Larson's Spotlight on Exclusive Remedy, Fraud, Forfeiture of Future Disability Rights, and Extraordinary and Unusual. 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.
IN: Wrongful Death Action Claiming that Mother of Injured Worker Died Because of Stresses Related to Carrier's and Case Worker's Alleged Outrageous Handling of Comp Claim Is Barred by Exclusivity
An Indiana appellate court recently reversed a trial court's decision that refused to grant summary judgment to a workers' compensation carrier and a case worker who had been sued by the surviving spouse/personal representative of a woman whose death, claimed the spouse, was caused by their allegedly "extreme and outrageous conduct" in handling a workers' compensation claim related to the couple's adult son. The son suffered serious injuries when he was electrocuted in a work-related accident. He was rendered comatose and his parents were appointed guardians to pursue his workers' compensation claim. The couple contended the carrier and case worker engaged in conduct designed to deny their son of his workers' compensation benefits, that the carrier's and case worker's actions resulted in great stress and strain on the couple, and that the injured son's Mother died as a result of the stress. The appellate court held that the death claim of the mother/wife was derivative of the son's workers' compensation claim and accordingly was barred by the exclusive remedy provisions of the state Act.
See Amerisafe Risk Servs., Inc. v. Wadsack, 2012 Ind. App. LEXIS 560 (Nov. 9, 2012).
See generally Larson's Workers' Compensation Law, § 101.03.
LA: Failure to Disclose Earnings as Umpire at Kid's Baseball Games Does Not Justify Finding of Fraud
A Louisiana appellate court recently agreed with a Workers' Compensation Judge's determination that an injured employee did not commit fraud under La. Rev. Stat. Ann. § 23:1208 by submitting claims forms to his employer that did not mention payments he received for umpiring his children's baseball games. The court noted the judge's finding that the employee had testified credibly that the "work" was a hobby and that the money and physical effort were inconsequential to his workers' compensation claim. The court also observed that served as an umpire in the presence of his supervisor, the same person to whom he submitted the claims forms, belied any devious or fraudulent intent on the injured worker's part.
See St. Landry Parish Gov't v. Rubin, 2012 La. App. LEXIS 1420 (Nov. 7, 2012).
See generally Larson's Workers' Compensation Law, § 39.02.
NY: Failure to Disclose Injury as "Moonlighting" Professional Boxer Causes Claimant to Forfeit Future Disability Rights
A New York workers' compensation claimant, whose day-job was as a porter, but who also had aspirations as a professional boxer, violated the state's workers' compensation fraud statute [Workers' Compensation Law § 114-a] when, following a purportedly work-related injury at his day job, he failed to tell his employer and doctors that he sustained a serious injury to his arm a few days earlier in a boxing match a few days earlier at the Mohegan Sun Casino, held a state appellate court recently. The misrepresentation was sufficient to cause a forfeiture of any future disability benefits. Under the rule in New York, he still qualified for medical benefits, however. For additional discussion, see http://www.workcompwriter.com/new-york-failure-to-disclose-injury-in-professional-boxing-match-causes-forfeiture-of-future-disability-rights/.
See Martinez v. Lefrak City Mngmt., 2012 N.Y. App. Div. LEXIS 7330 (3rd Dept., Nov. 8, 2012).
LA: Police Sergeant's "Foot Chase" of Suspect Was Sufficiently "Extraordinary and Unusual" To Support Cardiac Claim
A number of states require a heightened showing to establish a claim for heart-related or perivascular injury. The Louisiana statute, La.R.S. 23:1021(8)(e), for example, essentially requires the claimant to show, by clear and convincing evidence, that that (i) the physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and (ii) that the physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death. Applying that statute, a Louisiana appellate court recently reversed a judgment dismissing a police sergeant's action seeking workers' compensation benefits for a heart ailment that he contended was caused by his unsuccessful attempt to chase down and apprehend a suspect. The employer contended that because fleeing from the police was a type of resisting arrest and that such activity was not extraordinary and unusual, the sergeant's claim did not meet the requisite standard. The appellate court disagreed, finding that the foot chase "went beyond what was usual, regular or customary in relation to the average employee in that occupation."
See Noe v. Basile Police Dep't, 2012 La. App. LEXIS 1383 (Nov. 7, 2012).
See generally Larson's Workers' Compensation Law, §§ 43.02, 43.03, 44.04.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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