Larson’s Workers’ Compensation Law Case Spotlights (Fall 2023)

By Thomas A. Robinson, co-author, Larson’s Workers’ Compensation Law

Editorial Note: All section references below are to Larson’s Workers’ Compensation Law, unless otherwise indicated.

Contractor Distinction: Right to Control Details. The workers’ compensation system provides benefits not so much to injured “workers” as it does to injured “employees.” One’s employment status is a crucial component, therefore, in determining what, if any, benefits are owed to the injured party. The traditional test of the employer-employee relation is the right of the employer to control the details of the work. Chapter 61 of Larson’s, which discusses this important legal concept, has been revised and updated within this Fall 2023 release. Fine lines are often difficult to draw. For example, are securities broker-dealers employees of the investment firm or are they independent contractors? In a recent California decision, the state’s court of appeal found that such financial professionals have more skill and bargaining power than the average worker and are, therefore, less vulnerable to exploitation. They can be considered independent contractors in spite of California’s use of its “ABC test” to determine employment status [see Quinn v. LPL Financial LLC, 91 Cal. App. 5th 370, 88 Cal. Comp. Cases 591 (2023), § 61.03, n. 1.2]. Where the activities of the purported employee are vital to the core business of the purported “contractor,” the worker may be deemed to be an employee rather than an independent contractor. Thus, in Lawson v. Grubhub, Inc., 88 Cal. Comp. Cases 444 (2023) [see § 61.03 n.1.2], delivery drivers were found to be employees on the basis that their service was publicly advertised to diners through its website and app.

Hospital and Medical Benefits. For at least a decade, the majority of the “compensation dollar” spent by employers and carriers has been related to medical benefits, not indemnity payments. Chapter 94 of Larson’s, which discusses this important subject, has been revised as well. What appears to be a straight-forward formula—that an employer (and/or carrier) is required to furnish the necessary medical services needed by an employee who has sustained an injury arising out of and in the course of the employment—can quickly become nuanced. For example, marijuana—even for medical purposes—is still illegal under Federal law. Yet 38 states—Kentucky being the latest [see § 94.06 n. 1.01]—have passed various “Medical Marijuana” statutes allowing such use, at least in some instances. In two split decisions, the Commonwealth Court of Pennsylvania held that an employer and/or workers’ compensation insurer may be required to reimburse an injured employee for the cost of his or her medical marijuana use pursuant to the state’s Medical Marijuana Act (MMA) where such use has been adjudged “reasonable and necessary” under the state’s Workers’ Compensation Act (“WC Act”) despite language in Section 2102 of the MMA stating that nothing within the MMA should be construed to require an insurer or a health plan to provide “coverage” for medical marijuana [see Appel v. GWC Warranty Corp. (WCAB), 291 A.3d 927 (Pa. Commw. Ct. 2023), § 94.06 n. 36.2].

Nature and Scope of the Exclusiveness Principle. It is axiomatic that the compensation remedy is exclusive of all other remedies by the employee or the employee’s dependents against the employer and insurance carrier for the same injury if the injury falls within the coverage formula of the act. If it does not, the compensation act does not disturb any existing remedy. The discussion of this “battleground,” found in Chapter 100 of Larson’s, has been revised and updated. Plaintiffs continually test the limits of the principle. For example, in a recent decision from the Pennsylvania Supreme Court, the high court held that an injured employee’s tort claim against her employer was barred where the employee was bitten at work by a customer’s dog and the employee contended that although the employer undertook to investigate the incident and barred the employee from any direct contact with the dog’s owner, it then neglected to get any identifying information from the dog owner that would have allowed the employee to pursue a third-party action [see Franczyk v. Home Depot, 2023 Pa. LEXIS 533 (Apr. 19, 2023), § 100.03[6] n. 36.1]. In another unusual case, a U.S. District Court held than an employee of the Washington Metropolitan Area Transit Authority could, pursuant to the Rehabilitation Act [29 U.S.C. § 794(a)], sue his employer for its alleged failure to accommodate his sleeping disorder [see Collins v. Washington Metro. Area Transit Auth., 2023 U.S. Dist. LEXIS 43728 (Mar. 15, 2023), § 100.03[3] n. 6].

