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Workers' Compensation

Larson’s Spotlight on Recent Cases: Intentional Tort for Grain Bin Death Barred by Exclusive Remedy

Larson's Spotlight on Exclusive Remedy, Mental Injury, Traveling Employee, and Undocumented Worker. 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.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to

NE: High Court Affirms Dismissal of Intentional Tort Action Filed Against Employer That Violated Multiple OSHA Regulations; Action Barred by Exclusive Remedy Defense

Quoting Larson's Workers' Compensation Law, the Supreme Court of Nebraska recently affirmed a decision of a county district court that had dismissed a tort action filed against the defendant-employer by the estate of an employee who died of asphyxiation after being engulfed in grain inside a large grain bin, holding that the action was barred by the exclusive remedy provisions of the state's Workers' Compensation Act in spite of the fact that the defendant acknowledged it had willfully violated a number of OSHA regulations that resulted in the employee's death.  The court acknowledged that about a dozen states had an exception to exclusivity when an employer's actions were "substantially certain" to cause injury, but it indicated Nebraska had not allowed such a "substantially certain" exception to exclusivity and that it was not inclined to revisit the issue, again quoting Larson, as to the court's prior rationale.

See Estate of Teague v. Crossroads Coop. Ass'n, 286 Neb. 1, 2013 Neb. LEXIS 90 (May 31, 2013) [286 Neb. 1, 2013 Neb. LEXIS 90 (May 31, 2013)]

See generally Larson's Workers' Compensation Law, § 103.03 [103.03]

OH: Supreme Court Reiterates That Mental Injury Must Be Caused By, and Not Merely Contemporaneous With, Physical Injury to Support Comp Claim

Construing Ohio's relatively restrictive definition of "injury" [Ohio Rev. Code § 4123.01] that states, in relevant part, that psychiatric conditions, including posttraumatic stress disorder ("PTSD"), are compensable only when the condition arises from a physical injury or occupational disease sustained by the claimant, a divided Supreme Court of Ohio, affirming a ruling last year by a state intermediate appellate court, recently reiterated that in order for a mental condition (here PTSD) to be compensable under the Ohio workers' compensation system, the mental condition must be caused by a compensable physical injury sustained by the claimant-contemporaneous manifestation of the mental injury or condition with a physical injury is insufficient.

See Armstrong v. John R. Jurgenson Co., 2013 Ohio 2237, 2013 Ohio LEXIS 1364 (June 4, 2013) [2013 Ohio 2237, 2013 Ohio LEXIS 1364 (June 4, 2013)]

See generally Larson's Workers' Compensation Law, § 56.04 [56.04].

IL: Janitor Who Had No Fixed Place of Employment Was "Traveling Employee;" Slip and Fall Outside Residence Was Compensable

An Illinois appellate court recently held that a janitor working for a cleaning service was a "traveling employee" and, therefore, entitled to workers' compensation benefits in connection with injuries she sustained when she slipped and fell while walking from her home to a vehicle used to transport her to work. Because the janitor did not work at a fixed location, but rather traveled to various locations throughout the area, the appellate court agreed that the normal going and coming rule did not bar her claim. The appellate court disagreed with the Commission that finding the janitor was a traveling employee would bring any movement at any time within the course and scope of the employment. The court observed that an employee seeking benefits was still required to establish that his or her injury arose out of and in the course of his employment, that the employee's conduct was reasonable under the circumstances, and whether that employee's conduct might have been anticipated or foreseen by the employer. Here, the janitor's activity was not problematic in any of those regards.

See Milynarczyk v. Illinois Workers' Comp. Comm'n, 2013 Ill. App. LEXIS 341 (May 30, 2013) [2013 Ill. App. LEXIS 341 (May 30, 2013)].

See generally Larson's Workers' Compensation Law, § 25.01 [25.01].

NM: Employers Must Demonstrate Good Faith Compliance With Federal Law in Hiring Process In Order to Use Undocumented Status of Worker as Defense to Payment of Ongoing Benefits

Acknowledging that undocumented workers sustaining work-related injuries present special challenges under the state's Workers' Compensation Act, that while all injured workers are encouraged to return to work as quickly as medically feasible, but that federal law may preclude some employers from extending rehire offers to undocumented workers once the employers learn of the worker's status, and noting further that federal law also requires employers to hire in good faith and demand documentation of prospective employees showing their lawful status, the Supreme Court of New Mexico recently held that employers who cannot demonstrate such good faith compliance with federal law in the hiring process cannot use their workers' undocumented status as a defense to continue payment of modifier benefits under the Workers' Compensation Act.

See Gonzalez v. Performance Painting, Inc., 2013 N.M. LEXIS 171 (May 30, 2013) [2013 N.M. LEXIS 171 (May 30, 2013)].

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

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

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