Larson’s Spotlight on Recent Cases: Larson’s May Interpret Law, But Can’t Supplant Text of Statute

Larson's Spotlight on Statutory Interpretation, Credit for Pension Benefits, Intentional Tort, and Substantially Certain Rule. 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.

KS: The Larson Treatise May Be Utilized to Explain and Interpret Law; It May not Supplant or Alter the Actual Text of a Statute

The Supreme Court of Kansas, reversing a decision by a divided state Court of Appeals, recently held that the state's Workers' Compensation Board had given too much deference to the discussion of recreational injuries found in Larson's Workers' Compensation Law, § 22.01, et seq., and not enough deference to the wording of the applicable Kansas statute, K.S.A. 2006 Supp. 44-508(f).  Accordingly, the high court remanded the claim of a computer support analyst for a software design company who sustained injuries in a go-cart crash at a company-sponsored social event.  Using the discussion in Larson, the Court of Appeals had determined that while it was undisputed that attendance at the social event was not mandatory, the evidence had supported the analyst's contention that he was under "some" duty to attend.  The high court indicated that had the statute not been clear, consulting the learned Larson Treatise would have been in order.  The language of the statute was quite clear, however, and it differed from the Larson discussion.  In Kansas, injuries were excluded from compensability if they occurred "where the employee was under no duty to attend and where the injury did not result from the performance of tasks related to the employee's normal job duties or as specifically instructed to be performed by the employer" [K.S.A. 2006 Supp. 44-508(f)].  Here, attendance had not been compulsory.  The Board had used the incorrect standard to determine the case.

See Douglas v. Ad Astra Information Systems, L.L.C., 2013 Kan. LEXIS 23 (Feb. 8, 2013).

See generally Larson's Workers' Compensation Law, § 22.02.

IL: Employer/Carrier Not Entitled to Credit for Pension Benefits Associated With Claimant's Early Retirement

An Illinois appellate court has affirmed, in relevant part, a decision by a state trial court that denied a credit to an employer for early retirement pension benefits received by an injured worker. The employee, a journeyman electrician, injured his shoulder in a work-related fall.  Unable to work as an electrician after the accident, he eventually took a job as a school bus driver paying $12.50/hour for 20 hours each week-substantially less than the $37.80/hour he would have received as an electrician. The claimant testified that although he had planned on waiting until he was 65 years old to retire, he applied for early retirement benefits at age 62.  Evidence indicated he was entitled to pension retirement benefits regardless of any disability.  The court reasoned that since the pension payments were the result of normal pension retirement benefits, wholly unrelated to the claimant's workers' compensation accident, the employer was due no credit against its liability under the Act.

See Wood Dale Elec. v. Illinois Workers' Comp. Comm'n, 2013 Ill. App. LEXIS 57 (Feb. 11, 2013).

See generally Larson's Workers' Compensation Law, § 157.05.

NC: Employer's "Quota" System Requiring Apprehension of Specific Number of Shoplifters Each Month Was Not Sufficient Employer Misconduct to Support Intentional Tort Claim Against Employer

A goal or "quota" system that required a loss prevention associate (the "associate") to make eight apprehensions per month and which may have led, at least indirectly, to the death of a co-employee when the associate chased a suspected shoplifter toward the front of the employer's store where the associate and the suspect collided with the co-employee, knocking her to the floor, was not the sort of employer misconduct that would support an intentional tort action against the employer (or the associate himself), even under the court-established "substantially certain" rule, held a North Carolina appellate court recently.  The court observed that the employer had implemented a written policy requiring all loss prevention associates (1) never to chase a shoplifter more than ten feet (the no-chase policy) and (2) never to engage in a physical confrontation with a customer or shoplifter. The stated purpose of the policy was to ensure the safety of all persons on the employer's premises.  Indeed, after the incident, the employer terminated the associate for violating the no-chase policy.  The court held that the allegations of the plaintiff failed to show that the employer had engaged in the requisite level of intentionality to support a tort claim.

See Pender v. Lambert, 2013 N.C. App. LEXIS 122 (Feb. 5, 2013).

See generally Larson's Workers' Compensation Law, § 103.04.

TN: Appellate Court Again Refuses to Adopt the Substantially Certain Rule Related to Intentional Torts

The employer's action of requiring janitorial co-workers to work for extended periods of time in close proximity to mold, mildew and other hazardous conditions at its premises after the discovery of standing water, mildew, mold and other potential contaminants was not sufficient to open the employer to intentional tort liability, held a Tennessee appellate court recently.  Acknowledging that a number of other jurisdictions had adopted the "substantially certain" exception to intentionality, the Tennessee court indicated that prior court decisions within the state had refused to do so.   In Tennessee, "actual intent" to injure was required to avoid the exclusivity defense.  The court concluded that it "would radically depart from precedent were we to hold that an employer is exposed to tort liability if its conduct made injury substantially certain."  This it refused to do.

See Rodgers v. GCA Servs. Group, Inc., 2013 Tenn. App. LEXIS 99 (Feb. 13, 2013).

See generally Larson's Workers' Compensation Law, § 103.03.

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

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