Injury Sustained During Florida Vacation Was Nevertheless a Consequential Injury Stemming from Original Work-Related Incident. A Virginia appellate court affirmed a decision of the state’s Workers’ Compensation Commission awarding temporary total disability benefits to an employee who, after sustaining an admitted left shoulder injury in 2019, sustained additional injuries in 2020, when he fell in a boat while vacationing in Florida. Noting that the employee had continued to experience discomfort in his shoulder after he returned to work (before the Florida vacation) and noting that while the employee had a preexisting condition—shoulder arthritis—it had not manifested itself prior to the 2019 injury, the Court found substantial evidence supported the Commission’s findings. The Court was not persuaded by the employer’s contention that the trip to Florida was an intentional act on the part of the employee that severed the causal relationship between his original injury and his fall in the fishing boat [see Fairfax County v. Halisky, 2023 Va. App. LEXIS 426 (June 27, 2023), § 10.04 n. 14.3].

Idaho Supreme Court Reverses Itself, Carrier Has No Authority to Stop TTD Payments Unilaterally. Finding that its earlier decision interpreting Idaho Code §§ 72-433 and 72-434 were “manifestly wrong,” the Supreme Court of Idaho reversed a decision by the state’s Industrial Commission that had refused, on procedural grounds, to consider the merits of an injured employee’s claim that her employer’s carrier had improperly and unilaterally stopped her TTD benefits because she could not attend an IME. The Court stressed that its decision in Brewer v. La Crosse Health & Rehab, 138 Idaho 859, 864, 71 P.3d 458 (2003) had been wrong. The Court said that only the Commission had the authority to adjudicate medical exam disputes under the statutes. Only the Commission was empowered to order the implementation of the enforcement mechanisms in Idaho Code § 72-434. Contrary to its earlier decision in Brewer, when the relevant provisions were read in the entirety of the context, they plainly did not empower or authorize an employer or surety to unilaterally invoke and execute the enforcement mechanisms [see Arreola v. Scentsy, Inc., 531 P.3d 1148 (Idaho 2023), § 10.10[2] n. 1.4].

Florida JCC Errs in Awarding $900 “Cancellation Fee” Against Claimant Who Arrived at IME Appointment with Videographer. A Florida appellate court found error in a judge of compensation court’s order requiring a claimant to pay one-half of the cancellation fee charged by the IME when the claimant appeared for the exam accompanied by a videographer and the physician refused to move forward with the examination [see Baptiste v. Sunrise Community, 344 So. 3d 49 (Fla. 1st DCA 2022), § 10.10[3] n. 13.8].

Injuries from Exploding Firecracker Did Not Arise from Connecticut Worker’s Employment. A Connecticut appellate court affirmed a decision by the state’s Compensation Review Board that affirmed a decision by the Workers’ Compensation Commissioner dismissing a former employee’s claim for benefits related to injuries sustained when the former employee lit the wick of a small brown sphere and it exploded. The appellate court acknowledged that the former employee sustained the severe injuries in the course of his employment, but agreed with the Board that the employee’s injuries did not arise from the employment. There was no evidence presented that the employees ever disposed of trash or other materials by setting fire to them [see Bassett v. Town of East Haven, 219 Conn. App. 866 (June 13, 2023), § 23.07 n. 46.1].

Mexican Nationals’ Injuries While Traveling in a Bus to the U.S. Consulate in Monterrey to Obtain H-26 Visas were Not Compensable. A Louisiana appellate court affirmed a decision by a state Workers’ Compensation Judge dismissing three consolidated workers’ compensation claims filed by Mexican nationals who sustained injuries in a vehicle accident that occurred while they road in a bus to the U.S. Consulate in Monterrey, Mexico, to obtain H-26 visas that would have allowed them to work at the purported employer’s Louisiana crawfish facility. The court acknowledged that the transportation to the consulate had been arranged for and paid by the purported employer, that in prior years each of the Mexican nationals had obtained H-26 visas and had worked for the purported employer during crawfish season, and that had they not been injured in the accident, they would have been driven from the U.S. Consulate to the Louisiana facility to complete the employment paperwork. Applying Louisiana’s four-pronged employment test, however, the appellate court reasoned that the purported employer never had the ability to control or dismiss the prospective workers. Thus, no employment relationship existed [see Preciado v. Beaucoup Crawfish of Eunice LA Rest. Ass'n SIF, 357 So.3d 517 (La. Ct. App. 2023), § 26.02[3] n. 7.2].

