Workers' Compensation

Larson’s Spotlight on Recent Cases: Claimant’s PTSD Claim Held Timely Four Years After the Fact

Larson's Spotlight on Mental Trauma, RICO and Exclusive Remedy, Safety Violations, Off-Duty Injury and Tort Action Against Employer. 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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LA: Claimant's PTSD Claim Timely Filed In Spite of Passage of Almost Four Years From Moment of Original Trauma

Virtually all workers’ compensation acts have a prescriptive period or statute of limitations that applies to the filing of claims. Typically, the injured worker is allowed one or two years within which to file the necessary claim documents with the appropriate administrative agency and with the employer. This general rules works well where the injury occurs at the time of the accident. In other cases, such as incidents of post-traumatic stress disorder, the condition does not manifest itself months, sometimes years, after the accidental trauma. Many states have special provisions that provide that the time period within which to file the claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness, and probable compensable character of his or her injury or disease. Others, like Louisiana, are not as generous. Louisiana, for example, has a provision that states that the limitation shall not take effect until the expiration of one year from the time the injury, but “in all such cases the claim for payment shall be forever barred unless the proceedings have begun within two years from the date of the accident” [La. Rev. Stat. 23: 1209(A)(3)].

A Louisiana appellate court, in a divided decision, recently held that a PTSD claim of a former enforcement agent of the state’s Department of Wildlife and Fisheries was timely filed in spite of the fact that the initial traumatic event occurred almost four years before the actual filing of the claim. The initial trauma, a four-week rescue mission following Hurricane Katrina, which devastated the New Orleans area on and after August 29, 2005. The claimant indicated that he was successful in blocking out the horror of that period until September 1, 2008, when Hurricane Gustav took an unexpected turn and passed directly over the area where claimant and others were stationed. They took shelter in vehicles and rode out the high winds with trees falling all around them. Claimant indicated that thereafter he began to relive the horror of the aftermath of Katrina. The majority held that the “accident” occurred on September 1, 2008, when Gustav hit the area, not on August 29, 2005 when Katrina struck the coast. The majority indicated that the events following Katrina were simply the preexisting deficiency that made claimant more susceptible to PTSD. Gustav was the accident. Accordingly, his claim was filed within one year of the “accident.”

See Gregoire v. Louisiana Dep’t of Wildlife and Fisheries, 11-321 (La. App. 5 Cir. 04/10/12), 2012 La. App. LEXIS 475

See generally Larson's Workers' Compensation Law, §§ 126.05, 126.06.

US: Sixth Circuit Again Finds Plaintiffs’ RICO Claims Not Barred by Exclusive Remedy Provisions of Michigan Comp Act

In a case that has had all the movement of a pogo-stick, the Sixth Circuit Court of Appeals, in a split decision, has one again held that plaintiffs RICO claims against a self-insured employer, its third party claims administrator, and a “company” physician are not barred by the exclusive remedy provisions of the Michigan Workers' Disability Compensation Act. The majority opinion held, among other things, that plaintiffs not only had workers’ compensation claims, but independent claims under the RICO statute, a two-headed “hydra” that has many employers concerned. For detailed discussion, see

See Brown v. Cassens Transp. Co., 2012 U.S. App. LEXIS 6929 (6th Cir. Apr. 6, 2012)

See generally Larson's Workers' Compensation Law, § 100.03.

US: Tenth Circuit Agrees Employee Was Fired for Safety Violations, Not for Contemplated Filing of Workers’ Compensation Claim

The termination of an employee for violation of safety concerns, while he was recuperating from a work-related injury, was not pre-textual and violated neither the Family and Medical Leave Act nor the retaliatory discharge provisions of the Kansas Workers’ Compensation Act held the Tenth Circuit Court of Appeals recently. The former employee worked as a forklift driver. He sustained injuries when he drove the forklift into a pole. A subsequent investigation revealed that he had been driving the forklift too fast for the conditions. The court observed that he had received multiple warnings. Here he was fired for safety violations, not for filing a workers’ compensation claim or for any concerns that the employer had with regard to FMLA.

See Peterson v. Exide Technologies, 2012 U.S. App. LEXIS 7139 (Apr. 10, 2012)

See generally Larson's Workers' Compensation Law, § 104.07.

WA: Employee May Proceed Against Employer in Tort for Injuries Sustained In Employer Parking Lot After Clocking Out

A uniformed, off-duty city police officer, who sustained injuries while directing traffic at a construction site, was an employee of the construction company that had hired him to perform the duties and was not the employee of the city, for purposes of workers’ compensation benefits, held a Washington appellate court recently. Citing Larson’s Workers’ Compensation Law, the court held that the construction company had sufficient control over the work of the officer and the officer had consented to the arrangement. The company had such control in spite of the fact that it could not compel the officer to perform his duties in any particular manner. While the work had been arranged by a civilian employee of the city, who handled the assignment of off-duty police officers in this and other instances, the court held that the city did not require the officer to perform the traffic duties and did not control the enterprise.

See Gary Merlino Constr. Co., Inc. v. City of Seattle, 2012 Wash. App. LEXIS 817 (Apr. 9, 2012)

See generally Larson's Workers' Compensation Law, §§ 67.01, 68.01.

LA: Employee May Proceed Against Employer in Tort For Injuries Sustained In Employer Parking Lot After Clocking Out

A Louisiana appellate court recently held that an employer, a local hospital, failed to carry its burden of showing that an employee who was injured in the hospital parking lot after she completed her shift was in the course of her employment. Accordingly, her tort action against the employer was not barred by the exclusivity provisions of the Louisiana Workers Compensation Act, La. Rev. Stat. Ann. § 23:1032.

See Shorter v. Akins, 11-1553 (La. App. 3 Cir. 04/04/12), 2012 La. App. LEXIS 434

See generally Larson's Workers' Compensation Law, §§ 13.04, 100.01.

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

Larson’s Workers’ Compensation Law

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