Larson's Spotlight on Willful Misconduct, Intoxication, Agility Test, and Cross-Examination of Physician. 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.
TN: Divided Supreme Court Adopts "Larson" Test for Willful Failure/Refusal to Use Safety Appliance
In a divided opinion, the Supreme Court of Tennessee has reversed an award of workers' compensation benefits to an electric utility lineman who sustained severe injuries when a ground wire that he was holding came into contact with a transformer on an adjacent utility pole. Finding the four-part "Larson" test established "straightforward guidelines for evaluating claims of willful misconduct and the willful failure or refusal to use a safety appliance," the court adopted the Larson Treatise's standard for the instant case and for future cases involving such defenses.
Larson suggests that the elements required to assert successful defenses for willful misconduct, willful disobedience of safety rules, or willful failure to use a safety device should be determined by the same standard: (1) the employee's actual, as opposed to constructive, notice of the rule; (2) the employee's understanding of the danger involved in violating the rule; (3) the employer's bona fide enforcement of the rule; and (4) the employee's lack of a valid excuse for violating the rule.
See Mitchell v Fayetteville Public Utils., 2012 Tenn. LEXIS 300 (May 8, 2012).
See generally Larson's Workers' Compensation Law, §§ 34.01, 35.01.
PA: Light-Duty Worker Terminated for Elevated Level of Blood Alcohol Not Entitled to Continuing Disability Benefits
A Pennsylvania appellate court recently reversed an award of total disability benefits to a worker who, following a work-related injury, was assigned light-duty work and who was subsequently terminated after she reported to work with a blood alcohol level of .108. The court held that her termination was caused by misconduct, not by her injury. The court also indicated that the violation of the employer's substance abuse policy constituted lack of good faith. The WCJ's findings that the claimant did not exhibit intoxicated behaviors did not negate the fact that she was under the influence of alcohol. Not only did the WCJ find that she had a blood alcohol level of.108, but the medical testimony that the WCJ found credible established that she was under the influence of alcohol. Expert testimony that her ingestion of a narcotic pain medication could possibly have caused alcohol to remain in her bloodstream longer than normal was not competent evidence on which the WCJ could base any finding as it was equivocal.
See BJ's Wholesale Club v. Workers' Comp. Appeal Bd. (Pearson), 2012 Pa. Commw. LEXIS 142 (May 10, 2012).
See generally Larson's Workers' Compensation Law, § 84.04.
VA: Injuries Sustained During Agility Test Did Not Arise Out of and In the Course of Employment
In a recent decision not designated for publication, a Virginia appellate court has affirmed the denial of benefits to an employee who served as a night security guard and cleanup person and who sustained injuries in the performance of an agility test to determine, at least in part, if he could qualify for field work with the same employer. While the court indicated that it could not "foreclose the possibility" that an employee injured while undergoing an evaluation for a promotion or alternative position of employment might fall within the scope of the Virginia Workers' Compensation Act, on the particular facts before the court, it held that an employee who sought to obtain a new position of employment with his current employer "on his own initiative and volition," without being required or expected by his employer to seek such a new position, and who was injured while performing a test administered by an undisclosed person or entity, at an undisclosed location, and at a time that might or might not fall within work hours, was not reasonably fulfilling duties of his employment or engaged in doing something incidental thereto.
See Whitt v. Halliburton Energy Servs., Inc., 2012 Va. App. LEXIS 156 (May 15, 2012).
See generally Larson's Workers' Compensation Law, § 27.03.
WI: Department's Refusal to Allow Cross-Examination of Independent Physician Appointed to Examine Employee and Report on Cause of Disability Was Within Its Discretion
The Supreme Court of Wisconsin recently held that an employer had no statutory right to cross-examine an independent physician appointed by the Department of Workforce Development to examine the employee and report on the cause of his disability under Wis. Stat. § 102.17(1)(g) (2009-10). The court indicated that because the Legislature did not specify the right to cross-examination, it appeared the issue was left to the Department's discretion. The Department could allow cross-examination where it might provide relevant and probative evidence. It need not do so, however. Nor did the Labor and Industry Review Commission violate the employer's due process rights when it declined to remand for cross-examination. The court reasoned that the employer was reasonably informed of the employee's claims and it was represented by able counsel. The employer had ample opportunity to present competent evidence about the cause and extent of the employee's disability, and it was represented by competent counsel who made compelling arguments about the force of the evidence adduced by both sides. LIRC reasonably determined that a remand was unnecessary and would serve no useful purpose.
See Aurora Consolidated Health Care v. Labor and Industry Review Commission, 2012 WI 49, 2012 Wisc. LEXIS 344 (May 11, 2012).
See generally Larson's Workers' Compensation Law, § 124.06.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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