Compensation for Injuries Sustained in California Worker’s Fall from Fifth-Floor Stairwell Were Not Barred by Self-Harm Exemption in Labor Code. California’s Workers’ Compensation Appeals Board affirmed the WCJ’s finding that the applicant sustained a compensable catastrophic injury in a fall from the fifth-floor stairwell at his place of employment and that the employer did not provide sufficient evidence to demonstrate that the applicant’s fall was barred by the self-harm exemption in Labor Code section 3600(a)(5). Although defendant introduced evidence showing that the applicant could not have fallen over a safety railing protecting the stairwell accidentally without first at least partially climbing it, there was no actual evidence to indicate the applicant intentionally threw himself off the stairwell with intent to cause himself injury [see Fox Sports 1 v. Workers’ Comp. Appeals Bd. (2023) 88 Cal. Comp. Cases 479 (writ den.), § 38.06[1] n. 3.1].

NY Auditor Fails to Show that Her Stress Was Greater than that Experienced by Other Similarly Situated Workers. The New York appellate court said that a review of the record reflected that the evidence failed to establish that the pressures encountered by claimant were any greater than those experienced by her peers during the time in question. The hearing testimony reflected that claimant’s peers were subject to the same daily and hourly quotas for completion of audits, and, to the extent that claimant undertook additional mail audits, claimant’s supervisor offered help with her workload if necessary. Accordingly, the Board’s denial of that portion of her claim alleging a psychological injury and/or physical symptoms resulting from an increase in work-related stress would not be disturbed [see Matter of Sakanovic v. Utica Mut. Ins. Co., 2023 N.Y. App. Div. LEXIS 4180 (3d Dept. Aug. 3, 2023), § 44.05[4][d] n. 44.1].

West Virginia Healthcare Worker Cannot Recover for COVID-19. The Intermediate Court of Appeals of West Virginia reversed a decision by the state’s Workers’ Compensation Board of Review that found a healthcare employee’s COVID-19 condition was compensable, and which awarded the employee temporary total disability benefits. The Court acknowledged that under the state’s statutory scheme it was difficult, although not impossible, to establish a causal connection between the employment and the virus. The Court found that the Board had failed to provide a detailed analysis of the six factors listed in W. Va. Code § 23-4-1(f). Without that analysis, the Board’s Order had to be vacated and the case remanded with direction to make specific findings of fact and conclusions of law for each of the six factors [see Primecare Med. of WV, Inc. v. Foster, 885 S.E.2d 171 (W. Va. 2023), § 51.06[2] n. 29].

California’s Proposition 22 Did Not Intrude Upon Legislature’s Workers’ Compensation Authority. California’s court of appeal reversed the superior court in relevant part, holding that Prop 22 did not intrude upon the Legislature’s workers’ compensation authority nor did it violate the single-subject rule. The court agreed with the superior court, however, that Prop 22’s definition of what constitutes an “amendment” violated separation of powers principles. Because the unconstitutional provisions could be severed from the rest of the initiative, the divided court affirmed the trial court’s judgment insofar as it declared those provisions invalid [see Castellanos v. State of California, 89 Cal. App. 5th 131, 88 Cal. Comp. Cases 348 (2023), § 61.03 n. 1.2].

California’s Real Estate Agents May Be Independent Contractors. The California Court of Appeal found that Bus. & Prof. Code § 10032(b), which incorporates the test found in Unemp. Ins. Code §§ 650 and 13004.1, provides the standard for determining employee or independent contractor status applicable to real estate salespersons for purposes of the Labor Code’s wage and hour provisions, and dictates that the real estate agent is an independent contractor if (1) the agent is licensed, (2) the agent is paid through commissions, and (3) the agent has signed an independent contractor agreement. This three-factor employment-status test continues to apply after the enactment of Lab. Code § 2778(c)(1) by AB5, which removes real estate licensees from Dynamex’s “ABC” test of employment classification codified in Lab. Code § 2775(b)(1). Here, the plaintiff was held to be an independent contractor as a matter of law since he was a licensed real estate agent paid by commission, and he had entered into written contract specifying that he was independent contractor [see Whitlach v. Premier Valley, Inc., 86 Cal. App. 5th 673 (2023), § 61.03 n. 1.2].

