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Larson’s Spotlight on Recent Cases: No Waiver of Benefits by Quitting Job That Offered Light Duty Work

May 03, 2013 (5 min read)

Larson's Spotlight on Waiver of Benefits, Intervention, Psychiatric Claim, and Borrowed Employee. 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: Employee Does Not Waive Right to TTD Benefits by Leaving Employer Who Offers Light-Duty Work


An employee does not waive his or her right to temporary total disability benefits by moving on from a job that could have accommodated medical restrictions during a period of recuperation, held the Supreme Court of Nebraska recently. The employer argued that had the employee not left his employment with the employer, the employee would have been paid wages for light-duty work in lieu of temporary total disability benefits.  The Supreme Court, quoting Larson's Workers' Compensation Law, indicated that earning capacity determinations should not be distorted by factors such as "'business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above his crippling handicaps."  The court added that adopting the employer's waiver argument would not only undermine the beneficent purposes of the Nebraska Workers' Compensation Act, Neb. Rev. Stat. §§ 48-101 to 48-1,117, it would effectively bind workers to employers responsible for the injury until full recovery, thereby limiting at-will employees' mobility and freedom to choose other work opportunities.


See Zwiener v. Becton Dickinson-East, 285 Neb. 735, 2013 Neb. LEXIS 64 (Apr. 19, 2013) [2013 Neb. LEXIS 64 (Apr. 19, 2013)].


See generally Larson's Workers' Compensation Law, § 83.01 [83.01].


MO: Department of Veterans Affairs May Intervene in Workers' Comp Proceeding to Obtain Payment For Care Provided to Injured Claimant Treated at VA Facility


The Supreme Court of Missouri recently held that pursuant to 38 U.S.C.S. § 1729 and the supremacy clause of the United States Constitution, the U.S. Department of Veterans Affairs (VA) has the right to intervene in a Missouri workers' compensation proceeding to obtain payment for care it provided to an injured veteran if he was eligible for payment under Missouri's workers' compensation law. The Missouri high court noted that the lack of a provision in Mo. Rev. Stat. ch. 287 authorizing intervention could not impede the VA from intervening under the applicable federal statutes. Federal law clearly and unequivocally provided authorization for the VA to intervene in the veteran's workers' compensation proceeding.


See United States Dep't of Veterans Affairs v. Boresi, 2013 Mo. LEXIS 25 (Apr. 30, 2013) [2013 Mo. LEXIS 25 (Apr. 30, 2013)].


See generally Larson's Workers' Compensation Law, § 94.02 [94.02].


CA: Psychiatrist Had No Authority to Determine What Constitutes a Personnel Action for Purposes of Statute Limiting Psychiatric Claims


Like a number of other states, California has a special statutory provision dealing with mental injury claims that are the result of bona fide personnel actions.  Cal. Labor Code § 3208.3 provides that a worker's psychiatric injury is not compensable if it was "substantially caused" by a personnel action. The statute also provides that for the purposes of the section, "substantial cause" means at least 35 to 40 percent of the causation from all sources combined.  In the instant case, a psychiatrist appointed as the agreed medical evaluator concluded that the employee's injury was caused equally by (1) a coworker's complaint against the employee (which the parties agreed was not a personnel action), (2) an internal affairs investigation (which the parties agreed was a personnel action), and (3) the employee's feelings of not being supported by his superiors (which the parties disputed was a personnel action).  A California appellate court recently held that the Workers' Compensation Appeals Board's acceptance of the psychiatrist's opinion that the employee's feelings of not being supported by his superiors was not caused by a personnel action was error-compensation was thus awarded by the WCAB since the 33.3 percent personnel action factor fell short of the necessary 35 percent.  The record did not support the opinion of the psychiatrist-who had no authority to determine what a personnel action was-and the WCAB failed to consider the cause of the employee's feelings of not being supported by his superiors.


See County of Sacramento v. WCAB 2013 Cal. App. LEXIS 348 (May 1, 2013) [2013 Cal. App. LEXIS 348 (May 1, 2013)].


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


KY: Worker Unaware of Alleged Employment Lease Cannot Be Considered Borrowed Employee


The Supreme Court of Kentucky recently affirmed a decision by the state's Court of Appeals that had, in turn, affirmed the Board's finding that a worker, who drove a tractor-trailer for one company, did not have an employment relationship with a corporation that allegedly leased the worker's services, where the worker never entered into an agreement or contract with the corporation and was not aware of the employment lease.  The high court reiterated the general rule: When determining if an employee was loaned to another employer, the initial question was "Did the worker make a contract of hire with the special second employer?" If this question could not be answered yes, the investigation was closed, and there was no need to go on.


See Kentucky Uninsured Employers' Fund v. Hoskins, 2013 Ky. LEXIS 97 (Apr. 25, 2013) [2013 Ky. LEXIS 97 (Apr. 25, 2013)].


See generally Larson's Workers' Compensation Law, § 67.02 [67.02].



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