge. The firefighters had been called to the residence because of a fire involving the home's hot water heater. The court reasoned that because the injury giving rise to the firefighter's claim did not arise from "negligent conduct which created the particular occasion for [his] official engagement," [see RSA 507:8-h], the defendant could not avail herself of the limited immunity conferred by the statute. The negligence supporting the claim was not that which led to the fire, but that which led to the slick driveway. For additional discussion, see

See Antosz v. Allain, 2012 N.H. LEXIS 24 (Feb. 24, 2012).

See generally Larson's Workers' Compensation Law, § 110.08.

US: Massachusetts Employer's UIM Coverage Available to Injured Worker Only Where Employer "Explicitly" Purchased Coverage to Benefit Employees

Citing Massachusetts law for the proposition that an employee cannot recover for work-related injuries under both workers' compensation and her employer's UIM coverage, the First Circuit Court of Appeals recently affirmed a decision by a federal district court in Massachusetts that had granted the defendant insurance company's motion for summary judgment. Plaintiff was a Rhode Island resident and a former employee of a Massachusetts corporation. She was seriously injured in an accident while driving one of the employer's vehicles as part of her job duties. The accident occurred in Boston. Plaintiff filed a third-party claim against the alleged tortfeasor, whose insurance company paid the full policy limit of $20,000.00, which was insufficient to cover Plaintiff's damages. She also filed for and received workers' compensation benefits through the Rhode Island workers' compensation system, and she made a UIM claim against her personal automobile insurance company, which she settled for the policy limit of $25,000.00. Finally, she sought to recover under the UIM provision of the employer's automobile insurance policy, which was provided by the defendant. The court indicated that there was no evidence the employer "explicitly purchased" the UIM coverage "for the purpose of providing [such] coverage (or any other coverage) to employees injured in the course of their employment.

See Baker v. St. Paul Travelers Ins. Co., 2012 U.S. App. LEXIS 4018 (1st Cir., Feb. 28, 2012).

See generally Larson's Workers' Compensation Law, § 110.05.

CO: 108-Day Continuing Penalty Allowed by Court for Failure to Obtain Medical Review Before Denying Replacement of Breast Implant

A Colorado appellate court recently held that a statutory penalty, computed at a daily rate (and not for a one-time violation) should be assessed against a workers' compensation insurer who failed to obtain medical review prior to denying a request by an injured worker who had requested the replacement of a breast implant. An authorized treating physician (ATP) had approved the replacement. The purpose of the replacement was to replace a 2009 implant that itself had replaced a defective 2008 implant, the need for which resulted from an industrial injury. The court found a continuing 108-day violation.

See Crowell v. Industrial Claim Appeals Office, 2012 COA 30, 2012 Colo. App. LEXIS 238 (Feb. 16, 2012).

See generally Larson's Workers' Compensation Law, §§ 55.04, 135.02.

NY: Court Affirms Finding That Injury Was Not Result of Personal Hypoglycemic Episode

Observing that it is the province of the Board to resolve conflicting medical evidence and that while there was evidence that the employee's fall from his chair might have been due to a hypoglycemic episode, other medical evidence pointed to other, work-related causes, a New York appellate court recently affirmed an award to an employee who injured his head in a fall. The court concluded that the presumption of compensability pursuant to N.Y. Work. Comp. Law § 21 had not been rebutted.

See Matter of Eccles v. Truck-Lite, 2012 NY Slip Op 1400, 2012 N.Y. App. Div. LEXIS 1367 (Feb. 23, 2012). Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

See generally Larson's Workers' Compensation Law, § 130.05.

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

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