Plaintiff’s Equal Protection Claim May Move Forward in California Battle over “ABC test” and Dynamex Decision. The Ninth Circuit Court of Appeals concluded that the federal district court had erred when it dismissed plaintiffs’ equal protection claims that sought to enjoin the State of California from enforcing AB 5 (codifying the “ABC test” adopted in Dynamex) and its amendments. The Ninth Circuit found that the plaintiffs had plausibly alleged that the primary impetus for the enactment of AB 5 was the disfavor with which the architect of the legislation viewed Uber, Postmates, and similar gig-based business models, that the exclusion of thousands of workers from AB 5’s mandates was starkly inconsistent with the legislation’s publicly stated purpose of affording workers “basic rights and protections they deserve,” and that their exclusion from wide-ranging exemptions, including for comparable app-based gig companies, could be attributed to animus rather than reason. The Ninth Circuit also indicated that it was persuaded that plaintiffs’ allegations plausibly stated a claim that “singling out” of plaintiffs effectuated by AB 5, as amended, failed to meet the relatively lenient standard of rational basis review. The Ninth Circuit did, however, hold that the district court's dismissal of plaintiffs’ due process, contract clause, and bill of attainder claims was correct [see Olson v. State of California, 62 F.4th 1206, 88 Cal. Comp. Cases 429 (2023), § 61.03, n. 1.2].

Ohio Phlebotomist’s Loss of Earnings Was Related to Her Decision to Move to California, Where She was Not Credentialed, Not to Work-Related Injury. An Ohio phlebotomist was not entitled to temporary total disability benefits when she sustained a work-related injury shortly after notifying her employer that she would like to transfer to the employer’s California office, but then discovered that her transfer could did not be acted upon because she did not have the appropriate California certifications. The Supreme Court of Ohio noted that the employee’s loss of earnings upon her move to California would have occurred had she not been injured—she lacked certification. Moreover, her entitlement to TTD benefits would have continued had she not moved to California. The Court stressed that her injury was not the “but for” cause of her loss of earnings. Her abandonment of the workforce had been voluntary [see State ex rel. Quest Diagnostics, Inc. v. Industrial Comm'n of Ohio, 2023-Ohio-2213 (July 5, 2023), § 84.04[2] n. 10.3].

Alaska Workers’ Compensation Commission May Not Set Limits of Chiropractors’ Practice. Noting the legislature’s explicit delegation of regulatory and adjudicatory authority over chiropractors to the Alaska Chiropractic Board and the uncontested evidence in the record that the Chiropractic Board had at least informally endorsed the treatment the physician provided to the injured employee, the workers’ compensation agencies lacked jurisdiction to interpret AS 08.20.900(6) to decide that the injections exceeded the scope of chiropractic licensure. Because the workers’ compensation agencies lacked jurisdiction to determine the boundaries of chiropractic practice in the context of the case, the Alaska Workers’ Compensation Appeals Commission did not err in affirming the Alaska Workers’ Compensation Board’s discovery order [see State v. White, 2023 Alas. LEXIS 50 (May 19, 2023), § 94.03[3][c] n. 58].

Iowa Court Stresses that Marital “Separation” and “Desertion” Are Not Synonymous. Mere separation of a husband and wife, by itself, does not affect the right of a surviving spouse to workers’ compensation benefits, held the Supreme Court of Iowa. Accordingly, when the wife left the couple’s small town to find work in Cedar Rapids and died one year later from a prescription overdose related to a work-related injury, her husband—who subsequently also moved away from the family home—was entitled to an award of burial expenses and death benefits [see Blasdell v. Linnhaven, Inc., 989 N.W. 2d 131 (Iowa 2023), § 96.06[2], n. 7.1]

California’s Derivative Injury Rule Does Not Bar Negligence Action Against Spouse’s Employer Related to COVID-19 Outbreak, but Employer Owes Family Members No Duty of Care. The Supreme Court of California, responding to two questions certified to it by the Ninth Circuit Court of Appeals, answered that if an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, the derivative injury rule of California’s workers’ compensation law does not bar the spouse’s negligence claim against the employer. The Court tempered the strength of that answer, however, by also answering that the employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members. The Court stressed that although it was certainly foreseeable that an employer’s negligence in permitting workplace spread of COVID-19 might cause members of employees’ households to contract the disease, recognizing a duty of care to non-employees in this context would impose an intolerable burden on employers and society in contravention of public policy [see Kuciemba v. Victory Woodworks, Inc. (2023) 2023 Cal. LEXIS 3733, § 101.02 n. 9.3].

