Workers' Compensation

Larson’s Spotlight on Recent Cases: Survivors of Deceased Employee Allowed to Bring Tort Action Against Uninsured Employer

Larson's Spotlight on Tort Action Against Uninsured Employer, Illegal Aliens, Benefits for Old Workers, and Non-Dependent Spouse. 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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MO: Survivors of Deceased Employee May Proceed in Tort Against Uninsured Employer After Recovering Comp Benefits from Statutory Employer

In a 4-3 decision, the Supreme Court of Missouri recently reversed the decision of a state trial court that had held a workers' compensation award against a statutory employer barred a wrongful death claim against the deceased employee's uninsured employer. Finding that deceased employee's survivors had not made an election of remedies when they obtained the workers' compensation award against the statutory employer, the majority of the state high court held that the plain language of Mo. Rev. Stat. § 287.280.1 allowed an injured party or his or her dependents to proceed in a civil action against the uninsured employer. Nor was there any issue of an impermissible double recovery because any recovery by the survivors in the civil action was subject to the statutory employer's subrogation rights.   For additional discussion, see

See Lewis v. Gilmore, 2012 Mo. LEXIS 109 (June 12, 2012).

See generally Larson's Workers' Compensation Law, § 102.02.

NY: Illegal Aliens Need Not Return to U.S. for Depositions and Other Testimony

A New York appellate court recently held that a trial court abused its discretion in holding that workers, who had been injured in a propane gas explosion at a farm camp and who subsequently filed a personal injury suit against defendants, their employers, the manufacturer of a stove involved in the explosion, and the gas company, had to return to the U.S. for depositions, if requested by defendants. The workers who had returned home had neither the financial means to remain in the U.S. nor the ability to return. Allowing workers to testify from Mexico and Guatemala via video was consistent with sound public policy.

See Gabriel v. Johnston's L.P. Gas Serv., Inc., 2012 N.Y. App. Div. LEXIS 4835 (June 15, 2012).

See generally Larson's Workers' Compensation Law, § 66.03.

FL: Statutory Provision Limiting PTD Benefits to Five Years for Workers Over the Age of 70 is Constitutional

A Florida appellate court recently affirmed a decision of a Judge of Compensation Claims that found that because a claimant was over the age of 70 when she was injured and received permanent total disability benefits (PTD) for five years after her administrative acceptance of PTD, she had exhausted her entitlement to PTD benefits pursuant to § 440.15(1)(b), Fla. Stat. (2003).  The claimant challenged the constitutionality of § 440.15(1)(b), arguing that because her claim was based on age discrimination and her right of access to courts, it was subject to the strict scrutiny standard of review. The appellate court disagreed. The Florida Supreme Court had previously determined that challenges based on age discrimination were subject to rational basis review. Further, as the claimant conceded at oral argument, § 440.15(1)(b) passed the Kluger test [Kluger v. White, 281 So. 2d 1 (Fla. 1973)] regarding access to courts and did not violate the rational basis standard.

See Berman v. Dillard's, 2012 Fla. App. LEXIS 9600 (June 14, 2012).

See generally Larson's Workers' Compensation Law, § 157.03.

WV: Non-Dependent Spouse Precluded From Workers' Compensation Death Benefits and Also Barred From Maintaining Wrongful Death Claim Against Employer

In a case of first impression dealing with the issue of whether a temporary special employer enjoys immunity from common law suits filed by "borrowed" or "lent" employees (along with the so-called "general" employer) and quoting Larson's Workers' Law, and applying the "Larson" rule, the Supreme Court of Appeals of West Virginia recently held that when a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation--and enjoys immunity--if: (a) the employee has made a contract of hire, express or implied with the second employer; and (b) the work being done is essentially that of the second employer; and (c) the second employer has the right to control details of the work.

See Bowens v. Allied Warehousing Servs., Inc., 2012 W. Va. LEXIS 299 (June 15, 2012).

See generally Larson's Workers' Compensation Law, § 67.01.

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

Larson’s Workers’ Compensation Law

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