Workers' Compensation

Five Recent Cases You Should Know About (5/6/2011)

Larson's Spotlight on Tort Action, Traveling Employee, Third Party Complaint Against Co-Worker, Causal Connection, and Retaliatory Discharge. 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.

CT: Apprentice's Tort Action Against Employer Fails-No Substantial Certainty of Injury Shown

Construing the "substantial certainty" exception that provides a relatively narrow window through which an injured worker can avoid the exclusive remedy defense and maintain a tort action against the employer, the Supreme Court of Connecticut has affirmed a trial court's grant of summary judgment in favor of the employer defendant. The worker, an apprentice, was attempting to clear debris from a hole when another apprentice caused a drill to go into the employee's finger.  The injured apprentice received workers' compensation benefits but sued the employer in tort, alleging serious and willful misconduct on the part of the employer, as well as a violation of the Connecticut Unfair Trade Practices Act. The supreme court indicated that in Connecticut (similar to other states' employing the rule) the "substantial certainty" standard requires that the plaintiff establish that the employer intentionally acted in such a way that the resulting injury to the employee was substantially certain to result from the employer's conduct.  To satisfy the substantial certainty standard, a plaintiff must show more than that [his employer] exhibited a lackadaisical or even cavalier attitude toward worker safety. Rather, a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Conn. LEXIS 140. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 103.04.

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KY: Stable Groom Was "Traveling Employee" and Auto Crash Injuries Were Within Course of Employment In Spite of Fact That He Was Riding in Friend's Personal Vehicle

A worker employed as a groom for a horse farm, who sustained multiple injuries in an automobile accident that occurred while he rode with a friend back to Kentucky from Sarasota, New York sustained injuries that arose out of and in the course of the employment, held a Kentucky appellate court recently.  That the worker was in a private vehicle, and not one owned by the employer, was not controlling, indicated the court.  He had initially accompanied six of the employer's horses to a sales event in New York, riding in a van rented by the employer.  As was the custom in the business, he was expected to get back to Kentucky on his own.  The court agreed that the worker was engaged in business travel and, citing Larson's Workers' Compensation Law, observed that as a general rule, employees whose work entailed travel away from the employer's premises are within the course of their employment continuously during the trip, except when a distinct departure on a personal errand was shown.  No such departure had been shown by the employer.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Ky. App. LEXIS 78. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 25.01.

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NJ: Defendants in Auto Negligence Action May Not Maintain Third-Party Complaint Against Plaintiff's Co-Worker

In a case involving an unusual-perhaps unique-factual setting, a New Jersey appellate court recently held that defendants in a multi-vehicle auto negligence action may not maintain a third-party complaint against one of the plaintiffs where the plaintiffs were coworkers and both were injured in the course and scope of their employment.  McDaniel was driving a vehicle in the course of his employment.  Devers, a co-employee, followed McDaniel in a separate vehicle.  As a stoplight turned red, McDaniel stopped, as did Devers.  Defendant, driving an 18-wheeler, could not stop, plowing into Devers, who in turn, plowed into McDaniel.  McDaniel and Devers filed civil actions against the defendant driver and the truck owner and the cases were consolidated.  Defendants filed a third-party complaint against Devers, claiming his negligence caused, at least in part, plaintiff's injuries.  The appellate court, reversing the trial court in part and affirming in part, held that just as McDaniel's employer could not be a joint tortfeasor and was immune from suit-based on workers' compensation exclusivity-so also McDaniel's co-employee, Devers, could not be sued as a joint tortfeasor since McDaniel's injuries occurred while both he and Devers were about the employer's business.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 N.J. Super. LEXIS 75. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 121.02.

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NY: Bricklayer's Injuries While Eating Lunch in Nearby Bus Shelter Were Not Compensable

A New York appellate court recently affirmed a decision by the state Workers' Compensation Board that denied workers' compensation benefits to a bricklayer who, at lunch time, left his work site, purchased a sandwich, sat down inside a municipal bus shelter located adjacent to the construction site, and who sustained injuries when, as he prepared to return to work, a glass panel in the shelter collapsed on him.  Noting that the employer exercised no control over the worker's movements during lunch and that the worker had failed to show a causal connection between the employment and the failure of the glass panel, the court agreed there could be no compensation.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 N.Y. App. Div. LEXIS 3248. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 21.02.

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TX: Retaliatory Discharge Action Barred by Governmental Immunity

The Supreme Court of Texas, reversing a decision by a lower appellate court, recently held that because a retaliatory discharge claim may not be brought against the state government without its consent and because the Texas Political Subdivisions Law no longer provided such consent by waiving the government's immunity, a former worker's claim that she was terminated shortly after filing a workers' compensation claim had to be dismissed.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Tex. LEXIS 324. Then click on the red button Search for Free. Note: If you haven't registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 104.07.

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

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