North Carolina Court Allows “Substantially Certain” Tort Action Against Employer to Move Forward. In a split decision, a panel of the North Carolina Court of Appeals affirmed a trial court’s denial of motions to dismiss filed by an employer and a co-employee who had been sued in tort following the death of a worker in a workplace incident. Applying the state’s Woodson doctrine—which allows an intentional tort action to proceed against an employer that engages in misconduct knowing that it is substantially certain to cause injury or death to employees and an employee is injured or killed by that conduct—the majority of the Court reasoned that the plaintiff had alleged special circumstances. The deceased worker had only been on the job for three weeks. He had not been adequately trained. He had been directed to work in a space underneath a 2,000-lb. tire mold that was suspended from a forklift that had been specially (and inadequately) modified by the employer [see Estate of Stephens v. ADP Totalsource DE IV, Inc., 886 S.E.2d 537 (N.C. App. 2023), § 103.04[2][d] n. 36].

North Carolina Employee’s Tort Action Against Co-Worker May Proceed. In a rare instance allowing an injured worker’s tort action against a co-worker to proceed despite the exclusive remedy provisions of the state workers’ compensation act, a North Carolina appellate court agreed that the facts were particularly egregious. The decedent had been working for less than two months as a groundman for an electrical crew that serviced overhead power lines. Groundmen, unlike linemen, were prohibited from working on poles with energized power lines. The decedent’s supervisor knew about this prohibition, knew that the decedent lacked any training, knew the risk posed by working energized power lines, and yet he instructed the decedent to climb a pole, de-energize the pole, and start retrofitting a transformer. The decedent died during the process; at the time of the accident, his employer had received at least ten prior serious OSHA safety violations after other employees had been killed or injured working on power lines [see Estate of Vaughn v. Pike Elec., LLC, 230 N.C. App. 485, 751 S.E.2d 227 (2013), § 103.04[2][d] n. 39].

California Worker Need Not Show that Injury or Disability Was “Sole Reason” for Termination. The California Court of Appeal reversed a trial court’s grant of summary judgment in favor of the plaintiff’s former employer, holding that there were triable issues of fact related to plaintiff’s claims. The plaintiff fell in a work-related incident and injured her shoulder. The employer contended that it had tentatively planned to terminate the plaintiff before she became disabled as part of a workforce reduction layoff plan and, therefore, that its motive in the discharge was unrelated to her injury and disability. The court of appeal found, however, that the plaintiff pointed to other evidence that the employer did not make its final decision to terminate her employment until after she became disabled. The plaintiff indicated other evidence indicated that the employment termination was in substantial part motivated by the employer’s concerns about her disability. The court held the plaintiff was not required to show that her disability was the sole reason for termination, only that it was a “substantial motivating factor.” The court also found the fact that plaintiff was originally placed on a list for layoff prior to her injury was not decisive with respect to applicant’s disability discrimination claims [see Lin v. Kaiser Foundation Hospitals, 88 Cal. App. 5th 712, 88 Cal. Comp. Cases 415 (2023), §104.07[3] n. 48.2].

Florida Judge of Compensation Claims Lacked Jurisdiction to Vacate an Arbitration Determination. Despite the broad powers given to Florida’s compensation judges, a state appellate court held that a JCC did not have sufficient powers and, therefore, jurisdiction to vacate an arbitration decision [see Sims Crane & Equip. Co. v. Preciado, 351 So. 3d 50 (Fla. 1st DCA 2022), § 124.02[5] n. 20.2].
Denial of Motion to Dismiss on Exclusivity Grounds is Appealable. A North Carolina appellate court held that the denial of a motion to dismiss on exclusivity grounds, while interlocutory, is, nevertheless appealable [see Estate of Baker v. Reinhardt, 2023 N.C. App. LEXIS 240 (May 2, 2023), § 130.02 n. 17].

California Appellate Court Nixes Board’s Practice of Granting Reconsideration “to Allow Further Study.” The Court of Appeal of California (Second Appellate District) issued a writ of mandate requiring the state’s Workers’ Compensation Board to comply with Labor Code section 5908.5 when granting reconsideration and, therefore, to cease its long-standing practice of granting reconsideration “to allow a sufficient opportunity to further study the factual and legal issues” in cases before the Board. Granting, in relevant part, the relief sought by five workers’ compensation claimants, one of whom had been forced to wait 21 months for a final decision by the Board, the appellate court said the Board’s practice of routinely granting reconsideration produced orders that could have been authored “by a rubber stamp.” The appellate court stressed that in granting reconsideration orders, the Board was required to state the evidence relied upon and specify in detail the reasons for its decision [see Earley v. Workers' Comp. Appeals Bd., 2023 Cal. App. LEXIS 586 (Aug. 1, 2023), § 130.08[2][d] n. 44.1].

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