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Workers' Compensation

Larson’s Spotlight on Recent Cases: Employer’s OSHA Violation Falls Short as Substantial Evidence of Intentional Wrong in Tort Action

Larson's Spotlight on OSHA Violation and Intentional Wrong, Offset of Wage Loss Benefits, Injury During Work Break, and Slip and Fall in Company Lot. 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.

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NJ: Employer's OSHA Violation Found Insufficient to Support Necessary Level of "Intent" to Support Tort Claim by Injured Worker Against Employer

Relying upon its earlier decision in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985), in which the Supreme Court of New Jersey adopted the "substantial certainty" rule, the state high court nevertheless reversed the decision of a lower appellate court which had found, on the basis of the employer's OSHA violation, that there was substantial evidence of an intentional wrong.  The Supreme Court indicated that also under Millison, it had held that a probability or knowledge that injury or death could result was not sufficient to demonstrate an intentional wrong.  Instead, an intentional wrong must amount to a virtual certainty that bodily injury or death will result. The high court indicated that in the instant case the on-site supervisor made a "quick but extremely poor decision" and, against his own better judgment, sent the employee into a trench to perform a brief task.  The Court said there was no objectively reasonable basis to conclude, however, that the violation of the safety protocol was substantially certain to lead to injury or death during the few minutes the worker was going to be in the trench. The high court added that the Appellate Division's totality of the circumstances analysis "overvalued the finding of a willful OSHA violation and parlayed the possibility or probability of a cave-in into satisfaction of the substantial-certainty test."  While the reasonable fact-finder could determine that the employer's actions in the case constituted gross negligence, that showing was not enough to overcome the Act's exclusivity requirement.

See Van Dunk v. Reckson Assoc. Realty Corp., 2012 N.J. LEXIS 678 (June 26, 2012).

See generally Larson's Workers' Compensation Law, § 103.04.

AR: Partial Offset of Claimant's Disability Benefits by Retirement Benefits Allowed

An Arkansas appellate court recently reversed a decision by the state's Workers' Compensation Commission that found that the claimant's wage loss benefits should be offset, on a dollar-for-dollar basis, by all her retirement benefits.  It was determined that she had sustained a 30 percent disability rating from a work-related injury and she subsequently decided to take "early retirement." Had she not been injured, she would have still qualified for early retirement and the court found that the additional benefits she received, by virtue of the combination of her disability and retirement factors was $133.40. Since the purpose of the statute was to prevent a double recovery, it was appropriate to allow the offset only as to that small portion of her benefits.  For additional discussion, see

See Mills v. Arkansas State Hwy & Transp. Dep't, 2012 Ark. App. 395, 2012 Ark. App. LEXIS 514 (June 20, 2012).

See generally Larson's Workers' Compensation Law, § 157.01.

OR: Police Lieutenant's Injuries During Coffee Break Are Compensable

The Court of Appeals of Oregon recently affirmed an award of workers' compensation benefits to a police lieutenant who sustained injuries when she was struck by a motorist as she walked across the street from her office to get a cup of coffee.  The court observed that while the bulk of the lieutenant's duties involved office work, she did occasionally respond to calls, detect and deter crime, direct traffic at incident scenes, and the like. She carried a cell phone provided by the police force and was generally considered on call.  The court indicated that the lieutenant did not cease being an on-duty police officer when she left her office and entered the street. While her motivation may have been to buy a cup of coffee, she was still on duty and was obligated to perform community policing functions while she was on the street.

See McDermed v. City of Eugene, 2012 Ore. App. LEXIS 796 (June 27, 2012).

See generally Larson's Workers' Compensation Law, § 20.02.

OR: Slip and Fall In Company Parking Lot During Paid Break While Walking to Nearby Bank to Deposit Personal Check Did Not "Arise Out of Employment"

Contrast the McDermed decision, noted immediately above, with another decision by the Court of Appeals of Oregon in which it recently reversed an award of workers' compensation benefits to an employee who, during a paid break, slipped and fell in an employer-owned parking lot while walking from her workplace to a credit union adjacent to the employer's premises to deposit a personal check.  Citing Larson's Workers' Compensation Law, the court indicated that while it could certainly be said that the injury occurred in the course of the employee's employment, the appellate court concluded that the injury did not arise out of her employment because neither claimant's work nor her work environment exposed her to the risk of the injury she suffered.

See Noble v. Legacy Health Sys., 2012 Ore. App. LEXIS 786 (June 27, 2012).

See generally Larson's Workers' Compensation Law, §§ 13.04, 13.05.

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

Larson’s Workers’ Compensation Law


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