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Larson's Spotlight on Statutory Presumption, Unusual or Extraordinary Exertion, Serious and Willful Misconduct by Employee, and Admission 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.
LA: Injured Worker Tests Positive for Drugs, Prevails in Claim in Spite of Statutory Presumption
A growing number of states have special statutory provisions within their workers' compensation acts that provide the employer/carrier with a rebuttable presumption that an injury was caused by intoxication or drug use if the injured worker tests positive for drugs or has a sufficient blood alcohol level in his or her system immediately following the injury. Once the presumption applies, the worker must come forward with evidence to rebut it. A Louisiana appellate court recently held that an injured restaurant employee, who broke her left wrist when she tripped over a box of potatoes in the restaurant's "prep area" and who tested positive for marijuana and Xanax at a hospital emergency room shortly thereafter, had successfully rebutted the presumption and proven that her alleged impairment was not the cause of her injury. There was no other evidence that she was under the influence of any substance. The employer's practice of putting boxes of potatoes where workers had to traverse was the real cause of the accident. For additional discussion, see http://www.workcompwriter.com/louisiana-in-spite-of-statutory-presumptions-proof-of-positive-drug-test-may-not-be-enough-to-defeat-claims/.
See Stenson v. Pat's of Henderson Seafood, 2012 La. App. LEXIS 126 (Feb. 1, 2012).
See generally Larson's Workers' Compensation Law, § 36.01.
UT: Park Ranger's Reaction to Six-Inch Wave Is Not Unusual or Extraordinary Exertion, Back Injury Claim Fails
The law of workers' compensation struggles as it attempts to balance the relative interests of employees and employers. One such area of conflict relates to the employee with a preexisting condition that may have contributed to the injury. While the general rule is that the employer takes the worker as it finds him or her, some states utilize special rules in such cases. In Utah, for example, a claimant with a preexisting condition must show that the employment contributed something substantial to increase the risk he or she already faced in everyday life because of the preexisting condition. This is usually accomplished by showing that the injury was precipitated by an unusual or extraordinary exertion greater than that undertaken in normal, everyday life. Applying that standard or rule, and quoting from Larson's Workers' Compensation Law, § 46.03, the Court of Appeals of Utah recently affirmed a denial of a claim filed by a park ranger who sustained a back injury when he bent over slightly to unlock a cable that secured a small boat and lost his balance when a five- to six-inch wave rocked the boat.
See Murray v. Labor Comm'n, 2012 UT App 33, 2012 Utah App. LEXIS 36 (Feb. 2, 2012).
See generally Larson's Workers' Compensation Law, § 46.03.
WY: Health Care Employee's Decision to Move Bedridden Patient Alone, Rather Than Via "Two-Person Transfer" Was Not Culpable Negligence
The Supreme Court of Wyoming recently affirmed an award of benefits to a health care employee would ignored the employer's policies by moving a bedridden patient without assistance, finding that the employee had not engaged in culpable negligence that would disqualify her claim for benefits. The employer had established rules that required certain types of patients to be moved by means of a "two-person transfer" process. The court cited a prior decision that held that "[t}houghtless, heedless, or inadvertent acts or mere errors in judgment or simple inattention do not constitute culpable negligence. The court pointed to the employee's testimony, in which she indicated she performed the task toward the end of her shift and that she performed the task by herself to save time and complete the work faster. The court indicated that while the employer may have established that the employee's conduct was unreasonable or inadvisable, it did not meet its burden of proving that her actions were willful and serious under Wyo. Stat. Ann. § 27-14-102(a)(xi)(C).
See Shepherd of the Valley Care Ctr. v. Fulmer, 2012 WY 12, 2012 Wyo. LEXIS 12 (Feb. 2, 2012).
See generally Larson's Workers' Compensation Law, § 34.02.
NC: Court Affirms Dismissal of Claim in Spite of Employer's 17-Year Payment of Related Medical Expenses
A North Carolina appellate court recently affirmed the dismissal, on jurisdictional grounds, of a workers' compensation claim growing out of alleged sexual harassment in spite of the fact that the employer had paid the costs of psychological counseling related to the harassment for more than 17 years before it unilaterally stopped doing so. At the time it undertook to pay the medical expenses, the employer also filed a Form 19 (Employer's Report of Injury) with the Industrial Commission. In relevant part, the court indicated that sexual harassment is not a risk to which an employee is exposed because of the nature of the employment, but rather is a risk to which the employee could be equally exposed outside the employment. The court also indicated that the payment of medical expenses, without an actual acknowledgment of liability, is not an admission of compensability. Jurisdiction could not be conferred upon the Commission by agreement of the parties.
See Cagle v. Marriott/Guilford College, 2012 N.C. App. LEXIS 174 (Feb. 7, 2012).
See generally Larson's Workers' Compensation Law, §§ 126.07, 126.12, 130.07.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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